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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Grenier, 45 Mass.App.Ct.
58 (1998)
Appeals Court of Massachusetts,
No. 97‑P‑1032.
Argued
Decided
Elaine Smagacz,
Linda A. Wagner, Assistant District Attorney, for
the Commonwealth.
Before WARNER, C.J., and PERRETTA and BECK, JJ.
BECK, Justice.
[1] The
defendant appeals from his conviction of operating a motor vehicle while under
the influence of alcohol. He claims that
there were two crucial errors in his trial.
First, he argues the judge abused his discretion in admitting evidence
that during the booking process the defendant "made a statement about
murdering a police officer [who] at one time ... had pulled him
over." Second, he claims the judge
erred in denying his motion in limine seeking to
exclude testimonial evidence regarding his decision not to perform a field sobriety
test. As to the first issue, there was
no abuse of discretion. [45 Mass.App.Ct.
59] Although the defendant's brief
refers to "incriminating statements," we think in context it was
clear that the statement about murdering another police officer was obviously
not true but was simply part of the defendant's "belligerent,
confrontational" attitude during the booking process. (The defendant also stuck his tongue out at
the camera during attempts to take a booking photograph.) The evidence was relevant to the issue of
intoxication and was not, as the defendant argues, "unlawfully prejudicial." As to the second issue, however, despite the
judge's obviously conscientious consideration of the issue, we agree with the
defendant that his statements concerning the sobriety test were the equivalent
of a refusal and therefore inadmissible under Commonwealth v. McGrail, 419 Mass. 774,
647 N.E.2d 712 (1995), which prohibits the admission of sobriety test refusals.
Prior to
trial, the defendant filed a motion in limine seeking
to exclude statements he made concerning a police request that he perform the
one‑legged‑stand field sobriety test. Apparently attached to the motion were a
marked portion of the arresting officer's report and a copy of Commonwealth v. McGrail. Although the record appendix does not
include a copy of the motion or the attached police report, see Mass.R.A.P. 18(a), 378 Mass. 940 (1979) (record appendix
shall contain "any paper filed in the case relating to an issue which is
to be argued on appeal"), we assume that the report matched the testimony
as it came out at trial, particularly since the officer used the report to refresh
his memory during his testimony. Neither
the defendant nor the Commonwealth argues otherwise; the Commonwealth briefed and argued the issue
without disputing the facts.
As
introduced at trial, the evidence relevant to the motion in limine
was as follows. Shortly after midnight
on August 10, 1996, Yarmouth police officer Patrick Carty
noticed a car "weaving noticeably within its lane of travel. [The car] crossed over the yellow center
strip line on one occasion and came close to doing so again on another occasion
over a distance of approximately one and one‑half miles." Officer Canty
signaled the car to pull over, and the car stopped. The officer asked the defendant, who was
driving, for his license and registration.
The defendant produced the requested documents, claimed that the vehicle
behind him was tailgating him, and asked why the officer had not stopped the
tailgating offender. The officer noticed
that the driver "had a strong odor of an alcoholic beverage coming from
his breath. His eyes were red,
bloodshot, and [45 Mass.App.Ct. 60]
glassy." Following the officer's
request, the defendant got out of the car and walked to a place on the edge of
the road between the rear of the defendant's car and the front of the police
cruiser, where he recited the alphabet "slowly and
deliberately." "It seemed like
he had to think about [it] while he was ... reciting it."
Next, the
officer asked the defendant "to perform a one‑legged‑stand
balance test." The officer
described the test and demonstrated for the defendant. The defendant "asked [the officer] if
[he] wanted him to perform the test on the white fog line which is painted on
the side of the roadway. And [the police
officer] said no, that he could just perform it in the space between the two
vehicles." "[The defendant]
stated that he could not do the test and that [the officer] was trained to do
the test." The officer then told
the defendant that he had a choice about whether to do the test or not. The defendant responded that "if he did
the test and failed that [the officer] would arrest him and that if he didn't
perform the test, [the officer] would arrest him." When the officer confirmed the defendant's
analysis of the situation, the defendant said, "Take me." The defendant was then arrested.
Upon
receiving the motion in limine, the judge reviewed
the motion, read the police report, heard argument from counsel, and reviewed Commonwealth v. McGrail,
supra. He concluded that the
defendant's statements "did not rise to the level of a refusal. It appeared that it was more of a
negotiation.... [T]he defendant stated
that he could not do it as opposed to his refusal to do so. So ... where he performed the first test, the
alphabet test, ... it was not an outright refusal. If anything it rises to the level
of negotiating with the police officer;
and ... it's admissible under McGrail."
