NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557- 1030; SJCReporter@sjc.state.ma.us.
22-P-551 Appeals Court
COMMONWEALTH vs. WADE C. DEROSIER.
No. 22-P-551.
Middlesex. April 6, 2023. - October 27, 2023.
Present: Rubin, Shin, & Englander, JJ.1
Motor Vehicle, Operating under the influence. Alcoholic Liquors, Motor vehicle. Evidence, Breathalyzer test, Videotape. Practice, Criminal, Instructions to jury.
Complaint received and sworn to in the Lowell Division of the District Court Department on July 16, 2019.
The case was tried before Stacey J. Fortes-White, J.
Andrew Courossi for the defendant. Chia Chi Lee, Assistant District Attorney, for the Commonwealth.
1 This case was originally heard by a panel comprised of Justices Rubin, Englander, and Brennan. After Justice Brennan recused himself, the case was submitted on the record and briefs to Justice Shin, who took part in the decision in accordance with Mass. R. A. P. 24 (a) & (b), as appearing in 481 Mass. 1654 (2009). 2
ENGLANDER, J. A District Court jury found the defendant
guilty of operating a motor vehicle under the influence of
intoxicating liquor (OUI), G. L. c. 90, § 24 (1) (a) (1).2 On
appeal, the defendant claims the trial judge erred (1) by
admitting the video recording of his booking process (booking
video), in which a breathalyzer machine was visible in the
booking room, and (2) by giving an instruction regarding the
lack of breathalyzer evidence, in response to a question from
the jury. We affirm.
Background. We summarize the facts as the jury could have
found them, reserving certain details for later discussion. At
approximately 3:15 A.M. on July 14, 2019, State police troopers3
stopped the defendant's car for crossing over marked lanes while
driving on Route 495 in Lowell. When informed of the reason for
the stop, the defendant stated that he was tired, but also
acknowledged having consumed three beers about three hours
earlier. The troopers noticed that the defendant had bloodshot
and glassy eyes, slightly slurred speech, and a strong odor of
alcohol.
2 The trial judge also found the defendant responsible for a civil marked lanes violation, G. L. c. 89, § 4A.
3 Trooper Matthew Devito, in his first year with the State police, was accompanied by Trooper David Dumont, a seven-year State police veteran, who acted as a "trooper coach" for this arrest. 3
The troopers asked the defendant to exit the vehicle to
perform three field sobriety tests. When the defendant stepped
out of the car, he was "a little unsteady on his feet." Before
the tests, the defendant stated that he was able to recite the
English alphabet and had "some college" education. He also
told the troopers that he had a knee injury, and they noticed
that the defendant had a brace on his right knee. The
defendant failed the nine-step walk and turn test because he
did not take the steps heel to toe on all eighteen steps and
made an improper pivot. The defendant's performance on the
one-leg stand test, which required him to raise one of his feet
six inches off the ground for thirty seconds, was described by
one trooper as "excellent." The defendant failed the final
test, reciting the alphabet from letters B to Y, by "[skipping]
over multiple letters" and having to restart several times.
Both troopers concluded that the defendant was "drunk." The
defendant was arrested and transported to the State police
barracks in Andover, where his booking was recorded by a video
camera.
The defendant did not testify or offer any evidence. His
theory of defense, presented through cross-examination and
closing argument, was that he was tired as opposed to
intoxicated, and that the Commonwealth did not prove its case
beyond a reasonable doubt. 4
Prior to trial, the defendant moved, in limine, to exclude
the booking video because the breathalyzer machine was visible
in the booking room. He argued that admission of the booking
video would be unduly prejudicial because jurors might see the
machine and consequently assume that he refused the test.4 The
Commonwealth countered that the booking video was important
evidence of "the defendant's condition after arrest and you also
see him moving his injured knee and him walking, so it shows his
injured knee would not have affected his ability to perform
[field sobriety tests]." The booking video could not be
redacted so that the breathalyzer machine was not visible;
notably, there were other machines visible on the booking desk
and in the room. The judge watched the booking video and
concluded that "there is probative value to the video because
. . . the jury will be able to see [the defendant] stretching
his leg." She determined that there was no "prejudice to the
defendant" and noted that, if anything, the booking video was
"more helpful to the defense" based on the defendant's
appearance and demeanor in the booking video. The judge
4 The defendant apparently took a breath test (defense counsel so stated); however, the Commonwealth did not seek to offer the result. According to the prosecutor, "the machine was only certified two weeks after the [defendant's arrest], so the certification was out of date." 5
admitted the booking video into evidence over the defendant's
objection.
