Downs instruction in Massachusetts

2023The judge told defense counsel and the Commonwealth that she intended to respond with two instructions: a reminder to the jury to decide the facts solely based on the evidence at trial,4 and an instruction pursuant to Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198 (2001) (Downs instruction), on the 3 The defendant also testified at trial, in English, having declined an interpreter.

2023The test equipment was visible in the booking room."5 After consulting with defense counsel and the Commonwealth, the judge indicated that she intended to respond by reminding the jury to decide the facts solely based on the evidence at trial,6 and asked defense counsel if he wanted an instruction pursuant to Commonwealth v. Downs, 53 Mass. App. Ct. 195, 198-199 (2001) (Downs instruction) on the absence of breathalyzer evidence.

2023See also Commonwealth v. Derosier, 103 Mass. App. Ct. 518 , 524 n.9 (2023) (claim of error in giving of Downs instruction not preserved by proposal of own "unique" version).

2023See also Commonwealth v. Derosier, 103 Mass. App. Ct. 518 , 524 n.9 (2023) (claim of error in giving of Downs instruction not preserved by proposal of own "unique" version).

2023In Commonwealth v. Wolfe, 478 Mass. 142 , 149-150 (2017), as an exercise of its superintendence power, the court held that "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 11 evidence." Animating the court's concern was that the Downs instruction could implicate the defendant's protection against self-incrimination under art. 12 of the Massachusetts Declaration of Rights because it draws the jury's attention to the lack of

2023In Commonwealth v. Wolfe, 478 Mass. 142 , 149-150 (2017), as an exercise of its superintendence power, the court held that "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 11 evidence." Animating the court's concern was that the Downs instruction could implicate the defendant's protection against self-incrimination under art. 12 of the Massachusetts Declaration of Rights because it draws the jury's attention to the lack of

2023See Millien, 474 Mass. at 432 ; Grace, 397 Mass. at 307 .

2023See Millien, 474 Mass. at 432 ; Grace, 397 Mass. at 307 .

2023Given that defense counsel, given authority over the question by Wolfe, determined (and explicitly stated) that there was a risk the jurors would infer that the defendant refused the test if the Downs instruction were given," as in Wolfe, "we cannot fairly say that 'the jury would have inevitably reached the same result if the judge had omitted the challenged instruction.'" Wolfe, 478 Mass. at 151, quoting Commonwealth v. Buiel, 391 Mass. 744, 747 (1984).

2023Given that defense counsel, given authority over the question by Wolfe, determined (and explicitly stated) that there was a risk the jurors would infer that the defendant refused the test if the Downs instruction were given," as in Wolfe, "we cannot fairly say that 'the jury would have inevitably reached the same result if the judge had omitted the challenged instruction.'" Wolfe, 478 Mass. at 151, quoting Commonwealth v. Buiel, 391 Mass. 744, 747 (1984).

2023See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (defendant's burden to 14 Further diminishing any concerns of unfair prejudice was that the Commonwealth's case against the defendant was very strong, if not overwhelming: the defendant collided with another car and misidentified where his car was damaged; he had bloodshot eyes, walked unsteadily, and his breath had an odor of alcohol; and he failed three field sobriety tests.9 Compare Commonwealth v. Bryer, 398 Mass. 9, 10, 17 (1986) (evidence "substantial and overwhelming" where defendant was observed speeding, was unable to balance,

2023See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (defendant's burden to 14 Further diminishing any concerns of unfair prejudice was that the Commonwealth's case against the defendant was very strong, if not overwhelming: the defendant collided with another car and misidentified where his car was damaged; he had bloodshot eyes, walked unsteadily, and his breath had an odor of alcohol; and he failed three field sobriety tests.9 Compare Commonwealth v. Bryer, 398 Mass. 9, 10, 17 (1986) (evidence "substantial and overwhelming" where defendant was observed speeding, was unable to balance,

2023See Commonwealth v. Keon K., 70 Mass. App. Ct. 568 , 574 n.4 (2007), citing Commonwealth v. Curtis, 417 Mass. 619 , 624 n.4 (1994) (if counsel's omission does not present substantial risk of miscarriage of justice, no basis for ineffective assistance of counsel claim under either Federal or State Constitution).8 8 The defendant relies on Commonwealth v. Spring, 94 Mass. App. Ct. 310 , 320-321 (2018), to support his claim that counsel's unawareness of relevant case law was manifestly unreasonable.

2023See Commonwealth v. Keon K., 70 Mass. App. Ct. 568 , 574 n.4 (2007), citing Commonwealth v. Curtis, 417 Mass. 619 , 624 n.4 (1994) (if counsel's omission does not present substantial risk of miscarriage of justice, no basis for ineffective assistance of counsel claim under either Federal or State Constitution).8 8 The defendant relies on Commonwealth v. Spring, 94 Mass. App. Ct. 310 , 320-321 (2018), to support his claim that counsel's unawareness of relevant case law was manifestly unreasonable.

