Opinion
19-P-1719
07-01-2021
COMMONWEALTH v. Ryan F. ANDERSON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his conviction of operating under the influence of liquor (OUI), in violation of G. L. c. 90, § 24 (1) (a ) (1), arguing that evidence of his refusal to take a field sobriety test was improperly admitted. He argues it was error to deny his motion in limine seeking to exclude evidence of his refusal to perform a field sobriety test after he initially agreed to perform such a test. Because refusal evidence was improperly admitted at trial and such error was not harmless beyond a reasonable doubt, we vacate the judgment and set aside the verdict.
A charge of driving with a suspended license was dismissed for lack of prosecution. The defendant also was found responsible for two civil motor vehicle infractions: failure to stop or yield and traveling the wrong way on a public road. He was found not responsible for a red or blue light violation.
Background. Prior to trial, the defendant filed a motion in limine to "[e]xclude [r]eference to [w]alk and [t]urn [t]est [r]efusal" supported by the police report. At the hearing on the motion in limine, defense counsel argued that the police report "indicates my client was shaking his head kind of refusing to complete the test. So I ask for that to be excluded...." The judge reviewed the police report and asked "did he agree to take the test, or not?" Defense counsel reiterated that once the trooper put the defendant in the starting position for the walk and turn test, "all of a sudden he just shakes his head and is refusing to comply, and then he's ultimately detained. So from my perspective that seems more like refusal to participate." The prosecutor read an earlier portion of the police report stating that the defendant agreed to perform field sobriety tests. The judge ruled that "since [the defendant] agreed, then this [motion] is denied."
The defendant's motion was ruled on twice because on the original trial date, insufficient jurors were available and trial was postponed. On the next trial date, a different judge again denied the motion.
At trial, the trooper (who was the sole witness) testified that the defendant initially agreed to take the "walk and turn" test. The trooper also testified that "when I placed [the defendant] in the instructional position he couldn't maintain it. He was stumbling around. And then he realized -- he -- I don't know what he was saying but he was like I can't, I'm not doing this, and he was walking around and pacing around." The trooper asked the defendant to stay in place, "but he was just kind of incoherent and stumbling around, not -- he wasn't -- didn't wanna take part in the test it seemed." On cross-examination, the trooper agreed that while the defendant was "walking around he was shaking his head," and that he was saying "I don't wanna do this, and there was a bunch of I'm not gonna do this, I can't do this, and stuff like that."
At the close of evidence, the defendant orally moved for a required finding of not guilty, arguing that there was insufficient evidence of diminished capacity due to alcohol. In opposition, the prosecutor pointed to -- among other evidence -- that the defendant was unable to perform the field sobriety tests. Although the transcript contains many gaps (which the defendant has not attempted to reconstruct), it appears that defense counsel responded by once again arguing that the defendant was in fact refusing to take part in the test, rather than that he was unable to participate in it. Although this portion of the transcript also suffers from gaps, it appears that the judge noted that the evidence was conflicting in that the trooper also testified that the defendant said that he couldn't perform the test, and denied the motion for required finding of not guilty.
The transcript reflects (likely mistakenly), that defense counsel said the defendant "wasn't in fact" (rather than "was in fact") refusing.
Discussion. The defendant contends that the judge erred in admitting evidence that he refused field sobriety testing. The refusal to take a field sobriety test is generally inadmissible evidence because, "the refusal, in essence, constitutes testimony concerning the defendant's belief on a central issue to the case" and therefore violates the defendant's privilege against self-incrimination under art. 12 of the Massachusetts Declaration of Rights. Commonwealth v. McGrail, 419 Mass. 774, 778 (1995), overruled in part on other grounds by Commonwealth v. Blais, 428 Mass. 294, 299 n.3 (1998).
After a person has consented to a field sobriety test, however, "his physical actions in performing the test are not testimonial and may be the subject of testimony at trial." Commonwealth v. Brown, 83 Mass. App. Ct. 772, 778 (2013). The defendant's "expressions of difficulty or inability to perform or to complete [testing] ... are [also] not the products of compulsion and thus are admissible." Id. at 778-779. While expressions of difficulty are therefore admissible, a defendant can withdraw his initial consent to perform sobriety testing, with that refusal being inadmissible. See Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 61 (1998).
Although we agree that the defendant's motion in limine was sufficient to preserve his claim for appellate review, see Commonwealth v. Grady, 474 Mass. 715, 719 (2016), we are less certain that the manner in which the motion was presented gave the trial judge a fair opportunity to consider the claim properly. Defense counsel never squarely presented the issue as one of withdrawn consent. Even after a prior judge had denied the motion based on anticipated testimony that the defendant agreed to do the tests, defense counsel did not clearly convey to the judge, either by argument or caselaw, her position of withdrawn consent.
