Opinion
No. 11–P–1106.
2012-09-26
COMMONWEALTH v. John J. DICARLO, Jr.
By the Court (CYPHER, KAFKER & KATZMANN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a one-day jury trial in District Court, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), fourth offense. On appeal, he makes three claims. First, the defendant claims that the motion judge erred in denying his motion to suppress evidence from an investigatory stop of his vehicle. Second, he claims that the trial judge erred in admitting testimony that he declined to continue his recitation of the alphabet during a field sobriety test. Finally, he claims that the error in the jury instructions created a substantial risk of a miscarriage of justice. We affirm.
1. Evidence from the investigatory stop. Evidence presented at the motion to suppress hearing established that a 911 caller relayed information about a gray pick-up truck driving erratically on Route 8, at around 7:00 A.M. The caller stated that the truck had pulled into a liquor store parking lot. The State police then dispatched a trooper to the lot where he found a vehicle matching the description from the 911 call. After observing the defendant drive around the side of the building, the trooper initiated an investigatory stop which culminated in the defendant's arrest. The defendant argues that the trooper did not have the reasonable suspicion necessary to make an investigatory stop. Since the defendant filed a motion to suppress the evidence gained from the investigatory stop, which was denied, we review by “accept[ing] the motion judge's subsidiary findings of fact unless they are clearly erroneous” and conducting “an independent review of her ultimate findings and conclusions of law.” Commonwealth v. Lahey, 80 Mass.App.Ct. 606, 609 (2011). The Commonwealth argues that the 911 call provided the trooper with the necessary reasonable suspicion to make the investigatory stop. We agree. See, e.g., Commonwealth v. Perez, 80 Mass.App.Ct. 271, 274–275 (2011) ( Perez ).
Perez lists, inter alia, three factors that can lead a court to conclude that an officer possessed reasonable suspicion to perform an investigatory stop; all three are present in this case. In Perez, this court found reasonable suspicion to perform an investigatory stop where (1) there was an imminent threat to public safety, (2) there was little distance between the location reported and the location where the stop was made, and (3) little time had elapsed between the call and the stop. Perez, supra at 277. The facts in this case are similar. Erratic driving by a potentially intoxicated driver presents a substantial risk to public safety. Additionally, the trooper discovered the vehicle in the same location that the 911 caller described and arrived only a few minutes after the call had been placed. As a result, the trooper had the requisite reasonable suspicion that the vehicle had been driven erratically on Route 8 on the basis of the information provided by the 911 caller. As both parties agree, the 911 call was both reliable and based on sufficient knowledge. The motion judge did not err by denying the motion to suppress.
2. Refusal evidence. The State trooper testified that during the investigatory stop the defendant was asked to recite the alphabet. Upon reaching the letter “P,” he stopped and asked “why am I even doing this?” When asked if he wanted to continue or restart the test, the defendant responded in the negative.
The defendant claims that the trial judge erred in allowing his performance of the alphabet test in evidence because it constituted inadmissible refusal evidence.
Since the defendant contested the introduction of this evidence in both a motion in limine as well as at trial, he has preserved this matter for review.
In Massachusetts, “evidence of a defendant's refusal to comply with a police request may not be admitted because in so refusing a defendant furnishes evidence against himself, and admission of that evidence would violate art. 12.” Commonwealth v. Conkey, 430 Mass. 139, 141 (1999).
We conclude that the testimony did not constitute refusal evidence. The defendant initially agreed to perform the test but did not complete it. We have held that evidence of failure to perform a breathalyzer test after a defendant had consented to it did not constitute refusal evidence. Commonwealth v. Curley, 78 Mass.App.Ct. 163, 168 (2010). The defendant in that case signed a consent form and was unable to perform the test only after he had started. Similarly, here the defendant initially agreed to perform the test and only expressed trepidation after he was unable to finish. The defendant had a choice to avoid self-incrimination as he could have declined taking the alphabet test in the first place. The trial judge did not err in denying the motion in limine and allowing this evidence to be presented at trial.
3. Jury charge. The defendant argues that the trial judge failed to properly instruct the jury. Specifically, he contends that the judge failed to state the three elements of the OUI offense and misspoke during his jury charge as to which elements the defendant stipulated as being satisfied.
When reviewing a jury instruction for error, we “look to the charge as a whole to determine whether it fairly instructs the jury.” Commonwealth v. Smiley, 431 Mass. 477, 487 (2000), quoting from Commonwealth v. Richardson, 429 Mass. 182, 185 (1999). Counsel did not object to the jury instructions when they were given, and we thus review under the substantial risk of a miscarriage of justice standard. Commonwealth v. Alphas, 430 Mass. 8, 13–15 (1999). The jury instructions were adequate. The judge clearly outlined the three elements of an OUI offense. G.L. c. 90, § 24. He also sufficiently stated that the jury needed to find that the defendant had operated the vehicle on Route 8 and/or in the liquor store parking lot and that he was intoxicated at the time the trooper stopped him. The defendant does not raise any issues with the charge that would rise to the level of a substantial risk of a miscarriage of justice necessary to overturn his conviction.
Judgment affirmed.