2023See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (defendant's burden to 14 Further diminishing any concerns of unfair prejudice was that the Commonwealth's case against the defendant was very strong, if not overwhelming: the defendant collided with another car and misidentified where his car was damaged; he had bloodshot eyes, walked unsteadily, and his breath had an odor of alcohol; and he failed three field sobriety tests.9 Compare Commonwealth v. Bryer, 398 Mass. 9, 10, 17 (1986) (evidence "substantial and overwhelming" where defendant was observed speeding, was unable to balance,

2023See Commonwealth v. Satterfield, 373 Mass. 109, 115 (1977) (defendant's burden to 14 Further diminishing any concerns of unfair prejudice was that the Commonwealth's case against the defendant was very strong, if not overwhelming: the defendant collided with another car and misidentified where his car was damaged; he had bloodshot eyes, walked unsteadily, and his breath had an odor of alcohol; and he failed three field sobriety tests.9 Compare Commonwealth v. Bryer, 398 Mass. 9, 10, 17 (1986) (evidence "substantial and overwhelming" where defendant was observed speeding, was unable to balance,

2023See also Commonwealth v. Waite, 422 Mass. 792 , 807 n.11 (1996) (judge has broad discretion in responding to jury questions). 13 The defendant also claims that his trial counsel provided ineffective assistance by failing to obtain his consent to the Downs instruction.

2023See also Commonwealth v. Waite, 422 Mass. 792 , 807 n.11 (1996) (judge has broad discretion in responding to jury questions). 13 The defendant also claims that his trial counsel provided ineffective assistance by failing to obtain his consent to the Downs instruction.

2023See Commonwealth v. Keon K., 70 Mass. App. Ct. 568 , 574 n.4 (2007), citing Commonwealth v. Curtis, 417 Mass. 619 , 624 n.4 (1994) (if counsel's omission does not present substantial risk of miscarriage of justice, no basis for ineffective assistance of counsel claim under either Federal or State Constitution).8 8 The defendant relies on Commonwealth v. Spring, 94 Mass. App. Ct. 310 , 320-321 (2018), to support his claim that counsel's unawareness of relevant case law was manifestly unreasonable.

2023See Commonwealth v. Keon K., 70 Mass. App. Ct. 568 , 574 n.4 (2007), citing Commonwealth v. Curtis, 417 Mass. 619 , 624 n.4 (1994) (if counsel's omission does not present substantial risk of miscarriage of justice, no basis for ineffective assistance of counsel claim under either Federal or State Constitution).8 8 The defendant relies on Commonwealth v. Spring, 94 Mass. App. Ct. 310 , 320-321 (2018), to support his claim that counsel's unawareness of relevant case law was manifestly unreasonable.

2023Moreover, as we recognized in Moreno, "although the court in Wolfe stated that it is the better practice to respond to a jury question with a general instruction only, the court did not state that it is error to deliver the Downs instruction as well." Moreno, 102 Mass. App. Ct. at 328.9 Under the circumstances, the judge did not commit error by exercising her discretion to forcefully respond to the jury's question with instructions that included the more specific Downs admonition "not to mention [the breathalyzer] or consider it in any way whatsoever, either for or against either side.

2023Moreover, as we recognized in Moreno, "although the court in Wolfe stated that it is the better practice to respond to a jury question with a general instruction only, the court did not state that it is error to deliver the Downs instruction as well." Moreno, 102 Mass. App. Ct. at 328.9 Under the circumstances, the judge did not commit error by exercising her discretion to forcefully respond to the jury's question with instructions that included the more specific Downs admonition "not to mention [the breathalyzer] or consider it in any way whatsoever, either for or against either side.

2023This refers only to the court order creating that presumption, and the Superior Court lifted that presumption after the arrest in this case, retroactively to April 18, 2019, see Hallinan, supra at 743; there is nothing in the record about how the District Attorney's Office for Middlesex County handled Alcotest 9510 test results, nor when it concluded that test results from the Alcotest 9510 could be known to be reliable, and thus concluded they could be introduced in court.

2023This refers only to the court order creating that presumption, and the Superior Court lifted that presumption after the arrest in this case, retroactively to April 18, 2019, see Hallinan, supra at 743; there is nothing in the record about how the District Attorney's Office for Middlesex County handled Alcotest 9510 test results, nor when it concluded that test results from the Alcotest 9510 could be known to be reliable, and thus concluded they could be introduced in court.

2018See Commonwealth v. Kelly , 470 Mass. 682 , 697 (2015).

2017And, 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.

2017And, 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.

2017Based 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.

2017Based 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.

2017Based 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.

2017Based 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.

2017The 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).

2017The 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).