Commonwealth v. Anderson

99 Mass.App.Ct. 1132

170 N.E.3d 719 (Table)

COMMONWEALTH

v.Ryan F. ANDERSON.

19-P-1719

Appeals Court of Massachusetts.

Entered: July 1, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant appeals from his conviction of operating under the influence of liquor (OUI), in violation of G. L. c. 90, § 24 (1) (a ) (1), arguing that evidence of his refusal to take a field sobriety test was improperly admitted.² He argues it was error to deny his motion in limine seeking to exclude evidence of his refusal to perform a field sobriety test after he initially agreed to perform such a test. Because refusal evidence was improperly admitted at trial and such error was not harmless beyond a reasonable doubt, we vacate the judgment and set aside the verdict.

Background. Prior to trial, the defendant filed a motion in limine to "[e]xclude [r]eference to [w]alk and [t]urn [t]est [r]efusal" supported by the police report. At the hearing on the motion in limine, defense counsel argued that the police report "indicates my client was shaking his head kind of refusing to complete the test. So I ask for that to be excluded...." The judge reviewed the police report and asked "did he agree to take the test, or not?" Defense counsel reiterated that once the trooper put the defendant in the starting position for the walk and turn test, "all of a sudden he just shakes his head and is refusing to comply, and then he's ultimately detained. So from my perspective that seems more like refusal to participate." The prosecutor read an earlier portion of the police report stating that the defendant agreed to perform field sobriety tests. The judge ruled that "since [the defendant] agreed, then this [motion] is denied."³

At trial, the trooper (who was the sole witness) testified that the defendant initially agreed to take the "walk and turn" test. The trooper also testified that "when I placed [the defendant] in the instructional position he couldn't maintain it. He was stumbling around. And then he realized -- he -- I don't know what he was saying but he was like I can't, I'm not doing this, and he was walking around and pacing around." The trooper asked the defendant to stay in place, "but he was just kind of incoherent and stumbling around, not -- he wasn't -- didn't wanna take part in the test it seemed." On cross-examination, the trooper agreed that while the defendant was "walking around he was shaking his head," and that he was saying "I don't wanna do this, and there was a bunch of I'm not gonna do this, I can't do this, and stuff like that."

At the close of evidence, the defendant orally moved for a required finding of not guilty, arguing that there was insufficient evidence of diminished capacity due to alcohol. In opposition, the prosecutor pointed to -- among other evidence -- that the defendant was unable to perform the field sobriety tests. Although the transcript contains many gaps (which the defendant has not attempted to reconstruct), it appears that defense counsel responded by once again arguing that the defendant was in fact refusing to take part in the test, rather than that he was unable to participate in it.⁴ Although this portion of the transcript also suffers from gaps, it appears that the judge noted that the evidence was conflicting in that the trooper also testified that the defendant said that he couldn't perform the test, and denied the motion for required finding of not guilty.

Discussion. The defendant contends that the judge erred in admitting evidence that he refused field sobriety testing. The refusal to take a field sobriety test is generally inadmissible evidence because, "the refusal, in essence, constitutes testimony concerning the defendant's belief on a central issue to the case" and therefore violates the defendant's privilege against self-incrimination under art. 12 of the Massachusetts Declaration of Rights. Commonwealth v. McGrail, 419 Mass. 774, 778 (1995), overruled in part on other grounds by Commonwealth v. Blais, 428 Mass. 294, 299 n.3 (1998).

After a person has consented to a field sobriety test, however, "his physical actions in performing the test are not testimonial and may be the subject of testimony at trial." Commonwealth v. Brown, 83 Mass. App. Ct. 772, 778 (2013). The defendant's "expressions of difficulty or inability to perform or to complete [testing] ... are [also] not the products of compulsion and thus are admissible." Id. at 778-779. While expressions of difficulty are therefore admissible, a defendant can withdraw his initial consent to perform sobriety testing, with that refusal being inadmissible. See Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 61 (1998).

Although we agree that the defendant's motion in limine was sufficient to preserve his claim for appellate review, see Commonwealth v. Grady, 474 Mass. 715, 719 (2016), we are less certain that the manner in which the motion was presented gave the trial judge a fair opportunity to consider the claim properly. Defense counsel never squarely presented the issue as one of withdrawn consent. Even after a prior judge had denied the motion based on anticipated testimony that the defendant agreed to do the tests, defense counsel did not clearly convey to the judge, either by argument or caselaw, her position of withdrawn consent.

First, the motion in limine was not supported by affidavit, as required of pretrial motions pursuant to Mass. R. Crim. P. 13 (a), as appearing in 442 Mass. 1516 (2004).⁵ It could well be that counsel determined that the factual underpinning for the motion was sufficiently laid out in the police report.⁶ However, when the judge questioned whether the defendant refused, even after reviewing the police report, counsel should have been alerted to the need for an evidentiary hearing to resolve the issue. Not only did counsel fail to press for voir dire, she framed her request for exclusion as if the determination were to be made after the evidence was admitted at trial, only "if the evidence does come in as more of a refusal." Under the circumstances, it is difficult to say that defense counsel's argument, supported by the few facts extracted from the police report, clearly conveyed to the judge the defendant's position of withdrawn consent. See Brown, 83 Mass. App. Ct. at 778-779.

In any event, as trial progressed, the precise issue came into sharper focus. At the conclusion of evidence, defense counsel moved for a required finding of not guilty, and in the process, renewed her argument regarding the refusal evidence -- now based on the more detailed (and nuanced) trial testimony of the trooper. The judge implicitly resolved against the defendant the conflicting evidence bearing on whether he rescinded his consent to take the test or merely expressed difficulty with or inability to perform it. See Brown, 83 Mass. App. Ct. at 778 n.7 ("A refusal to take the test is no less a protected refusal simply because the defendant initially agreed to take the test but then before attempting it declined to perform").

Where, as here "the ultimate findings and rulings bear on issues of constitutional dimension[,] [o]ur appellate function requires that we make our own independent determination on the correctness of the judge's ‘application of constitutional principles to the facts as found.’ " Grenier, 45 Mass. App. Ct. at 61, quoting Commonwealth v. Haas, 373 Mass. 545, 550 (1977). The trooper testified that the defendant initially agreed to participate in the field sobriety...