MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of operating under the influence of intoxicating liquor (OUI) in violation of G. L. c. 90, § 24 (1) (a) (1). On appeal, the defendant argues that the judge erred in (1) failing to exclude evidence of his refusal to continue performing a field sobriety test; (2) denying his motion for a required finding of not guilty; and (3) refusing to give a missing witness instruction. We affirm.
Background. On the evening of July 28, 2019, Officer Daniel Vining was dispatched to an apartment complex in Andover on a report of an unresponsive man. When he arrived on the scene, Officer Vining saw a vehicle with New Hampshire license plates stopped in the center of the apartment complexs parking lot. He could see a man (later identified as the defendant) sitting in the drivers seat with a small glass between his legs. The vehicle was in gear and the engine was running. Officer Vining put the vehicle in park, turned off the engine, and attempted to wake the defendant. After the officer asked him if he was “okay” approximately three times, the defendant woke up. The officer then asked the defendant to step out of the vehicle; the defendant was unsteady and had to use his vehicle for balance. At this point, the officer realized that “there was a strong language barrier” and he called dispatch and requested that a Spanish-speaking officer be sent to the scene.
After Officer Javier Reyes arrived to translate communications, Officer Vining began to conduct a field sobriety test. The defendant could not complete the nine-step walk and turn correctly -- failing to follow the instructions, making an improper turn, and stopping before turning to take the nine steps back. The defendant was similarly unsuccessful at the one-legged stand test; he was allowed to attempt the test twice and both times lost his balance. Officer Vining asked the defendant if he would like to continue the test. The defendant stated that he did not and was then placed under arrest.
Discussion. 1. Refusal evidence. The defendant argues that the judge erred in admitting evidence that the defendant refused to continue field sobriety testing. The defendant contends that the alleged error is preserved because -- despite failing to make a contemporaneous objection -- he objected at trial to “any testimony in regards to communication to [the defendant] and whether he understood” the officer.
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This objection was insufficient to apprise the judge of the claim of refusal evidence; it was not preserved. Because the defendant did not properly preserve the issue, “we review to determine whether there was error and, if so, whether such error created a substantial risk of a miscarriage of justice.” Commonwealth v. Beaulieu, 79 Mass. App. Ct. 100, 103 (2011). See Commonwealth v. Freeman, 352 Mass 556, 563-564 (1967).
It is improper for the prosecution to introduce evidence of a defendants refusal to participate in a field sobriety test. See Commonwealth v. McGrail, 419 Mass. 774, 779-780 (1995). A defendants refusal “is the equivalent of his statement, ‘I have had so much to drink that I know or at least suspect that I am unable to pass the test’ ” (quotation omitted). Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 61 (1998), quoting Opinion of the Justices, 412 Mass. 1201, 1209 (1992). Refusal evidence arises when a defendant is compelled to choose between two equally unappealing alternatives: “take the test and perhaps produce potentially incriminating real evidence [or] refuse and have adverse testimonial evidence used against him at trial.” Opinion of the Justices, supra at 1211.
After a person has consented to a field sobriety test, however, “his physical actions in performing the test are not testimonial and may be the subject of testimony at trial” (citation omitted). Commonwealth v. Brown, 83 Mass. App. Ct. 772, 778 (2013). The defendants “expressions of difficulty or inability to perform or to complete [testing] ․ are [also] not the products of compulsion and thus are admissible.” Id. at 778-779. While expressions of difficulty are therefore admissible, a defendant can withdraw his initial consent to perform sobriety testing, with that refusal being inadmissible. See Grenier, 45 Mass. App. Ct. at 61. See also Brown, supra at 778 n.7 (“A refusal to take the test is no less a protected refusal simply because the defendant initially agreed to take the test but then before attempting it declined to perform”).
Here, the defendant participated in several field sobriety tests before being asked whether he wanted to continue. Even if his response were to be considered a refusal, we conclude that, under the circumstances, any error in the admission of the defendants response did not create a substantial risk of a miscarriage of justice. “The substantial risk standard requires us to determine ‘if we have a serious doubt whether the result of the trial might have been different had the error not been made.’ ” Commonwealth v. Proulx, 61 Mass. App. Ct. 454, 461 (2004), quoting Commonwealth v. LeFave, 430 Mass. 169, 174 (1999). In making this assessment, we “review the evidence and the case as a whole.” Commonwealth v. Azar, 435 Mass. 675, 687 (2002). We ask four questions: “(1) whether there was error, (2) whether the defendant was prejudiced by the error, (3) ‘[c]onsidering the error in the context of the entire trial,’ whether it would be ‘reasonable to conclude that the error materially influenced the verdict,’ and (4) whether we may infer from the record that counsels failure to object was not a reasonable tactical decision.” Commonwealth v. Russell, 439 Mass. 340, 345 (2003), quoting from Commonwealth v. Randolph, 438 Mass. 290, 298 (2002).
We discern no prejudice under the circumstances of this case. First, the lack of any objection is some indication that the evidence did not have the impact now claimed on appeal. See Commonwealth v. Johnston, 467 Mass. 674, 695 (2014). Moreover, defense counsel on cross-examination elicited testimony concerning the defendants refusal, after initial consent, as a way of illustrating the point that the defendant may not have understood the officers directions, consistent with the defense theory that poor performance on the field sobriety test may have been the result of a language barrier. And while the prosecutor mentioned the refusal in closing, it was again in the context of arguing that the defendant understood what was happening at the time.
