COMMONWEALTH v. RICHER (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his conviction by a Superior Court jury of operating under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24 (1) (a) (1), which was found to be his third such offense at the jury-waived portion of the trial.² On appeal, he argues that the jury were erroneously allowed to watch two certain portions of an audio-video recording (video) of his booking. We conclude that these two asserted errors were unpreserved and created no substantial risk of a miscarriage of justice. We decline to resolve the defendant's third claim, that during deliberations the jury were allowed to listen to a portion of the video not played at trial; the defendant remains free to raise that claim by an appropriate motion in the trial court.

Background. Viewing the evidence in the light most favorable to the Commonwealth, the jury could have found the following facts. The defendant drove his employer's pick-up truck, without permission and while his license was suspended, on a public way in Millbury. The defendant approached an intersection where a sport utility vehicle (SUV) was stopped at a red light. Making no attempt to slow down, the defendant hit the SUV's rear end at a speed of thirty-five or forty miles per hour. The defendant backed up, drove around the SUV, and fled at a speed of sixty-five or seventy miles per hour. The SUV's driver followed the truck and asked a passenger to call the police. As the defendant passed another car he “[s]werve[d], out of control wildly swerved.” After “spinning out” in some dirt at the top of a hill, the defendant drove down a dead-end street, followed by the SUV.

At the end of that street, the defendant stopped the truck at a stone wall, and the SUV's driver attempted to block the truck in place. The driver stepped out of the SUV, approached the defendant in the truck, and confronted him. The defendant, his eyes bloodshot and glassy, “totally out of it, like [a] zombie,” turned slowly to look at the SUV's driver, and then, displaying no emotion or urgency, “slow, calm, as if nothing was wrong,” put the truck into reverse and accelerated rapidly. He then put the truck into drive, moved forward, and hit the SUV and “slam[med] into the rock wall.” The defendant repeated this backward and forward maneuver six or seven times, hitting the wall but also turning slightly each time, and was ultimately able to drive the truck around the SUV and back up the street. The defendant sped away, but a short time later had an accident in which the truck came to rest on a stone wall or embankment.

Millbury police Officer Robert Guyan responded to the scene. He observed the defendant walking away from the truck, “very slowly, ․ unsteady on his feet, very lethargic.” Officer Guyan approached to within ten or twelve feet of the defendant and detected “a strong smell of an alcoholic beverage emanating from his breath.” The defendant spoke in a very quiet mumble. Officer Guyan quickly formed the opinion that the defendant was intoxicated and placed him under arrest. The backpack worn by the defendant contained two bottles of beer and three empty nips of Wild Turkey whiskey.

Officer Guyan transported the defendant to the police station for booking, a process that took about thirty minutes, after which he remained of the opinion that the defendant was intoxicated. Millbury police Officer Matthew McGrath, who assisted with the booking, observed that the defendant “appeared very disheveled,” his “eyes were very bloodshot and glassy,” and his movements were “very slow.” Officer McGrath, too, concluded that the defendant was intoxicated.

The booking video. Without objection, the Commonwealth introduced in evidence an audio-video recording of the booking process, contained on a digital video disc (DVD), and most of it was played for the jury. By agreement, two segments were muted manually, the parties having been unable to edit the DVD itself. At the defendant's request, the jury were instructed not to speculate about the reasons for the muting. When played at trial, the recording was turned off after the defendant could be seen leaving the booking room.

The muted portions contained references to the defendant's refusal to take a breathalyzer ³ test, his refusal to answer police questions, and his desire to speak to an attorney. The defendant had moved in limine to exclude evidence of his refusals and other statements invoking his right against self-incrimination, and those motions were allowed prior to trial.

The defendant did not testify. His defense, presented through closing argument, was that his conduct “wasn't the driving of someone under the influence. This was the driving of someone in a blind panic because [he] had a lot to panic about. He had gotten into an accident without a license. Not only that, he had crashed his boss's truck, a truck he was driving without permission. And this was a person ․ he had worked for seven years, had built up a good relationship and had a lot of trust and now that trust was broken.” ⁴ The jury returned guilty verdicts on all charges submitted to them.

Discussion. 1. Refusal evidence. a. Video as played at trial. During an unmuted segment of the video as played for the jury at trial, Officer Guyan could be heard using the word “refusal,” after which Office McGrath walked to one of the machines in the booking room and pressed some keys on it. The defendant now argues that this was an inadmissible reference to his refusal to take a breathalyzer test. See Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995); Commonwealth v. Zevitas, 418 Mass. 677, 681-684 (1994); Opinion of the Justices, 412 Mass. 1201, 1211 (1992). Although the defendant made no objection when the video was played, he contends, and the Commonwealth concedes, that the judge's allowance of the motion in limine to exclude such evidence was sufficient to preserve the issue for our review.

