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14-P-876                                              Appeals Court

               COMMONWEALTH    vs.   RONALD BOTELHO, JR.


                              No. 14-P-876.

           Bristol.      April 21, 2015. - August 10, 2015.

              Present:   Fecteau, Agnes, & Sullivan, JJ.


Motor Vehicle, Operating under the influence. Hearing-Impaired
     Person. Intoxication. Evidence, Intoxication, Argument by
     prosecutor. Practice, Criminal, Defendant's decision not
     to testify, Instructions to jury, Argument by prosecutor.



     Complaint received and sworn to in the Fall River Division
of the District Court Department on July 13, 2012.

    The case was tried before Edmund C. Mathers, J.


     Paula Lynch for the defendant.
     Rachel W. van Deuren, Assistant District Attorney, for the
Commonwealth.


    SULLIVAN, J.      The defendant, Ronald Botelho, Jr., appeals

from his conviction of operating while under the influence of

alcohol (OUI), second offense.       See G. L. c. 90, § 24(1)(a)(1).

At trial the sole issue for the jury was whether the defendant

was intoxicated, or whether his conduct and demeanor were the
                                                                      2


product of a hearing impairment, compounded by the force of a

collision.   The defendant contends that the trial judge's

inadvertent failure to heed his request to instruct the jury

regarding his decision not to testify, coupled with the

prosecutor's closing argument, created a substantial risk of a

miscarriage of justice.   We reverse.

    Background.   On July 12, 2012, between 9:30 P.M. and

10:00 P.M., Officer Keith Strong responded to a dispatch

concerning a single vehicle accident at the intersection of

Second Street and Plymouth Avenue in Fall River.     Upon arriving

at the scene, the officer found the defendant behind the

steering wheel of a vehicle that had struck a utility pole.     The

vehicle had sustained significant front end damage and the

driver's side air bag had deployed.     After the defendant got out

of the vehicle he told the officer "that the stabilizer on his

truck broke and that's what caused" the accident.    When asked if

he had been drinking, the defendant said, "No."

    The Commonwealth's case was based on the officer's

observations at the scene.     The officer testified that the

defendant's speech was slurred, and that he had red and

bloodshot eyes, smelled of alcohol, and stumbled when he got out

of the vehicle.   The officer demonstrated two field sobriety

tests; the defendant began to perform each test before the

instructions were completed.    The officer deemed that the
                                                                    3


defendant failed the two field sobriety tests both because he

stumbled, and because he "wasn't listening" and failed to follow

directions.   The defendant was arrested and charged with OUI and

negligent operation of a motor vehicle.

     The defendant's case was presented through the cross-

examination of the arresting officer and the testimony of two

experts.   The officer testified that he was unaware at the time

of the accident that the defendant was hearing impaired,1 and

that he was unfamiliar with the defendant's normal speech

pattern.   The defense presented two experts who treated the

defendant before the accident, a clinical audiologist who had

tested the defendant in 2007 and a hearing instrument specialist

who fitted the defendant for hearing aids in 2007 and 2012.

Both testified that the defendant suffered from "severe to

profound hearing loss" -- ninety percent in one ear and sixty-

four percent in the other.   The hearing loss was accompanied by

a speech impairment that caused the defendant's speech to sound

slurred.   While the officer testified that he thought the

defendant could hear him and that the defendant responded to

questions, both experts opined that the defendant would not have

been able to hear and understand the officer at the scene of the


     1
       The officer asked at the accident scene if the defendant
had any medical conditions, and the defendant said, "No."
Medical personnel arrived at the scene, and the defendant
declined treatment.
                                                                      4


accident from a distance, such as when being given instructions

regarding the field sobriety tests.     In addition, the

audiologist also testified that the defendant's hearing loss

could have been exacerbated by the collision.     The audiologist

also testified that the defendant had some reported balance

issues prior to the accident and that equilibrium and balance

issues frequently accompany hearing loss.     Defense counsel also

elicited testimony from the officer that the air bag deployed in

the defendant's face, and that a white powder was released when

the air bag deployed.   This, the defense argued, accounted for

the red eyes and an odor on his person and in the vehicle.

    The jury returned verdicts of guilty of operating while

under the influence and negligent operation of a motor vehicle.

The judge granted the defendant's renewed motion for required

finding pursuant to Mass.R.Crim.P. 25(b)(2), as amended, 420

Mass. 1502 (1995), on the charge of negligent operation of a

motor vehicle and accepted the defendant's stipulation to the

second offense portion of the remaining charge.

