Commonwealth v. Owen R. Broadhurst.
This text of Commonwealth v. Owen R. Broadhurst. (Commonwealth v. Owen R. Broadhurst.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 23.0 or 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. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-766
COMMONWEALTH
vs.
OWEN R. BROADHURST.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Owen R. Broadhurst, was convicted by a jury
in 2018 of operating a motor vehicle under the influence of
alcohol (OUI), pursuant to G. L. c. 90, § 24 (1) (a) (1), and
negligent operation of a motor vehicle, pursuant to G. L. c. 90,
§ 24 (2) (a). After the jury returned their verdicts, the
defendant admitted to sufficient facts to warrant a finding of
guilty to being a subsequent offender, having previously been
charged with OUI in 2012 and having received a continuance
without a finding (CWOF) pursuant to G. L. c. 90, § 24D. The
defendant was sentenced to two years of probation, which he
completed in 2020. Following the Supreme Judicial Court's
decision in Commonwealth v. Hallinan, 491 Mass. 730 (2023), the defendant filed a motion for a new trial in his first OUI case,
the 2012 case, which had involved breathalyzer evidence subject
to Hallinan. The motion was allowed without objection, the
prior CWOF disposition was vacated, and the Commonwealth filed a
nolle prosequi. Subsequently, the defendant filed, and the
judge allowed, a motion to withdraw the admission to a second
offense in the present case. At that time, this appeal of the
defendant's 2018 convictions remained pending.
On appeal, the defendant argues that the judge abused his
discretion in denying the defendant's motion for a mistrial. He
also argues that the vacatur of his prior OUI disposition due to
government misconduct entitles him to a new trial in the present
case, or alternatively to a refund of expenses "incurred as a
result of his being treated as a second offender," though the
defendant has not sought either type of relief in the trial
court. We affirm the convictions and deny the relief now sought
by the defendant in this court in the first instance.
Discussion. 1. Denial of motion for mistrial. Prior to
trial, a judge who was not the trial judge allowed the
defendant's motion in limine to preclude all lay testimony
concerning the horizontal gaze nystagmus (HGN) test. At trial,
the police officer who administered the field sobriety tests
(FSTs) to the defendant testified on direct examination that, of
2 the standardized FSTs, he "first conducted the horizontal gaze
nystagmus." Counsel for the defense promptly objected and
sought a mistrial. The judge offered to give a curative
instruction but maintained that the mistake "clearly doesn't
rise to the level of a mistrial." Counsel declined the curative
instruction and did not move to strike the testimony or to have
the judge sustain the objection, preferring to "not draw[] any
more attention to" the matter. Examination of the witness
resumed with the prosecutor asking the witness, "at some point
did you have the [d]efendant perform what's called a walk-and-
turn test?"
We conclude that the judge did not abuse his discretion in
denying the motion for a mistrial. Commonwealth v. Lao, 460
Mass. 12, 19 (2011) (we review denial of motion for mistrial for
abuse of discretion). The officer's fleeting mention of the HGN
test left the jury without any explanation of the test or
indication of its result. Even if the jury had concluded that
an additional FST was administered besides the tests they heard
about in detail -- the alphabet, finger-count, walk-and-turn,
and one-leg-stand tests -- it is "speculative" to conclude "that
the jury . . . would have inferred [that] the defendant had
failed this additional test." Commonwealth v. Dumais, 60 Mass.
App. Ct. 70, 73 (2003).
3 2. Requests for relief. a. New trial. The defendant
contends that "he proceeded to trial hamstrung both in his
preparation and plea negotiations by his prior CWOF to an OUI
offense," which precluded him from seeking a CWOF in the present
case. He argues that he "should not be forced to pursue post-
conviction relief under Mass. R. Crim. P. 30," as appearing in
435 Mass. 1501 (2001), because "every defendant in his position
-- having been forced to trial as a second offender in the face
of a prior Hallinan violation -- should be awarded a new trial"
as a "global remedy." The relief which the defendant requests
is not warranted by Hallinan, and we do not grant it.
In Hallinan, the Supreme Judicial Court held that
"defendants who pleaded guilty or who were convicted after
trial, and the evidence against whom included breath test
results from an Alcotest 9510 device last calibrated and
certified prior to April 18, 2019, are entitled to a conclusive
presumption of egregious government misconduct." Hallinan, 491
Mass. at 731. However, Hallinan did not establish a presumption
of prejudice, instead leaving each defendant with the individual
burden to demonstrate that the government's presumptive
misconduct materially influenced the adverse outcome of their
case. Id. at 744-745, 750-751. In Hallinan, the court
considered the affidavits from the defendant and trial counsel
4 in concluding that the defendant had made the requisite showing
of prejudice. Id. at 750-751. Here, we cannot determine from
the record before us whether the defendant has demonstrated the
requisite prejudice. "[W]hen possible, case-by-case
adjudication remains 'the fairest and best alternative' to
resolve individual cases potentially tainted by government
misconduct" (citation omitted). Graham v. District Attorney for
the Hampden Dist., 493 Mass. 348, 376-377 (2024). As in
Hallinan, the "appropriate vehicle [for the defendant] to attack
the validity" of his convictions, which he has yet to pursue, is
a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b).
Hallinan, supra at 744.
b. Refund. We deny the defendant's request that we remand
the case to the trial court with instructions "to return to [the
defendant] any fines, costs, and fees he incurred as a result of
being treated as a second offender." In Commonwealth v.
Martinez, the Supreme Judicial Court "outline[d] the procedure
to be followed in cases where the defendant applies for a refund
of monies paid as a direct consequence of a conviction that has
been invalidated." Commonwealth v. Martinez, 480 Mass. 777, 793
(2018). The defendant concedes that he has not complied with
the first basic requirement of that procedure, to "file a motion
for refund in the court where [the defendant] was convicted."
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