|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. McGrail, 419
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
John H. LaChance,
David R. Marks, Asst. Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY,
JJ.
LYNCH, Justice.
The
defendant appeals from his convictions of several motor vehicle offenses and
the denial of his motion [419
The
defendant was charged with operating under the influence of intoxicating liquor
and operating a motor vehicle negligently so as to endanger in violation of G.L. c. 90, § 24 (1990 Ed.), operating a motor vehicle
without a license in violation of G.L. c. 90, § 10
(1992 Ed.), and a civil marked lanes infraction in violation of G.L. c. 89, § 4A (1992 Ed.). On the first day of trial, the defendant
filed a motion in limine to prohibit the Commonwealth
from introducing evidence that the defendant refused to perform a field
sobriety test at the scene of the arrest.
After the defendant's motion was denied, the defendant was tried before
a jury of six in the Framingham District Court and was found guilty of
operating under the influence of intoxicating liquor, and operating to
endanger. He was found "responsible"
as to the civil marked lanes violation.
1. Statement of the facts. From the evidence presented the jury could
have found the following facts. On
When the
officer approached the truck, he asked the only occupant, the defendant, to
produce his driver's license and registration.
(FN4) After asking the officer
what he wanted, the defendant told the officer to leave him alone. The officer again asked the defendant to
produce the requested documents. After
noticing that the defendant's breath smelled of alcohol, and observing that his
speech was heavily slurred, that his eyes were bloodshot and watery, and that
his face was very flushed, the officer asked the defendant to step out of the
truck. The officer noticed that the
defendant was having trouble maintaining his balance, and that he had to hold
onto the side of the truck so that he could walk to the rear of the truck as
the officer instructed.
When the
defendant finally approached the curb at the rear of the truck, the officer
asked the defendant to perform some field sobriety tests. The officer gave the defendant instructions as to how each test was to be
performed and also explained the purpose of each test. The defendant stated that "[he was] not
going to do any tests." Based on
his observations, the officer formed the opinion that the defendant was highly
intoxicated and placed him under arrest.
Pursuant to police procedures, the officer then performed aninventory [419
Mass. 777] search of the defendant's
truck, finding a bag containing five empty "Lite"
beer cans and a one‑half pint of whiskey that was three‑quarters
empty on the passenger floor of the truck's cab. The truck's cab also contained a full quart
of beer.
The
officer then brought the defendant to the police station. At the station the booking officer indicated
that the defendant had trouble responding to the questions being asked. More specifically, the defendant had trouble
spelling his last name and it took him several tries before he was able to
recite his home telephone number correctly.
The booking officer also indicated that the defendant slurred his speech
when responding to questions.
[1][2][3]
2.
Refusal evidence. The
defendant argues that his right against self‑incrimination under art. 12
of the Massachusetts Declaration of Rights was violated when the judge admitted
evidence of his refusal to submit to field sobriety tests. (FN5)
Article 12 provides that no person shall be compelled in any criminal
proceeding to furnish incriminating evidence against himself. (FN6)
We have stated that, although the privilege against self‑incrimination
under art. 12 is broad, it protects only against the compulsion of
communications or testimony and not against the production of real or physical
evidence, such as fingerprints, photographs, lineups, blood samples,
handwriting, and voice exemplars. (FN7)
Commonwealth v. Brennan, 386 Mass. 772, 776, 780, 438 N.E.2d 60
(1982). Moreover, in order to establish
a violation of the privilege, a defendant must not only establish that there
was a communication, but also establish that such communication was compelled
by the government. [419 Mass. 778] Opinion of the Justices,
412 Mass. 1201, 1206, 591 N.E.2d 1073 (1992).
Therefore, in this case, we must determine whether a refusal to take a
field sobriety test constitutes testimonial evidence, and if so, whether the
use of such evidence constitutes governmental compulsion.
[4] We
begin our analysis by examining whether the evidence of the defendant's refusal
is testimonial or real. Ordinarily, a
prosecutor wants to admit evidence that the defendant refused to take a field
sobriety test so that the jury may infer that it is the equivalent of his statement,
"I have had so much to drink that I know or at least suspect that I am
unable to pass the test." Opinion of the Justices, supra at 1209,
591 N.E.2d 1073. Such refusal evidence,
therefore, would be relevant to show that the defendant believed that the test
results would tend to incriminate him.
