Commonwealth v. Botelho , 87 Mass. App. Ct. 846 ( 2015 )

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14-P-876 Appeals Court
COMMONWEALTH vs. RONALD BOTELHO, JR.
No. 14-P-876.
Bristol. April 21, 2015. - August 10, 2015.
Present: Fecteau, Agnes, & Sullivan, JJ.
Motor Vehicle, Operating under the influence. Hearing-Impaired
Person. Intoxication. Evidence, Intoxication, Argument by
prosecutor. Practice, Criminal, Defendant's decision not
to testify, Instructions to jury, Argument by prosecutor.
Complaint received and sworn to in the Fall River Division
of the District Court Department on July 13, 2012.
The case was tried before Edmund C. Mathers, J.
Paula Lynch for the defendant.
Rachel W. van Deuren, Assistant District Attorney, for the
Commonwealth.
SULLIVAN, J. The defendant, Ronald Botelho, Jr., appeals
from his conviction of operating while under the influence of
alcohol (OUI), second offense. See G. L. c. 90, § 24(1)(a)(1).
At trial the sole issue for the jury was whether the defendant
was intoxicated, or whether his conduct and demeanor were the
2
product of a hearing impairment, compounded by the force of a
collision. The defendant contends that the trial judge's
inadvertent failure to heed his request to instruct the jury
regarding his decision not to testify, coupled with the
prosecutor's closing argument, created a substantial risk of a
miscarriage of justice. We reverse.
Background. On July 12, 2012, between 9:30 P.M. and
10:00 P.M., Officer Keith Strong responded to a dispatch
concerning a single vehicle accident at the intersection of
Second Street and Plymouth Avenue in Fall River. Upon arriving
at the scene, the officer found the defendant behind the
steering wheel of a vehicle that had struck a utility pole. The
vehicle had sustained significant front end damage and the
driver's side air bag had deployed. After the defendant got out
of the vehicle he told the officer "that the stabilizer on his
truck broke and that's what caused" the accident. When asked if
he had been drinking, the defendant said, "No."
The Commonwealth's case was based on the officer's
observations at the scene. The officer testified that the
defendant's speech was slurred, and that he had red and
bloodshot eyes, smelled of alcohol, and stumbled when he got out
of the vehicle. The officer demonstrated two field sobriety
tests; the defendant began to perform each test before the
instructions were completed. The officer deemed that the
3
defendant failed the two field sobriety tests both because he
stumbled, and because he "wasn't listening" and failed to follow
directions. The defendant was arrested and charged with OUI and
negligent operation of a motor vehicle.
The defendant's case was presented through the cross-
examination of the arresting officer and the testimony of two
experts. The officer testified that he was unaware at the time
of the accident that the defendant was hearing impaired,1 and
that he was unfamiliar with the defendant's normal speech
pattern. The defense presented two experts who treated the
defendant before the accident, a clinical audiologist who had
tested the defendant in 2007 and a hearing instrument specialist
who fitted the defendant for hearing aids in 2007 and 2012.
Both testified that the defendant suffered from "severe to
profound hearing loss" -- ninety percent in one ear and sixty-
four percent in the other. The hearing loss was accompanied by
a speech impairment that caused the defendant's speech to sound
slurred. While the officer testified that he thought the
defendant could hear him and that the defendant responded to
questions, both experts opined that the defendant would not have
been able to hear and understand the officer at the scene of the
1
The officer asked at the accident scene if the defendant
had any medical conditions, and the defendant said, "No."
Medical personnel arrived at the scene, and the defendant
declined treatment.
4
accident from a distance, such as when being given instructions
regarding the field sobriety tests. In addition, the
audiologist also testified that the defendant's hearing loss
could have been exacerbated by the collision. The audiologist
also testified that the defendant had some reported balance
issues prior to the accident and that equilibrium and balance
issues frequently accompany hearing loss. Defense counsel also
elicited testimony from the officer that the air bag deployed in
the defendant's face, and that a white powder was released when
the air bag deployed. This, the defense argued, accounted for
the red eyes and an odor on his person and in the vehicle.
The jury returned verdicts of guilty of operating while
under the influence and negligent operation of a motor vehicle.
The judge granted the defendant's renewed motion for required
finding pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420
Mass. 1502 (1995), on the charge of negligent operation of a
motor vehicle and accepted the defendant's stipulation to the
second offense portion of the remaining charge.