Moreover, the other evidence against the defendant was strong. He was found sleeping in a running vehicle with a glass between his legs. He was not aroused by the officer reaching into his car to take the keys out of the ignition and only awoke after the officer yelled at him, asking if he was alright. The defendant had “extremely bloodshot and glassy” eyes and emanated an odor of alcohol. He was unsteady on his feet and had to use his vehicle for balance. He was unable to successfully perform field sobriety tests. See Beaulieu, 79 Mass. App. Ct. at 105 (no substantial risk of miscarriage of justice in admission of field sobriety test refusal where evidence of defendants intoxication was strong). Viewing the case as a whole, we are not persuaded that the error materially influenced the verdict.
2. Sufficiency of the evidence. The defendant argues that the judge erred in denying his motion for a required finding of not guilty. When reviewing the evidence under the familiar Latimore standard, we consider “whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319 (1979).
Under G. L. c. 90, § 24, the Commonwealth must show “that the defendant (1) operated a vehicle, (2) on a public way, (3) while under the influence of alcohol.” Commonwealth v. Quinn, 61 Mass. App. Ct. 332, 334 (2004), citing Commonwealth v. OConnor, 420 Mass. 630, 631 (1995). “The inferences that support a conviction ‘need only be reasonable and possible; [they] need not be necessary or inescapable.’ ” Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 133 (2018), quoting Commonwealth v. Waller, 90 Mass. App. Ct. 295, 303 (2016).
The defendant first contends that there was insufficient evidence that he was under the influence of alcohol. The defendant was found unresponsive in a running vehicle, still in drive, in the center of a parking lot. He had a glass between his legs and the responding officer could smell alcohol emanating from him. Additionally, his eyes were glassy and bloodshot, he was unsteady on his feet, had to use the vehicle for support, and continued to lack balance throughout the field sobriety tests. The evidence was sufficient. See Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392-393 (2017) (evidence of “classic symptoms of alcohol intoxication”).
Although the defendants appearance and behavior may have been consistent with someone who had just been woken up from a sound sleep and with someone who did not understand what the officer was saying due to a language barrier, these were issues of weight and credibility for the jury to determine. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005) (conflicting inferences from evidence to be resolved by jury for weight and credibility of evidence is wholly within its province). The evidence, viewed in the light most favorable to the Commonwealth, as it must, was sufficient to allow a jury to find that the defendant was under the influence of alcohol. See Gallagher, 91 Mass. App. Ct. at 392.
The defendant next contends that, even if there was sufficient evidence of intoxication as the defendant sat in his motor vehicle in the residential parking lot, there was insufficient evidence that he was intoxicated as he drove on any public way. Yet, proof that the offense occurred on a public way may “rest entirely on circumstantial evidence.” Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010), quoting Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 52 (2006). Here, the evidence at trial showed that, in order to get to the apartment complex parking lot, where the defendant was found, he would have been required to travel on North Main Street, also known as Route 28. There was no real dispute at trial that North Main Street/Route 28 is a public way. Moreover, given that the defendant was found asleep in the drivers seat with the car running and a glass between his legs, the circumstances suggested that the defendant had recently driven to the residential parking lot in an intoxicated state. See Commonwealth v. Hilton, 398 Mass. 63, 67 (1986). See also Belliveau, 76 Mass. App. Ct. at 835. Cf. Commonwealth v. George, 406 Mass. 635, 637 (1990). The judge properly denied the defendants motion for a required finding of not guilty.
3. Missing witness instruction. The defendant contends that the judge erred in refusing to give an absent witness instruction regarding the translating officer, Officer Reyes. We review a judges decision to give or not give a missing witness instruction under the abuse of discretion standard. See Commonwealth v. Williams, 450 Mass. 894, 901 (2008).
“The decision whether to provide a missing witness instruction to the jury is within the discretion of the trial judge, and will not be reversed unless the decision was manifestly unreasonable.” Commonwealth v. Saletino, 449 Mass. 657, 667 (2007). A missing witness instruction is appropriate when a party “has knowledge of a person who can be located and brought forward, who is friendly to, or at least not hostilely disposed toward, the party, and who can be expected to give testimony of distinct importance to the case,” and the party, without explanation, fails to call the person as a witness. Commonwealth v. Anderson, 411 Mass. 279, 280 n.1 (1991), quoting Commonwealth v. Schatvet, 23 Mass. App. Ct. 130, 134 (1986). “[W]here a witness is equally available to both sides of a dispute, no inference should be drawn against either side for failing to call the witness.” Commonwealth v. Figueroa, 413 Mass. 193, 199 (1992), quoting Commonwealth v. Cobb, 397 Mass. 105, 108 (1986).
Here, the prosecutor represented that she did not fail to call Officer Reyes as a witness; he was summoned by the prosecution but did not appear for trial. Thus, one of the foundational elements required for a missing witness instruction collapses at the outset -- that the party, without explanation, fails to call the person as a witness. See Commonwealth v. Ortiz, 61 Mass. App. Ct. 468, 473 (2004). In addition, the witness was equally available to both parties in this instance; there was no reason why the defendant could not have summoned Officer Reyes to testify.
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See Williams, 450 Mass. at 900. The judge did not, therefore, abuse his discretion in denying the defendants request for a missing witness instruction. See Saletino, 449 Mass. at 667.
Judgment affirmed.
FOOTNOTES
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. The defendants objection was based on the fact that Officer Vining did not directly communicate with the defendant and, because he did not speak Spanish, could not accurately testify as to the communications between Officer Reyes and the defendant.
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. The judge asked, “[s]o you werent precluded from summonsing the witness either, right?” to which defense counsel replied, “I could have.”