Because the refusal, in essence, constitutes testimony concerning the
defendant's belief on a central issue to the case, we conclude that the
evidence of the defendant's refusal to submit to a field sobriety test
constitutes testimonial or communicative evidence. See
Opinion of the Justices, supra (evidence of defendant's refusal to take
breathalyzer test is testimonial evidence); Commonwealth v. Brennan, supra 386 Mass.
at 777, 438 N.E.2d 60 ("testimonial evidence" reveals a person's
knowledge or thoughts concerning some fact).
This brings us to the issue of whether evidence of refusal can also be
said to be compelled.
The
Justices recently considered the constitutionality of a proposed law making
evidence of a person's refusal to take a breathalyzer test admissible in a
criminal trial. (FN8)
Opinion of the Justices, supra.
The Justices noted that States that permit the introduction of such
evidence do not compel but only encourage a defendant to take such test. Id.
412 Mass. at 1211, 591 N.E.2d 1073. See South Dakota v. Neville, 459 U.S. 553,
564, 103 S.Ct. 916, 922, 74 L.Ed.2d 748 (1983)
(statutes encourage person to take test because "inference of intoxication[419 Mass. 779] arising from a positive
blood‑alcohol test is far stronger than that arising from a refusal to
take the test").
The
Justices disagreed with this reasoning, concluding instead that statutes that
allow for the admission of refusal evidence compel the accused "to choose
between two alternatives, both of which are capable of producing evidence
against him. [Such statutes], therefore,
[use] the threat of adverse testimonial evidence as a coercive tool to compel
submission to a breathalyzer test. The
accused is thus placed in a 'Catch‑22' situation: take the test and perhaps produce potentially
incriminating real evidence; refuse and
have adverse testimonial evidence used against him at trial."
Opinion of the Justices, supra 412 Mass. at 1211, 591 N.E.2d
1073. The Justices therefore advised
the Legislature that the proposed statute would be unconstitutional under art.
12 because it would compel a defendant to furnish evidence against himself. Id. See
Commonwealth v. Lydon, 413 Mass. 309, 313‑315,
597 N.E.2d 36 (1992) (erroneous to admit evidence of defendant's refusal to
have hands swabbed for gun powder residue because use violated defendant's
privilege against self‑incrimination secured by art. 12).
[5][6][7]
We see very little difference between evidence of refusal to take a
breathalyzer test and refusal to take a field sobriety test. (FN9)
The judge correctly instructed the jury that, in Massachusetts, a driver
is under no legal obligation to submit to field sobriety tests even if
requested to do so. Because the
defendant was not required to perform the tests, it would be unsound to allow
the Commonwealth to use evidence of the defendant's refusal against him at
trial. More specifically: "Because [the] defendant had no
obligation to take the test, there [should] be no conditions placed on his refusal. Use of
[419 Mass. 780] the fact that he
refused enables the [Commonwealth] to obtain communicative evidence to which it
would otherwise have no right, as a result of [the] defendant's refusal to
provide noncommunicative evidence to which it also
had no right." State v. Green, 68 Or.App.
518, 526, 684 P.2d 575 (1984). Moreover,
if we were to allow such refusal evidence to be used against the defendant at
trial, then the only way for the defendant to prevent the use of such refusal
evidence would be for him to take the field sobriety test. Therefore, allowing such refusal evidence to
be admissible at trial would compel 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." Opinion of the Justices, supra 412 Mass.
at 1211, 591 N.E.2d 1073. As a result,
we conclude that the refusal evidence should not have been admitted since its
use violated the defendant's privilege against self‑incrimination secured
by art. 12. See State v. Green, supra (refusal evidence compelled and therefore
inadmissible). Moreover, even though
there was ample evidence admitted at trial with regard to the defendant's state
of intoxication, we cannot conclude that admitting such evidence was harmless
beyond a reasonable doubt. Commonwealth v. Perrot,
407 Mass. 539, 548‑549, 554 N.E.2d 1205 (1990).
Retroactivity. Before briefs had been filed in this case,
and prior to oral argument, our opinion in
Commonwealth v. Zevitas, 418 Mass. 677, 639
N.E.2d 1076 (1994), was released. There
we concluded that the instruction mandated by G.L. c.
