Opinion
10-P-2030
02-16-2012
COMMONWEALTH v. STEPHEN DOUGLAS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24, and operating with a suspended license, G. L. c. 90, § 23. The defendant pleaded guilty to the subsequent offense portion of the OUI charge (fifth offense). The defendant appeals from his convictions, arguing that the Commonwealth improperly elicited testimony regarding the defendant's postarrest refusal to answer questions and his request to speak with his lawyer. We affirm the conviction of operating with a suspended license and reverse the OUI conviction.
The defendant also appeals from the denial of his second motion for a new trial. We find no error in the denial of the motion.
1. Factual background. On the evening of October 15, 2004, Officer Bielecki was patrolling the southbound lanes of Interstate 495 in Littleton when he observed a truck being driven by the defendant swerving and traveling at a high rate of speed. Bielecki pulled the defendant over and observed that the defendant had failed fully to move off the way, leaving the left tires of his truck on the fog line. This required Bielecki to approach on the passenger's side, where he observed three individuals seated on the truck's bench style front seat. Bielecki knocked on the window until the passenger opened it, at which time Bielecki detected an overwhelming odor of alcohol. The defendant and both passengers smelled of alcohol and appeared to be intoxicated.
Bielecki asked the defendant for his license. The defendant stared back blankly, then, patting his body all over, told Bielecki that his license had been suspended. The defendant denied having had anything to drink. However, when told to step out of the truck, the defendant was very unsteady and had difficulty maintaining his balance. At one point, the defendant fell against the side of the cruiser and almost fell over the guardrail. Bielecki was required to steady him. The defendant denied having any open containers in the truck. However, a search of the truck revealed an open and cold beer can wedged between the passenger seat and the door and two more open beer cans behind the driver's seat, both within arm's reach of the defendant and the center passenger.
The defendant was arrested. During the booking process, the defendant became uncooperative and confrontational, stating that he would not provide biographical information until his lawyer arrived. At this point, Bielecki ended the booking process and moved the defendant to a holding cell. Before placing him in the cell, the officers asked the defendant to take off his shoes, which prompted the defendant to stand up aggressively and reply, 'You take them off.' The officers then removed the defendant's shoes and placed him in the cell where he spent the night. The next morning, the defendant was cooperative and completed the booking process without incident.
2. Trial evidence concerning defendant's refusal to answer booking questions. During the Commonwealth's case-in-chief, testimony was elicited from Officer Bielecki regarding the defendant's refusal to answer questions during the booking process including the defendant's statement that he was, 'not going do anything until [his] attorney gets here.' As defense counsel did not object to this testimony, we review to determine whether the introduction of this testimony gave rise to a substantial risk of a miscarriage of justice. 'A substantial risk of a miscarriage of justice exists if we have a serious doubt whether the result of the trial might have been different had the error not been made.' Commonwealth v. Ewing, 67 Mass. App. Ct. 531, 544 (2006), S. C., 449 Mass. 1035 (2007).
The substantial risk of a miscarriage of justice standard was applied to similar facts in Commonwealth v. Gonsalves, 74 Mass. App. Ct. 910 (2009). Indeed, this case is controlled in material respects by Gonsalves. In that case, during the direct examinations at trial of two State troopers, the prosecutor elicited testimony regarding the defendant's refusal to answer booking questions, including that the defendant, 'wasn't going to answer any questions until he talked to a lawyer.' Id. at 910.
In reversing the defendant's conviction in Gonsalves, this court wrote as follows:
'A defendant's postarrest silence in response to police questioning may not be used against him. Commonwealth v. Andujar, 57 Mass. App. Ct. 529, 536 (2003). The fact that the defendant's silence was in connection with booking questions makes no difference. See, e.g., Commonwealth v. Adams, 434 Mass. 805, 811-812 (2001) (introduction of defendant's refusal to answer booking questions, among other references to his silence, 'would be impermissible . . . as evidence of guilt'); Commonwealth v. Ayre, 31 Mass. App. Ct. 17, 23 (1991) (testimony and closing statement directly referencing defendant's refusal to cooperate during booking was 'improper'); Commonwealth v. Wei H. Ye, 52 Mass. App. Ct. 390, 396 (2001) (testimony regarding defendant's refusal to answer booking questions ' raised constitutional issues that were avoidable'). While booking questions are ordinarily not designed to elicit incriminating answers and are necessary for the commencement of the bail process . . . a defendant's refusal to answer a booking question is no less ambiguous than a failure to give an exculpatory explanation.'Id. at 911.
The Commonwealth argues that the testimony concerning the defendant's refusal to answer booking questions was elicited to create the impression that the defendant was acting unreasonably or belligerently, which would, effectively, support a finding of intoxication. The same argument was advanced by the government, but not accepted, in Gonsalves, 74 Mass. App. Ct. at 910- 911.
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Although the conviction in Gonsalves was reversed on the basis of combined errors (the erroneous admission of evidence of both the defendant's postarrest silence and of the defendant's prior OUI convictions at the jury trial), as the language quoted from Gonsalves indicates, the error in admitting evidence of postarrest silence is a significant one.
Furthermore, in this case, several of the prosecutor's comments in closing argument were particularly problematic. In seeking to discredit the defendant's version of events, the prosecutor argued, 'I've never heard a word about it until the defendant took the stand.' The implication of the prosecutor's argument is that if the defendant's version of events was credible, he would have spoken out earlier. As the defendant has no such duty, the comment was error. See Commonwealth v. Ewing, 67 Mass. App. Ct. at 544.
Additionally, the prosecutor stated that, 'He then gets taken to booking, and for whatever reasons, the defendant felt he didn't have to answer questions. The police told him on more than one occasion that once he got through certain booking information, he could then do X, Y, and Z. He was unable or unwilling to cooperate with the officers.' This argument constituted a comment on the defendant's right to remain silent, which was erroneous. These missteps, in conjunction with the language of Gonsalves, constrain us to reverse the defendant's conviction of OUI (fifth offense).
Because the defendant never denied that he was driving and did not contend that he had a license, there is no similar substantial risk of a miscarriage of justice with respect to the remaining conviction of driving with a suspended license, and we affirm that conviction.
The order denying the second motion for new trial is affirmed. On the indictment charging operating a motor vehicle while under the influence of intoxicating liquor (fifth offense), the judgment is reversed, and the verdict and finding are set aside. The remaining judgment is affirmed.
By the Court (Berry, Trainor & Hanlon, JJ.),