Commonwealth v. Joseph E. Schnupp, Third.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-190

COMMONWEALTH

vs.

JOSEPH E. SCHNUPP, THIRD.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

On October 5, 2015, the defendant admitted to sufficient

facts to support a finding of guilty on a charge of operating a

motor vehicle while under the influence of intoxicating liquor

(or .08 percent blood alcohol content) (OUI), in violation of

G. L. c. 90, § 24 (1) (a) (1). The matter was continued without

a finding (CWOF) for one year and the defendant's driver's

license was suspended for forty-five days. See G. L. c. 90,

§ 24D. As we discuss in more detail below, the evidence against

the defendant consisted, in part, of the results of a breath

test, which was administered using a Draeger Alcotest 9510

breathalyzer device. The test showed a blood alcohol content of

.18 percent, well above the legal limit of .08 percent.
Approximately seven years later, on or about February 12, 2021,

the defendant received a notice from the Executive Office of the

Trial Court informing him that he had the right to challenge his

CWOF on the ground that all breath tests administered between

June 1, 2011, and April 18, 2019, "have been excluded from use

in criminal prosecutions." The defendant then filed a motion to

withdraw his admission to sufficient facts claiming that his

admission was not knowing and voluntary because at the time he

tendered his admission he believed that the breath test results

would be admissible, and that the Commonwealth only needed the

results of the test to convict him.

The motion was denied in a detailed memorandum and order.

On appeal, the defendant argues that the judge abused his

discretion by, among other things, concluding that he failed to

demonstrate a reasonable probability that he would not have

admitted to sufficient facts had he known that the breath test

results would have been excluded at trial.

The outcome of this appeal is controlled in all material

respects by the Supreme Judicial Court's recent decision in

Commonwealth v. Hallinan, 491 Mass. 730 (2023). In that case,

which was decided after the ruling at issue here, the court

concluded that the defendant should be permitted to withdraw her

admission to sufficient facts for two reasons. First, because

"defendants who pleaded guilty or who were convicted after

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trial, and the evidence against whom included breath test

results from [a Draeger] Alcotest 9510 device last calibrated

and certified prior to April 18, 2019, are entitled to a

conclusive presumption of egregious government misconduct."1 Id.

at 731. And second, despite proof of impairment (red and glassy

eyes, odor of alcohol, slurred speech, inability to complete

field sobriety tests, and "dazed" appearance), and the

defendant's admission that she had three alcoholic drinks, the

court concluded that the reported breathalyzer result of .23

percent was the most inculpatory piece of evidence. Id. at 732,

750. The court's reasoning and the similarity of the

circumstances presented in Hallinan to those presented here lead

us to conclude that we must reach the same result and,

therefore, we reverse the order denying the defendant's motion

to withdraw his admission.

Background. Given the passage of time, there is no

recording of the hearing at which the defendant admitted to

The court described the government misconduct at issue in
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detail and specifically noted that the Office of Alcohol Testing
(OAT), a division of the State Police Crime Laboratory
responsible for the Commonwealth's breath testing program, has
been found to have engaged in a "disturbing pattern of
intentionally withholding exculpatory evidence . . . dating back
at least as early as June 2011." Hallinan, 491 Mass. at 733-
743, 745.

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sufficient facts. We therefore summarize the facts from the

judge's memorandum of decision and order.

During the course of investigating a car accident in the

early morning hours of March 1, 2015, Sergeant David Sedgwick of

the Rowley police department went to a residence located at 159

Leslie Road. The owner of a car that had been abandoned at the

scene of the accident resided at that address. On his arrival,

Sergeant Sedgwick encountered the defendant sitting in the

driver's seat of a black Dodge Ram pickup truck that was idling

at the bottom of the driveway. The truck was partially in the

road. After speaking with individuals inside the residence,

Sergeant Sedgwick learned that they and the defendant had just

returned from a military ball. He then spoke with the defendant

and informed him that the truck had to be moved. The defendant

was nervous and had a strong odor of alcohol on his breath. The

defendant's speech was slurred, his eyes were red and glassy,

and his movements were deliberate and methodical. Sergeant

Sedgwick instructed the defendant to move his truck completely

into the driveway and to remain at the residence that evening.