90, § 24(1)(e ), violated the self‑incrimination
provisions of art. 12.
The defendant
argues on appeal that it was error for the judge to give that mandated
instruction concerning the lack of evidence of a breathalyzer test. Since we reverse the defendant's convictions
on other grounds, we need not address the question whether the Zevitas
holding should be applied retroactively to the facts of the instant case. However, we observe that, where evidence of
the defendant's refusal to take a field sobriety test had been introduced, the
mandated instruction enhanced the likelihood that the jury would draw [419 Mass. 781] the impermissible inference that the defendant refused to take
both types of tests because he was too intoxicated to pass either test.
[8] The
Commonwealth argues that Zevitas established a new rule not clearly foreshadowed
by prior precedents and, therefore, it should not be applied retroactively.
Commonwealth v. Breese, 389 Mass. 540, 541‑543, 451 N.E.2d 413
(1983). The Commonwealth also contends
that the issue is not before us because the defendant failed to object to the
charge on that basis. Generally, new
constitutionally based rules will be applied to all cases pending on direct
appeal as to which the issue was preserved below. Commonwealth v. Figueroa,
413 Mass. 193, 202‑203, 595 N.E.2d 779 (1992), and cases cited. Because it does not appear that the issue
decided by Zevitas
was raised below, and because if applied it would not affect the outcome of
this case, we decline to reach the question.
For the
foregoing reasons, we hold that both of the defendant's convictions should be
reversed and the case should be remanded to the jury session of the Framingham
District Court for a new trial.
So ordered.
(FN1.) In October, 1992, a single justice of
this court stayed the execution of the defendant's sentence pending his
appeals.
(FN2.)
The back of the defendant's truck contained three big logs, about sixteen
inches long and two feet in diameter.
The defendant stated that the logs had become loose, prompting him to
make the wide turn. The defendant stated
that he pulled into the Mobil station to secure the logs and then changed his
mind.
(FN3.)
The defendant stated that he neither saw the cruiser's lights nor heard the
cruiser's siren until halfway down Lowther Road, and
that he did not pull over until the end of Lowther
Road because he did not want to disturb any of the residences. He also indicated that he was swerving so as
to avoid the numerous parked cars on Lowther Road.
(FN4.)
From the time that the truck was stopped until the time the defendant was taken
to the police station for booking purposes, three more cruisers arrived at the
scene.
(FN5.)
The defendant has not raised any arguments under the Fifth Amendment to the
United States Constitution.
(FN6.)
Article 12 of the Massachusetts Declaration of Rights states in pertinent
part: "No subject shall be held to
answer for any crimes or offence, until the same is fully and plainly,
substantially and formally, described to him;
or be compelled to accuse, or furnish evidence against himself."
(FN7.)
Field sobriety tests are dexterity tests.
Therefore, because the test results are based on the subject's loss of
coordination, rather than his subjective knowledge of the crime, the test
results constitute real or physical evidence. Commonwealth v. Brennan,
386 Mass. 772, 779, 783, 438 N.E.2d 60 (1982).
(FN8.)
The language of the proposed statute stated in pertinent part: "Evidence that the defendant failed or
refused to consent to [a breathalyzer] test or analysis shall not be admissible
in a civil proceeding, but shall be admissible in a criminal
proceeding...." Opinion of the Justices, 412 Mass. 1201,
1202, 591 N.E.2d 1073 (1992).
(FN9.)
The Commonwealth contends that the officer's request that the defendant perform
a field sobriety test was merely part of a threshold inquiry during a routine
traffic stop, and therefore, there was no indicia of compulsion implicit in the
situation. Terry v. Ohio, 392 U.S. 1, 29, 88 S.Ct. 1868, 1884, 20 L.Ed.2d 889 (1968). While we acknowledge that police officers are
permitted to make limited inquiries as part of a Terry‑type stop to obtain information confirming or
dispelling the officers' suspicions, we do not agree that that principle
determines the outcome of this case.