    Discussion.    1.   Instructions.   The defendant contends that

the judge erred in failing to instruct the jury that they could

not draw an adverse inference from the defendant's election not

to testify.   The Commonwealth maintains that the burden of proof
                                                                     5


and presumption of innocence instructions were adequate despite

the absence of an adverse inference instruction.2

     When a defendant requests an instruction regarding his

election not to testify, the trial judge must give an

instruction that minimizes the risk that the jury will draw an

adverse inference from his election.     Carter v. Kentucky, 450

U.S. 288, 305 (1981).     The Fifth Amendment to the United States

Constitution requires this protection because "a defendant must

pay no court-imposed price for the exercise of his

constitutional privilege not to testify.    Th[is] penalty [may

be] exacted . . . by adverse comment on the defendant's silence;

the penalty may be just as severe when there is no adverse

comment, but when the jury is left to roam at large with only

its untutored instincts to guide it, to draw from the

defendant's silence broad inferences of guilt.    Even without

adverse comment, the members of the jury, unless instructed

otherwise, may well draw adverse inferences from a defendant's

silence."   Id. at 301.




     2
       The defendant also maintains that counsel was ineffective
in failing to object to the omission of the instruction.
Because the analysis of prejudice under an ineffective
assistance claim is substantially the same as the analysis of
prejudice under the substantial risk of miscarriage of justice
standard, we consider the claims together. See Commonwealth v.
Lavoie, 464 Mass. 83, 89, cert. denied, 133 S. Ct. 2356 (2013).
                                                                    6


     The defendant submitted a written request for jury

instructions regarding his election not to testify.    The judge

rejected the instructions requested3 because they were

significantly more detailed than the Model Jury Instructions for

Use in the District Court.4    The judge did, however, agree to

give an instruction regarding the defendant's decision not to

testify.    Despite this assurance, the judge instructed the jury

regarding the burden of proof and the presumption of innocence,

but did not give an instruction regarding the defendant's

election not to testify.5    The defendant did not draw the


     3
       The judge was not limited to the specific language
requested by the defendant. See Commonwealth v. Carrion, 407
Mass. 263, 270 (1990); Commonwealth v. Gilchrist, 413 Mass. 216,
218 (1992).
     4
         The relevant model instruction states:

     "You may have noticed that the defendant did not testify at
     this trial. The defendant has an absolute right not to
     testify, since the entire burden of proof in this case is
     on the Commonwealth to prove that the defendant is guilty.
     It is not up to the defendant to prove that he (she) is
     innocent. The fact that the defendant did not testify has
     nothing to do with the question of whether he (she) is
     guilty or not guilty. You are not to draw any adverse
     inference against the defendant because he (she) did not
     testify. You are not to consider it in any way, or even
     discuss it in your deliberations. You must determine
     whether the Commonwealth has proved its case against the
     defendant based solely on the testimony of the witnesses
     and the exhibits."

Instruction 3.600 of the Criminal Model Jury Instructions for
Use in the District Court (2009).
     5
         The judge instructed the jury as follows:
                                                                    7


omission to the judge's attention.   Because the defendant failed

to object to the instructions given, "we review to determine

whether the alleged error created a substantial risk of a

miscarriage of justice."    Commonwealth v. Dussault, 71 Mass.

App. Ct. 542, 544 (2008).

    In assessing the legal adequacy of the instructions given,

we look to the charge as a whole to determine if "the charge

satisfied the requirement for an instruction minimizing the

danger that the jury will draw an adverse inference from the

defendant's decision not to testify."    Commonwealth v.

Gilchrist, 413 Mass. 216, 219 (1992), citing Commonwealth v.

Thomas, 400 Mass. 676, 679 (1987).

    The instruction given was deficient in two interrelated

respects.   Although the instruction stated that the defendant

did not have to produce any evidence at trial, the instruction

did not explicitly communicate the defendant's Fifth Amendment

right not to testify as a witness in his own defense.      The

instruction also failed to convey to the jury that no adverse




    "This burden of proof never shifts. The Defendant is not
    required to call any witness, produce any evidence since he
    is presumed to be innocent. The presumption of innocence
    stays with the Defendant unless and until the evidence
    convinces you unanimously as a jury that the Defendant is
    guilty beyond a reasonable doubt."

The judge also gave a similar instruction in his preliminary
instructions to the jury.
                                                                     8


inference may be drawn from the defendant's failure to testify.

