NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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; [email protected]

SJC-12257

COMMONWEALTH vs. MICHAEL J. WOLFE.

Middlesex. May 2, 2017. - October 13, 2017.

Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.1

Motor Vehicle, Operating under the influence. Practice, Criminal, Instructions to jury. Constitutional Law, Self- incrimination, Breathalyzer test. Evidence, Breathalyzer test, Field sobriety test.

Complaint received and sworn to in the Marlborough Division of the District Court Department on February 13, 2015.

The case was tried before Michael L. Fabbri, J.

The Supreme Judicial Court granted an application for direct appellate review.

Luke Rosseel for the defendant. Thomas D. Ralph, Assistant District Attorney, for the Commonwealth. Jeffrey J. Pokorak, Natalia Smychkovich, & Houston Armstrong, for Suffolk Defenders Program of Suffolk University Law School & others, amici curiae, submitted a brief.

1 Justice Hines participated in the deliberation on this case prior to her retirement. 2

BUDD, J. We are asked to decide whether, in a jury trial

of an operating a motor vehicle while under the influence (OUI)

case, a trial judge may properly give a jury instruction that

specifically mentions the absence of breathalyzer or other

alcohol-test evidence. We conclude that the judge should not

give such an instruction unless the defendant requests it.2

In this case, the jury were instructed about the absence of

alcohol-test evidence in the judge's final instructions over the

defendant's objection. We conclude that giving the objected-to

charge constituted error and that, in the circumstances of this

case, the error was prejudicial. Accordingly, we vacate the

defendant's conviction and remand for a new trial.3

Background. The defendant was charged by complaint with

one count of OUI, G. L. c. 90, § 24 (1) (a) (1), and twice faced

trial on this complaint before a jury in the Marlborough

Division of the District Court Department. The first, in

January, 2016, ended in a mistrial. The second, in March, 2016,

resulted in a conviction. We summarize the facts as the jury

2 It is possible that a rare case could justify giving such an instruction over a defendant's objection, but we have trouble imagining such a scenario. 3 We acknowledge the amicus brief of the Suffolk Defenders Program of Suffolk University Law School, the Committee for Public Counsel Services, and the Massachusetts Association of Criminal Defense Lawyers. 3

could have found them at the second trial,4 reserving additional

details for later discussion.

On February 13, 2015, at around 2 A.M., a Marlborough

police officer patrolling the Main Street area noticed a Ford

Explorer being driven with a broken taillight. The officer

followed the vehicle for approximately five to ten minutes.

During that time, the officer witnessed the vehicle cross the

double yellow line in a "jerking motion" to avoid hitting a snow

bank, and later saw the vehicle cross the double yellow line

again while executing a turn.

The officer then stopped the vehicle at the intersection of

Union Street and Stevens Street. Upon approaching the vehicle,

the officer observed the defendant in the driver's seat with

"bloodshot glassy eyes, slurred speech and a distinct odor of

alcohol coming from his breath when he spoke." The defendant

initially told the officer he was coming from a sandwich shop on

Main Street. When the officer replied that the shop closed much

earlier in the evening, the defendant admitted that he had been

at a nightclub where he had consumed "a few" drinks. The

defendant gave "delayed" responses to several of the officer's

questions.

The officer then asked the defendant to step out of the

4 The evidence at the two trials was essentially the same. 4

vehicle and walk back to the officer's patrol vehicle. During

this walk, the defendant used his own vehicle "for balance."

Another officer at the scene testified that the defendant was

"swaying" and "unsteady on his feet." The defendant was placed

under arrest and transported to the Marlborough police station

for booking.

At the station, the defendant "immediately" fell asleep in

a holding cell. During the booking procedure, the officer again

noticed the smell of alcohol on the defendant's breath and had

to repeat questions multiple times before the defendant

responded. At one point, the defendant was permitted to use his

cellular telephone, but instead he sat "just staring" at his

telephone and said that it would not turn on. The officer

allowed the defendant to use the station's telephone, and

explained to the defendant how to dial an outside number. The

defendant appeared unable to understand this, so the officer

dialed the number for him.

