Opinion
11-P-448
03-23-2012
COMMONWEALTH v. JOHN P. WILLIAMS.
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
A jury in the District Court convicted the defendant of operating a motor vehicle while under the influence of alcohol, G. L. c. 90, § 24(1)(a)(1). On appeal, he argues that the judge committed reversible error by (1) refusing to excuse a juror for cause; (2) permitting improper cross-examination of his expert witness; (3) allowing the prosecutor to elicit testimony that the defendant attempted to contact an attorney before taking a breath test; and (4) admitting two breath test readings in evidence. We affirm.
The Commonwealth proceeded under both theories of statutory liability -- impaired operation and operating with a blood alcohol content of . 08 or greater. The jury found the defendant not guilty on the theory of impaired operation and guilty on the theory of a per se violation. In a subsequent bench trial, the defendant was found guilty of that portion of the charge that alleged a fourth offense.
Background. The issue at trial was whether the defendant was under the influence of alcohol when he was stopped by a Southampton police officer around 1:00 A. M. on October 11, 2008. The defendant was driving at a slow rate of speed (twenty-nine miles per hour in a forty mile per hour zone), and was hugging the center line which he crossed over once. Upon approaching the vehicle, the officer noticed that the defendant's eyes were glassy and bloodshot. He also detected the smell of alcohol. When asked, the defendant admitted that he had been drinking. The officer then asked the defendant to perform a number of field sobriety tests. Dissatisfied with the defendant's overall performance, the officer placed him under arrest and transported him to the police station where a breathalyzer test was performed. Two breath samples reading .09 and .10 were recorded. At trial, the theory of defense was that even though the defendant had been drinking, his ability to drive was not impaired. To this end, he presented expert testimony challenging the reliability of field sobriety tests and the breathalyzer test results.
1. Refusal to excuse a juror for cause. The defendant argues that the judge abused his discretion by declining the defendant's request to remove a juror, identified on the record as juror 20, for cause. On the confidential juror questionnaire the juror disclosed that her brother's son had been killed by a drunk driver. The judge called the juror to sidebar and questioned her about the 'tragedy.' After clarifying that the case at bar did not involve any injuries, the juror told the judge that the experience 'probably' would not affect her. The judge expressed his concern over the juror's use of the word 'probably,' and continued the inquiry. He specifically asked the juror whether she could follow the court's instructions and apply them to the facts as found by the jury. The juror responded affirmatively, after which the judge determined that she stood indifferent.
The juror was questioned at sidebar upon the motion of defense counsel to strike the juror for cause. She had not answered affirmatively to any of the collective questions posed to the venire regarding the ability to remain impartial and unbiased.
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We conclude that the judge dispelled any concerns about the juror's bias through his followup questions. In claiming otherwise, the defendant places too much emphasis on the juror's use of the word 'probably.' See Commonwealth v. Jamie J., 56 Mass. App. Ct. 268, 273-274 (2002) ('A potential juror's use of seemingly equivocal language, such as the word 'probably,' is not determinative of the juror's ability to be impartial'). Here, the judge immediately recognized the potential for uncertainty and then asked probing questions to clarify the juror's position. 'When a trial judge -- who is in a much better position than an appellate court to evaluate a prospective juror's ability to be impartial -- has examined a juror for possible bias and declared her indifferent, appellate court's defer to the judge's discretion 'unless juror prejudice is manifest." Id. at 272, quoting from Commonwealth v. Seabrooks, 433 Mass. 439, 443 (2001). No such prejudice was manifest here, and, thus, we defer to the trial judge's determination.
2. Cross-examination of the defendant's expert witness. As indicated, the defendant presented testimony from an expert on the reliability of field sobriety and breath tests. As pertinent here, the expert testified that the breathalyzer machine used in this case was not reliable. On cross-examination, over objection, the prosecutor asked the expert about her knowledge of a decision of the New Jersey Supreme Court in which that court concluded that the machine in question was reliable.
We discern no error, let alone prejudicial error. Given the expert's explicit testimony about the reliability (or lack thereof) of the breath test machine used in this case, there was nothing improper about asking the expert whether she knew what the New Jersey Supreme Court had said about the very same machine. For the same reason we conclude that the prosecutor's fleeting remark -- to which there was no objection -- about the New Jersey decision in closing argument did not create a substantial risk of a miscarriage of justice.
3. Defendant's attempt to contact an attorney. As the Commonwealth correctly concedes, the prosecutor improperly elicited evidence from the arresting officer that the defendant attempted to call a lawyer before taking a breath test. The defendant did not object, and therefore the standard of review is whether the error created a substantial risk of a miscarriage of justice.
We conclude that the error was harmless. There is no evidence or suggestion that the prosecutor elicited the evidence for an improper purpose such as asking the jury to infer consciousness of guilt. See Commonwealth v. Nolin, 448 Mass. 207, 222 (2007). Thus, we agree with the Commonwealth that although the admission of this evidence was error, a new trial is not required.
4. Evidence of two breath test results. Shortly after the trial concluded, the Supreme Judicial Court ruled that when prosecuting an individual for operating a motor vehicle under the influence of intoxicating liquor, the Commonwealth is entitled to introduce only the lower of the two blood alcohol content results produced by the breath testing procedure. Commonwealth v. Steele, 455 Mass. 209 (2009). The Commonwealth concedes that even though the judge did not have the benefit of the Steele decision, the admission of both test results in evidence was error. The Commonwealth points out, however, that there was no objection and contends that the error did not create a substantial risk of a miscarriage of justice.
We agree with the Commonwealth. As we reasoned in a recent case in which a similar claim was made, the properly admitted reading of .09, by itself, permitted the jury to conclude that the defendant had a blood alcohol level that was above the legal limit. See Commonwealth v. Rumery, 78 Mass. App. Ct. 685, 688 (2011). Thus, we conclude that the admission of the higher breath test reading did not create a substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Vuono, Brown & Smith, JJ.),