Commonwealth v. Carnell
Commonwealth v. Carnell
Opinion of the Court
A jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor. On appeal, he argues that the failure to cure testimony incorrectly asserting that he refused to take a blood test following his arrest constituted reversible error. We agree and reverse the conviction.
Facts. The jury could have found the following facts. In the early morning hours of January 31, 1998, the defendant, ac
The inaccurate refusal testimony. On cross-examination, defense counsel asked Trooper Hanlon if the defendant had, at any time, requested a blood test.
On redirect examination, the prosecutor showed Trooper Hanlon a document entitled “Massachusetts State Police Statutory Rights and Consent Form” in order to refresh his memory. Hanlon indicated that it was a standard form presented to all persons
At the conclusion of Hanlon’s testimony, the defendant again requested a sidebar conference whose recorded contents are also inaudible. The judge called a recess, telling the jury that a problem had arisen concerning the consent form. With the jury absent, the judge held a voir dire at which Hanlon acknowledged under cross-examination that he had checked off “No” on the consent form in response to the defendant’s refusal of a breathalyzer test, and that he had underlined the word “breath” on the form’s final question. See note 2, supra. He further testified that the only available means for determining a defendant’s blood alcohol level at the barracks was a breathalyzer test. Upon completion of the voir dire, defense counsel unsuccessfully moved for a mistrial. The jury returned to the courtroom and Hanlon was excused from the stand.
During their deliberations the jury raised two questions contemporaneously:
“Is it a law that all possible defendants for drunken driv*359 ing be given a breath[a]lyzer? If so, can we consider the fact that a breath[a]lyzer test result was not introduced?
“Can we consider the blood test statement where the defendant checked no? We do not remember if you had it stricken from the record.”
The judge instructed that both questions concerned information not in evidence and that the jury were not permitted to speculate about such matters. He further instructed that the document referring to a blood test was not in evidence and that information it contained was not before the jury.
Preservation of appellate rights. The Commonwealth contends that the defendant failed to preserve the issue of the blood test refusal testimony because he did not object on the record during Trooper Hanlon’s redirect examination. The record shows that defense counsel requested a sidebar conference as soon as the trooper mentioned the consent form. It is reasonable to infer that this recorded conference, which was inaudible and could not be transcribed, alerted the trial judge to the defendant’s objection. In the circumstances, it would have been necessary to object at sidebar in order to prevent the jury from hearing defense counsel contend that the consent form did not show that the defendant had refused a blood test, but rather that he had refused a breathalyzer test. See Commonwealth v. Zevitas, 418 Mass. 677, 682-683 (1994) (discussing the highly prejudicial effect of evidence of a defendant’s refusal to take a breath test to measure his blood alcohol level).
The judge was clearly alerted to the issue after the second sidebar conference, following which he told the jury there was a problem with the consent form and then held a voir dire concerning the blood test refusal testimony. The defendant also persevered in raising the issue of the refusal testimony in his motions for a mistrial and for a new trial. We consider the objection to have been adequately preserved and review the
Failure to cure admission of inaccurate, prejudicial testimony. Once defense counsel raised the issue of whether the defendant had requested a blood test, it was well within the judge’s discretion to permit the prosecution to refresh Hanlon’s recollection on redirect concerning the very question that the defense had raised. “Having opened the door to this information, the defendant essentially invited the Commonwealth to address the issue on redirect examination.” Commonwealth v. Johnson, 412 Mass. 318, 325 (1992), quoting from Commonwealth v. Otsuki, All Mass. 218, 236 (1991). See Commonwealth v. Maltais, 387 Mass. 79, 92 (1982) (scope of redirect is within the discretion of the trial judge). Compare Commonwealth v. Seymour, 39 Mass. App. Ct. 672, 674 (1996) (the defendant’s testimony that she had been offered a breathalyzer test “did not grant a license to the Commonwealth to inquire further and ask whether she had refused to submit to [such a] test”).
The problem in this case is that Hanlon’s blood test refusal testimony was factually incorrect, as he acknowledged when he testified on voir dire that the defendant had actually refused a breathalyzer test. The inaccuracy could not be cured by allowing defense counsel to cross-examine the trooper further, because the result would have been to inform the jury that the defendant had, in fact, refused a breathalyzer test. Such testimony would have violated the defendant’s privilege against self-incrimination under art. 12 of the Massachusetts Declaration of Rights as well as the provision of G. L. c. 90, § 24(l)(e),
We conclude that the failure to cure the inaccurate refusal testimony was prejudicial. The prosecution’s case was not overwhelming. Although evidence of the defendant’s lack of sobriety was presented, two of the three State troopers who testified did not conclude that the defendant was under the influence of alcohol. When Trooper Hanlon tested the defendant’s sobriety by asking him to recite the alphabet, he twice recited it, slowly but correctly. Lastly, the defendant’s two passengers testified that he was sober. The jurors’ questions about blood and breath tests indicated that they were concerned about whether the defendant had refused a test to measure his blood alcohol level. The inaccurate testimony that the defendant had refused a blood test could well have influenced their decision to convict him.
Judgment reversed.
Verdict set aside.
The defendant’s attorney subsequently told the judge that he had asked this question in an attempt to elicit from Trooper Hanlon that the defendant had requested a blood test at the time of his arrest, so as to demonstrate the defendant’s “consciousness of innocence.” Prior to trial, the defendant had also moved to dismiss, contending that his right to an independent blood test under G. L. c. 263, § 5A, had been violated. In his accompanying affidavit, the defendant stated that he had requested a blood test at the time of his arrest and again at the State police barracks.
The form contains the following relevant information: (1) a section headed “Rights to a Doctor” describes the right of the person in custody, under G. L. c. 263, § 5A, to be examined by a physician of that person’s choice at his request and at his expense; (2) a section headed “Rights to a Telephone Call” describes the person’s right, under G. L. c. 276, § 33A, to use the telephone; and (3) a section headed “Opportunity to Submit to a Chemical Test” informs the person of his “opportunity,” under G. L. c. 90, § 24, “to submit to a chemical test to determine your blood alcohol concentration” along with the “right,” upon completion of that test, to a comparison blood test at his own expense. The final line of the form asks: “Do you consent to submit to a chemical test (breath/blood) to determine your blood alcohol concentration?” Boxes labeled “Yes” and “No” follow.
The trial judge did not, however, instruct the jury to disregard Hanlon’s testimony regarding the defendant’s purported refusal of a blood test.
The judge’s limiting instructions in response to the jurors’ questions during deliberations focused on the content of the consent form and did not refer explicitly .to the trooper’s refusal testimony. The instructions came too late and did not cure the error. See Commonwealth v. Scott, 359 Mass. 407, 409 (1971).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.