There was no mention in the trial evidence of the lack of a

breathalyzer test or other alcohol-test evidence. Nevertheless,

the judge instructed the jury, over the defendant's objection,

not to consider the absence of breathalyzer tests, field

sobriety tests, or blood tests.5 The judge explained that he

5 The full instruction was as follows: 5

believed this instruction was warranted, in part, because the

jury in the first trial had asked a question about the absence

of breathalyzer evidence before failing to reach a verdict.

At the second trial, the jury found the defendant guilty.

The defendant filed a timely notice of appeal, and we allowed

his application for direct appellate review.

Discussion. Primarily, the defendant claims that the trial

judge erred by instructing the jury, over objection, that they

should disregard the lack of evidence of a breathalyzer test,

blood test, or field sobriety test.6 Generally, trial judges

have "considerable discretion in framing jury instructions."

Commonwealth v. Kelly,

(2015). However,

when, as here, a defendant raises a timely objection to an

instruction, we review for prejudicial error, conducting a two-

"Now, you may have noticed that there was no evidence of any breath test, blood test, or field sobriety test introduced in this case. You are not to mention or consider in any way whatsoever during your deliberations either for or against either side that there was no such evidence introduced in this case. Do not consider it in any way at all. Do not mention it at all during your deliberations. Put it completely out of your minds." 6 The defendant also claims error in certain statements the prosecutor made during his closing argument. Because our resolution of the jury instruction issue requires a new trial, we do not reach the closing argument claim. However, to the extent it is helpful at retrial, we note that there appeared to be scant, if any, evidentiary support for the prosecutor's statement that "the booking station was filled with the odor of alcohol" due to the defendant's presence. 6

part test that asks (1) whether the instruction was legally

erroneous, and, if so, (2) whether that error was prejudicial.

, and cases cited.

The challenged instruction was a modified version of an

instruction upheld in Commonwealth v. Downs,

(2001).7 In Downs, the Appeals Court distinguished

Opinion of the Justices,

(1992), and Commonwealth

v. Zevitas,

(1994), in both of which this court

held that reference to possible reasons for the absence of

breathalyzer evidence violated a defendant's right against self-

incrimination under art. 12 of the Massachusetts Declaration of

Rights. See

.

In Opinion of the Justices,

, this court

was asked to opine on the constitutionality of a Senate bill

proposing the admission of evidence in a criminal proceeding of

a defendant's refusal to submit to a chemical test or

breathalyzer. The court determined that admitting such evidence

would violate art. 12, as it would be tantamount to providing

7 The specific instruction at issue in Downs was as follows:

"You are not to mention or consider in anyway whatsoever, either for or against either side, that there is no evidence of a breathalyzer. Do not consider that in any way. Do not mention it. And put it completely out of your mind."

Commonwealth v. Downs,

(2001). 7

the jury with the defendant's self-incriminating evidence, i.e.,

that he refused to submit to testing because he believed it

would show he had too much to drink. Id. at 1209, 1211.

In Zevitas,

, the defendant challenged

a jury instruction stating, in part, that "a person has a legal

right either to take or not to take" a breathalyzer test, and

that "[i]n any particular situation, there may be a number of

reasons why a person would not take such a test; and there may

be a number of reasons why such a test was not administered by

the police." The court held that such an instruction, although

at the time mandated by statute,8 violated the defendant's art.

12 rights insofar as it invited speculation that the defendant

failed to take a breathalyzer because he feared the results

would be unfavorable.

.

In Downs,

, the Appeals Court

reasoned that, because the instruction at issue made "no mention

either of a defendant's legal right to refuse to take the

8 See G. L. c. 90, § 24 (1) (e), as amended through St. 1994, c. 25, § 5 ("When there is no [alcohol-test] evidence presented at a civil or criminal proceeding . . . the presiding judge at a trial before a jury shall include in his instructions to the jury . . . that a person has a legal right to take or not take such a test; that there may be a number of reasons why a person would or would not take such a test; that there may be a number of reasons why such test was not administered; that there shall be no speculation as to the reason for the absence of the test and no inference can be drawn from the fact that there was no evidence of a blood alcohol test . . ."). See also St. 2003, c. 28, § 3 (striking out above language). 8

breathalyzer or the possible reasons for any refusal," it

avoided the art. 12 obstacles identified in Opinion of the

Justices and Zevitas.