We have independently reviewed this concession, see Commonwealth v. Williams, 19 Mass. App. Ct. 915, 916 (1984), and do not accept it. The defendant relies on Commonwealth v. Grady, 474 Mass. 715 (2016), which held that a defendant need not “object to the admission of evidence at trial where he or she has already sought to preclude the very same evidence at the motion in limine stage, and the motion was heard and denied” (emphasis added). Id. at 719. Grady reasoned that “in such a case, the judge ha[s] already been made aware of, and [has] had the opportunity to consider, the objection,” so repeating the objection would be unlikely to produce a different result. Id.

Here, in contrast, the defendant's motion in limine to exclude refusal evidence was not denied; it was allowed. When the Commonwealth then played portions of the video for the jury, if the defendant believed that those portions contained any refusal evidence, it was incumbent on the defendant to object. This would have given the judge the opportunity to enforce his earlier ruling, by taking steps such as striking the evidence and instructing the jury to disregard it. Grady made clear that “[w]here what is being addressed and resolved at the motion in limine stage differs from what occurs at trial, the defendant still must object at trial to preserve his or her appellate rights.” Id. at 720. Here, what was resolved at the motion in limine stage was that the refusal evidence was inadmissible. What occurred at trial, in contrast, was that the Commonwealth, in the defendant's view, introduced evidence in violation of the judge's earlier ruling. Because the defendant did not object at trial, the issue is not preserved.⁵

We therefore review for whether any error in admitting the evidence created a substantial risk of a miscarriage of justice. After considering the factors set forth in Commonwealth v. Alphas, 430 Mass. 8, 13 (1999), we conclude that there was no such risk. The fleeting use of the word “refusal” did not clearly refer to the defendant or his refusal to do anything. That Officer McGrath thereafter walked to a machine -- one of four in the booking room -- and pressed some keys on it was unlikely to have made the jury think that the word “refusal” referred to a breathalyzer. We see nothing in the video that would cause a jury to identify the machine as a breathalyzer, and we draw no conclusion ourselves as to what type of machine it was.

Moreover, the evidence of the defendant's intoxication was very strong. Aside from his manner of driving, his eyes were bloodshot and glassy; he looked “totally out of it, like zombie eyes.” Contrary to the defendant's theory that he acted in a blind panic, the SUV's driver and passenger observed that the defendant acted with “no emotion, no urgency,” “[s]low, calm, as if nothing was wrong.” Officer Guyan observed the defendant to be moving “very slowly, ․ unsteady on his feet, very lethargic,” and to have a strong odor of alcohol on his breath. The defendant spoke in a quiet mumble. Three empty nips of whiskey were in his backpack. Officer McGrath, too, observed that the defendant's eyes were bloodshot and glassy. The booking video showed the defendant moving very slowly and, at one point, being unsteady on his feet. Both officers opined that he was intoxicated.⁶

In sum, assuming without deciding that admission of this brief portion of the video was error, it created no risk that justice miscarried. We have no “serious doubt whether the result of the trial might have been different had the error not been made.” Commonwealth v. LeFave, 430 Mass. 169, 174 (1999).

b. Video as made available during deliberations. The defendant next contends that, when the jury during their deliberations asked to watch the video, they were impermissibly exposed to additional refusal and similar evidence appearing at the end of the video. In discussing the jury's request with counsel, the judge observed that it “present[ed] a bit of a problem. They can watch the video, okay. They obviously cannot listen to the portions that were muted. I don't know what was on the muted portions, but I'm inferring it was advisement of rights and other things of that nature; is that correct?” Counsel agreed.

The prosecutor stated that his office lacked the technical ability to edit the DVD itself quickly. The judge therefore decided, without objection, that the jury could view the video with the assistance of a technician who would be instructed to mute the segments of the video that had been muted when the video was played at trial. The technician was so instructed, and then the judge instructed the jury on how they could watch the video.⁷ After one hour and seventeen minutes, the jury sent the judge a question on a separate topic. After the judge responded to that question, the jury resumed deliberating, and approximately thirty minutes later they returned guilty verdicts.

On appeal, the defendant points out that at the end of the video -- which captured the officers' statements after the defendant left the booking room and which was not played in any form at trial -- Officer Guyan could be heard telling Officer McGrath that the defendant “refused everything from the second I [unintelligible] ․ refused the field sobriety, refused to talk to me on scene, refused medical treatment on scene. Refused everything. Refused to answer my questions.” Such evidence was inadmissible.⁸ There is nothing in the record to indicate, however, whether the jury actually viewed the ending portion of the video. The defendant nevertheless asserts that it was in evidence and that making it available to the jury was error.

The Commonwealth, however, argues that the last portion of the video was not evidence but instead a potential “extraneous influence” on the jury.