Discussion. 1. Instructions. The defendant contends that
the judge erred in failing to instruct the jury that they could
not draw an adverse inference from the defendant's election not
to testify. The Commonwealth maintains that the burden of proof
5
and presumption of innocence instructions were adequate despite
the absence of an adverse inference instruction.2
When a defendant requests an instruction regarding his
election not to testify, the trial judge must give an
instruction that minimizes the risk that the jury will draw an
adverse inference from his election. Carter v. Kentucky, 450
U.S. 288, 305 (1981). The Fifth Amendment to the United States
Constitution requires this protection because "a defendant must
pay no court-imposed price for the exercise of his
constitutional privilege not to testify. Th[is] penalty [may
be] exacted . . . by adverse comment on the defendant's silence;
the penalty may be just as severe when there is no adverse
comment, but when the jury is left to roam at large with only
its untutored instincts to guide it, to draw from the
defendant's silence broad inferences of guilt. Even without
adverse comment, the members of the jury, unless instructed
otherwise, may well draw adverse inferences from a defendant's
silence." Id. at 301.
2
The defendant also maintains that counsel was ineffective
in failing to object to the omission of the instruction.
Because the analysis of prejudice under an ineffective
assistance claim is substantially the same as the analysis of
prejudice under the substantial risk of miscarriage of justice
standard, we consider the claims together. See Commonwealth v.
Lavoie, 464 Mass. 83, 89, cert. denied, 133 S. Ct. 2356 (2013).
6
The defendant submitted a written request for jury
instructions regarding his election not to testify. The judge
rejected the instructions requested3 because they were
significantly more detailed than the Model Jury Instructions for
Use in the District Court.4 The judge did, however, agree to
give an instruction regarding the defendant's decision not to
testify. Despite this assurance, the judge instructed the jury
regarding the burden of proof and the presumption of innocence,
but did not give an instruction regarding the defendant's
election not to testify.5 The defendant did not draw the
3
The judge was not limited to the specific language
requested by the defendant. See Commonwealth v. Carrion, 407
Mass. 263, 270 (1990); Commonwealth v. Gilchrist, 413 Mass. 216,
218 (1992).
4
The relevant model instruction states:
"You may have noticed that the defendant did not testify at
this trial. The defendant has an absolute right not to
testify, since the entire burden of proof in this case is
on the Commonwealth to prove that the defendant is guilty.
It is not up to the defendant to prove that he (she) is
innocent. The fact that the defendant did not testify has
nothing to do with the question of whether he (she) is
guilty or not guilty. You are not to draw any adverse
inference against the defendant because he (she) did not
testify. You are not to consider it in any way, or even
discuss it in your deliberations. You must determine
whether the Commonwealth has proved its case against the
defendant based solely on the testimony of the witnesses
and the exhibits."
Instruction 3.600 of the Criminal Model Jury Instructions for
Use in the District Court (2009).
5
The judge instructed the jury as follows:
7
omission to the judge's attention. Because the defendant failed
to object to the instructions given, "we review to determine
whether the alleged error created a substantial risk of a
miscarriage of justice." Commonwealth v. Dussault, 71 Mass.
App. Ct. 542, 544 (2008).
In assessing the legal adequacy of the instructions given,
we look to the charge as a whole to determine if "the charge
satisfied the requirement for an instruction minimizing the
danger that the jury will draw an adverse inference from the
defendant's decision not to testify." Commonwealth v.
Gilchrist, 413 Mass. 216, 219 (1992), citing Commonwealth v.
Thomas, 400 Mass. 676, 679 (1987).
The instruction given was deficient in two interrelated
respects. Although the instruction stated that the defendant
did not have to produce any evidence at trial, the instruction
did not explicitly communicate the defendant's Fifth Amendment
right not to testify as a witness in his own defense. The
instruction also failed to convey to the jury that no adverse
"This burden of proof never shifts. The Defendant is not
required to call any witness, produce any evidence since he
is presumed to be innocent. The presumption of innocence
stays with the Defendant unless and until the evidence
convinces you unanimously as a jury that the Defendant is
guilty beyond a reasonable doubt."
The judge also gave a similar instruction in his preliminary
instructions to the jury.
8
inference may be drawn from the defendant's failure to testify.