First, the motion in limine was not supported by affidavit, as required of pretrial motions pursuant to Mass. R. Crim. P. 13 (a), as appearing in 442 Mass. 1516 (2004). It could well be that counsel determined that the factual underpinning for the motion was sufficiently laid out in the police report. However, when the judge questioned whether the defendant refused, even after reviewing the police report, counsel should have been alerted to the need for an evidentiary hearing to resolve the issue. Not only did counsel fail to press for voir dire, she framed her request for exclusion as if the determination were to be made after the evidence was admitted at trial, only "if the evidence does come in as more of a refusal." Under the circumstances, it is difficult to say that defense counsel's argument, supported by the few facts extracted from the police report, clearly conveyed to the judge the defendant's position of withdrawn consent. See Brown, 83 Mass. App. Ct. at 778-779.
In relevant part, rule 13 (a) (2) states:
"A pretrial motion shall state the grounds on which it is based and shall include in separately numbered paragraphs all reasons, defenses, or objections then available, which shall be set forth with particularity.... In addition, an affidavit detailing all facts relied upon in support of the motion and signed by a person with personal knowledge of the factual basis of the motion shall be attached."
Mass. R. Crim. P. 13 (a) (2).
The full excerpt on which the defendant relied read:
"I placed [the defendant] in the starting position and began to explain the Walk and Turn Test. [The defendant] could not stay in the starting position and began to shake his head and stop listening to my instruction[s]. I asked [the defendant] to go back to the starting position and [he] started stumbling around the area shaking his head. At one point during me attempting to stop [the defendant] from stumbling around, [the defendant] squared up towards Trooper Brozowski, raised his shoulders and arms while clenching his fists. Trooper [Brozowski], anticipating [the defendant] could become violent, had to physically restrain him for officer safety. I decided that [the defendant] could not listen to or adhere to my instructions and could not maintain his balance."
In any event, as trial progressed, the precise issue came into sharper focus. At the conclusion of evidence, defense counsel moved for a required finding of not guilty, and in the process, renewed her argument regarding the refusal evidence -- now based on the more detailed (and nuanced) trial testimony of the trooper. The judge implicitly resolved against the defendant the conflicting evidence bearing on whether he rescinded his consent to take the test or merely expressed difficulty with or inability to perform it. See Brown, 83 Mass. App. Ct. at 778 n.7 ("A refusal to take the test is no less a protected refusal simply because the defendant initially agreed to take the test but then before attempting it declined to perform").
Where, as here "the ultimate findings and rulings bear on issues of constitutional dimension[,] [o]ur appellate function requires that we make our own independent determination on the correctness of the judge's ‘application of constitutional principles to the facts as found.’ " Grenier, 45 Mass. App. Ct. at 61, quoting Commonwealth v. Haas, 373 Mass. 545, 550 (1977). The trooper testified that the defendant initially agreed to participate in the field sobriety tests. However, when the trooper attempted to put the defendant in position for the first test, the defendant "couldn't maintain" the starting position for the test and the trooper "[did not] know what [the defendant] was saying but he was like I can't, I'm not doing this, and he was walking around and pacing around.... he wasn't -- didn't wanna take part in the test it seemed." Cross-examination resulted in similar testimony, that the defendant said, "I don't wanna do this, and there was a bunch of I'm not gonna do this, I can't do this, and stuff like that."
We conclude that the defendant's statements, together with his expressions of physical resistance to the tests, were the equivalent of a refusal to continue with the testing. See Grenier, 45 Mass. App. Ct. at 61 (statements "were the equivalent of a refusal"). See also Commonwealth v. Clarke, 461 Mass. 336, 343 (2012) ("suspect's nonverbal expressive conduct can suffice to invoke the right to remain silent"). The defendant told the trooper that he did not want to take part in the test and walked away while shaking his head. While the trooper testified that the defendant also said he "can't do this," this statement was surrounded by statements of unequivocal refusal and physical actions of refusal. Thus, evidence of the defendant's refusal to perform the test was improperly admitted.
Because it was error to admit the defendant's refusal to continue the test, we consider whether that error was harmless beyond a reasonable doubt. Commonwealth v. Bohigian, 486 Mass. 209, 219 (2020), citing Grady, 474 Mass. at 718-719. "That is, the Commonwealth must show that any error did not influence the jury, or had but very slight effect" (quotation omitted). Commonwealth v. Dargon, 457 Mass. 387, 399 (2010). While there was sufficient evidence for the jury to convict the defendant of OUI, we are not persuaded that the admission of the refusal evidence was harmless beyond a reasonable doubt. See Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 373 (2006) ("admission of the refusal evidence, even with its ambiguity, could have tipped the scales" where judge did not deal with refusal evidence in instructions and "evidence of his impairment by alcohol, while persuasive, was not overwhelming").
Conclusion. The judgment is vacated and the verdict is set aside. The case is remanded to the Boston Municipal Court, where, at any retrial, the Commonwealth may not introduce any evidence that the defendant withdrew his consent to perform a field sobriety test. See McGrail, 419 Mass. at 780 (refusal evidence should not be admitted since its use violates the defendant's privilege against self-incrimination).
So ordered.
vacated and remanded