Commonwealth v. Wolfe ( 2017 )


Menu:
  • 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    revision and are superseded by the advance sheets and bound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.
    1
    Justice Hines participated in the deliberation on this
    case prior to her retirement.
    2
    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
    2
    It is possible that a rare case could justify giving such
    an instruction over a defendant's objection, but we have trouble
    imagining such a scenario.
    3
    We acknowledge the amicus brief of the Suffolk Defenders
    Program of Suffolk University Law School, the Committee for
    Public Counsel Services, and the Massachusetts Association of
    Criminal Defense Lawyers.
    3
    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 snow
    bank, and later saw the vehicle cross the double yellow line
    again while executing a turn.
    The officer then stopped the vehicle at the intersection of
    Union Street and Stevens Street.    Upon approaching the vehicle,
    the officer observed the defendant in the driver's seat with
    "bloodshot glassy eyes, slurred speech and a distinct odor of
    alcohol coming from his breath when he spoke."    The defendant
    initially told the officer he was coming from a sandwich shop on
    Main Street.    When the officer replied that the shop closed much
    earlier in the evening, the defendant admitted that he had been
    at a nightclub where he had consumed "a few" drinks.    The
    defendant gave "delayed" responses to several of the officer's
    questions.
    The officer then asked the defendant to step out of the
    4
    The evidence at the two trials was essentially the same.
    4
    vehicle and walk back to the officer's patrol vehicle.     During
    this walk, the defendant used his own vehicle "for balance."
    Another officer at the scene testified that the defendant was
    "swaying" and "unsteady on his feet."    The defendant was placed
    under arrest and transported to the Marlborough police station
    for booking.
    At the station, the defendant "immediately" fell asleep in
    a holding cell.    During the booking procedure, the officer again
    noticed the smell of alcohol on the defendant's breath and had
    to repeat questions multiple times before the defendant
    responded.    At one point, the defendant was permitted to use his
    cellular telephone, but instead he sat "just staring" at his
    telephone and said that it would not turn on.    The officer
    allowed the defendant to use the station's telephone, and
    explained to the defendant how to dial an outside number.      The
    defendant appeared unable to understand this, so the officer
    dialed the number for him.
    There was no mention in the trial evidence of the lack of a
    breathalyzer test or other alcohol-test evidence.    Nevertheless,
    the judge instructed the jury, over the defendant's objection,
    not to consider the absence of breathalyzer tests, field
    sobriety tests, or blood tests.5    The judge explained that he
    5
    The full instruction was as follows:
    5
    believed this instruction was warranted, in part, because the
    jury in the first trial had asked a question about the absence
    of breathalyzer evidence before failing to reach a verdict.
    At the second trial, the jury found the defendant guilty.
    The defendant filed a timely notice of appeal, and we allowed
    his application for direct appellate review.
    Discussion.   Primarily, the defendant claims that the trial
    judge erred by instructing the jury, over objection, that they
    should disregard the lack of evidence of a breathalyzer test,
    blood test, or field sobriety test.6   Generally, trial judges
    have "considerable discretion in framing jury instructions."
    Commonwealth v. Kelly, 
    470 Mass. 682
    , 688 (2015).   However,
    when, as here, a defendant raises a timely objection to an
    instruction, we review for prejudicial error, conducting a two-
    "Now, you may have noticed that there was no evidence
    of any breath test, blood test, or field sobriety test
    introduced in this case. You are not to mention or
    consider in any way whatsoever during your deliberations
    either for or against either side that there was no such
    evidence introduced in this case. Do not consider it in
    any way at all. Do not mention it at all during your
    deliberations. Put it completely out of your minds."
    6
    The defendant also claims error in certain statements the
    prosecutor made during his closing argument. Because our
    resolution of the jury instruction issue requires a new trial,
    we do not reach the closing argument claim. However, to the
    extent it is helpful at retrial, we note that there appeared to
    be scant, if any, evidentiary support for the prosecutor's
    statement that "the booking station was filled with the odor of
    alcohol" due to the defendant's presence.
    6
    part test that asks (1) whether the instruction was legally
    erroneous, and, if so, (2) whether that error was prejudicial.
    
    Id. at 687-688,
    and cases cited.