During deliberations, the jury asked four questions,
including "[w]as the standard breathalyzer test offered or
refused? The test equipment was visible in the booking room."5
After consulting with defense counsel and the Commonwealth, the
judge indicated that she intended to respond by reminding the
jury to decide the facts solely based on the evidence at trial,6
and asked defense counsel if he wanted an instruction pursuant
to Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198-199 (2001)
(Downs instruction) on the absence of breathalyzer evidence.
Although defense counsel acknowledged that "the Downs
instruction is a normal course the way that the type of
instruction that would be given," he instead requested a "unique
instruction" that the "Commonwealth [was] not using
5 The other three questions the jury asked, as read by the judge, were: 1. "[T]he state trooper indicated the defendant had three drinks. . . . The defense attorney said, suggested, the defendant had three beers. What was it?" 2. "Were any containers of alcoholic beverages found in the vehicle?" 3. "Given his knee injury, was he on medication?"
6 The judge told the jury to imagine all the trial evidence in a box, that their verdict must be based on what was inside the box, and that they must avoid speculation, conjecture, or guesswork. 6
[b]reathalyzer tests at all during that period of time."7 The
trial judge responded, "I don't think it's fair to say they
weren't using it at that -- I don't know that that's the case."
The judge indicated that the Downs instruction was "the
appropriate instruction to give, and it's what we typically
give. If you're objecting to me giving that instruction and you
want to craft something else for me to give then -- I'm happy to
consider it." The defendant did not suggest a different
instruction nor object to the Downs instruction at that time.
The judge delivered the Downs instruction as follows:
"There is no evidence with regard to the [b]reathalyzer. You are not to mention it or consider in any way whatsoever, either for or against either side. There is no evidence of [b]reathalyzer. Do not consider it in any way. Do not mention it, and put it completely out of your mind."
After the jury were sent out to resume deliberations, the judge
asked defense counsel whether he was satisfied with the
instruction. Defense counsel replied, "I'm not inclined to say
that I'm satisfied with that one, but I would just ask you to
note my concerns and I guess my objection for the record."
Discussion. 1. Admission of the booking video. We first
address the defendant's contention that admission of the booking
7 The period of presumptive exclusion of Draeger Alcotest 9510 breathalyzer results in OUI prosecutions ended April 18, 2019 – three months before the defendant's arrest. See Commonwealth v. Hallinan, 491 Mass. 730, 738, 748 (2023). See generally Commonwealth vs. Ananias, Mass. Dist. Ct., No. 142284 (Lowell Div. Jan. 9, 2019). 7
video was prejudicial error. "Because the defendant objected to
the evidentiary ruling below, we review the ruling for 'an abuse
of discretion, which requires a demonstration that the judge
made a clear error of judgment in weighing the factors relevant
to the decision such that the decision falls outside the range
of reasonable alternatives'" (quotation omitted). Commonwealth
v. Babcock, 100 Mass. App. Ct. 527, 528 (2021), quoting
Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 476 (2017). We
discern no such error.
Evidence is relevant and admissible when it has some
tendency to "make a consequential fact more or less probable
than it would be without that evidence." Commonwealth v. Moore,
480 Mass. 799, 808 (2018)., In a typical OUI case, a defendant's
"driving performance, appearance, demeanor, execution of field
sobriety tests, and conduct at booking" are relevant "proof of
impaired operation." Commonwealth v. Hourican, 85 Mass. App. Ct.
408, 417 (2014). A trial judge may exercise her discretion and
exclude relevant evidence where its probative value is
substantially outweighed by the danger of unfair prejudice.
Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). However,
"[b]y design, all evidence is meant to be prejudicial; it is
only unfair prejudice which must be avoided." Commonwealth v.
Kindell, 84 Mass. App. Ct. 183, 188 (2013), quoting United
States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989). 8
"Evidence is unfairly prejudicial only if it has 'an undue
tendency to suggest decision on an improper basis, commonly,
though not necessarily, an emotional one'" (citations omitted).
Id., quoting Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980).
