419 Mass. 774 | Mass. | 1995
The defendant appeals from his convictions of several motor vehicle offenses and the denial of his motion
The defendant was charged with operating under the influence of intoxicating liquor and operating a motor vehicle negligently so as to endanger in violation of G. L. c. 90, § 24 (1990 ed.), operating a motor vehicle without a license in violation of G. L. c. 90, § 10 (1992 ed.), and a civil marked lanes infraction in violation of G. L. c. 89, § 4A (1992 ed.). On the first day of trial, the defendant filed a motion in limine to prohibit the Commonwealth from introducing evidence that the defendant refused to perform a field sobriety test at the scene of the arrest. After the defendant’s motion was denied, the defendant was tried before a jury of six in the Framingham District Court and was found guilty of operating under the influence of intoxicating liquor, and operating to endanger. He was found “responsible” as to the civil marked lanes violation.
1. Statement of the facts. From the evidence presented the jury could have found the following facts. On March 5, 1991, at 12:30 a.m., a Framingham police officer observed a pickup truck turning onto Concord Street from School Street in Framingham. Concord Street is a two-lane road that is paved and well maintained. The officer saw the truck make a wide turn into the northbound lane of Concord Street while continuing to travel southbound. The truck then turned left onto A Street and pulled into a Mobil gasoline station located at the corner of A and Concord Streets.
When the officer approached the truck, he asked the only occupant, the defendant, to produce his driver’s license and registration.
When the defendant finally approached the curb at the rear of the truck, the officer asked the defendant to perform some field sobriety tests. The officer gave the defendant instructions as to how each test was to be performed and also explained the purpose of each test. The defendant stated that “[he was] not going to do any tests.” Based on his observations, the officer formed the opinion that the defendant was highly intoxicated and placed him under arrest. Pursuant to police procedures, the officer then performed an inventory
The officer then brought the defendant to the police station. At the station the booking officer indicated that the defendant had trouble responding to the questions being asked. More specifically, the defendant had trouble spelling his last name and it took him several tries before he was able to recite his home telephone number correctly. The booking officer also indicated that the defendant slurred his speech when responding to questions.
2. Refusal evidence. The defendant argues that his right against self-incrimination under art. 12 of the Massachusetts Declaration of Rights was violated when the judge admitted evidence of his refusal to submit to field sobriety tests.
We begin our analysis by examining whether the evidence of the defendant’s refusal is testimonial or real. Ordinarily, a prosecutor wants to admit evidence that the defendant refused to take a field sobriety test so that the jury may infer that it is the equivalent of his statement, “I have had so much to drink that I know or at least suspect that I am unable to pass the test.” Opinion of the Justices, supra at 1209. Such refusal evidence, therefore, would be relevant to show that the defendant believed that the test results would tend to incriminate him. Because the refusal, in essence, constitutes testimony concerning the defendant’s belief on a central issue to the case, we conclude that the evidence of the defendant’s refusal to submit to a field sobriety test constitutes testimonial or communicative evidence. See Opinion of the Justices, supra (evidence of defendant’s refusal to take breathalyzer test is testimonial evidence); Commonwealth v. Brennan, supra at 777 (“testimonial evidence” reveals a person’s knowledge or thoughts concerning some fact). This brings us to the issue of whether evidence of refusal can also be said to be compelled.
The Justices recently considered the constitutionality of a proposed law making evidence of a person’s refusal to take a breathalyzer test admissible in a criminal trial.
The Justices disagreed with this reasoning, concluding instead that statutes that allow for the admission of refusal evidence compel the accused “to choose between two alternatives, both of which are capable of producing evidence against him. [Such statutes], therefore, [use] the threat of adverse testimonial evidence as a coercive tool to compel submission to a breathalyzer test. The accused is thus placed in a ‘Catch-22’ situation: take the test and perhaps produce potentially incriminating real evidence; refuse and have adverse testimonial evidence used against him at trial.” Opinion of the Justices, supra at 1211. The Justices therefore advised the Legislature that the proposed statute would be unconstitutional under art. 12 because it would compel a defendant to furnish evidence against himself. Id. See Commonwealth v. Lydon, 413 Mass. 309, 313-315 (1992) (erroneous to admit evidence of defendant’s refusal to have hands swabbed for gun powder residue because use violated defendant’s privilege against self-incrimination secured by art. 12).
