Commonwealth v. Wolfe (Lawyers Weekly No. 10-163-17)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-12257 COMMONWEALTH vs. MICHAEL J. WOLFE. Middlesex. May 2, 2017. – October 13, 2017. Present: Gants, C.J., Lenk, Hines, Gaziano, Lowy, Budd, & Cypher, JJ.[1] Motor Vehicle, Operating under the influence. Practice, Criminal, Instructions to jury. Constitutional Law, Self-incrimination, Breathalyzer test. Evidence, Breathalyzer test, Field sobriety test. Complaint received and sworn to in the Marlborough Division of the District Court Department on February 13, 2015. The case was tried before Michael L. Fabbri, J. The Supreme Judicial Court granted an application for direct appellate review. Luke Rosseel for the defendant. Thomas D. Ralph, Assistant District Attorney, for the Commonwealth. Jeffrey J. Pokorak, Natalia Smychkovich, & Houston Armstrong, for Suffolk Defenders Program of Suffolk University Law School & others, amici curiae, submitted a brief. BUDD, J. We are asked to decide whether, in a jury trial of an operating a motor vehicle while under the influence (OUI) case, a trial judge may properly give a jury instruction that specifically mentions the absence of breathalyzer or other alcohol-test evidence. We conclude that the judge should not give such an instruction unless the defendant requests it.[2] In this case, the jury were instructed about the absence of alcohol-test evidence in the judge’s final instructions over the defendant’s objection. We conclude that giving the objected-to charge constituted error and that, in the circumstances of this case, the error was prejudicial. Accordingly, we vacate the defendant’s conviction and remand for a new trial.[3] Background. The defendant was charged by complaint with one count of OUI, G. L. c. 90, § 24 (1) (a) (1), and twice faced trial on this complaint before a jury in the Marlborough Division of the District Court Department. The first, in January, 2016, ended in a mistrial. The second, in March, 2016, resulted in a conviction. We summarize the facts as the jury could have found them at the second trial,[4] reserving additional details for later discussion. On February 13, 2015, at around 2 A.M., a Marlborough police officer patrolling the Main Street area noticed a Ford Explorer being driven with a broken taillight. The officer followed the vehicle for approximately five to ten minutes. During that time, the officer witnessed the vehicle cross the double yellow line in a “jerking motion” to avoid hitting a […]