"[T]he failure to limit the jurors' speculation on the meaning

of . . . silence, when the defendant makes a timely request that

a prophylactic instruction be given, exacts an impermissible

toll on the full and free exercise of the privilege."     Carter,

450 U.S. at 305.

    The Commonwealth argues that the instruction regarding the

burden of proof and presumption of innocence were sufficient to

convey these principles.    This argument was considered and

rejected in Carter.   "Without question, the Fifth Amendment

privilege and the presumption of innocence are closely aligned.

But these principles serve different functions, and we cannot

say that the jury would not have derived significant additional

guidance from the instruction requested."    Id. at 304 (quotation

omitted).   See Commonwealth v. Torres, 17 Mass. App. Ct. 676,

677 (1984) (reversing for failure to give adverse inference

instruction); Commonwealth v. Green, 25 Mass. App. Ct. 751, 753-

755 (1988) (concluding justice had not been done where, among

other errors, judge failed to give adverse inference

instruction).

    This case stands in contrast to those relied on by the

Commonwealth in which the strength of the instructions regarding

the right not to testify ameliorated the omission of an adverse

inference instruction.     For example, in Gilchrist, supra at 218,
                                                                      9


the judge instructed the jury that "[t]he Defendant does not

have to testify."   The Supreme Judicial Court concluded that the

instruction -- absent here -- adequately "minimiz[ed] the danger

the jury [would] draw an adverse inference from the defendant's

decision not to testify."   Id. at 219.

     Similarly, in Commonwealth v. Feroli, 407 Mass. 405, 409

(1990), the defendant requested that the judge instruct the jury

that no adverse inference could be drawn from the fact that the

defendant elected not to testify.   The judge instructed that

"the defendant ha[d] the absolute right to remain passive and

require the Commonwealth to prove its case beyond a reasonable

doubt, and in so doing he may elect to participate by way of

examination of the evidence presented by the Commonwealth or not

elect to participate to that extent."     Id. at 410.   The Supreme

Judicial Court concluded that while it would have been

preferable to include the "'no adverse inference' language," the

omission did not create a substantial likelihood of a

miscarriage of justice6 because "the judge emphasized that the

defendant's right not to testify was 'absolute.'"7      Ibid.


     6
       In Feroli, supra at 407, the court reviewed the judge's
failure to give the "no adverse inference" instruction under
G. L. c. 278, § 33E.
     7
       Notably, the Supreme Judicial Court did not approve the
instruction given in Feroli. This instruction was approved in
Commonwealth v. Powers, 9 Mass. App. Ct. 771 (1980), before the
United States Supreme Court decision in Carter. In Feroli,
                                                                        10


       By contrast, the instruction here did not explicitly state

that the defendant had an "absolute" right not to testify.        The

preliminary instruction included the statement that "the

defendant may present evidence in his behalf if he wishes to do

so, but he is not obliged to do so."      The final instruction said

only that he was not "required to call any witness."      In the

absence of an adverse inference instruction, the suggestion that

the defendant may present evidence on his behalf opened the door

to speculation as to why he had not.      "No judge can prevent

jurors from speculating about why a defendant stands mute in the

face of a criminal accusation, but a judge can, and must, if

requested to do so, use the unique power of the jury instruction

to reduce that speculation to a minimum."      Carter, 450 U.S. at

303.

       2.   Prejudice.   In determining whether the failure to give

an instruction created a substantial risk of a miscarriage of

justice, we consider "(1) whether the Commonwealth presented a

strong case against the defendant; (2) whether the error is

sufficiently significant in the context of the trial to make

plausible an inference that the [jury's] result might have been

otherwise but for the error; and (3) whether it can be inferred

from the record that counsel's failure to object was not simply


decided after Carter, the court passed on the issue of the
propriety of the instruction, and reached a result on the basis
that the defendant was not prejudiced.
                                                                   11


a reasonable tactical decision."   Dussault, 71 Mass. App. Ct. at

544 (quotations omitted).   The defendant requested the

instruction, so it is clear from the record that the failure to

object was not strategic.   We therefore look to the other two

factors, the strength of the Commonwealth's case and the context

of the trial.

    The evidence of the defendant's guilt was not overwhelming.

Contrast id. at 543-544.    No witness saw the accident or saw the

defendant driving before the accident.    The defendant

consistently stated that he had not been drinking.    There was no

alcohol in the vehicle and no testimony that he had been

drinking.   The arresting officer testified to many observations

consistent with alcohol intoxication, such as slurred speech and

poor balance.   However, the defendant provided an alternative

explanation -- profound hearing loss, a speech impairment, and

previous balance problems derived from the hearing loss, all

compounded by the collision and the deployment of the air bag to

the head.   The officer also testified that the defendant had red

eyes and smelled of alcohol, but cross-examination provided an

alternative theory, namely that the chemicals released when the

air bag deployed caused the reddened eyes and the odor.