"[T]he failure to limit the jurors' speculation on the meaning
of . . . silence, when the defendant makes a timely request that
a prophylactic instruction be given, exacts an impermissible
toll on the full and free exercise of the privilege." Carter,
450 U.S. at 305.
The Commonwealth argues that the instruction regarding the
burden of proof and presumption of innocence were sufficient to
convey these principles. This argument was considered and
rejected in Carter. "Without question, the Fifth Amendment
privilege and the presumption of innocence are closely aligned.
But these principles serve different functions, and we cannot
say that the jury would not have derived significant additional
guidance from the instruction requested." Id. at 304 (quotation
omitted). See Commonwealth v. Torres, 17 Mass. App. Ct. 676,
677 (1984) (reversing for failure to give adverse inference
instruction); Commonwealth v. Green, 25 Mass. App. Ct. 751, 753-
755 (1988) (concluding justice had not been done where, among
other errors, judge failed to give adverse inference
instruction).
This case stands in contrast to those relied on by the
Commonwealth in which the strength of the instructions regarding
the right not to testify ameliorated the omission of an adverse
inference instruction. For example, in Gilchrist, supra at 218,
9
the judge instructed the jury that "[t]he Defendant does not
have to testify." The Supreme Judicial Court concluded that the
instruction -- absent here -- adequately "minimiz[ed] the danger
the jury [would] draw an adverse inference from the defendant's
decision not to testify." Id. at 219.
Similarly, in Commonwealth v. Feroli, 407 Mass. 405, 409
(1990), the defendant requested that the judge instruct the jury
that no adverse inference could be drawn from the fact that the
defendant elected not to testify. The judge instructed that
"the defendant ha[d] the absolute right to remain passive and
require the Commonwealth to prove its case beyond a reasonable
doubt, and in so doing he may elect to participate by way of
examination of the evidence presented by the Commonwealth or not
elect to participate to that extent." Id. at 410. The Supreme
Judicial Court concluded that while it would have been
preferable to include the "'no adverse inference' language," the
omission did not create a substantial likelihood of a
miscarriage of justice6 because "the judge emphasized that the
defendant's right not to testify was 'absolute.'"7 Ibid.
6
In Feroli, supra at 407, the court reviewed the judge's
failure to give the "no adverse inference" instruction under
G. L. c. 278, § 33E.
7
Notably, the Supreme Judicial Court did not approve the
instruction given in Feroli. This instruction was approved in
Commonwealth v. Powers, 9 Mass. App. Ct. 771 (1980), before the
United States Supreme Court decision in Carter. In Feroli,
10
By contrast, the instruction here did not explicitly state
that the defendant had an "absolute" right not to testify. The
preliminary instruction included the statement that "the
defendant may present evidence in his behalf if he wishes to do
so, but he is not obliged to do so." The final instruction said
only that he was not "required to call any witness." In the
absence of an adverse inference instruction, the suggestion that
the defendant may present evidence on his behalf opened the door
to speculation as to why he had not. "No judge can prevent
jurors from speculating about why a defendant stands mute in the
face of a criminal accusation, but a judge can, and must, if
requested to do so, use the unique power of the jury instruction
to reduce that speculation to a minimum." Carter, 450 U.S. at
303.
2. Prejudice. In determining whether the failure to give
an instruction created a substantial risk of a miscarriage of
justice, we consider "(1) whether the Commonwealth presented a
strong case against the defendant; (2) whether the error is
sufficiently significant in the context of the trial to make
plausible an inference that the [jury's] result might have been
otherwise but for the error; and (3) whether it can be inferred
from the record that counsel's failure to object was not simply
decided after Carter, the court passed on the issue of the
propriety of the instruction, and reached a result on the basis
that the defendant was not prejudiced.
11
a reasonable tactical decision." Dussault, 71 Mass. App. Ct. at
544 (quotations omitted). The defendant requested the
instruction, so it is clear from the record that the failure to
object was not strategic. We therefore look to the other two
factors, the strength of the Commonwealth's case and the context
of the trial.
The evidence of the defendant's guilt was not overwhelming.
Contrast id. at 543-544. No witness saw the accident or saw the
defendant driving before the accident. The defendant
consistently stated that he had not been drinking. There was no
alcohol in the vehicle and no testimony that he had been
drinking. The arresting officer testified to many observations
consistent with alcohol intoxication, such as slurred speech and
poor balance. However, the defendant provided an alternative
explanation -- profound hearing loss, a speech impairment, and
previous balance problems derived from the hearing loss, all
compounded by the collision and the deployment of the air bag to
the head. The officer also testified that the defendant had red
eyes and smelled of alcohol, but cross-examination provided an
alternative theory, namely that the chemicals released when the
air bag deployed caused the reddened eyes and the odor.