    The challenged instruction was a modified version of an
    instruction upheld in Commonwealth v. Downs, 
    53 Mass. App. Ct. 195
    , 198 (2001).7    In Downs, the Appeals Court distinguished
    Opinion of the Justices, 
    412 Mass. 1201
    (1992), and Commonwealth
    v. Zevitas, 
    418 Mass. 677
    (1994), in both of which this court
    held that reference to possible reasons for the absence of
    breathalyzer evidence violated a defendant's right against self-
    incrimination under art. 12 of the Massachusetts Declaration of
    Rights.    See Downs, supra at 199.
    In Opinion of the 
    Justices, 412 Mass. at 1202
    , this court
    was asked to opine on the constitutionality of a Senate bill
    proposing the admission of evidence in a criminal proceeding of
    a defendant's refusal to submit to a chemical test or
    breathalyzer.    The court determined that admitting such evidence
    would violate art. 12, as it would be tantamount to providing
    7
    The specific instruction at issue in Downs was as follows:
    "You are not to mention or consider in anyway
    whatsoever, either for or against either side, that there
    is no evidence of a breathalyzer. Do not consider that in
    any way. Do not mention it. And put it completely out of
    your mind."
    Commonwealth v. Downs, 
    53 Mass. App. Ct. 195
    , 198 (2001).
    7
    the jury with the defendant's self-incriminating evidence, i.e.,
    that he refused to submit to testing because he believed it
    would show he had too much to drink.      
    Id. at 1209,
    1211.
    In 
    Zevitas, 418 Mass. at 681-682
    , the defendant challenged
    a jury instruction stating, in part, that "a person has a legal
    right either to take or not to take" a breathalyzer test, and
    that "[i]n any particular situation, there may be a number of
    reasons why a person would not take such a test; and there may
    be a number of reasons why such a test was not administered by
    the police."   The court held that such an instruction, although
    at the time mandated by statute,8 violated the defendant's art.
    12 rights insofar as it invited speculation that the defendant
    failed to take a breathalyzer because he feared the results
    would be unfavorable.   
    Id. at 683-684.
    In 
    Downs, 53 Mass. App. Ct. at 199-200
    , the Appeals Court
    reasoned that, because the instruction at issue made "no mention
    either of a defendant's legal right to refuse to take the
    8
    See G. L. c. 90, § 24 (1) (e), as amended through
    St. 1994, c. 25, § 5 ("When there is no [alcohol-test] evidence
    presented at a civil or criminal proceeding . . . the presiding
    judge at a trial before a jury shall include in his instructions
    to the jury . . . that a person has a legal right to take or not
    take such a test; that there may be a number of reasons why a
    person would or would not take such a test; that there may be a
    number of reasons why such test was not administered; that there
    shall be no speculation as to the reason for the absence of the
    test and no inference can be drawn from the fact that there was
    no evidence of a blood alcohol test . . ."). See also St. 2003,
    c. 28, § 3 (striking out above language).
    8
    breathalyzer or the possible reasons for any refusal," it
    avoided the art. 12 obstacles identified in Opinion of the
    Justices and Zevitas.
    The defendant disagrees with that logic and asks us to
    reject the reasoning of Downs.   He argues, in effect, that all
    so-called Downs instructions suffer from the same art. 12 defect
    found in Opinion of the Justices and Zevitas.   The Commonwealth,
    on the other hand, urges us to embrace the distinction
    articulated in Downs and hold that a Downs instruction
    adequately protects both the Commonwealth and defendants against
    jury speculation without inappropriately implicating a
    defendant's art. 12 rights.
    These arguments boil down to competing claims about who is
    most at risk of being harmed if the jury fail to follow
    instructions.   In this way, both arguments diverge from a long
    tradition of appellate courts presuming that juries can and will
    follow a judge's instructions.   See, e.g., Commonwealth v.
    Andrade, 
    468 Mass. 543
    , 549 (2014); Commonwealth v. Cline, 
    213 Mass. 225
    , 227 (1913).   The Commonwealth's argument assumes that
    a breathalyzer-specific instruction is necessary because,
    without it, the jury will speculate about the absence of
    breathalyzer evidence, contrary to the judge's more general
    directive to base their verdict solely on the evidence.     See
    Instruction 2.120 of the Criminal Model Jury Instructions for
    9
    Use in the District Court (2016) ("You are not to decide this
    case based on what you may have read or heard outside of this
    courtroom.    You are not to engage in any guesswork about any
    unanswered questions that remain in your mind, or to speculate
    about what the 'real' facts might or might not have been").      The
    Downs case itself makes a similar assumption.    See 
    Downs, 53 Mass. App. Ct. at 199
    ("without some form of a limiting
    instruction concerning the breathalyzer, a jury very well could
    rely upon their common knowledge and engage in the same
    speculation invited by the erroneous instruction [rejected in
    Zevitas]").
