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Commonwealth v. Wolfe

Supreme Judicial Court of Massachusetts, Middlesex

October 13, 2017


          Heard: May 2, 2017

         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.

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

          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]


         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 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 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 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.


         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, 470 Mass. 682, 688 (2015). However, when, as here, a defendant raises a timely objection to an instruction, we review for prejudicial error, conducting a two- part test that asks (1) whether ...

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