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Appeals Court of Massachusetts.



Decided: October 28, 2021

By the Court (Vuono, Blake & Englander, JJ.1)


Following a jury trial in the District Court, the defendant was convicted of operating a motor vehicle under the influence of liquor (OUI). He appeals, claiming error in the exclusion of evidence that he consented to a breathalyzer test and attempted to take the test several times, the Commonwealth's closing argument, the jury instructions, and the denial of his motion for a mistrial. We affirm.

Background. The jury could have found the following facts. On July 14, 2018, two Cambridge police officers, Miltiades Antonopoulos and Andrew Hepner, were dispatched to Elm Street, near Hampshire Street, where they observed a silver Jeep stopped in the middle of the road on a raised crosswalk, with its engine running and lights on. The officers activated their cruiser's lights. As the Jeep pulled over to the side of the road, its movement was “a little shaky and questionable.” When Officer Hepner asked the defendant for his license, he watched the defendant fumble through his wallet for several minutes before he located the license. During this time, the officers noted a strong odor of an alcoholic beverage coming from the Jeep while the defendant was in the Jeep.

The driver, later identified as the defendant, agreed to step from the car. He was “unsteady on his feet” and “sway[ed] back and forth.” As the defendant walked toward the front of the Jeep to perform field sobriety tests (FSTs), he “seemed to be out of balance,” and swayed back and forth, using the Jeep to stabilize himself. The defendant's eyes were “glassy” and “a little bloodshot.” And his speech was slurred. The officers noted “an odor of alcoholic beverage emanating from [the defendant's] person.”

Officer Antonopoulos read instructions on how to perform the FSTs from a card, demonstrated them, and confirmed that the defendant understood the instructions. The defendant attempted the nine-step walk and turn test twice. In so doing, he took too many steps, walked off the line, swayed side to side, raised his arms, did not touch his heel to his toe, and did not count out loud. The defendant also attempted the one-leg stand test twice. He lost his balance, did not count out loud, placed his foot down several times, did not raise his foot high enough off the ground, and stopped before the allotted time. The defendant “chuckled” when he was asked whether he wanted to repeat the one-leg stand test or have the instructions repeated. Officer Antonopoulos formed the opinion that the defendant was “drunk.”

Officer Hepner observed a big, wet spot on the driver's seat and on the front and rear of the defendant's pants, which led the officer to conclude that the defendant had “urinated himself.” The defendant said that he was coming from a party and had several beers. Portions of the booking video (approximately nine minutes) that showed the defendant at the police station shortly after his arrest were admitted in evidence and played for the jury. The portions admitted did not include any of the defendant's attempts to take the breathalyzer, or any reference to same.

Discussion. 1. Exclusion of the breathalyzer test attempts. During booking, the defendant agreed to take a breathalyzer test. After several attempts, the breathalyzer machine did not return a result, and the administering police officers registered the result as a refusal. Based on his understanding that the defendant intended to introduce evidence that he was willing to take the test and attempted to do so, the prosecutor filed a motion in limine to admit this evidence in its case in chief, to show that the defendant avoided giving a sample while appearing to take the test. In the alternative, the Commonwealth made an oral motion to exclude all references to the breathalyzer test.

In response to the Commonwealth's motion, defense counsel represented that he had not decided whether he intended to introduce that portion of the video depicting the defendant's attempts to take the test, but that if he did, the Commonwealth had the right to argue that the defendant purposely failed to properly take the test. Defense counsel maintained, however, that this evidence could not be admitted in the Commonwealth's case in chief because it was refusal evidence. He argued that the portions of the booking video at issue were relevant because they showed operator error, and that he intended to cross-examine the police officer to demonstrate that the officer did not follow proper procedures in administering the test.2

After hearing argument from both attorneys, reviewing the booking video, and considering the state of breathalyzer evidence in Massachusetts at the time of trial,3 the judge excluded any reference to the breathalyzer test. The judge found that the evidence was not relevant, and could lead to speculation and confusion by the jury.

On appeal, the defendant claims that the judge abused his discretion by excluding all evidence of the defendant's attempts to take the breathalyzer test. He points out that the video shows, arguably, that the defendant believed he was not intoxicated, and could have passed the breathalyzer test, and that it was administered improperly.

Even if the judge erred by excluding the evidence at issue, the defendant is not entitled to a new trial because he has failed to demonstrate prejudice.4 See Commonwealth v. Flebotte, 417 Mass. 348, 353 (1994) (error not prejudicial where it did not influence jury or “had but very slight effect” [citation omitted]). Cf. Carrel v. National Cord & Braid Corp., 447 Mass. 431, 450 (2006) (no prejudicial error where court can say with substantial confidence excluded evidence would not have made material difference).

