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Com. v. Hinckley3/12/1996
he dial from the safe, the safe would not succumb to their efforts, and the brothers eventually gave up. In the meantime, the friend had left the apartment and drove to the police station where he disclosed his involvement in this affair. The police, in the course of their pursuit of another vehicle, came upon the car that had been used by the brothers. The car appeared to have been recently abandoned, and in it the police found the crowbar and the sledgehammer used by the brothers to pry at the safe, as well as the safe's dial. The police eventually discovered the safe sitting in the middle of a nearby dirt road within one mile of the car.
Prior to trial, the defendant's trial counsel sought to exclude the testimony of an officer of the Barnstable County jail who was prepared to testify that the defendant refused to turn over his sneakers to the police so that investigators could determine if the sneakers matched the shoe prints found at the landfill. Counsel protested that this witness did not appear on the Commonwealth's witness list. Counsel also challenged the admission of this evidence on the ground that it was more prejudicial than probative. He explained that he was stressing prejudice because "based on the law I have read, [refusal evidence] is not testimonial in nature and therefore on that basis wouldn't be excluded." The prosecutor agreed. The Judge declined to decide the issue before trial. When the Commonwealth sought to have the jail officer testify, the Judge overruled the defendant's renewed objection, stating that refusal evidence "was non-testimonial and basically it's admissible," and permitted the testimony concerning the defendant's refusal for the purpose of establishing consciousness of guilt. In its closing argument, the Commonwealth argued that the jury could infer the defendant's guilt from his refusal to turn over his sneakers. At the Commonwealth's requests, the Judge instructed the jury that they were permitted to infer guilt from the defendant's refusal but cautioned them that this evidence could not serve as the sole basis for their verdicts.
On November 20, 1991, the jury convicted the defendant and Martin of breaking and entering in the daytime and larceny in a building. In an unpublished memorandum issued pursuant to its rule 1:28 the defendant's convictions were affirmed by the Appeals Court. Commonwealth v. Hinckley, 38 Mass. App. Ct. 1103, 644 N.E.2d 986 (1995). This court granted the defendant's application for further appellate review and we now reverse the convictions.
II
A
The defendant asserts that the admission of the evidence that he refused to produce his sneakers violated his privilege against self-incrimination as protected by art. 12 of the Declaration of Rights of the Massachusetts Constitution. In 1992, after the defendant's trial, this court decided Commonwealth v. Lydon, 413 Mass. 309, 597 N.E.2d 36 (1992), and rendered an Opinion of the Justices, 412 Mass. 1201, 591 N.E.2d 1073 (1992). We held in Lydon that the admission of refusal evidence violated a defendant's State constitutional privilege against self-incrimination. Lydon, supra at 313-315 (evidence of refusal to submit to swabbing of hands for evidence of gunpowder inadmissible). See also Opinion of the Justices, supra (evidence of refusal to take breathalyzer would be unconstitutionally inadmissible). The admission of the defendant's refusal to turn over his sneakers similarly violated his State constitutional privilege against self-incrimination. In all these instances, the defendant's refusal tends to communicate his belief that he is guilty. Although the refusing party has no constitutional right to refuse to produce real or physical evidenc
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