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revision and are superseded by the advance sheets and bound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
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.