Here, as defense counsel acknowledged, if the excluded video evidence had been presented to the jury, the Commonwealth would have been able to argue that the defendant's failure to perform the test correctly was an indication of his intoxication. See Commonwealth v. AdonSoto, 475 Mass. 497, 500-501 (2016). Having viewed the video, we agree with the trial judge that the video is at least as harmful for the defense as it would have been helpful. Without the excluded evidence, defense counsel nevertheless introduced nine minutes of the video, which he argued in closing showed the defendant “stead[y] on his feet,” and able to answer questions, with no evidence that he had urinated in his pants. In contrast, the excluded video not only showed the defendant's unsuccessful efforts to take the breathalyzer test, but also showed the defendant apparently falling asleep and keeling over on a bench, while receiving instructions from one of the police officers.

In addition, the Commonwealth's case was strong. The defendant was stopped in the middle of a street, coming from a party where he admitted to drinking several beers. He smelled of alcohol, had slurred speech, glassy eyes, and was unsteady on his feet. The defendant used his Jeep to keep himself upright, unsuccessfully performed FSTs, and “chuckled” when asked if he wanted the instructions repeated. Finally, there was evidence that the defendant had urinated in his pants.

The defendant also argues that exclusion of this evidence infringed upon his constitutional right to cross-examination. Although the defendant is entitled to a reasonable cross-examination of witnesses against him, “the scope of cross-examination rests largely in the sound discretion of the trial judge.” Commonwealth v. Gallett, 481 Mass. 662, 682 (2019), quoting Commonwealth v. Miles, 420 Mass. 67, 71 (1995). “We shall not overrule a trial judge's determination as to the proper scope of cross-examination unless the defendant demonstrates that the judge abused his discretion and that the defendant was prejudiced thereby.” Miles, supra at 72. Here, all the evidence that the defendant proffered was admitted, with the exception of the breathalyzer test video. For the reasons that we concluded supra that there was no prejudice to the defendant from the exclusion of a portion of the booking video, there was no material prejudice from any limitation on his right to cross-examination. In fact, he forcefully challenged the reliability of the officers’ testimony, and highlighted errors in each of their police reports.5 See Commonwealth v. Tyree, 455 Mass. 676, 700-701 (2010).

2. The Commonwealth's closing argument. The defendant next claims that the Commonwealth misled the jury in its closing argument on two points: the position of the Jeep in the road (raised for the first time on appeal) and the defendant's performance on the FSTs.6 “Remarks made during closing arguments are considered in context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury.” Commonwealth v. Andrade, 468 Mass. 543, 552 (2014), quoting Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). As to the unpreserved claim, we review to determine whether the remarks about the position of the Jeep were improper, and if so, whether they created a substantial risk of a miscarriage of justice. See Commonwealth v. Cassidy, 470 Mass. 201, 225-226 (2014). This aspect of the closing argument was a proper inference drawn from the evidence, and amply supported by the record. See Commonwealth v. Tassinari, 466 Mass. 340, 355 (2013) (prosecutors entitled to marshal evidence and suggest inferences jury may draw). See also Commonwealth v. Valentin, 474 Mass. 301, 310 (2016) (jurors may use life experience and common sense). Moreover, the judge properly instructed the jury on the use of inferences. There was no error, let alone a substantial risk of a miscarriage of justice.

The defendant next claims error in the Commonwealth's use of the word “failed” in describing the defendant's performance on the FSTs. Because he objected, we review to determine whether any alleged error was prejudicial. See Commonwealth v. Fritz, 472 Mass. 341, 351 (2015). The defendant first introduced the term “failed” in his closing argument when addressing his performance on the FSTs. As a result, the Commonwealth was entitled to respond to the defendant's argument, including addressing his performance on the FSTs. See Commonwealth v. Chambers, 93 Mass. App. Ct. 806, 821 (2018) (prosecutor's argument understood to be comment on weakness of defendant's case and response to highlighting deficits in Commonwealth's case). Additionally, there is no outright prohibition on the use of the word “failed” in closing arguments. In fact, in affirming a conviction for OUI, we have used the term “failed” to describe a defendant's performance on FSTs. See Commonwealth v. Rollins, 65 Mass. App. Ct. 694, 695, 700-702 (2006) (OUI conviction affirmed, in part, on “failed” FSTs). Moreover, limitations on the terms “pass” and “fail” have only been applied to cases of OUI drugs, not liquor. See Commonwealth v. Gerhardt, 477 Mass. 775, 787 (2017) (“Police officers may not testify to the administration and results of FSTs [in OUI marijuana prosecutions] as they do in [OUI] alcohol prosecutions”). Finally, any error was cured by the judge's instructions that arguments are not evidence, and the jury should determine the value of the FSTs. See Commonwealth v. Cheremond, 461 Mass. 397, 414 (2012) (jurors presumed to follow judge's instructions).

