Commonwealth v. Derosier

222 N.E.3d 493

COMMONWEALTH

v.Wade C. DEROSIER.

No. 22-P-551

Appeals Court of Massachusetts, Middlesex.

Argued April 6, 2023

Decided October 27, 2023

Andrew Courossi, for the defendant.

Chia Chi Lee, Assistant District Attorney, for the Commonwealth.

Present: Rubin, Shin, & Englander, JJ.¹

ENGLANDER, J.

A District Court jury found the defendant guilty of operating a motor vehicle under the influence of intoxicating liquor (OUI), G. L. c. 90, § 24 (1) (a ) (1).² On appeal, the defendant claims the trial judge erred (1) by admitting the video recording of his booking process (booking video), in which a breathalyzer machine was visible in the booking room, and (2) by giving an instruction regarding the lack of breathalyzer evidence, in response to a question from the jury. We affirm.

Background. We summarize the facts as the jury could have found them, reserving certain details for later discussion. At approximately 3:15 A.M. on July 14, 2019, State police troopers³ stopped the defendant's car for crossing over marked lanes while driving on Route 495 in Lowell. When informed of the reason for the stop, the defendant stated that he was tired, but also acknowledged having consumed three beers about three hours earlier. The troopers noticed that the defendant had bloodshot and glassy eyes, slightly slurred speech, and a strong odor of alcohol.

The troopers asked the defendant to exit the vehicle to perform three field sobriety tests. When the defendant stepped out of the car, he was "a little unsteady on his feet." Before the tests, the defendant stated that he was able to recite the English alphabet and had "some college" education. He also told the troopers that he had a knee injury, and they noticed that the defendant had a brace on his right knee. The defendant failed the nine-step walk and turn test because he did not take the steps heel to toe on all eighteen steps and made an improper pivot. The defendant's performance on the one-leg stand test, which required him to raise one of his feet six inches off the ground for thirty seconds, was described by one trooper as "excellent." The defendant failed the final test, reciting the alphabet from letters B to Y, by "[skipping] over multiple letters" and having to restart several times. Both troopers concluded that the defendant was "drunk." The defendant was arrested and transported to the State police barracks in Andover, where his booking was recorded by a video camera.

The defendant did not testify or offer any evidence. His theory of defense, presented through cross-examination and closing argument, was that he was tired as opposed to intoxicated, and that the Commonwealth did not prove its case beyond a reasonable doubt.

Prior to trial, the defendant moved, in limine, to exclude the booking video because the breathalyzer machine was visible in the booking room. He argued that admission of the booking video would be unduly prejudicial because jurors might see the machine and consequently assume that he refused the test.⁴ The Commonwealth countered that the booking video was important evidence of "the defendant's condition after arrest and you also see him moving his injured knee and him walking, so it shows his injured knee would not have affected his ability to perform [field sobriety tests]." The booking video could not be redacted so that the breathalyzer machine was not visible; notably, there were other machines visible on the booking desk and in the room. The judge watched the booking video and concluded that "there is probative value to the video because ... the jury will be able to see [the defendant] stretching his leg." She determined that there was no "prejudice to the defendant" and noted that, if anything, the booking video was "more helpful to the defense" based on the defendant's appearance and demeanor in the booking video. The judge admitted the booking video into evidence over the defendant's objection.

During deliberations, the jury asked four questions, including "[w]as the standard breathalyzer test offered or refused? The test equipment was visible in the booking room."⁵ After consulting with defense counsel and the Commonwealth, the judge indicated that she intended to respond by reminding the jury to decide the facts solely based on the evidence at trial,⁶ and asked defense counsel if he wanted an instruction pursuant to Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198-199, 758 N.E.2d 1062 (2001) ( Downs instruction) on the absence of breathalyzer evidence. Although defense counsel acknowledged that "the Downs instruction is a normal course the way that the type of instruction that would be given," he instead requested a "unique instruction" that the "Commonwealth [was] not using [b]reathalyzer tests at all during that period of time."⁷ The trial judge responded, "I don't think it's fair to say they weren't using it at that -- I don't know that that's the case." The judge indicated that the Downs instruction was "the appropriate instruction to give, and it's what we typically give. If you're objecting to me giving that instruction and you want to craft something else for me to give then -- I'm happy to consider it." The defendant did not suggest a different instruction nor object to the Downs instruction at that time. The judge delivered the Downs instruction as follows:

"There is no evidence with regard to the [b]reathalyzer. You are not to mention it or consider in any way whatsoever, either for or against either side. There is no evidence of [b]reathalyzer. Do not consider it in any way. Do not mention it, and put it completely out of your mind."