We see very little difference between evidence of refusal to take a breathalyzer test and refusal to take a field sobriety test.
3. Retroactivity. Before briefs had been filed in this case, and prior to oral argument, our opinion in Commonwealth v. Zevitas, 418 Mass. 677 (1994), was released. There we concluded that the instruction mandated by G. L. c. 90, § 24 (1) (e), violated the self-incrimination provisions of art. 12.
The defendant argues on appeal that it was error for the judge to give that mandated instruction concerning the lack of evidence of a breathalyzer test. Since we reverse the defendant’s convictions on other grounds, we need not address the question whether the Zevitas holding should be applied retroactively to the facts of the instant case. However, we observe that, where evidence of the defendant’s refusal to take a field sobriety test had been introduced, the mandated instruction enhanced the likelihood that the jury would draw
The Commonwealth argues that Zevitas established a new rule not clearly foreshadowed by prior precedents and, therefore, it should not be applied retroactively. Commonwealth v. Breese, 389 Mass. 540, 541-543 (1983). The Commonwealth also contends that the issue is not before us because the defendant failed to object to the charge on that basis. Generally, new constitutionally based rules will be applied to all cases pending on direct appeal as to which the issue was preserved below. Commonwealth v. Figueroa, 413 Mass. 193, 202-203 (1992), and cases cited. Because it does not appear that the issue decided by Zevitas was raised below, and because if applied it would not affect the outcome of this case, we decline to reach the question.
For the foregoing reasons, we hold that both of the defendant’s convictions should be reversed and the case should be remanded to the jury session of the Framingham District Court for a new trial.
So ordered.
In October, 1992, a single justice of this court stayed the execution of the defendant’s sentence pending his appeals.
The back of the defendant’s truck contained three big logs, about sixteen inches long and two feet in diameter. The defendant stated that the logs had become loose, prompting him to make the wide turn. The defendant stated that he pulled into the Mobil station to secure the logs and then changed his mind.
The defendant stated that he neither saw the cruiser’s lights nor heard the cruiser’s siren until halfway down Lowther Road, and that he did not pull over until the end of Lowther Road because he did not want to disturb any of the residences. He also indicated that he was swerving so as to avoid the numerous parked cars on Lowther Road.
From the time that the truck was stopped until the time the defendant was taken to the police station for booking purposes, three more cruisers arrived at the scene.
The defendant has not raised any arguments under the Fifth Amendment to the United States Constitution.
Article 12 of the Massachusetts Declaration of Rights states in pertinent part: “No subject shall be held to answer for any crimes or offence, until the same is fully and plainly, substantially and formally, described to him; or be compelled to accuse, or furnish evidence against himself.”
Field sobriety tests are dexterity tests. Therefore, because the test results are based on the subject’s loss of coordination, rather than his subjective knowledge of the crime, the test results constitute real or physical evidence. Commonwealth v. Brennan, 386 Mass. 772, 779, 783 (1982).
The language of the proposed statute stated in pertinent part: “Evidence that the defendant failed or refused to consent to [a breathalyzer] test or analysis shall not be admissible in a civil proceeding, but shall be admissible in a criminal proceeding . . . Opinion of the Justices, 412 Mass. 1201, 1202 (1992).
The Commonwealth contends that the officer’s request that the defendant perform a field sobriety test was merely part of a threshold inquiry during a routine traffic stop, and therefore, there was no indicia of compulsion implicit in the situation. Terry v. Ohio, 392 U.S. 1, 29 (1968). While we acknowledge that police officers are permitted to make limited inquiries as part of a Terry-type stop to obtain information confirming or dispelling the officers’ suspicions, we do not agree that that principle determines the outcome of this case.