The defendant disagrees with that logic and asks us to

reject the reasoning of Downs. He argues, in effect, that all

so-called Downs instructions suffer from the same art. 12 defect

found in Opinion of the Justices and Zevitas. The Commonwealth,

on the other hand, urges us to embrace the distinction

articulated in Downs and hold that a Downs instruction

adequately protects both the Commonwealth and defendants against

jury speculation without inappropriately implicating a

defendant's art. 12 rights.

These arguments boil down to competing claims about who is

most at risk of being harmed if the jury fail to follow

instructions. In this way, both arguments diverge from a long

tradition of appellate courts presuming that juries can and will

follow a judge's instructions. See, e.g., Commonwealth v.

Andrade,

(2014); Commonwealth v. Cline,

(1913). The Commonwealth's argument assumes that

a breathalyzer-specific instruction is necessary because,

without it, the jury will speculate about the absence of

breathalyzer evidence, contrary to the judge's more general

directive to base their verdict solely on the evidence. See

Instruction 2.120 of the Criminal Model Jury Instructions for 9

Use in the District Court (2016) ("You are not to decide this

case based on what you may have read or heard outside of this

courtroom. You are not to engage in any guesswork about any

unanswered questions that remain in your mind, or to speculate

about what the 'real' facts might or might not have been"). The

Downs case itself makes a similar assumption. See Downs,

("without some form of a limiting

instruction concerning the breathalyzer, a jury very well could

rely upon their common knowledge and engage in the same

speculation invited by the erroneous instruction [rejected in

Zevitas]").

Similarly, the defendant claims that giving a Downs

instruction unnecessarily introduces the specter of refusal

evidence into the jury room and will have the opposite of the

intended effect, that is, it will cause the jury specifically to

focus on the absence of breathalyzer evidence. And, indeed, our

decision in Zevitas,

, was structured around our

assessment of the risk that juries may not always hew to a

judge's instructions to refrain from speculating about matters

not in evidence.

We have encountered a variation of this problem before,

when asked to decide whether (and, if so, when) a judge should

instruct a jury about a defendant's choice not to testify at

trial. See Commonwealth v. Rivera,

, 370-371 10

(2004); Commonwealth v. Buiel,

(1984).

In

, we remarked that it is "difficult to

determine" whether an instruction about the defendant's election

not to testify "is beneficial to a particular defendant or to

defendants as a group." On the one hand, such an instruction

"warns the jury against drawing inferences adverse to the

defendant from his not testifying."

. On the

other, it "may focus the jury's attention on the question why

the defendant decided not to assist the jury in their fact-

finding function."9

. In light of that difficulty, we

announced the prospective and "not constitutionally based" rule

that it would be "reversible error if a judge instructs the jury

concerning a defendant's right not to testify when the defendant

has requested that no such instruction be given."

.

In Rivera, we reconsidered the rigidity of this rule, but

not its basic thrust. We said that it would no longer be "per

9 As the amici point out, this notion draws strong support from common sense and experience. See F.M. Dostoevsky, Winter Notes on Summer Impressions 112 (R.L. Renfield trans., 1955) ("Try this experiment on yourself: try not to think of a polar bear and you will see that the cursed animal keeps returning to your mind"). Psychologists refer to this phenomenon as "ironic" mental processing and posit that an instruction not to think about something can trigger a mental monitoring process to guard against the forbidden thought; this monitoring process, in turn, may increase the frequency and power of the forbidden thought. See Lieberman & Arndt, Understanding the Limits of Limiting Instructions, 6 Psych., Pub. Pol'y & L. 677, 697-700 (2000). 11

se reversible error" for a judge to give an instruction about

the defendant not testifying, but that the instruction, when

objected to, would be subject to review for prejudicial error.