    Similarly, the defendant claims that giving a Downs
    instruction unnecessarily introduces the specter of refusal
    evidence into the jury room and will have the opposite of the
    intended effect, that is, it will cause the jury specifically to
    focus on the absence of breathalyzer evidence.    And, indeed, our
    decision in 
    Zevitas, 418 Mass. at 684
    , was structured around our
    assessment of the risk that juries may not always hew to a
    judge's instructions to refrain from speculating about matters
    not in evidence.
    We have encountered a variation of this problem before,
    when asked to decide whether (and, if so, when) a judge should
    instruct a jury about a defendant's choice not to testify at
    trial.   See Commonwealth v. Rivera, 
    441 Mass. 358
    , 370-371
    10
    (2004); Commonwealth v. Buiel, 
    391 Mass. 744
    , 746-747 (1984).
    In Buiel, supra at 746, we remarked that it is "difficult to
    determine" whether an instruction about the defendant's election
    not to testify "is beneficial to a particular defendant or to
    defendants as a group."    On the one hand, such an instruction
    "warns the jury against drawing inferences adverse to the
    defendant from his not testifying."    
    Id. at 746-747.
      On the
    other, it "may focus the jury's attention on the question why
    the defendant decided not to assist the jury in their fact-
    finding function."9   
    Id. at 747.
      In light of that difficulty, we
    announced the prospective and "not constitutionally based" rule
    that it would be "reversible error if a judge instructs the jury
    concerning a defendant's right not to testify when the defendant
    has requested that no such instruction be given."    
    Id. at 746,
    747.
    In Rivera, we reconsidered the rigidity of this rule, but
    not its basic thrust.   We said that it would no longer be "per
    9
    As the amici point out, this notion draws strong support
    from common sense and experience. See F.M. Dostoevsky, Winter
    Notes on Summer Impressions 112 (R.L. Renfield trans., 1955)
    ("Try this experiment on yourself: try not to think of a polar
    bear and you will see that the cursed animal keeps returning to
    your mind"). Psychologists refer to this phenomenon as "ironic"
    mental processing and posit that an instruction not to think
    about something can trigger a mental monitoring process to guard
    against the forbidden thought; this monitoring process, in turn,
    may increase the frequency and power of the forbidden thought.
    See Lieberman & Arndt, Understanding the Limits of Limiting
    Instructions, 6 Psych., Pub. Pol'y & L. 677, 697-700 (2000).
    11
    se reversible error" for a judge to give an instruction about
    the defendant not testifying, but that the instruction, when
    objected to, would be subject to review for prejudicial error.
    
    Rivera, 441 Mass. at 370-371
    & n.9.   Nevertheless, "[w]e
    remain[ed] of the view that judges should not give the
    instruction when asked not to do so."    
    Id. at 371
    n.9.
    We believe that similar logic applies here and compels a
    similar conclusion with respect to an objected-to instruction
    about the lack of alcohol-test evidence in an OUI case.      The
    challenge here, as in Buiel and Rivera, is rooted in the
    defendant's art. 12 protection against self-incrimination.
    Although a Downs instruction does not implicate a defendant's
    self-incrimination rights as directly as an instruction about a
    defendant's choice not to testify, it evokes similar concerns.
    See 
    Zevitas, 418 Mass. at 683-684
    ; 
    Downs, 53 Mass. App. Ct. at 199-200
    .   Also, as in 
    Buiel, 391 Mass. at 746
    , we find it
    difficult to assess whether a Downs-type instruction "is
    beneficial to a particular defendant or to defendants as a
    group."    Doing so would require us to engage in a series of
    generalizations about defendants in OUI cases, make assumptions
    about whether and when juries are able to follow a judge's
    instructions, and speculate ourselves about where the jury's
    speculation may lead -- all without the benefit of any
    supporting empirical evidence.   The same basic problems are
    12
    inherent in assessing the Commonwealth's claim that it, too, may
    be harmed by the lack of a Downs instruction.10
    We are persuaded instead that the simpler and safer
    approach is to leave such an instruction to the defendant's
    choice.   This approach has the benefit of simplicity because it
    reaffirms our traditional presumption that the jury will heed
    the judge's general instruction not to speculate about evidence
    10
    Along these lines, we agree with the dissent that a
    trial, at its core, is a search for the truth. See post at      .