“When there is a claim of extraneous influence on a jury, a two-step procedure is to be followed. First, the defendant ‘bears the burden of demonstrating that the jury were in fact exposed to the extraneous matter. To meet this burden he may rely on juror testimony.’ Commonwealth v. Fidler, 377 Mass. 192, 201 (1979). If the defendant meets this burden and the judge finds that extraneous matter came to the attention of the jury, ‘the burden then shifts to the Commonwealth to show beyond a reasonable doubt that [the defendant] was not prejudiced by the extraneous matter.’ Id.”

Commonwealth v. Kincaid, 444 Mass. 381, 386 (2005). The Commonwealth further relies on the recent decision in Commonwealth v. DaCosta, 96 Mass. App. Ct. 105 (2019). There, the trial judge had admitted a video recording in evidence but excluded the audio portion of the recording on hearsay grounds. Id. at 108. The video portion of the recording was then played for the jury without the audio. Id. During deliberations, the jury sent a note to the judge indicating that they had discovered the exhibit contained audio content. Id. at 108-109. The judge then confirmed that the exhibit “included the audio portion that had been excluded.” Id. at 109. The defendant's motion for a mistrial was denied, and on appeal he challenged that ruling. Id. at 106, 109-110. The court concluded that “there is no question that the entire jury were exposed to extraneous material,” and thus “the judge [was] required to conduct individual voir dire ‘to determine the extent of [each] juror's exposure to the material and its effects on the juror's ability to render an impartial verdict.’ ” Id. at 110, quoting Commonwealth v. Jackson, 376 Mass. 790, 800-801 (1978).

Here, as in DaCosta, the judge's evidentiary ruling excluded audio material on the recording, and it was not published to the jury, but it nevertheless was included in the exhibit and the jury had access to it during deliberations. As in DaCosta, material should be treated as extraneous matter, and the extent of the jury's actual exposure to it should be determined before any inquiry as to prejudice is undertaken. That here it is currently unknown whether the jury were actually exposed to the material, whereas in DaCosta the jury's exposure was discovered during deliberations, may affect the procedure by which the extent of the exposure is explored and its effect evaluated, compare Kincaid, 443 Mass. at 386, with Jackson, 376 Mass. at 800-801, but would seem to offer no basis for treating the material here as evidence rather than as extraneous matter.⁹ We therefore decline to resolve those issues, leaving the defendant to raise them by any appropriate motion.

2. Evidence of defendant's medication. The defendant asserts that an unmuted segment of the video played at trial created a substantial risk of a miscarriage of justice. The segment showed Officer Guyan asking the defendant about a bottle of pills found in his backpack. The defendant answered that he took the pills for neuropathy, as prescribed, three times a day, and would need to take one later that day. The defendant now argues that this evidence should have been excluded as irrelevant and that it invited the jury to speculate. But he offers no persuasive argument as to what that speculation would have been or how it could have prejudiced him.

We note two additional relevant circumstances. First, based on the evidence of the pills, the Commonwealth requested that the judge include in his final charge a “Stathopoulos instruction,” stating that “[i]t is enough if the defendant's capacity to operate a motor vehicle is diminished because of alcohol, even though other, concurrent causes contribute to that diminished capacity.” Commonwealth v. Bishop, 78 Mass. App. Ct. 70, 73 (2010), quoting Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). See id. at 73 n.6. The defendant objected, asserting that there was no evidence from which the jury could make an informed decision about the effects of the medication, what it was, or when the defendant had last taken it. The judge thus declined to give the instruction.

Second, after watching the video during their deliberations, the jury asked a three-part question: “(1) What are the symptoms of the medication on the video? (2) What are the side effects of the medication? (3) If combined with alcohol what might be the effect?” Without objection, the judge responded to the jury that he could not answer the questions because they requested additional evidence beyond what was presented at trial. He then reread to the jury his original instructions that they were “not to decide this case on the basis of any guesswork or speculation or suspicion or unanswered questions in your mind. You may not speculate as to what might or might not have been the facts ․ and you are not to decide this case on the basis of what you might have learned or heard outside of this courtroom. So your deliberations have to be confined to the evidence that was supplied during the trial.”

We think the defendant's failure to object to the evidence of the medication, together with his successful objection to the Stathopoulos instruction, gave him the best of both worlds: the jury were left free to consider whether the medication provided an alternative, seemingly exculpatory explanation for the defendant's affect and behavior.¹⁰ We thus reject the defendant's argument that trial counsel had no tactical reason for failing to object. See Alphas, 430 Mass. at 13.

In any event, the judge instructed the jury not to speculate, and we presume they followed that instruction.¹¹ We thus conclude that the evidence about the medication, even if admitted in error, created no substantial risk of a miscarriage of justice. We reach the same conclusion after considering the cumulative effect of all of the errors the defendant argues. See Commonwealth v. Cancel, 394 Mass. 567, 576 (1985).