Furthermore, the officer's assertion that the defendant
smelled of alcohol and the defendant's denials presented a
question of credibility for the jury. Where the jury could have
12
been aided in the resolution of a credibility question by the
defendant's testimony, the absence of the requested instruction
takes on heightened significance. See Green, 25 Mass. App. Ct.
at 753-755.
More importantly, the failure to give the requested
instruction was highly significant in the context of the trial.
There was a conflict in the evidence regarding the inferences to
be drawn from the defendant's slurred speech. It is difficult
to imagine a case in which the jury would have a greater
interest in "hearing" the defendant. In this context, the risk
that the jury would draw an adverse inference from the failure
to testify is particularly high. Any prejudice attendant to the
failure to give the instruction was exacerbated in the unique
circumstances of this case.
3. Closing argument. The risk of prejudice was compounded
by the prosecutor's closing argument. Arguing that the
defendant was in fact intoxicated at the time of the accident,
the prosecutor stated, "[t]he issue was is he intoxicated that
night. The only testimony you heard from that night was Officer
Strong's." "[P]rosecutorial comments on the defendant's silence
at times when the defendant is constitutionally entitled to
remain silent, such as . . . at trial, are impermissible."
Commonwealth v. Teixera, 396 Mass. 746, 752 (1986). The
defendant contends that this statement implicitly suggested to
13
the jury "that the defendant had an affirmative duty to counter
the Commonwealth's evidence against him." Commonwealth v.
Johnson, 463 Mass. 95, 113 (2012). The Commonwealth maintains
that this argument was fair comment on the evidence in the
context of the trial as a whole.
"Whatever the prosecutor's intent, if his remarks were
reasonably susceptible of being interpreted as a comment on the
defendant's failure to take the stand, they would be improper."
Commonwealth v. Pena, 455 Mass. 1, 19 (2009), citing
Commonwealth v. Gouveia, 371 Mass. 566, 571 (1976). See Mass.
G. Evid. § 1113(b)(3)(E) (2015) (setting forth what is
impermissible in closing arguments in criminal cases). By this
standard, the closing argument here was improper. The
prosecutor's use of the word "only" coupled with the twice
repeated reference to "that night" served to focus the jury's
attention on the defendant's failure to testify, since the
interactions between the defendant and the arresting officer at
the scene that night were the sole basis of the Commonwealth's
case.8
8
Earlier in his closing argument, the prosecutor also
stated, "his vehicle was driven into a pole, whether it's
because of a mechanical malfunction, which we have no evidence
of today. No evidence was introduced regarding that or whether
it was because he was under the influence." This argument was
made in response to defense counsel's closing argument, in which
he argued forcefully that the vehicle had been towed by the
police and that the Commonwealth had failed to examine the
14
The prosecutor's remarks also exacerbated the prejudice
attendant to the judge's failure to give the adverse inference
instruction. Conversely, the absence of an adverse inference
instruction also failed to "neutralize[] any prejudice produced
by the prosecutor's" statement or "mitigate[] any suggestion of
burden shifting that may have arisen." Johnson, supra at 114.
See Pena, supra at 19. Contrast Commonwealth v. Russo, 49 Mass.
App. Ct. 579, 583 (2000) (no substantial risk due to closing
argument where evidence of guilt was strong and appropriate
curative instructions were given); Dussault, 71 Mass. App. Ct.
at 545 (evidence overwhelming and no comment on silence in
closing argument).9
Conclusion. In the circumstances presented, the
unfortunate synergy between the failure to give the requested
instruction and the prosecutor's closing argument leads to a
plausible inference that the jury's result might have been
otherwise but for the errors. For this reason the judgment is
reversed and the verdict is set aside.
So ordered.
vehicle or the stabilizer. However, the prosecutor's response
was not an explanation why the police did not examine the
vehicle. Instead, the argument may be interpreted to suggest
that the defendant should have testified to the condition of the
vehicle or produced evidence of the condition of the vehicle.
9
We do not address the remaining claims on appeal as error,
if any, is unlikely to be repeated on retrial.