Here, the booking video was relevant to support (or to
refute) the Commonwealth's contention that the defendant's
inability to satisfactorily complete the walk and turn test
stemmed from his intoxication rather than his knee injury. To
the extent the judge anticipated this would be a contested issue
at trial, her instincts were borne out by defense counsel's
cross-examination of Trooper Devito, in which he asked whether
"[the defendant] was having difficulty doing the pivot turn
because of his knee brace." Here the booking video evidence of
the defendant from shortly after the roadside tests were
administered was highly relevant evidence of the defendant's
ability to walk and of any limitations due to injury.
Furthermore, we agree with the trial judge's assessment
that the probative value of the booking video was not
substantially outweighed by any risk of unfair prejudice.
Having reviewed the booking video, we note that there is nothing
to indicate that one of the machines on the booking desk was a
breathalyzer (it looks like a copier or fax machine). Although
"there is widespread public information and common knowledge
about breathalyzer testing," Commonwealth v. Cueva, 94 Mass. 9
App. Ct. 780, 785 (2019), quoting Downs, 53 Mass. App. Ct. at
199, the judge's implicit reasoning that the jury would not
recognize the breathalyzer machine was not a "clear error of
judgment." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27
(2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9,
15 (1st Cir. 2008). The fact that the jury did recognize the
breathalyzer machine in the booking video does not retroactively
render the trial judge's decision to admit the video an abuse of
discretion, especially when admission of the evidence was
combined with limiting instructions, discussed infra. See
Commonwealth v. Peno, 485 Mass. 378, 395-396 (2020). The judge
did not abuse her discretion by admitting the booking video into
evidence. See Commonwealth v. Fan, 490 Mass. 433, 443 (2019),
quoting Commonwealth v. Sicari, 434 Mass. 732, 752 (2001), cert.
denied, 534 U.S. 1142 (2002) ("In weighing the probative value
of evidence against any prejudicial effect it might have on a
jury, we afford trial judges great latitude and discretion").
2. Supplemental jury instruction regarding breathalyzer.
The defendant also argues that it was prejudicial error for the
judge to give the Downs instruction over his objection. In
Commonwealth v. Wolfe, 478 Mass. 142, 149-150 (2017), the
Supreme Judicial Court held, as an exercise of its
superintendence power, that "the better practice is for a judge
to refrain from giving a Downs-type instruction absent a request 10
by the defendant or some rare set of facts that specifically
directs the jury's attention to the absence of alcohol-test
evidence" (emphasis added). The Wolfe court's concern was that
giving the Downs instruction could implicate the defendant's
protection against self-incrimination under art. 12 of the
Massachusetts Declaration of Rights by drawing the jury's
attention to the lack of alcohol-test evidence, and thereby
suggesting that the defendant may have refused a test or feared
an unfavorable result. Id. at 145-146; Commonwealth v. Moreno,
102 Mass. App. Ct. 321, 327 (2023). See also Opinion of the
Justices, 412 Mass. 1201, 1209, 1211 (1992) (refusal evidence
may be used to show defendant feared failing alcohol test and
thus held to violate privilege against self-incrimination under
art. 12 of Massachusetts Declaration of Rights).
The direction of the Wolfe court was not absolute, however.
It came with a caveat, and we can conceive of few circumstances
that fall more squarely in the category of a "rare set of facts
that specifically directs the jury's attention to the absence of
alcohol-test evidence," Wolfe, 478 Mass. at 150, than where the
jurors have noted the presence of a breathalyzer machine in a
video exhibit, and asked a specific question about whether "the
standard breathalyzer test" was "offered or refused." In
unusual circumstances such as these, Wolfe left the question of 11
the proper instruction to the judge's discretion.8 The judge
thus was not required by Wolfe to ignore the reality that here
the breathalyzer issue was squarely in the minds of the jury,
and that inasmuch as the booking video would necessarily remain
with the jurors in the deliberation room, the breathalyzer
question was not likely to leave their focus absent specific
instruction. The judge's determination that a Downs-type
instruction was necessary in these circumstances was logical and
sensible.
The defendant points to a footnote in Wolfe commenting
that, in response to a jury question about the absence of
alcohol test evidence, "it is the better practice to simply
reiterate the general instruction not to speculate about matters
not in evidence and, to the extent possible, refrain from
reinforcing the jury's focus on items not in evidence by
mentioning the lack of alcohol-test evidence." Id. at 150 n.13.
