Com. v. Hinckley3/12/1996
e that the Commonwealth is seeking, see Lydon, supra at 313-314; Opinion of the Justices, supra at 1207-1208; Commonwealth v. Brennan, 386 Mass. 772, 776, 780, 438 N.E.2d 60 (1982), if he refuses, that refusal may not be introduced at trial to establish the defendant's consciousness of guilt. If this issue had been properly preserved below, the prohibition against refusal evidence recognized in Opinion of the Justices, supra, would undoubtedly apply to the defendant retroactively. See Commonwealth v. D'Agostino, 421 Mass. 281, 284 & n.3, 657 N.E.2d 217 (1995); Commonwealth v. Figueroa, 413 Mass. 193, 202, 595 N.E.2d 779 (1992), S.C., ante 72 (1996).
The defendant, however, did not preserve this issue. In his motion in limine, trial counsel did not raise the issue of the constitutionality of admitting the refusal evidence. Counsel, citing Commonwealth v. Diaz, 383 Mass. 73, 417 N.E.2d 950 (1981), argued only that the probative value of the refusal evidence was outweighed by its prejudicial impact. This argument does not raise the constitutional implication of refusal evidence. See Commonwealth v. Pisa, 384 Mass. 362, 366, 425 N.E.2d 290 (1981). When the issue was raised at trial, the defendant's counsel dismissed any constitutional concerns related to the sneaker issue as not supportable, and the prosecutor and the Judge concurred. In addition, trial counsel did not object when the prosecutor incorporated the refusal testimony in his closing argument, or when the Judge gave her instructions on this point to the jury.
When the issue appealed is not properly preserved, we would normally only reverse a conviction if the error created a substantial risk of a miscarriage of Justice. See Commonwealth v. Jackson, 419 Mass. 716, 719, 647 N.E.2d 401 (1995). "However, we have ruled in a number of cases that a defendant does not waive a constitutional issue by failing to raise it before the theory on which his argument is premised had been sufficiently developed to put him on notice that the issue is a live issue. Counsel need not be 'clairvoyant.'" Commonwealth v. Bowler, 407 Mass. 304, 307, 553 N.E.2d 534 (1990). See Commonwealth v. Rembiszewski, 391 Mass. 123, 126, 461 N.E.2d 201 (1984); DeJoinville v. Commonwealth, 381 Mass. 246, 248 (1980); Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 16, 490 N.E.2d 1195 (1986). The court's reasoning in D'Agostino, supra, with respect to the relationship of the clairvoyance exception and the principle recognized in Opinion of the Justices, supra, is determinative of this issue. In D'Agostino, supra, the jury convicted the defendant of operating a motor vehicle while under the influence of intoxicating liquor. The defendant asserted that the jury instructions, which had the effect of telling the jury, "by strong implication at least, that the defendant's blood alcohol level had not been tested, and that the reason no test was conducted was that the defendant refused to submit to such a procedure," Commonwealth v. Zevitas, 418 Mass. 677, 683, 639 N.E.2d 1076 (1994), violated his privilege against self-incrimination. At trial, however, the defendant did not object to these instructions on the ground that they violated his privilege against self-incrimination by permitting an improper inference to be made from refusal evidence. After the trial in the D'Agostino case, the Justices opined in Opinion of the Justices, supra, that these particular instructions would violate a defendant's privilege against self-incrimination. Thus, the issue in D'Agostino was whether the application of the constitutional privilege to refusal evidence had been "sufficiently developed to put [counsel] on notice that the issue is a live issue." Bowler, supra at 307. In D'Agostino, supra, we exami
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