As was said in the Zevitas decision, id. at 683, with respect to the constitutionality of the instruction required by G.L.c. 90, § 24 (1) ( e), "the issue in this case for all practical purposes is the same issue that the Justices considered in Opinion of the Justices, supra, and the answer is the same, that is, that § 24 (1) ( e) unconstitutionally compels an accused to furnish evidence against himself or herself." See Commonwealth v. Madigan, 38 Mass. App. Ct. 965, 966 (1995) ("it is apparent from the Zevitas decision, 418 Mass. at 683, that the court regarded its ruling as a simple reaffirmation of the view they had expressed two years earlier [in Opinion of the Justices]"). We reject the defendant's arguments that Opinion of the Justices should not be considered as an appropriate or clear expression of the law for purposes of deciding whether the ruling in the Zevitas decision had been sufficiently foreshadowed so as to require his trial counsel to make an objection.

July 10, 1995Further appellate review denied: Reported below: 38 Mass. App. Ct. 965 (1995).

Contrast Commonwealth v. Seymour, 39 Mass. App. Ct. 672, 677-678 (1996) (prosecutor referred to breathalyzer evidence in closing). The testimony was not underscored by a curative instruction, see Commonwealth v. Madigan, 38 Mass. App. Ct. 965, 966 (1995); instead, the judge separately instructed the jury to put any reference to a breathalyzer test "completely out of your mind." "Presumably, the jury understood and followed this instruction."