Judgments affirmed.

FOOTNOTES

2.   The defendant was also convicted of negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a); operating with a suspended license, G. L. c. 90, § 23; and two counts of leaving the scene of an accident causing property damage, G. L. c. 90, § 24 (2) (a). He does not challenge those convictions in this appeal. A charge of larceny of a motor vehicle, G. L. c. 266, § 28 (a), was dismissed.

3.   In the video, Officer Guyan referred to a “blood alcohol concentration” test, without specifying the means of testing. As the parties both use the term “breathalyzer,” and as nothing turns on the form of the test offered, we adopt that term here.

4.   The defendant's employer testified that the defendant had worked for him for about seven years. He testified that he had trusted the defendant and given him permission to come into the workplace on the day in question, a Saturday, in order to use certain machinery for the defendant's own, nonwork purposes. The permission did not extend to the employer's pick-up truck, which was kept inside the work premises with the keys in the center console.

5.   To support his argument that the issue was preserved, the defendant cites two other decisions, but in both of those cases, unlike here, the defendant objected at trial. See Commonwealth v. Isabelle, 444 Mass. 416, 418-419 (2005); Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 370 & n.1 (2006).

6.   We are unpersuaded by the defendant's argument likening this case to Commonwealth v. Wolfe, 478 Mass. 142 (2017). There, despite evidence of intoxication similar to that present here, id. at 143, the defendant offered several “plausible explanation[s”] for his conduct, leading the court to conclude that “the evidence of impaired operation was far from overwhelming,” id. at 150, and thus that the judge's instruction regarding alcohol-testing evidence, given over the defendant's objection, was prejudicial error. Id. at 150, 151. Here, in contrast, the defendant's “blind panic” defense was strongly contradicted by the SUV's driver and passenger, and arguably by Officer Guyan as well. We would be hard-pressed to describe the defense as plausible. Also, we give little weight to a jury note to the judge stating that they were “hung on OUI.” The judge observed that “[t]hey haven't even been deliberating for two hours” and so, without objection, told the jury to continue deliberating in accordance with his earlier instructions.

7.   The judge told the jury:“[The technician] will play the recording for you, all right. The portions that were muted will remain muted, all right. Those were muted by agreement of the parties and by court order so you're not to speculate about why that's muted. Don't discuss it [at] all in your deliberations. But he will play any portions of it you want. He will play it in its entirety. He will back it up or replay it if you wish. You just instruct him to do so. He's a court employee. He will be present. He will not in any way report any of your deliberations and you are not permitted to ask him any questions about the technical operation of the video.”

8.   See McGrail, 419 Mass. at 779-780 (evidence of defendant's refusal to take field sobriety tests violates defendant's privilege against self-incrimination and is thus inadmissible); Commonwealth v. Mahdi, 388 Mass. 679, 694-697 (1983) (evidence of defendant's postarrest, post-Miranda assertion of right to remain silent is generally inadmissible, citing, inter alia, Doyle v. Ohio, 426 U.S. 610, 611 [1976]). Because both parties cite Mahdi on appeal, we accept their implicit assumption that Officer Guyan was referring to statements made by the defendant after being arrested and receiving the Miranda warnings.

9.   The same is true of the circumstance here in that the judge excluded only certain audio material (i.e., refusal evidence), whereas in DaCosta the entire audio portion of the recording was excluded. 96 Mass. App. Ct. at 108.

10.   The defendant's reliance on Commonwealth v. Johnson, 59 Mass. App. Ct. 164 (2003), is unavailing. There, a defendant charged with operating under the influence of cocaine, id. at 165, objected unsuccessfully to the admission of a hospital record showing that a “rapid screen urine test” had resulted in a positive reading for cocaine; the record also emphasized that a “second method must be used to obtain a confirmed analytical result.” Id. at 166. On appeal, the court held that this record, without any explanatory testimony, was not sufficiently reliable to be admitted under G. L. c. 233, § 79, and improperly left the jury to speculate about central issues such as “whether such a controlled substance was in the defendant's system in concentrations sufficient to affect his ability to operate a motor vehicle.” Id. at 169. Here, in contrast, any speculation would have concerned the effect of a substance other than what the Commonwealth charged had impaired the defendant's operation of a motor vehicle. Such speculation would thus have been more likely to benefit than to prejudice the defendant.

11.   The defendant argues that the jury's questions “presumed that [the defendant] had medication in his system” and “[n]othing in the judge's instructions addressed the fact that this presumption itself was speculative.” But, from the defendant's statements (made sometime after 6:30 p.m.), that he took the medication three times per day and would need to take a pill later that day, the jury might reasonably infer that the defendant had indeed taken the medication less than eight hours earlier.