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14-P-911                                          Appeals Court

                COMMONWEALTH     vs.   THOMAS J. COSTA.


                              No. 14-P-911.

           Bristol.       May 8, 2015. - December 17, 2015.

             Present:    Green, Milkey, & Maldonado, JJ.


Motor Vehicle, Operating under the influence. Evidence,
     Breathalyzer test. Practice, Criminal, Reopening of
     evidence, Recalling witness, Judicial discretion, Failure
     to make objection, Failure to object.


     Complaint received and sworn to in the Taunton Division of
the District Court Department on July 23, 2012.

    The case was heard by Thomas L. Finigan, J.


     Justin D. Cohen for the defendant.
     Corey T. Mastin, Assistant District Attorney, for the
Commonwealth.


    MALDONADO, J.       After a bench trial, the defendant was

convicted of operating a motor vehicle while under the influence

of alcohol, G. L. c. 90, § 24(1)(a)(1).       On appeal, he asserts

that (1) the breathalyzer test results were inadmissible because

the Commonwealth did not follow certain regulations, (2) the
                                                                    2


judge erred by reopening the case to take additional evidence on

the breathalyzer test after both parties had rested, and (3) the

evidence was insufficient to support the conviction.   We affirm.

    Inadmissibility of the breathalyzer.    Regulations

promulgated by the Executive Office of Public Safety govern how

alcohol breath tests are to be administered and how

breathalyzers should be maintained.   See G. L. c. 90, § 24K.

"For a breathalyzer test result to be valid and admissible in

evidence, the Commonwealth must demonstrate compliance with

those regulations that 'go to the accuracy of the [breath

testing] device or manner in which the [breathalyzer] test was

performed.'"   Commonwealth v. Hourican, 85 Mass. App. Ct. 408,

411 (2014), quoting from Commonwealth v. Kelley, 39 Mass. App.

Ct. 448, 453 (1995).

    The regulations require "periodic testing" to check the

breathalyzer's function.   "[P]rior to the admission of a

breathalyzer result, the Commonwealth must prove . . .

compliance with[] the requirements of a periodic testing

program."   Commonwealth v. Barbeau, 411 Mass. 782, 786 (1992).

The periodic tests must be done at a minimum "whenever the

calibration standard [here, cylinders of gas, see 501 Code Mass.

Regs. § 2.11(3) (2010)] is replaced and after the breath test
                                                                   3


device is certified by OAT [the office of alcohol testing]."1,2

501 Code Mass. Regs. § 2.12(2) (2010).   Each periodic test

consists of "five calibration standard analysis tests."   501

Code Mass. Regs. § 2.12(1) (2010).   A calibration standard

analysis test is a reading by the breathalyzer of the alcohol

concentration of the gas in the cylinder to test the accuracy of

the breath test machine.   See 501 Code Mass. Regs. §§ 2.02,

2.11(3), 2.12 (2010).   "The test shall be considered valid and

the device operating properly" if the reading of the gas in the

cylinder "shows an alcohol concentration of 0.074%-0.086%."      501

Code Mass. Regs. § 2.11(3).   A written report must be made of

each periodic test and "shall serve as the record that the

device is in calibration and working properly, and shall be

admissible in a court of law."   501 Code Mass. Regs. § 2.12(1).

     The regulations also require a specific procedure for the

breath testing of suspects.   These procedural requirements

include testing the suspect's breath, conducting a "calibration

standard analysis," and then testing the suspect's breath again.

501 Code Mass. Regs. § 2.14(3)(a)-(c) (2010).



     1
       The regulations also allow for a breath test device that
uses a liquid calibration standard instead of gas. See 501 Code
Mass. Regs. § 2.11(2) (2010).
     2
       The OAT, a division of the Massachusetts State police,
certifies the operation of breathalyzers each year. 501 Code
Mass. Regs. §§ 2.04, 2.06 (2010).
                                                                     4


     The breathalyzer at issue here -- the Alcotest 9510 -- has

two cylinders attached to it.    The dual cylinders permit

calibration for a longer period of time by providing a backup in

case one cylinder runs out of gas.    Each cylinder contains a gas

that is prepared to a specified alcohol concentration.    The gas

can be ejected through the breathalyzer to ensure that the

breathalyzer device is correctly calibrated.    Before

calibrating, the breathalyzer senses the pressure in each

cylinder and self-selects which cylinder to use.

