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Com. v. Hinckley3/12/1996
ned the decisional law prior to Opinion of the Justices, supra, and concluded that "not until Opinion of the Justices, supra, was there anything in the nature of Discussion by an appellate court in the Commonwealth which would have put the defendant fairly on notice that an instruction calling the jury's attention to a defendant's probable refusal to submit to a breathalyzer test might be held to violate art. 12's right against self-incrimination." D'Agostino, supra at 286. Accordingly, by application of the clairvoyance exception, we permitted the constitutional issues to be raised on appeal.
There is no basis on which to distinguish the arguments here from those decided in the D'Agostino case. Indeed, the defendant's trial here occurred prior to the trial of the defendant in D'Agostino. See Commonwealth v. D'Agostino, supra at 284. Therefore, relying on the Discussion of this issue in D'Agostino, supra, we conclude that the defendant is entitled to benefit from the principle announced in Opinion of the Justices, supra, and applied in Lydon, supra.
Since the clairvoyance exception applies, "the remaining question is whether the error was harmless beyond a reasonable doubt. See Commonwealth v. McGrail, 419 Mass. 774, 780, 647 N.E.2d 712 (1995); Commonwealth v. Perrot, 407 Mass. 539, 548-549, 554 N.E.2d 1205 (1990)." D'Agostino, supra at 287. We determine that it was not. The Commonwealth's case was purely circumstantial; it introduced no evidence that placed the defendant at the landfill at the time of the crime. The friend who helped with the safe after it had been removed from the landfill office did not testify that the brothers told him that they had committed the breaking and entering or the larceny. The Commonwealth introduced no physical evidence of the defendant's involvement in the breaking and entering or larceny: no fingerprints, and no evidence linking the tools in the car to the ones used to break into the landfill office. All that the evidence shows is that the defendant was associated with the safe after it had been removed from the landfill's office. Refusal evidence, particularly accompanied by the prosecution's argumentation and the Judge's instruction on the implications of this evidence, is persuasive, and may have convinced the jury of the defendant's guilt beyond a reasonable doubt.
For these reasons, the defendant's convictions of breaking and entering in the daytime and larceny of a building are reversed and the case is remanded for a new trial.
So ordered.
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