COMMONWEALTH v. FRYE (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant, Peter B. Frye, was convicted of one count of operating a motor vehicle under the influence of intoxicating liquor or with a blood alcohol level of .08 percent or greater, as a fourth offense, pursuant to G. L. c. 90, § 24 (1) (a) (1). On appeal, the defendant argues that (1) the motion judge (who was the same as the trial judge) erred in denying his motion for new trial based on the admission of breathalyzer test results that were later found to be presumptively unreliable in a consolidated litigation challenging the reliability of the same model breathalyzer machine used to perform his breath test; (2) the judge erroneously refused to take judicial notice of and instruct the jury on G. L. c. 90, § 24K, 501 Code Mass. Regs. § 2.12 (2016), and 501 Code Mass. Regs. § 2.13 (2016), which set forth the required protocols for the administration of breath tests; and (3) the defendant's pretrial detention without bail in violation of G. L. c. 276, § 58B, prejudiced his defense. We affirm.

1. Breathalyzer test results. The defendant maintains that the judge erred in denying his motion for a new trial. On appeal, we will reverse a judge's order denying a motion for a new trial only if we “determine [that] there has been a significant error of law or other abuse of discretion.” Commonwealth v. McGee, 467 Mass. 141, 146 (2014), quoting Commonwealth v. Robideau, 464 Mass. 699, 701-702 (2013). Where, as here, the motion judge was also the trial judge, we extend special deference. See Commonwealth v. Grace, 397 Mass. 303, 307 (1986).

The defendant contends that the admission of breathalyzer test results requires a new trial because the machine used to perform the tests (subsequently) was found to be presumptively unreliable in a consolidated litigation challenging the same model breathalyzer machine used to perform his breath test. See Commonwealth v. Ananias, Dist. Ct. of Mass., No. 1248-CR-1075 (Feb. 16, 2017) (Ananias). We disagree. Although the device used on the defendant had undergone its annual certification within the timeframe set forth in the consolidated litigation and was not individually demonstrated to be scientifically reliable, a new trial is not required because there is not a substantial risk of a miscarriage of justice.¹ See Commonwealth v. Letkowski, 469 Mass. 603, 617 (2014), quoting Commonwealth v. Alphas, 430 Mass. 8, 13 (1999) (“An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not materially influence[ ] the guilty verdict”).

Here, even without the breathalyzer test results, the evidence of impairment was substantial. The defendant admitted being at a bar just fifteen minutes prior to an officer seeing his car stopped in the breakdown lane. While at the bar, the defendant consumed four beers. When the officer approached the defendant's vehicle, an odor of alcohol emanated from the vehicle, the defendant had bloodshot and glassy eyes, and his speech was slow and slurred. After the officer asked the defendant to exit the car, the defendant lost his balance and failed to perform the field sobriety assessments as directed by the officer. A half-full can of beer was found in the center console of the defendant's vehicle, and it was still cold to the touch. While transporting the defendant to the police station, the officer noticed an odor of alcohol emanating from the back of his cruiser where the defendant was sitting. Together, this evidence “was compelling, if not overwhelming” to support the jury's conclusion, apart from the breathalyzer evidence, “that the defendant's intoxication impaired [his] ability to operate a motor vehicle.” Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390 (2017).

Significantly, the jury used a special verdict form, which separately set forth both of the Commonwealth's theories, and shows that the jury convicted the defendant on the theory that he was operating a motor vehicle under the influence of intoxicating liquor separately from the blood alcohol level theory. Additionally, the judge instructed the jury on the elements of the intoxicating liquor theory as separate and distinct from those of the blood alcohol level theory, specifically indicating that the latter theory alone relied on the breathalyzer test evidence. On this record, there was no substantial risk of a miscarriage of justice.

2. Judicial notice and jury instructions. The defendant next contends that the judge erred in failing to take judicial notice and instruct the jury on the laws and regulations setting forth the protocol for administering breath tests, specifically G. L. c. 90, § 24K, 501 Code Mass. Regs. § 2.12, and 501 Code Mass. Regs. § 2.13(3). We agree. See G. L. c. 30A, § 6; Mass. G. Evid. § 202(a)(1) (2019). Because the defendant preserved this objection at trial, we affirm only where we are “sure that the error did not influence the jury, or had but very slight effect.” Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983).

Here, the error had but a slight effect. As set forth supra, there was ample evidence to allow the jury to find the defendant operated a motor vehicle under the influence of intoxicating liquor, the jury convicted the defendant under that theory as set forth in the special verdict form, and the jury were instructed that the breathalyzer test related to the blood alcohol level theory.² On this record, there was no prejudicial error.

3. Pretrial detention. The defendant also contends that he was prejudiced by his improper pretrial detention. General Laws c. 276, § 58B, allows an individual to be detained without bail after violating a condition of release up to ninety days, and that such ninety days may be exceeded only if there is good cause found.³ The defendant contends that the judge erred in finding good cause for holding the defendant until trial because the judge could have imposed alternate or enhanced conditions of release. Assuming arguendo that the defendant is correct, the argument is moot. See Commonwealth v. Brown, 479 Mass. 163, 176 (2018) (“Once a conviction is attained, bail issues are moot”). The defendant failed timely to seek relief on appeal to his pretrial detention. See Mendonza v. Commonwealth, 423 Mass. 771, 775 (1996) (“There is no provision for review of a ․ detention order although such review may be had by application to a single justice of [the Supreme Judicial Court]. G. L. c. 211, § 3”). Indeed, the defendant affirmatively withdrew his motion for immediate release from custody.

To the extent the defendant argues he was prejudiced by his pretrial detention because it limited his effort to pursue his defense, the defendant has not shown how he was prejudiced in his defense. To be sure, he faced difficult strategic choices in view of his detained status, but they are no different from those of any person detained prior to trial on the ground that he has violated a condition of his pretrial release.⁴

Judgment affirmed.

Order denying motion for new trial affirmed.

FOOTNOTES

1.   The defendant voluntarily chose to withdraw from Ananias and “waive[d] his right to participate in the consolidation process and any issues raised therein.” Furthermore, the defendant moved for a Daubert-Lanigan hearing to challenge the reliability of his particular breathalyzer test results, but chose to withdraw the motion. See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592-595 (1993); Commonwealth v. Lanigan, 419 Mass. 15, 24-27 (1994). Because the defendant did not preserve the alleged error in the admission of the test, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Bly, 444 Mass. 640, 648 (2005) (“In all cases, assertions of unpreserved error remains unpreserved”).

2.   The defendant also argues that the judge erred in her response to the jury's questions regarding the fifteen-minute observation period for the breathalyzer tests. Defense counsel did not object timely. Accordingly, “we review ․ to determine first whether there was error, and if so, we then inquire whether the error created a substantial risk of a miscarriage of justice.” Commonwealth v. Marinho, 464 Mass. 115, 122 (2013). There was no such risk here.

3.   General Laws c. 276, § 58B, also allows for excludable delays, as defined in Mass. R. Crim. P. 36 (b) (2), 378 Mass. 909 (1979), which are not counted within the ninety-day limit of detention. Here, there were no findings on the record as to how many days were counted as excludable delays.

4.   We note that the defendant was credited 245 days, which included all of the days he was held without bail, out of a two and one-half year sentence.