     Here, one gas cylinder was used to perform the calibration

on the breathalyzer machine for the periodic test sequence and

the other cylinder was used to perform the calibration during

the defendant's breath test.    The cylinders had not been changed

between the time of the periodic test and the defendant's breath

test.   The defendant contends that, because the cylinder that

calibrated the machine for the periodic test was different from

the one used to calibrate his breath test, "there is no evidence

that the breathalyzer solution was operating properly" for his

test.   The defendant points to no regulation requiring the

testing of the solution contained in each cylinder, and we see

none.   He misunderstands the purpose of the gas cylinders.

     The cylinders are provided at a known alcohol

concentration.   They are the benchmark by which a breathalyzer's

functioning and reliability are tested.    The Commonwealth used
                                                                   5


the canisters in this manner to test the device here.     They

produced the periodic test report that evidenced compliance with

the required testing regulations.    Contrary to the defendant's

contention, the calibration standard analysis does not test the

concentration in each cylinder, but rather the proper

functioning of the device.   See Commonwealth v. Cochran, 25

Mass. App. Ct. 260, 263-264 (1988).    Accordingly, we see no

error in the admission in evidence of either the defendant's

breath test results or the machine's periodic test report.3

     Reopening of the evidence.     Prior to the Commonwealth's

witness testifying to the details of the breathalyzer's periodic

test report, the defendant assented to the admission of the

report "in form, but not substance."    The Commonwealth then

proceeded with its questioning of the witness, and after the

witness attested to the contents of the report, the prosecutor

moved for the report's admission in evidence.     When the judge

asked defense counsel whether he had any objections, counsel

replied, "No, Judge, just legal arguments for later."

     After the Commonwealth had rested, counsel for the

defendant lodged, for the first time with specificity, his


     3
       The defendant also asserts that there was insufficient
evidence to sustain his conviction. This contention lacks
merit, as evidence of the defendant's properly admitted breath
test results, which were in excess of the legal limit, provided
sufficient support for the defendant's conviction.
                                                                     6


challenge to the admissibility of the periodic test report.    He

argued, as discussed earlier, that the breathalyzer had been

calibrated improperly and should be excluded from evidence.    The

judge pointed out to defense counsel that the report was already

in evidence, but considered defense counsel's challenge

nevertheless.   Defense counsel represented to the court, without

the benefit of expert testimony,4 that the test results were

invalid because the report reflected the use of one canister for

the periodic test and another for the field test.   Counsel then

rested and made his closing argument.   The judge then permitted

the Commonwealth to recall its witness to explain the

calibration process.   The defendant objected.

     On appeal, the defendant contends that the judge abused his

discretion by allowing the Commonwealth to reopen the evidence

after both parties had rested.   Given the unusual posture

presented here, we see no abuse of discretion.

     Counsel's assent to the introduction of the report "in

form, but not substance" could not be understood as a request to

bar the report's admission in evidence.   Nor did counsel's

remark apprise either the judge or the Commonwealth of the

     4
       The exhibits showed that a canister in "inlet 2" had been
used for the periodic test, and another canister, in "inlet 1,"
had been used for the defendant's test. However, prior to the
reopening of the evidence, no one had testified to the
significance of the use of the two different inlets or
canisters.
                                                                     7


nature of any objection.    See Commonwealth v. Houghtlin, 16

Mass. App. Ct. 691, 695 (1983) ("Only by means of a motion in

limine, a more focused objection, or a prompt motion to strike,

would the judge have been alerted to the substance of the

particularized arguments now urged on appeal").    Accord

Commonwealth v. Vasquez, 456 Mass. 350, 376 (2010) (Spina, J.,

dissenting in part and concurring in part), quoting from United

States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir.), cert.

denied, 498 U.S. 947 (1990) ("A party challenging the admission

of evidence must timely object and state the specific grounds

for his objection. . . .    This rule serves to ensure that the

nature of the error [is] called to the attention of the judge,

so as to alert him to the proper course of action and enable

opposing counsel to take corrective measures" [quotation and

citation omitted]).    Cf. Commonwealth v. Torres, 420 Mass. 479,

482-483 (1995), quoting from Commonwealth v. Keevan, 400 Mass.

