Opinion
16-P-1052
07-12-2017
COMMONWEALTH v. Jonathan P. NEWTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was found guilty of operating a motor vehicle while under the influence of intoxicating liquor, fourth offense. Based on the evidence presented at trial, the jury could have found as follows. At around 9:00 P.M. on June 22, 2015, the defendant drove his vehicle into parked vehicles on both sides of Ocean Street in the city of Lynn. When police officers arrived at the scene, they observed that the defendant's eyes were red and glassy, his speech was slurred, and he smelled of alcohol. The defendant was unsteady on his feet and one of the officers opined that he was "extremely drunk." He was transported to the police station where Sergeant Thomas McDermott explained to the defendant his "statutory rights." McDermott used a preprinted form to facilitate the process. After McDermott "explained everything," he asked the defendant to sign the form. Over the defendant's objection, McDermott was permitted to testify that the defendant refused to sign the "rights form." McDermott also opined that the defendant was "drunk."
The defendant filed a pretrial motion in limine in which he sought to preclude McDermott from testifying that the defendant refused to sign the form. The judge ruled that McDermott could testify that the defendant refused to sign the form, but any reference to the breathalyzer test would be excluded. McDermott testified in accordance with the judge's ruling, and the issue was preserved by the defendant's contemporaneous objection.
The sole issue on appeal concerns McDermott's testimony regarding the defendant's refusal to sign the form. The defendant argues that McDermott's testimony violated his right against self-incrimination because the form itself specifies, among other things, the consequences of refusing to take a breathalyzer test and indicates whether the defendant consented or refused. See Opinion of the Justices, 412 Mass. 1201, 1211 (1992). See also G. L. c. 90, § 24(1)(e ). The thrust of the defendant's argument is that the jury, in their common experience, would know that the form includes an explanation of the right to refuse a breathalyzer test. Thus, although the form itself was not admitted in evidence, the defendant contends the jury could have inferred from McDermott's testimony about the form that the defendant refused to consent to a breathalyzer test.
We are not persuaded. There was no testimony regarding the information on the form, and the form itself was neither marked as an exhibit nor admitted in evidence. Moreover, the jury were specifically instructed not "to engage in any guess work about any unanswered questions that remain in [their] mind[s]" and to "confine [their] deliberations to the evidence and nothing but the evidence." We presume that the jurors followed these instructions, Commonwealth v. Gonzalez, 465 Mass. 672, 681 (2013), and did not speculate as to the contents of the form or whether the defendant's refusal to sign the form meant that he refused to consent to a breathalyzer test. There is no basis to conclude that McDermott inappropriately commented on the defendant's refusal to consent to a breathalyzer test.
Although McDermott's testimony regarding the defendant's refusal to sign was only marginally relevant, it was admitted for a proper purpose; namely, to show the defendant's intoxicated demeanor. See Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 506-507 (2011). There was no error.
The Commonwealth so conceded at oral argument.
The defendant did not request a contemporaneous limiting instruction, and he did not request a final instruction as to the limited use of the testimony.
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Judgment affirmed.