The question from the jury in this case, however, was not just a
general question about the lack of alcohol test evidence, but a
specific question arising out of video evidence, which the jury
8 At several points, the dissent overstates the holding of Wolfe, contending that a trial judge cannot give the Downs instruction unless defense counsel agrees. See, e.g., dissent at 1 ("giving the Downs instruction . . . in the absence of a request from the defendant is reversible error"). The dissent's contention is manifestly at odds with the Wolfe court's carve- out for a "rare set of facts" -- facts which are present here. 12
saw and processed, that there was a breathalyzer machine in the
room with the defendant. Moreover, as we recognized in Moreno,
"although the court in Wolfe stated that it is the better
practice to respond to a jury question with a general
instruction only, the court did not state that it is error to
deliver the Downs instruction as well." Moreno, 102 Mass. App.
Ct. at 328.9
Under the circumstances, the judge did not commit error by
exercising her discretion to forcefully respond to the jury's
question with instructions that included the more specific Downs
admonition "not to mention [the breathalyzer] or consider it in
any way whatsoever, either for or against either side. There is
no evidence of a [b]reathalyzer. Do not consider it in any way.
Do not mention it, and put it completely out of your mind."
9 We note that contrary to the defendant's (and the dissent's) assertions, it does not appear that the defendant properly objected to the Downs instruction. As described above, when the judge proposed the Downs instruction, defense counsel asked for his own "unique" instruction instead. The judge declined to give the defendant's proposed instruction (because she was not satisfied that it was accurate), and then again proposed Downs, stating "[i]f you're objecting to me giving that instruction and you want to craft something else for me to give the[m] -- I'm happy to consider it." The defendant did not then object, and only asked that his objection be "note[d]" after the Downs instruction had been given and the jury had returned to deliberations. In Wolfe, the court held that the error was in giving the Downs instruction, as part of the original charge, over the defendant's objection. See Wolfe, 478 Mass. at 150. The record here is quite different, and for this reason as well we do not believe that it was error under Wolfe to give the instruction. 13
Judgment affirmed. RUBIN, J., dissenting. Although the court majority does
not say so explicitly, giving the Downs instruction, see
Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001), in the
absence of a request from the defendant is reversible error
unless the Commonwealth can demonstrate no prejudice.
Commonwealth v. Wolfe, 478 Mass. 142, 146 (2017) (because a
Downs instruction may "unnecessarily introduce[] the specter of
refusal evidence into the jury room and . . . [may] cause the
jury specifically to focus on the absence of breathalyzer
evidence," giving that instruction "over the defendant's
objection . . . was error."). "Animating the court's concern
[in Wolfe] was that the Downs instruction could implicate the
defendant's protection against self-incrimination under art. 12
of the Massachusetts Declaration of Rights because it draws the
jury's attention to the lack of alcohol-test evidence,
suggesting that the defendant may have refused a test or feared
an unfavorable result." Commonwealth v. Moreno, 102 Mass. App.
Ct. 321, 327 (2023). This wasn't simply a matter of saying what
"the better practice" is. The Supreme Judicial Court in Wolfe,
announcing a prospective rule, decided that, utilizing its
supervisory power, it would codify the "better practice" into
law, making it mandatory. Wolfe, 478 Mass. at 149.
Thus, in spelling out what is required, it said that "as an
exercise of our superintendence power, we conclude that, as a 2
matter of procedure, the better practice is for a judge to
refrain from giving a Downs-type instruction absent a request by
the defendant or some rare set of facts that specifically
directs the jury's attention to the absence of alcohol-test
evidence." Id. at 149-50. In the footnote at the end of that
sentence, the court continued, "Further, when a jury ask a
question about the absence of alcohol-test evidence, as occurred
in the defendant's first trial, we think it is the better
practice to simply reiterate the general instruction not to
speculate about matters not in evidence and, to the extent
possible, refrain from reinforcing the jury's focus on items not
in evidence by mentioning the lack of alcohol-test evidence."
Id. at 150. The reason defense counsel is permitted to make the
decision in each case is because, with the myriad possible facts
and circumstances involved in any trial, it is "difficult to
assess whether a Downs-type instruction 'is beneficial to a
particular defendant . . . .'" Id. at 148. The court concluded
that, despite the apparent point of its language, the Downs
instruction may "have the opposite of the intended effect, that
is, it will cause the jury specifically to focus on the absence
of breathalyzer evidence." Id. at 146. The court concluded,
given the double-edged nature of the instruction, that rather
than articulating a blanket prohibition, the "safer approach is 3
to leave such an instruction to the defendant's choice." Id. at
148.
