421 Mass. 289 | Mass. | 1995
The defendant, Steven J. Adams, was charged by complaint with operating a motor vehicle while
The charges arose as the result of an accident that occurred around 11:30 p.m. on February 14, 1992, when a Chevrolet Corvette automobile driven by Gary Abate collided with a Nissan Sentra automobile on the Lynn Fells Parkway in Saugus. State Trooper James Walsh arrived at the scene about ten minutes after the accident had occurred and conducted an investigation. As a result of his investigation, which included the administration of four field sobriety tests to the defendant, Trooper Walsh concluded that the defendant had been operating the Nissan Sentra while under the influence of intoxicating liquor. At the State police barracks Walsh learned that the defendant’s license to operate had been suspended.
1. The defendant argues that the evidence presented by the Commonwealth was insufficient, as matter of law, to warrant a finding by the jury that he was the operator of the Nissan Sentra involved in the accident. The test governing the required finding issue is the familiar one stated in Common
Trooper Walsh testified that the defendant had told him at the scene of the accident that he had been driving the Nissan Sentra. The admission of operation by the defendant would not be enough to warrant a finding by the jury on the element of operation without some corroborative evidence that he was the driver of the Nissan Sentra. See Commonwealth v. Leonard, 401 Mass. 470, 473 (1988), quoting Commonwealth v. Forde, 392 Mass. 453, 458 (1984) (corroborative evidence needed in an operating while under the influence prosecution to support defendant’s admission of operation to investigating police officers when the issue of operation is contested; that evidence would be “some evidence, besides the [admission] . . . that the crime was real and not imaginary”). See also Commonwealth v. Costello, 411 Mass. 371, 374-375 (1991).
Adequate corroboration was furnished in the form of a statement by the operator of the Corvette, Gary Abate, that the accident had been caused by the manner in which the defendant operated the Nissan Sentra. Abate did not testify, but his identification of the defendant as the operator came in through testimony by Trooper Walsh without objection or limitation and, as a result, was received for its full probative value. See Commonwealth v. Errington, 390 Mass. 875, 881 - 882 (1984). Additional corroboration was provided by testimony which placed both drivers outside of their respective vehicles when Trooper Walsh arrived; in the explanation given by the defendant about how the accident occurred; in the fact that the defendant was asked his driver’s license number at the scene and provided a number which corresponded with the number on the suspension record; and in the failure of bystanders at the accident scene to dispute the operators’ identities when the investigating officer clearly was treating Abate and the defendant as the operators of the two vehicles involved in the accident. The fact that there were
2. There was no evidence that the defendant had the level of his blood alcohol tested. At the conclusion of the evidence, the judge instructed the jury as required by G. L. c. 90, § 24 (1) (e) (1994 ed.).
“When there is no evidence presented at a civil or criminal proceeding of the percentage, by weight, of alcohol in the defendant’s blood, the presiding judge at a trial before a jury shall include in his instructions to the jury a statement of an arresting officer’s responsibilities upon arrest of a person suspected to be operating a motor vehicle under the influence of alcohol and a statement that a blood alcohol test may only be administered with a person’s consent; that a person has a legal right to take or not take such a test; that there may be a number of reasons why a person would or would not take such a test; that there may be a number of reasons why such test was not administered; that there shall be no speculation as to the reason for the absence of the test and no inference can be drawn from the fact that there was no evidence of a blood alcohol test; and that a finding of guilty or not guilty must be based solely on the evidence that was presented in the case.”
What we have said in Commonwealth v. D’Agostino, ante 281 (1995), disposes of this contention. The defendant’s case was tried over two years after Opinion of the Justices, 412 Mass. 1201 (1992), was submitted to the Legislature. In that opinion, the Justices considered proposed legislation which provided that, in a criminal case, a defendant’s refusal to submit to a blood alcohol test could be admitted in evidence. The Justices advised the Senate that the legislation, if enacted, would violate the self-incrimination provision of art. 12. The Zevitas decision, supra at 682-683, makes abundantly clear that its holding is grounded in the earlier analysis provided in the Opinion of the Justices, supra, as to the application of art. 12 to a defendant’s decision to forgo a blood alcohol test. As was said in the Zevitas decision, id. at 683, with respect to the constitutionality of the instruction required by G. L. c. 90, § 24 (1) (e), “the issue in this case for all practical purposes is the same issue that the Justices considered in Opinion of the Justices, supra, and the answer is the same, that is, that § 24 (1) (e) unconstitutionally compels an accused to furnish evidence against himself or herself.” See Commonwealth v. Madigan, 38 Mass. App. Ct. 965, 966 (1995) (“it is apparent from the Zevitas decision, 418 Mass. at 683, that the court regarded its ruling as a simple reaffirmation of the view they had expressed two years
Judgments affirmed.
General Laws c. 90, § 24 (1) (e) (1994 ed.), reads, in pertinent part, as follows:
The failure of the defendant’s trial counsel to object to the instruction does not necessarily mean that trial counsel was unaware of Opinion of the Justices, 412 Mass. 1201 (1992). Trial counsel may have made the tactical decision that the defendant would benefit from a reminder to the jury that they should draw no inference against the defendant based on the absence of evidence of the results of a breathalyzer or blood test. Finally, we note that no argument is made in the defendant’s briefs on appeal that the giving of the instruction created a substantial risk of a miscarriage of justice.