Opinion
18-P-989
03-12-2020
COMMONWEALTH v. Jason D. KLEGRAEFE.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this direct appeal from his convictions of operating under the influence of alcohol (third offense), G. L. c. 90, § 24, and negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a ), the defendant argues that (1) the judge was required sua sponte to instruct the jury concerning the absence of evidence of a breathalyzer test, as in Commonwealth v. Downs, 53 Mass. App. Ct. 195 (2001), once the jury posed questions about it; and (2) the evidence of impairment and negligent operation was insufficient. We affirm.
In Commonwealth v. Wolfe, 478 Mass. 142 (2017), the Supreme Judicial Court held that a Downs instruction should not be given "absent a request by the defendant or some rare set of facts that specifically directs the jury's attention to the absence of alcohol-test evidence." Wolfe, supra at 150. Here, the defendant never requested a Downs instruction, nor was there any evidence directing the jury's attention to the absence of a breathalyzer test. The trial judge, thus, correctly did not give a Downs-type instruction to the jury during the final charge.
The defendant argues, however, that such an instruction was required once the jury posed the following questions:
"(1) Was there a breathal[y]zer test done?
"If so, what w[ere] results?
"If not why not?
"Was there a failed test?"
Although the defendant is correct that these questions reveal that the jury had questions about whether there had been a breathalyzer test, contrary to the defendant's assertion, they do not indicate that the jury assumed the defendant had declined to take the test, let alone that they were inclined to draw a negative inference from his having done so. There is nothing to indicate that the jury had or would assume answers to their questions.
The necessity, scope, and character of a judge's supplemental jury instructions are within his or her discretion. Commonwealth v. Thomas, 21 Mass. App. Ct. 183, 186 (1985). "The proper response to a jury question must remain within the discretion of the trial judge, who has observed the evidence and the jury firsthand and can tailor supplemental instructions accordingly." Commonwealth v. Waite, 422 Mass. 792, 807 n.11 (1996). Here, trial counsel and the prosecutor jointly recommended that the trial judge respond to the questions by instructing the jury that "they're limited to the evidence that they've heard and their recollection of the evidence controls." Consistent with the parties' joint recommendation, and without objection, the judge instructed the jury, "you have heard all of the evidence. And I, and you must make your decision based on what you heard."
Although the better course would have been for the judge "to simply reiterate the general instruction not to speculate about matters not in evidence," Wolfe, 478 Mass. at 150 n.13, there was no error in answering the jury's question as the judge did. Nor has the defendant shown a substantial risk of a miscarriage of justice arising from the difference between an instruction not to speculate and the instruction the judge gave, which was for the jurors to limit themselves to the evidence. We note further the judge had earlier instructed the jurors that they were "not [to] engage in any guesswork about any unanswered questions that remain in your mind or to speculate about what any, quote, real facts were or might have been." "[T]he law does not require repetition of the same thought at each turn," Commonwealth v. Peters, 372 Mass. 319, 324 (1977), and we presume that a jury follows all instructions given to it, Commonwealth v. Albert, 391 Mass. 853, 859 (1984).
For these same reasons, the defendant's argument that he was deprived of effective assistance of counsel because trial counsel did not object to the judge's response fails.
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We are also unpersuaded by the defendant's argument that the evidence of impairment and negligent operation was insufficient. Viewed through the required light of Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence showed that the defendant, after coming around a corner unexpectedly, crossed the center double yellow line separating two lanes of travel going in opposite directions, and drove in the oncoming traffic lane towards a police car for several seconds. The double yellow line marking indicated that "[i]t's a road where it's not safe to be operating in the other lane." The officer observed the defendant's eyes to be bloodshot and glassy, a strong odor of alcohol emanated from the defendant, and his speech was slurred. The defendant admitted to having drunk three "nips" and a beer earlier. Based on his observations, the officer concluded that the defendant was intoxicated. Several closed nips of Southern Comfort and an empty bottle of vodka were located in the defendant's car. The evidence was sufficient to sustain the convictions.
Judgments affirmed.