In this case, the judge improperly gave the Downs
instruction over the defendant's objection: The jury,
recognizing the breathalyzer machine in the booking video –- and
I agree with the court majority's conclusion that there was no
error in the judge's ex ante decision to allow that video to be
shown –- asked "Was the standard [b]reathalyzer test offered or
refused? The test equipment was visible in the booking room."
In fact, if the representations of counsel at trial were
correct, the test was either offered and taken by the defendant
or never offered to him. He did NOT refuse the test. We don't
know the results, we couldn't in any event know whether they
were accurate, and they were not submitted to the jury. This is
because, according to the prosecutor, the machine had not been
calibrated.1 The lack of calibration led the District Attorney
The court majority may be read to suggest this has 1
something to do with the grave problems with the Draeger Alcotest 9510 breathalyzer device, see ante at n.7, but there is nothing in the record indicating that the Alcotest 9510 was the issue in this case. For some period of time, the District Attorneys were not utilizing the results of tests conducted with the Alcotest 9510 due to failures with respect to the procedures for calibrating and certifying the machines, as well as "egregious government conduct" by the State police office of alcohol testing (OAT) in covering up hundreds of failed calibration tests with respect to this machine. See generally Commonwealth v. Hallinan, 491 Mass. 730, 748 (2023). The court majority says that "[t]he period of presumptive exclusion of Draeger Alcotest 9510 breathalyzer results in OUI 4
properly to conclude the reliability of the breathalyzer test
results could not be known and thus they could not be introduced
in court.
When the judge received the jury's question, she asked
defense counsel if he wanted the Downs instruction. Although no
one mentioned or appeared aware of Wolfe, defense counsel said
he did not, and specified that "I'm concerned about the negative
inference that [the Downs instruction] would provide, that they
would infer that he refused it." Counsel instead proposed an
alternative instruction, one that had, he said, been given in
another case in which the jury asked a similar question, that
"that [the] Commonwealth [was] not using [b]reathalyzer tests at
all during that period of time." Again he stated, "I would
request that that instruction be given, given the circumstances
and the fact that they saw [the] machine because of the
inference that might be drawn even after your instruction that
he refused to test." The proposed instruction would have
prosecutions ended April 18, 2019 –- three months before the defendant's arrest," ante n.7, but that is only half true. This refers only to the court order creating that presumption, and the Superior Court lifted that presumption after the arrest in this case, retroactively to April 18, 2019, see Hallinan, supra at 743; there is nothing in the record about how the District Attorney's Office for Middlesex County handled Alcotest 9510 test results, nor when it concluded that test results from the Alcotest 9510 could be known to be reliable, and thus concluded they could be introduced in court. In any event, none of this has anything to do with when the particular device used in this case was actually calibrated. 5
informed the jury that the Commonwealth was not using
breathalyzer tests, at least from this machine, at the time the
defendant was arrested, and would have obviated any speculation
about whether he had refused a test. The judge, however,
rejected the instruction, and overruled the objection, saying,
"I think [the Downs instruction is] the appropriate instruction
to give, and it's what we typically give."
It was error for the judge to give the jury the Downs
instruction over the objection of the defendant. See Wolfe, 478
Mass. at 150 ("In this case, the instruction regarding alcohol-
test evidence was given over the defendant's objection. Based
on our analysis today, this was error.").2 Prejudice was shown
with about as much strength as it ever could be. In assessing
prejudice, "we inquire[] whether there is a reasonable
2 The Commonwealth states that "the defendant preserved the issue." The court majority's sua sponte suggestion he did not is incorrect. When the judge proposed the Downs instruction, defense counsel said, "I'm concerned about the negative inference that that would provide, that they would infer that he refused it," which was an objection to the instruction. Defense counsel proposed an instruction, and the judge rejected it, saying "I think [the Downs instruction is] the appropriate instruction to give. . . .[i]f you're objecting to me giving that instruction and you want to craft something else for me to give then -- I'm happy to consider it." The judge's subsequent statement that she would consider some other instruction if proffered by the defendant cannot undo the defendant's previous objection which was overruled; a judge cannot condition the right to make an objection on counsel providing a different instruction; nor can a judge give an erroneous instruction because the objecting defendant has not given the judge an alternative to which the judge agrees. 6
possibility that the error might have contributed to the jury's
verdict" (citation omitted). Id. Here, the jury itself noted
the breathalyzer machine it saw and asked if the defendant had
refused to take a breathalyzer test. Given that defense
counsel, given authority over the question by Wolfe, determined
(and explicitly stated) that there was a risk the jurors would
infer that the defendant refused the test if the Downs
instruction were given," as in Wolfe, "we cannot fairly say that
'the jury would have inevitably reached the same result if the
judge had omitted the challenged instruction.'" Wolfe, 478
Mass. at 151, quoting Commonwealth v. Buiel, 391 Mass. 744, 747
(1984).
