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Commonwealth v. Carnell12/7/2001
estimony.
Once defense counsel raised the issue of whether the defendant had requested a blood test, it was well within the judge's discretion to permit the prosecution to refresh Hanlon's recollection on redirect concerning the very question that the defense had raised. "Having opened the door to this information, the defendant essentially invited the Commonwealth to address the issue on redirect examination." Commonwealth v. Johnson, 412 Mass. 318, 325 (1992), quoting from Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991). See Commonwealth v. Maltais, 387 Mass. 79, 92 (1982) (scope of redirect is within the discretion of the trial judge). Compare Commonwealth v. Seymour, 39 Mass. App. Ct. 672, 674 (1996) (the defendant's testimony that she had been offered a breathalyzer test "did not grant a license to the Commonwealth to inquire further and ask whether she had refused to submit to [such a] test").
The problem in this case is that Hanlon's blood test refusal testimony was factually incorrect, as he acknowledged when he testified on voir dire that the defendant had actually refused a breathalyzer test. The inaccuracy could not be cured by allowing defense counsel to cross-examine the trooper further, because the result would have been to inform the jury that the defendant had, in fact, refused a breathalyzer test. Such testimony would have violated the defendant's privilege against self-incrimination under art. 12 of the Massachusetts Declaration of Rights as well as the provision of G. L. c. 90, ' 24(1)(e), making inadmissible at trial the refusal of an accused to submit to a chemical test to determine his blood alcohol level. See Commonwealth v. Zevitas, 418 Mass. at 683 (statutorily mandated instruction violated privilege against self-incrimination because it could have led the jury to conclude that the defendant had refused to submit to a breathalyzer test); Commonwealth v. Seymour, 39 Mass. App. Ct. at 673-677 (discussing constitutional and statutory prohibitions against admitting evidence of refusal to submit to a breathalyzer test). Nor would the situation have been remedied had the trooper simply retracted the erroneous testimony that the defendant had refused a blood test, since that would have suggested that the defendant's refusal, indicated by the check in the "No" box, related to another type of test, inferentially the breathalyzer. In any event, nothing was done to cure the error.
We conclude that the failure to cure the inaccurate refusal testimony was prejudicial. The prosecution's case was not overwhelming. Although evidence of the defendant's lack of sobriety was presented, two of the three State troopers who testified did not conclude that the defendant was under the influence of alcohol. When Trooper Hanlon tested the defendant's sobriety by asking him to recite the alphabet, he twice recited it, slowly but correctly. Lastly, the defendant's two passengers testified that he was sober. The jurors' questions about blood and breath tests indicated that they were concerned about whether the defendant had refused a test to measure his blood alcohol level. The inaccurate testimony that the defendant had refused a blood test could well have influenced their decision to convict him.
Judgment reversed.
Verdict set aside.
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