3. Jury instructions. The defendant next claims that the judge improperly characterized the FSTs during his limiting instructions, by reinforcing the pass-fail construct of the FSTs, and implying that he failed the breathalyzer. “We examine the trial judge's instructions in their entirety ‘to determine their probable impact on the jury's perception of the fact-finding function.’ ” Commonwealth v. Baseler, 419 Mass. 500, 502 (1995), quoting Commonwealth v. Mejia, 407 Mass. 493, 495 (1990). “Trial judges have considerable discretion in framing jury instructions” (quotation and citation omitted). Commonwealth v. Kelly, 470 Mass. 682, 688 (2015). See Commonwealth v. Marinho, 464 Mass. 115, 122 (2013) (“We do not require that judges use particular words, but only that legal concepts are properly conveyed”).

Here, the judge gave three instructions on the FSTs. The defendant objected to the first two, but not to the final version, which tracked the model jury instructions. See Instruction 5.310 of the Criminal Model Jury Instructions for Use in the District Court (2018). As a result, we review this claim to determine whether any error created a substantial risk of a miscarriage of justice. See Marinho, 464 Mass. at 122. Because the judge properly instructed the jury that it was to determine the evidentiary value of the FSTs and the defendant's performance thereon, there was no error, let alone a substantial risk of a miscarriage of justice.

4. Mistrial. Finally, the defendant claims that the judge should have allowed his motion for a mistrial because Officer Antonopoulos testified that the defendant was “too impaired to be operating a motor vehicle.” We review this claim for an abuse of discretion. See Commonwealth v. Bryant, 447 Mass. 494, 503 (2006). While we agree that it was error to admit this testimony, the judge struck it and promptly instructed the jury that this evidence was improper. And, this statement was not repeated nor referenced again. Therefore, “the risk of any prejudicial effect” on the jury by “the improper opinion testimony” was “greatly diminished.” Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 390 (2017). See also Cheremond, 461 Mass. at 414 (jury presumed to follow instructions).

Next, he contends that a mistrial was warranted because the judge mistakenly said “breathaly (sic) -- ․ I mean the field sobriety test” during his instructions to the jury. After this inadvertent, incomplete reference to the term breathalyzer, the judge immediately corrected himself, and provided the instruction requested by the defendant. This slip of the tongue did not warrant a mistrial. See Commonwealth v. Conroy, 396 Mass. 266, 269-270 (1985) (no mistrial where officer testified defendant was offered breathalyzer test and there was no further mention of test).

For the first time on appeal, the defendant claims that additional statements by Officer Antonopoulos 7 and “prosecutorial misstatements,”8 in conjunction with the other claimed errors discussed supra, warranted a mistrial. “Because this claim is being raised for the first time on appeal, it is waived.” Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 694 (2015). Notwithstanding, we discern no error in either claim, let alone a substantial risk of a miscarriage of justice.

Judgment affirmed.


2.   Defense counsel emphasized that he did not intend to argue that the machine was not working properly.

3.   See Commonwealth vs. Ananias, Mass. Dist. Ct., No. 1248CR1075 (Feb. 16, 2017).

4.   The Commonwealth contends that the defendant's claim is not properly preserved because the grounds for objection argued on appeal are different from those argued below and thus any error should be evaluated for a substantial risk of a miscarriage of justice. However, because we conclude that the outcome would be the same under either standard of review, we need not resolve this issue.

5.   Both officers were relatively new to the department. This was Officer Antonopoulos's first OUI investigation and Officer Hepner's second OUI investigation.

6.   Although defense counsel made two objections to the Commonwealth's closing argument, neither related to the position of the Jeep. In fact, the judge sua sponte raised a question about the reason the defendant's Jeep was stopped.

7.   The testimony was struck, and the jury were instructed that this evidence was no longer before them.

8.   As discussed supra, any error created by the prosecutor's closing argument was cured by the judge's instructions.

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