The court majority seeks to shoehorn this case into the
language of the Wolfe opinion that the Downs instruction might
properly be given if there is "some rare set of facts that
specifically directs the jury's attention to the absence of
alcohol-test evidence." Wolfe, 478 Mass. at 150.3 This is not
that rare case. To begin with, the Wolfe opinion clearly did
not intend the "rare set of facts" exception to apply to a
question by the jury about whether there was an offer of, or a
3 Given my lengthy discussion of this language here, I am baffled by the majority's suggestions that I "overstate[] the holding of Wolfe" by ignoring that language. See ante at n. 8. As the reader can see, I don't ignore it, I explain why it is inapplicable here, something to which the majority proffers no reply. 7
refusal to take, a breathalyzer test. It included a footnote
immediately after that phrase making clear that such "a question
about the absence of alcohol-test evidence" did not warrant
giving the Downs instruction over a defendant's objection. See
id. at 150 n. 13. In fact, the court in Wolfe said that it had
"trouble imagining" a case where giving a Downs instruction over
the defendant's objection could be justified, id. at 142 n.2.
Yet it clearly imagined, indeed it discussed, an example in
which a question like that at issue in this case was asked by
the jury, indicating that such a question cannot justify giving
a Downs instruction over objection. Further, the "rare set of
facts" mentioned by the court must refer to the facts in
evidence, because what is being permitted is an instruction that
is designed to, and in some circumstances may, prophylactically
prevent speculation. Once the jury has itself already asked
about whether a breathalyzer was offered or refused, the risk of
the Downs instruction is heightened, not reduced. Contrary to
the majority's conclusion that "the judge's determination that a
Downs-type instruction was necessary in these circumstances was
logical and sensible," ante at , the decision to give the
instruction contradicts the very legal premise of Wolfe and was
legal error under that decision. Again, the court explained
that when such a question is asked, the Downs instruction should
not be given over the defendant's objection. Moreno, 102 Mass. 8
App. Ct. at 323, in which defense counsel agreed to the Downs
instruction, is not to the contrary.
The court majority asserts that unlike this case, the jury
question discussed in Wolfe was not based on evidence that
included "the presence of a breathalyzer machine," as though
that distinction makes this a stronger case for giving the Downs
instruction. To the contrary, it makes this a weaker case for
giving that instruction. Here, the jury had not merely asked
about a breathalyzer test, they noted that they had seen the
breathalyzer machine! The concern about the jury using Downs to
focus on the possibility of refusal thus is heightened, not
diminished, when compared with a generic question about
breathalyzer tests.
The court majority, however, actually praises the
"forceful[]" use of "the more specific Downs admonition,"
apparently because "the breathalyzer issue was squarely in the
mind of the jury, and that inasmuch as the booking video would
necessarily remain with the jurors in the deliberation room,"
without the Downs instruction, "the breathalyzer question was
not likely to leave their focus." Ante at .
But the entire point of Wolfe is that the presumption on
which the majority opinion rests, that the Downs instruction is
an admonition that will work to eliminate the jury's focus on
the absence of a breathalyzer test, does not always apply to the 9
Downs instruction. Wolfe, 478 Mass. at 147. The court could
not have been clearer that the basis of its decision was that
the Downs instruction may "have the opposite of the intended
effect, that is, it will cause the jury specifically to focus on
the absence of breathalyzer evidence." Wolfe, supra at 147-148.
In its reality-based decision, the Supreme Judicial Court gave
defense counsel the authority to determine when that was not a
problem, and held the Downs instruction may not be given over
defendant's objection.
The defendant in this case did not refuse a breathalyzer,
but when the jury asked if he had, the judge improperly provided
them, over the defendant's objection, an instruction that
"suggest[s] that the defendant may have refused a test or feared
an unfavorable result." Moreno, 102 Mass. App. Ct. at 327. He
is entitled to a new trial. With respect, I dissent.