38 Mass. App. Ct. 206 | Mass. App. Ct. | 1995
The defendant was found guilty by a District Court jury of the charge of operating a motor vehicle while under the influence of intoxicating liquor in violation of G. L. c. 90, § 24. The defendant alleges error in (1) the admission of statements he made to police in the course of the roadside stop, and (2) the judge’s instruction to the jury pursuant to G. L. c. 90, § 24(l)(e), concerning the absence of blood alcohol evidence. We decide that the instruction constituted reversible error in this case.
We summarize the pertinent evidence adduced at trial. The two arresting police officers testified that they had observed the defendant at the scene. Through them evidence was presented that the defendant was unsteady on his feet, his eyes were “glossy” [sfc] and “watery,” his breath had a strong odor of alcohol, and his speech was slurred. The officers described the defendant as verbally abusive and belligerent. Each of the police officers testified that he formed an opinion, at the time of arrest, that the defendant was under the influence of alcohol. An emergency medical technician who observed the defendant at the police station in response to his request for medical treatment likewise testified that he formed the opinion that the defendant was intoxicated at the time of his arrest.
The police officers were also permitted to testify to statements made by the defendant during the roadside stop.
2. The erroneous instruction. The defendant contends that the judge violated his privilege against self-incrimination contained in art. 12 of the Massachusetts Declaration of Rights by instructing the jury as mandated by G. L. c. 90, § 24(l)(e). The Commonwealth argues the instruction was not a violation of art. 12; but if so, any error did not create a substantial risk of a miscarriage of justice under the circumstances, the standard it asserts applies. We hold that Commonwealth v. Zevitas, 418 Mass. 677 (1994), controls the present case in all respects and requires us to find reversible error.
Judgment reversed.
Verdict set aside.
The defendant filed a motion to suppress certain statements on the ground that he was deprived of Miranda warnings. After a hearing, the judge denied the motion in an oral order.
The officer testified at the suppression hearing that the defendant was still in his automobile when he posed the question of the defendant’s previous whereabouts. He further testified that the time between the initial stop and the question to the defendant was “very short” and “much less” than a couple of minutes.
We do not require “lawyers to be clairvoyant and to object to instructions not yet identified as constitutional error.” Commonwealth v. Repoza, 400 Mass. 516, 520 (1987). The defendant’s trial in the present case was held on March 19 and 20, 1992. The Opinion of the Justices, supra, submitted to the Senate on May 12, 1992, was the first indication that any statement regarding the lack of blood alcohol evidence violated art. 12. The defendant relied on this opinion in attacking the instruction in his initial brief filed in April, 1994. The Zevitas decision was not issued until September 23, 1994.