After the jury were sent out to resume deliberations, the judge asked defense counsel whether he was satisfied with the instruction. Defense counsel replied, "I'm not inclined to say that I'm satisfied with that one, but I would just ask you to note my concerns and I guess my objection for the record."

Discussion. 1. Admission of the booking video. We first address the defendant's contention that admission of the booking video was prejudicial error. "Because the defendant objected to the evidentiary ruling below, we review the ruling for ‘an abuse of discretion, which requires a demonstration that the judge made a clear error of judgment in weighing the factors relevant to the decision such that the decision falls outside the range of reasonable alternatives’ " (quotation omitted). Commonwealth v. Babcock, 100 Mass. App. Ct. 527, 528, 178 N.E.3d 909 (2021), quoting Commonwealth v. Driscoll, 91 Mass. App. Ct. 474, 476, 76 N.E.3d 1029 (2017). We discern no such error.

Evidence is relevant and admissible when it has some tendency to "make a consequential fact more or less probable than it would be without that evidence." Commonwealth v. Moore, 480 Mass. 799, 808, 109 N.E.3d 484 (2018)., In a typical OUI case, a defendant's "driving performance, appearance, demeanor, execution of field sobriety tests, and conduct at booking" are relevant "proof of impaired operation." Commonwealth v. Hourican, 85 Mass. App. Ct. 408, 417, 10 N.E.3d 646 (2014). A trial judge may exercise her discretion and exclude relevant evidence where its probative value is substantially outweighed by the danger of unfair prejudice. Commonwealth v. Crayton, 470 Mass. 228, 249, 21 N.E.3d 157 (2014). However, "[b]y design, all evidence is meant to be prejudicial; it is only unfair prejudice which must be avoided." Commonwealth v. Kindell, 84 Mass. App. Ct. 183, 188, 993 N.E.2d 1222 (2013), quoting United States v. Rodriguez-Estrada, 877 F.2d 153, 156 (1st Cir. 1989). "Evidence is unfairly prejudicial only if it has ‘an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one’ " (citations omitted). Id., quoting Carter v. Hewitt, 617 F.2d 961, 972 (3d Cir. 1980). Here, the booking video was relevant to support (or to refute) the Commonwealth's contention that the defendant's inability to satisfactorily complete the walk and turn test stemmed from his intoxication rather than his knee injury. To the extent the judge anticipated this would be a contested issue at trial, her instincts were borne out by defense counsel's cross-examination of Trooper Devito, in which he asked whether "[the defendant] was having difficulty doing the pivot turn because of his knee brace." Here the booking video evidence of the defendant from shortly after the roadside tests were administered was highly relevant evidence of the defendant's ability to walk and of any limitations due to injury.

Furthermore, we agree with the trial judge's assessment that the probative value of the booking video was not substantially outweighed by any risk of unfair prejudice. Having reviewed the booking video, we note that there is nothing to indicate that one of the machines on the booking desk was a breathalyzer (it looks like a copier or fax machine). Although "there is widespread public information and common knowledge about breathalyzer testing," Commonwealth v. Cueva, 94 Mass. App. Ct. 780, 785, 118 N.E.3d 159 (2019), quoting Downs, 53 Mass. App. Ct. at 199, 758 N.E.2d 1062, the judge's implicit reasoning that the jury would not recognize the breathalyzer machine was not a "clear error of judgment." L.L. v. Commonwealth, 470 Mass. 169, 185 n.27, 20 N.E.3d 930 (2014), quoting Picciotto v. Continental Cas. Co., 512 F.3d 9, 15 (1st Cir. 2008). The fact that the jury did recognize the breathalyzer machine in the booking video does not retroactively render the trial judge's decision to admit the video an abuse of discretion, especially when admission of the evidence was combined with limiting instructions, discussed infra. See Commonwealth v. Peno, 485 Mass. 378, 395-396, 150 N.E.3d 314 (2020). The judge did not abuse her discretion by admitting the booking video into evidence. See Commonwealth v. Fan, 490 Mass. 433, 443, 191 N.E.3d 1027 (2022), quoting Commonwealth v. Sicari, 434 Mass. 732, 752, 752 N.E.2d 684 (2001), cert....