    But we have a difference of opinion as to how to best achieve
    that goal. The dissent believes that giving a jury instruction
    that specifically mentions the absence of breathalyzer evidence
    is necessary to ensure that the jury, in fact, do not consider a
    missing breathalyzer test. See 
    id. at .
    As discussed below,
    we do not agree that such an instruction is necessary to stave
    off speculation by the jury. Even so, we acknowledge that such
    an instruction very well may be effective. However, there is
    another possibility: that such a targeted instruction
    introduces the idea of missing breathalyzer evidence into the
    jury room, and, as a result, prompts the jury to wonder about
    the missing breathalyzer evidence and do the opposite of what
    they have been instructed to do. See note 
    9, supra
    , and
    accompanying text. Because this latter path risks encroaching
    upon a defendant's constitutional right not to incriminate
    himself or herself, we believe the decision whether the jury
    receive such an instruction should rest with the defendant, not
    the Commonwealth or the court. See Commonwealth v. Buiel, 
    391 Mass. 744
    , 747 (1984).
    To borrow the dissent's metaphor, we do not disagree that
    the jury might find an "oar," in the form of a more specific
    jury instruction, helpful in navigating the legal waters of an
    OUI case. Post at note 1. But we do not think it wise to
    present the jury with such a device in a case like this, where,
    for the reasons discussed in the text, the jury may use it so
    readily to paddle into restricted waters -- i.e., a defendant's
    art. 12 rights -- at least not without the defendant's consent,
    as in 
    Buiel, 391 Mass. at 747
    , and Commonwealth v. Rivera, 
    441 Mass. 358
    , 371 n.9 (2004).
    13
    not before them.    By adhering to that presumption from the
    outset, the need for the breathalyzer-specific instruction
    approved of in Downs dissipates.11
    We also agree with the defendant that in Opinion of the
    Justices and Zevitas we have suggested a tendency to err on the
    side of caution when it comes to encroaching upon a defendant's
    constitutional right not to incriminate himself or herself.        In
    those cases, we expressed concern that the introduction of
    refusal evidence (Opinion of the Justices) or instructions
    highlighting, however indirectly, the possibility of refusal
    (Zevitas) would nudge the jury toward using refusal evidence
    against a defendant in violation of his or her art. 12 rights.
    See 
    Zevitas, 418 Mass. at 684
    ; Opinion of the 
    Justices, 412 Mass. at 1211
    .     Although this risk may be relatively low, its
    potential consequences are quite serious.    See Commonwealth v.
    11
    The dissent does not adequately explain why, if it is
    presumed that the jury follow the judge's instructions, there is
    any need for a Downs instruction in the first place. If we
    presume the jury follow the judge's instructions, that
    presumption should apply equally to the judge's general
    instruction not to speculate about matters not in evidence.
    This would protect both the Commonwealth and the defendant from
    speculation about the absence of breathalyzer evidence without
    creating the possibility of inducing speculation by specifically
    mentioning the absence of breathalyzer evidence. To the extent
    the dissent is concerned about jurors speculating based on their
    collective knowledge, from outside the court room, about
    breathalyzer testing, we have rejected a similar supposition
    when called upon to examine the need, or lack thereof, for so-
    called "CSI" instructions. See Commonwealth v. Vuthy Seng, 
    456 Mass. 490
    , 503-504 (2010).
    14
    Sneed, 
    376 Mass. 867
    , 871 (1978) ("Even an unintended suggestion
    that might induce the jury to draw an unfavorable inference
    [based on defendant's right not to incriminate himself] is
    error").    And, of course, leading the jury down an inappropriate
    path is precisely the opposite of what jury instructions are
    supposed to do.    Cf. King v. Trustees of Boston Univ., 
    420 Mass. 52
    , 64 (1995), quoting Pfeiffer v. Salas, 
    360 Mass. 93
    , 100-101
    (1971) (jury instructions "should be full, fair and clear as to
    the issues to be decided by the jury, the rules to be followed
    by the jury in deciding the facts, and the law they are to apply
    to the facts found").