557, 564 (1987) ("It is a fundamental rule of practice that

where a party alleges error in a [jury] charge he must bring the

alleged error to the attention of the judge in specific terms in

order to give the judge an opportunity to rectify the error, if

any").    While counsel indicated that he had "legal arguments for

later," he deliberately concealed from both the judge and the

Commonwealth the basis of his challenge.5,6

     5
         Counsel candidly stated that his failure to reveal the
                                                                    8


    "[I]f the [objection] is intended to be relied on, and is

seasonably taken, the omission may be supplied, or the error

corrected, and the rights of all parties saved. . . .     [I]t is

not consistent with the purposes of justice, for a party knowing

of a secret defect, to proceed and take his chance for a

favorable [finding], with the power and intent to annul it, as

erroneous and void, if it should be against him."   Commonwealth

v. Cancel, 394 Mass. 567, 571-572 (1985), quoting from Cady v.

Norton, 14 Pick. 236, 237 (1833).   By concealing the nature of

his challenge, counsel prevented the Commonwealth from mounting

a factually-based response.   Here, contrary to counsel's

assertion, the challenge he made to the report was not solely

legal but, rather, depended on facts not in evidence --

specifically, his claim that the use of two canisters affected

the calibration process.


basis of his objection earlier in the proceedings "[is] very
tactical, [j]udge, it's actually -- I've done this very many
times." In the circumstances as they are presented in this
case, "[w]e . . . deem such tactical silence to have exceeded
the bounds of acceptably zealous representation." Commonwealth
v. Pavao, 39 Mass. App. Ct. 490, 499 (1995), S.C., 423 Mass. 798
(1996).
    6
       Ordinarily, when an objection is not stated with enough
specificity to preserve the claim, it is treated as waived and
is reviewed on appeal only for a substantial risk of a
miscarriage of justice. See Commonwealth v. Saulnier, 84 Mass.
App. Ct. 603, 605-607 (2013). Here, however, the trial judge
considered the objection fully on its merits after reopening the
evidence and hearing the parties' evidence in full, so we have
considered the claim preserved.
                                                                     9


    This is not a situation in which, by reopening the

evidence, the judge allowed the Commonwealth to supplement

evidence on a missing element of the offense.    Contrast

Commonwealth v. Zavala, 52 Mass. App. Ct. 770, 778 (2001) (error

to reopen the evidence after the Commonwealth rested because the

Commonwealth had failed to "prove . . . an essential element of

the offense charged").    "[T]he decision whether to reopen a case

. . . cannot be made in an arbitrary or capricious manner."

Commonwealth v. Moore, 52 Mass. App. Ct. 120, 126 (2001).

However, "[i]t is within the sound discretion of the judge to

admit material evidence" when good reason is supplied and in

order to achieve a just result.    Ibid., quoting from

Commonwealth v. Shine, 398 Mass. 641, 656 (1986).

    The challenged report was already in evidence, and, along

with the other admitted evidence, supplied a sufficient basis to

support a conviction.    However, having elected to consider

defense counsel's belated challenge, fundamental fairness

dictated that the judge afford the Commonwealth an opportunity

to respond.   See Commonwealth v. Cote, 15 Mass. App. Ct. 229,

241 (1983), quoting from United States v. Hinderman, 625 F.2d

994, 996 (10th Cir. 1980) (a judge has "discretion to permit

reopening when mere inadvertence or some other compelling

circumstance . . . justifies a reopening and no substantial

prejudice will occur" [emphasis supplied]).    See also
                                                                    10


Commonwealth v. Vasquez, 456 Mass. at 377 (Spina, J., dissenting

in part and concurring in part) (Commonwealth should be afforded

an "opportunity to rectify the matter by calling . . . a

witness").

    Furthermore, the defendant experienced no prejudice flowing

from the reopening of the evidence.    The evidence to that point,

which included the challenged breath test report, was sufficient

to support a conviction.     Counsel made a bare challenge to the

report's admission.    Proper consideration of counsel's challenge

required that he lay a factual foundation; if successful, the

challenge could have worked to the defendant's favor to exclude

damning evidence.     We therefore see no abuse of discretion under

the unusual circumstances presented in this case.

                                      Judgment affirmed.