    Furthermore, the officer's assertion that the defendant

smelled of alcohol and the defendant's denials presented a

question of credibility for the jury.    Where the jury could have
                                                                    12


been aided in the resolution of a credibility question by the

defendant's testimony, the absence of the requested instruction

takes on heightened significance.    See Green, 25 Mass. App. Ct.

at 753-755.

    More importantly, the failure to give the requested

instruction was highly significant in the context of the trial.

There was a conflict in the evidence regarding the inferences to

be drawn from the defendant's slurred speech.    It is difficult

to imagine a case in which the jury would have a greater

interest in "hearing" the defendant.    In this context, the risk

that the jury would draw an adverse inference from the failure

to testify is particularly high.    Any prejudice attendant to the

failure to give the instruction was exacerbated in the unique

circumstances of this case.

    3.    Closing argument.   The risk of prejudice was compounded

by the prosecutor's closing argument.    Arguing that the

defendant was in fact intoxicated at the time of the accident,

the prosecutor stated, "[t]he issue was is he intoxicated that

night.   The only testimony you heard from that night was Officer

Strong's."    "[P]rosecutorial comments on the defendant's silence

at times when the defendant is constitutionally entitled to

remain silent, such as . . . at trial, are impermissible."

Commonwealth v. Teixera, 396 Mass. 746, 752 (1986).    The

defendant contends that this statement implicitly suggested to
                                                                    13


the jury "that the defendant had an affirmative duty to counter

the Commonwealth's evidence against him."   Commonwealth v.

Johnson, 463 Mass. 95, 113 (2012).   The Commonwealth maintains

that this argument was fair comment on the evidence in the

context of the trial as a whole.

     "Whatever the prosecutor's intent, if his remarks were

reasonably susceptible of being interpreted as a comment on the

defendant's failure to take the stand, they would be improper."

Commonwealth v. Pena, 455 Mass. 1, 19 (2009), citing

Commonwealth v. Gouveia, 371 Mass. 566, 571 (1976).     See Mass.

G. Evid. § 1113(b)(3)(E) (2015) (setting forth what is

impermissible in closing arguments in criminal cases).      By this

standard, the closing argument here was improper.     The

prosecutor's use of the word "only" coupled with the twice

repeated reference to "that night" served to focus the jury's

attention on the defendant's failure to testify, since the

interactions between the defendant and the arresting officer at

the scene that night were the sole basis of the Commonwealth's

case.8


     8
       Earlier in his closing argument, the prosecutor also
stated, "his vehicle was driven into a pole, whether it's
because of a mechanical malfunction, which we have no evidence
of today. No evidence was introduced regarding that or whether
it was because he was under the influence." This argument was
made in response to defense counsel's closing argument, in which
he argued forcefully that the vehicle had been towed by the
police and that the Commonwealth had failed to examine the
                                                                  14


     The prosecutor's remarks also exacerbated the prejudice

attendant to the judge's failure to give the adverse inference

instruction.   Conversely, the absence of an adverse inference

instruction also failed to "neutralize[] any prejudice produced

by the prosecutor's" statement or "mitigate[] any suggestion of

burden shifting that may have arisen."   Johnson, supra at 114.

See Pena, supra at 19.   Contrast Commonwealth v. Russo, 49 Mass.

App. Ct. 579, 583 (2000) (no substantial risk due to closing

argument where evidence of guilt was strong and appropriate

curative instructions were given); Dussault, 71 Mass. App. Ct.

at 545 (evidence overwhelming and no comment on silence in

closing argument).9

     Conclusion.   In the circumstances presented, the

unfortunate synergy between the failure to give the requested

instruction and the prosecutor's closing argument leads to a

plausible inference that the jury's result might have been

otherwise but for the errors.   For this reason the judgment is

reversed and the verdict is set aside.

                                    So ordered.



vehicle or the stabilizer. However, the prosecutor's response
was not an explanation why the police did not examine the
vehicle. Instead, the argument may be interpreted to suggest
that the defendant should have testified to the condition of the
vehicle or produced evidence of the condition of the vehicle.
     9
       We do not address the remaining claims on appeal as error,
if any, is unlikely to be repeated on retrial.