    Accordingly, we conclude that typically a defendant should
    be able to elect whether the jury are instructed about the
    absence of alcohol-test evidence.    See 
    Buiel, 391 Mass. at 746
    -
    747.    We emphasize that this conclusion, although rooted in
    constitutional concerns, is not a new constitutional rule
    requiring retroactive application.12   See 
    Rivera, 441 Mass. at 370
    ; Buiel, supra at 747.    Rather, as an exercise of our
    superintendence power, we conclude that, as a matter of
    12
    Although Commonwealth v. Zevitas, 
    418 Mass. 677
    (1994),
    announced a constitutionally based rule requiring retroactive
    application, see Commonwealth v. D'Agostino, 
    421 Mass. 281
    , 286-
    287 (1995), this case is distinguishable because the challenged
    instruction here, unlike in Zevitas, supra at 682, does not
    specifically mention the possibility of refusing a breathalyzer
    test. We reiterate that our decision today is procedural only
    and has only prospective application.
    15
    procedure, the better practice is for a judge to refrain from
    giving a Downs-type instruction absent a request by the
    defendant or some rare set of facts that specifically directs
    the jury's attention to the absence of alcohol-test evidence.13
    Cf. Commonwealth v. DiGiambattista, 
    442 Mass. 423
    , 444-445, 447–
    448 (2004) (using superintendence power to regulate presentation
    of evidence at trial in requiring, under certain circumstances,
    jury instructions regarding defendant's unrecorded statement to
    police).
    In this case, the instruction regarding alcohol-test
    evidence was given over the defendant's objection.   Based on our
    analysis today, this was error.14   Because the defendant objected
    at trial and argued for this rule on direct appeal, he should
    have the benefit of this decision, which otherwise shall apply
    only prospectively.   See Commonwealth v. Adjutant, 
    443 Mass. 649
    , 667 (2005).   Accordingly, we review for prejudicial error.
    13
    Further, when a jury ask a question about the absence of
    alcohol-test evidence, as occurred in the defendant's first
    trial, we think it is the better practice to simply reiterate
    the general instruction not to speculate about matters not in
    evidence and, to the extent possible, refrain from reinforcing
    the jury's focus on items not in evidence by mentioning the lack
    of alcohol-test evidence.
    14
    We understand why the trial judge in the defendant's
    second trial chose to give the instruction that he did, given
    the Appeals Court's ruling in Downs. However, in light of our
    decision today, which differs from that of the Appeals Court in
    Downs, the instruction constituted legal error.
    16
    Commonwealth v. Allen, 
    474 Mass. 162
    , 168 (2016).      This means
    that we "inquire[] whether there is a reasonable possibility
    that the error might have contributed to the jury's verdict."
    Commonwealth v. Alphas, 
    430 Mass. 8
    , 23 (1999) (Greaney, J.,
    concurring).    "An error is not prejudicial if it 'did not
    influence the jury, or had but very slight effect.'"
    Commonwealth v. Cruz, 
    445 Mass. 589
    , 591 (2005), quoting
    Commonwealth v. Flebotte, 
    417 Mass. 348
    , 353 (1994).
    Here, the evidence of impaired operation was far from
    overwhelming.   For example, the defendant offered a plausible
    explanation that his first crossing of the double yellow line
    was necessary to avoid hitting a snow bank in the roadway, and
    that the second was a relatively brief and minor infraction in
    the course of making a left-hand turn.    He also plausibly
    suggested that, as he walked back to the arresting officer's
    cruiser, he used his own vehicle to steady himself not because
    he was impaired, but as a caution against ice on a cold February
    night.   Moreover, the erroneous remarks at issue here "f[e]ll
    from the judge himself," and thereby likely had a more damaging
    effect on the jury.    See 
    Zevitas, 418 Mass. at 684
    , quoting
    Commonwealth v. Goulet, 
    374 Mass. 404
    , 414 (1978).     Under these
    circumstances, we cannot fairly say that "the jury would have
    inevitably reached the same result if the judge had omitted the
    challenged instruction."    
    Buiel, 391 Mass. at 747
    .
    17
    Conclusion.   For the reasons discussed, the defendant's
    conviction is vacated and the case is remanded for a new trial.
    So ordered.
    LOWY, J. (dissenting, with whom Gaziano and Cypher, JJ.,
    join).   Today the court recognizes that a defendant should be
    able to remove speculation regarding the absence of breathalyzer
    evidence from a trial on a charge of operating a motor vehicle
    while under the influence of alcohol (OUI) by requesting an
    instruction pursuant to Commonwealth v. Downs, 
    53 Mass. App. Ct. 195
    , 198 (2001).    I agree.   However, because I feel that the
    Commonwealth should also be able to remove such speculation by
    requesting the same instruction, I respectfully dissent.