Rivera,

-371 & n.9. Nevertheless, "[w]e

remain[ed] of the view that judges should not give the

instruction when asked not to do so."

at 371 n.9.

We believe that similar logic applies here and compels a

similar conclusion with respect to an objected-to instruction

about the lack of alcohol-test evidence in an OUI case. The

challenge here, as in Buiel and Rivera, is rooted in the

defendant's art. 12 protection against self-incrimination.

Although a Downs instruction does not implicate a defendant's

self-incrimination rights as directly as an instruction about a

defendant's choice not to testify, it evokes similar concerns.

See Zevitas,

; Downs,

. Also, as in Buiel,

, we find it

difficult to assess whether a Downs-type instruction "is

beneficial to a particular defendant or to defendants as a

group." Doing so would require us to engage in a series of

generalizations about defendants in OUI cases, make assumptions

about whether and when juries are able to follow a judge's

instructions, and speculate ourselves about where the jury's

speculation may lead -- all without the benefit of any

supporting empirical evidence. The same basic problems are 12

inherent in assessing the Commonwealth's claim that it, too, may

be harmed by the lack of a Downs instruction.10

We are persuaded instead that the simpler and safer

approach is to leave such an instruction to the defendant's

choice. This approach has the benefit of simplicity because it

reaffirms our traditional presumption that the jury will heed

the judge's general instruction not to speculate about evidence

10 Along these lines, we agree with the dissent that a trial, at its core, is a search for the truth. See post at . But we have a difference of opinion as to how to best achieve that goal. The dissent believes that giving a jury instruction that specifically mentions the absence of breathalyzer evidence is necessary to ensure that the jury, in fact, do not consider a missing breathalyzer test. See

at . As discussed below, we do not agree that such an instruction is necessary to stave off speculation by the jury. Even so, we acknowledge that such an instruction very well may be effective. However, there is another possibility: that such a targeted instruction introduces the idea of missing breathalyzer evidence into the jury room, and, as a result, prompts the jury to wonder about the missing breathalyzer evidence and do the opposite of what they have been instructed to do. See note 9, supra, and accompanying text. Because this latter path risks encroaching upon a defendant's constitutional right not to incriminate himself or herself, we believe the decision whether the jury receive such an instruction should rest with the defendant, not the Commonwealth or the court. See Commonwealth v. Buiel,

(1984).

To borrow the dissent's metaphor, we do not disagree that the jury might find an "oar," in the form of a more specific jury instruction, helpful in navigating the legal waters of an OUI case. Post at note 1. But we do not think it wise to present the jury with such a device in a case like this, where, for the reasons discussed in the text, the jury may use it so readily to paddle into restricted waters -- i.e., a defendant's art. 12 rights -- at least not without the defendant's consent, as in Buiel,

, and Commonwealth v. Rivera,

, 371 n.9 (2004). 13

not before them. By adhering to that presumption from the

outset, the need for the breathalyzer-specific instruction

approved of in Downs dissipates.11

We also agree with the defendant that in Opinion of the

Justices and Zevitas we have suggested a tendency to err on the

side of caution when it comes to encroaching upon a defendant's

constitutional right not to incriminate himself or herself. In

those cases, we expressed concern that the introduction of

refusal evidence (Opinion of the Justices) or instructions

highlighting, however indirectly, the possibility of refusal

(Zevitas) would nudge the jury toward using refusal evidence

against a defendant in violation of his or her art. 12 rights.

See Zevitas,

; Opinion of the Justices,

. Although this risk may be relatively low, its

potential consequences are quite serious. See Commonwealth v.