On appeal,
the defendant argues that his analysis of his options was the equivalent of a
refusal and that therefore the admission of his statements violated his
privilege against incrimination under art. 12 of the Massachusetts Declaration
of Rights. The Commonwealth argues the
judge was correct in ruling that the defendant's statements constituted
negotiation rather than a refusal. The
Commonwealth characterizes the judge's rulings as findings of fact, which we
must accept "absent palpable error," citing Commonwealth v. Otsuki, 411 Mass. 218,
233, 581 N.E.2d 999 (1991).
[2][3]
Although "the appropriate methodology for distinguishing [45 Mass.App.Ct.
61] questions of fact from questions
of law has been, to say the least, elusive," Miller v. Fenton, 474 U.S. 104, 113, 106 S.Ct.
445, 451, 88 L.Ed.2d 405 (1985), we think the judge's determinations were legal
conclusions drawn from the facts set out in the police report attached to the
motion in limine.
"[W]here the ultimate findings and rulings bear on issues of
constitutional dimension, they are open for review. Our appellate function requires that we make
our own independent determination on the correctness of the judge's
'application of constitutional principles to the facts as found....' "
Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977),
quoting from Brewer v. Williams, 430
U.S. 387, 403, 97 S.Ct. 1232, 1241‑1242, 51
L.Ed.2d 424 (1977). Applying the
principles of McGrail
to the facts of this case, we think the defendant's statements constituted a
refusal and were therefore inadmissible.
[4] To be
sure, in McGrail,
"[t]he defendant stated that '[he was] not going to do any tests.' " 419
Mass. at 776, 647 N.E.2d 712 (emphasis supplied), whereas here the defendant
recited the alphabet as requested, said that he could not do the one‑legged‑stand
test, cited his lack of training to do the test, laid out his options and their
consequences, and conceded arrest.
However, we conclude these statements were the equivalent of a refusal.
[5]
Indeed, the defendant, even in his allegedly inebriated state, clearly
articulated the very dilemma highlighted in
Commonwealth v. McGrail: "[a]llowing
... refusal evidence to be admissible at trial ... compel[s] defendants to
choose between two equally unattractive alternatives: 'take the test and perhaps produce
potentially incriminating real evidence;
refuse and have adverse testimonial evidence used against him at trial.'
" 419 Mass. at 780, 647 N.E.2d 712,
citing Opinion of the Justices, 412
Mass. 1201, 1211, 591 N.E.2d 1073 (1992).
In McGrail,
the court concluded that "evidence of the defendant's refusal to submit to
a field sobriety test constitutes testimonial or communicative evidence,"
419 Mass. at 778, 647 N.E.2d 712, following the court's earlier Opinion of the Justices that admission
of a defendant's refusal to take a breathalyzer test "is the equivalent of
his statement, 'I have had so much to drink that I know or least suspect that I
am unable to pass the test.' " 412
Mass. at 1209, 591 N.E.2d 1073. Here
the defendant explicitly stated that he was unable to pass the test. Although he offered the excuse that he was
not trained to do the test, the jury would have been warranted in inferring
that he thought he could not do the test because he had had too much to
drink. "[T]estimonial
evidence which reveals a person's knowledge or thoughts [45 Mass.App.Ct. 62] concerning some fact is protected." Opinion of the Justices,
412 Mass. at 1208, 591 N.E.2d 1073, citing
Commonwealth v. Brennan, 386 Mass. 772, 778, 438 N.E.2d 60 (1982). See
Commonwealth v. Lydon, 413 Mass. 309, 313‑314,
597 N.E.2d 36 (1992) (evidence that defendant refused to have his hands swabbed
inadmissible to show consciousness of guilt); Commonwealth v. Hinckley,
422 Mass. 261, 661 N.E.2d 1317 (1996) (refusal to turn over sneakers
inadmissible to suggest consciousness of guilt). The defendant's statements should not have
been admitted.
[6] Having
preserved the issue by repeating his objection at trial, Commonwealth v. Keniston, 423 Mass. 304,
308, 667 N.E.2d 1127 (1996), the defendant is entitled to a new trial. We are not persuaded that the admission of
the evidence was harmless beyond a reasonable doubt. Commonwealth v. Perrot, 407 Mass. 539, 548‑549, 554 N.E.2d 1205
(1990). Although the Commonwealth did
not include the sobriety test statements in its opening and appears not to have
stressed the issue in its closing (the transcript does not include the entire
closing), the other evidence of intoxication at the scene, including the
allegedly impaired driving, was not overwhelming.
Judgment reversed.
Verdict set aside.