    A trial serves many purposes, but at its core, it is a
    search for truth.    When jurors find facts, not from a fair
    consideration of the evidence, but rather based upon
    bewilderment as to why no evidence of a breathalyzer test was
    introduced, confidence in trial by jury in some measure
    incrementally dissipates.      Perhaps one might respond:   jurors
    are instructed to apply the facts to the law as given and not to
    speculate as to any unanswered questions they may have.       A
    general instruction not to speculate is ineffective in the face
    of common knowledge of the breathalyzer test.      The beauty and
    simplicity of the Downs instruction is that it thoroughly
    removes speculation regarding the absence of breathalyzer
    evidence without prejudicing the defendant or the Commonwealth.
    In 
    Downs, 53 Mass. App. Ct. at 199
    , the Appeals Court held
    that the jury instruction complained of here did not violate the
    2
    defendant's privilege against self-incrimination under art. 12
    of the Massachusetts Declaration of Rights, noting that the jury
    "were simply but forcefully instructed that they were not to
    think about or otherwise consider the fact that no evidence was
    offered concerning the breathalyzer."   The Appeals Court also
    pointed out the danger of allowing the specter of the
    breathalyzer to hang over the trial and that an OUI jury trial
    without any reference whatsoever to breathalyzer testing risks
    unfair prejudice to a defendant and the Commonwealth.     
    Id. at 199
    & n.2.   That is to say, without some form of a limiting
    instruction concerning the breathalyzer, a jury very well could
    rely upon their common knowledge and engage in improper
    speculation.
    Indeed, this type of speculation appears to have occurred
    at the defendant's first trial, which resulted in a mistrial.
    There, the jury asked the judge, "Are we allowed to ask:    'Why
    there are no tests?' eg. Breathalyzer or blood test?"   Although
    that record is not before us, presumably the jury were given the
    general instruction that they were to decide the case on the
    evidence presented to them and not to speculate on anything not
    in evidence.   Yet they still engaged in speculation.
    The Downs instruction prevents precisely this kind of
    speculation and rests on the long-standing principle that the
    3
    jury are presumed to follow the judge's instructions.1     See
    Commonwealth v. Cline, 
    213 Mass. 225
    , 227 (1913).   This
    principle lies at the very heart of our justice system:
    "Unless we proceed on the basis that the jury will
    follow the court's instructions where those instructions
    are clear and the circumstances are such that the jury can
    reasonably be expected to follow them, the jury system
    makes little sense. Based on faith that the jury will
    endeavor to follow the court's instructions, our system of
    jury trial has produced one of the most valuable and
    practical mechanisms in human experience for dispensing
    substantial justice."
    Delli Paoli v. United States, 
    352 U.S. 232
    , 242 (1957), rev'd on
    other grounds by Bruton v. United States, 
    391 U.S. 123
    , 126
    (1968).
    1
    The court concludes that the presumption that the jury
    follow instructions should apply equally to the general
    instruction not to speculate as it does to the specific Downs
    instruction. The existence of a general instruction cannot,
    however, preclude the possibility that a specific instruction is
    needed. For example, in a trial where autopsy photographs are
    introduced, a general instruction that jurors should disregard
    emotion and sympathy when reaching a verdict does not preclude a
    judge from specifically instructing the jury on the proper use
    of such photographs. See Commonwealth v. Lawrence, 
    404 Mass. 378
    , 390 (1989). Just because we send a jury navigating a rough
    sea of complex legal issues a life raft (i.e., general jury
    instructions) does not mean we should not also give them an oar
    (i.e., a specific instruction or Downs instruction).
    Further, a general instruction not to speculate may be
    ineffective in the face of jurors' likely knowledge of the
    scientific capability to measure the amount of alcohol in an
    individual's blood. Cf. Commonwealth v. Gray, 
    465 Mass. 330
    ,
    339-340 (2013) (not abuse of discretion "for voir dire questions
    designed to counter any 'CSI effect'" in certain circumstances).
    4
    For more than fifteen years, Downs has been the law of this
    Commonwealth.   See Commonwealth v. Gibson, 
    82 Mass. App. Ct. 834
    , 836 (2012).   Nothing in this record suggests that the
    decision was in any way unsound.   Because I believe the best way
    to prevent prejudice to the defendant and the Commonwealth is to
    allow either party to remove the threat of speculation from jury
    deliberations, I respectfully dissent.