11 The dissent does not adequately explain why, if it is presumed that the jury follow the judge's instructions, there is any need for a Downs instruction in the first place. If we presume the jury follow the judge's instructions, that presumption should apply equally to the judge's general instruction not to speculate about matters not in evidence. This would protect both the Commonwealth and the defendant from speculation about the absence of breathalyzer evidence without creating the possibility of inducing speculation by specifically mentioning the absence of breathalyzer evidence. To the extent the dissent is concerned about jurors speculating based on their collective knowledge, from outside the court room, about breathalyzer testing, we have rejected a similar supposition when called upon to examine the need, or lack thereof, for so- called "CSI" instructions. See Commonwealth v. Vuthy Seng,

(2010).

Mass. 867, 871 (1978) ("Even an unintended suggestion

that might induce the jury to draw an unfavorable inference

[based on defendant's right not to incriminate himself] is

error"). And, of course, leading the jury down an inappropriate

path is precisely the opposite of what jury instructions are

supposed to do. Cf. King v. Trustees of Boston Univ.,

(1995), quoting Pfeiffer v. Salas,

(1971) (jury instructions "should be full, fair and clear as to

the issues to be decided by the jury, the rules to be followed

by the jury in deciding the facts, and the law they are to apply

to the facts found").

Accordingly, we conclude that typically a defendant should

be able to elect whether the jury are instructed about the

absence of alcohol-test evidence. See Buiel,

-

747. We emphasize that this conclusion, although rooted in

constitutional concerns, is not a new constitutional rule

requiring retroactive application.12 See Rivera,

;

. Rather, as an exercise of our

superintendence power, we conclude that, as a matter of

12 Although Commonwealth v. Zevitas,

(1994), announced a constitutionally based rule requiring retroactive application, see Commonwealth v. D'Agostino,

, 286- 287 (1995), this case is distinguishable because the challenged instruction here, unlike in

, does not specifically mention the possibility of refusing a breathalyzer test. We reiterate that our decision today is procedural only and has only prospective application. 15

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.13

Cf. Commonwealth v. DiGiambattista,

, 447–

448 (2004) (using superintendence power to regulate presentation

of evidence at trial in requiring, under certain circumstances,

jury instructions regarding defendant's unrecorded statement to

police).

In this case, the instruction regarding alcohol-test

evidence was given over the defendant's objection. Based on our

analysis today, this was error.14 Because the defendant objected

at trial and argued for this rule on direct appeal, he should

have the benefit of this decision, which otherwise shall apply

only prospectively. See Commonwealth v. Adjutant,

(2005). Accordingly, we review for prejudicial error.

13 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. 14 We understand why the trial judge in the defendant's second trial chose to give the instruction that he did, given the Appeals Court's ruling in Downs. However, in light of our decision today, which differs from that of the Appeals Court in Downs, the instruction constituted legal error. 16

Commonwealth v. Allen,

(2016). This means

that we "inquire[] whether there is a reasonable possibility

that the error might have contributed to the jury's verdict."

Commonwealth v. Alphas,

(1999) (Greaney, J.,

concurring). "An error is not prejudicial if it 'did not

influence the jury, or had but very slight effect.'"

Commonwealth v. Cruz,

(2005), quoting

Commonwealth v. Flebotte,

(1994).

Here, the evidence of impaired operation was far from

overwhelming. For example, the defendant offered a plausible

explanation that his first crossing of the double yellow line

was necessary to avoid hitting a snow bank in the roadway, and

that the second was a relatively brief and minor infraction in

the course of making a left-hand turn. He also plausibly

suggested that, as he walked back to the arresting officer's

cruiser, he used his own vehicle to steady himself not because

he was impaired, but as a caution against ice on a cold February

night. Moreover, the erroneous remarks at issue here "f[e]ll

from the judge himself," and thereby likely had a more damaging

effect on the jury. See Zevitas,

, quoting

Commonwealth v. Goulet,

(1978). Under these

circumstances, we cannot fairly say that "the jury would have

inevitably reached the same result if the judge had omitted the

challenged instruction." Buiel,

. 17

Conclusion. For the reasons discussed, the defendant's

conviction is vacated and the case is remanded for a new trial.

So ordered. LOWY, J. (dissenting, with whom Gaziano and Cypher, JJ.,

join). Today the court recognizes that a defendant should be

able to remove speculation regarding the absence of breathalyzer

evidence from a trial on a charge of operating a motor vehicle

while under the influence of alcohol (OUI) by requesting an

instruction pursuant to Commonwealth v. Downs,

(2001). I agree. However, because I feel that the

Commonwealth should also be able to remove such speculation by

requesting the same instruction, I respectfully dissent.

A trial serves many purposes, but at its core, it is a

search for truth. When jurors find facts, not from a fair

consideration of the evidence, but rather based upon

bewilderment as to why no evidence of a breathalyzer test was

introduced, confidence in trial by jury in some measure

incrementally dissipates. Perhaps one might respond: jurors

are instructed to apply the facts to the law as given and not to

speculate as to any unanswered questions they may have. A

general instruction not to speculate is ineffective in the face

of common knowledge of the breathalyzer test. The beauty and

simplicity of the Downs instruction is that it thoroughly

removes speculation regarding the absence of breathalyzer

evidence without prejudicing the defendant or the Commonwealth.

In Downs,

, the Appeals Court held

that the jury instruction complained of here did not violate the 2

defendant's privilege against self-incrimination under art. 12

of the Massachusetts Declaration of Rights, noting that the jury

"were simply but forcefully instructed that they were not to

think about or otherwise consider the fact that no evidence was

offered concerning the breathalyzer." The Appeals Court also

pointed out the danger of allowing the specter of the

breathalyzer to hang over the trial and that an OUI jury trial

without any reference whatsoever to breathalyzer testing risks

unfair prejudice to a defendant and the Commonwealth.

at

199 & n.2. That is to say, without some form of a limiting

instruction concerning the breathalyzer, a jury very well could

rely upon their common knowledge and engage in improper

speculation.

Indeed, this type of speculation appears to have occurred

at the defendant's first trial, which resulted in a mistrial.

There, the jury asked the judge, "Are we allowed to ask: 'Why

there are no tests?' eg. Breathalyzer or blood test?" Although

that record is not before us, presumably the jury were given the

general instruction that they were to decide the case on the

evidence presented to them and not to speculate on anything not

in evidence. Yet they still engaged in speculation.

The Downs instruction prevents precisely this kind of

speculation and rests on the long-standing principle that the 3

jury are presumed to follow the judge's instructions.1 See

Commonwealth v. Cline,

(1913). This

principle lies at the very heart of our justice system:

"Unless we proceed on the basis that the jury will follow the court's instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense. Based on faith that the jury will endeavor to follow the court's instructions, our system of jury trial has produced one of the most valuable and practical mechanisms in human experience for dispensing substantial justice."

Delli Paoli v. United States,

(1957), rev'd on

other grounds by Bruton v. United States,

(1968).

1 The court concludes that the presumption that the jury follow instructions should apply equally to the general instruction not to speculate as it does to the specific Downs instruction. The existence of a general instruction cannot, however, preclude the possibility that a specific instruction is needed. For example, in a trial where autopsy photographs are introduced, a general instruction that jurors should disregard emotion and sympathy when reaching a verdict does not preclude a judge from specifically instructing the jury on the proper use of such photographs. See Commonwealth v. Lawrence,

(1989). Just because we send a jury navigating a rough sea of complex legal issues a life raft (i.e., general jury instructions) does not mean we should not also give them an oar (i.e., a specific instruction or Downs instruction).

Further, a general instruction not to speculate may be ineffective in the face of jurors' likely knowledge of the scientific capability to measure the amount of alcohol in an individual's blood. Cf. Commonwealth v. Gray,

(2013) (not abuse of discretion "for voir dire questions designed to counter any 'CSI effect'" in certain circumstances). 4

For more than fifteen years, Downs has been the law of this

Commonwealth. See Commonwealth v. Gibson,

(2012). Nothing in this record suggests that the

decision was in any way unsound. Because I believe the best way

to prevent prejudice to the defendant and the Commonwealth is to

allow either party to remove the threat of speculation from jury

deliberations, I respectfully dissent.