The defendant, however, did not follow Sergeant Sedgwick's

instructions. Soon thereafter, he was seen driving the truck

and was stopped by Sergeant Sedgwick. The defendant's reaction

to the cruiser's lights was slow, and he drove in and out of the

shoulder of the road before stopping. When asked to step out of

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the truck, the defendant staggered. He refused to perform field

sobriety tests and claimed the police had set him up. The

defendant was placed under arrest and transported to the police

station.

During the booking process, the defendant became agitated

and appeared panic stricken; the defendant complained of chest

pains, but refused medical treatment. He admitted that he was

impaired and he stated, in a clear reference to his blood

alcohol content, that he believed he was "around a 'point one.'"

The defendant opted to provide a breath sample, which was tested

on a Draeger Alcotest 9510 device. The test revealed a much

higher blood alcohol content of .18 percent.

As previously noted, the defendant was charged with OUI and

subsequently admitted to sufficient facts to warrant a finding

of guilty. Years later, when it came to light that the results

of the breath test results obtained from a Draeger Alcotest 9510

device were deemed inadmissible, he filed a motion for a new

trial pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435

Mass. 1501 (2001).2 The motion was supported by an affidavit in

which the defendant averred that he "was told that the

2 "An admission to sufficient facts to warrant a finding of
guilty is treated as a guilty plea for the purposes of a motion
for a new trial." Commonwealth v. Scott, 467 Mass. 336, 337 n.1
(2014).

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Commonwealth would only need the results of the test to convict

[him] and that [he] was 'per se' guilty because of the test

results." According to the defendant, had he known that the

breathalyzer test results could not be used against him at

trial, "[his] decision to pursue a trial would have been an easy

one." Following a hearing before the same judge who imposed the

CWOF, the defendant's motion was denied.3,4

Discussion. We review the denial of the defendant's motion

to withdraw his admission for abuse of discretion or significant

error of law. See Commonwealth v. Yardley Y., 464 Mass. 223,

227 (2013).

The judge properly evaluated the defendant's claim under

the so-called Scott/Ferrara test. See Commonwealth v. Scott,

467 Mass. 336, 346 & n.5 (2014), and Ferrara v. United States,

456 F.3d 278, 290-291 (1st Cir. 2006). The test applies where,

as here, a defendant seeks to vacate an admission to sufficient

facts as involuntary due to subsequently revealed evidence of

3 We do not ignore the judge's conclusion that the
defendant's affidavit was self-serving or the principle that "we
extend special deference" to a judge's decision where, as here,
the motion judge is the same judge who presided over the
defendant's admission. Commonwealth v. Sharpe, 454 Mass. 135,
147 (2009). We nonetheless conclude that Hallinan constrains us
to reverse.

4 Briefing and argument in this court were stayed pending
resolution in the Supreme Judicial Court of Hallinan, 491 Mass.
at 730.

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government misconduct. Under that test, the defendant must

demonstrate (1) "that the guilty plea was preceded by

'particularly pernicious' government misconduct that was the

source of the defendant's misapprehension of some aspect of his

case"; and (2) "a reasonable probability that [the defendant]

would not have pleaded guilty had he known of [the governmental]

misconduct." Scott, supra at 347, 354-355, quoting Ferrara, 465

F.3d at 291.

The judge concluded that the defendant failed to meet his

burden under both prongs of the test. As we have previously

noted, at the time he issued his ruling, the judge did not have

the benefit of the Hallinan decision. Thus, as the defendant

correctly contends, and the Commonwealth concedes, he is

entitled to a presumption of egregious government misconduct.

Accordingly, the only issue before us is whether the judge

abused his discretion in concluding that the defendant failed to

show there was a reasonable probability that he would not have

admitted to sufficient facts in the circumstances.

The second prong of the test requires an examination of the

totality of the circumstances, guided by the factors delineated

in Scott, 467 Mass. at 355. See Hallinan, 491 Mass. at 750.

The judge properly addressed all these factors in rendering his

decision. However, as the court in Hallinan, supra at 744-745,

explained, the defendant need only show that the misconduct

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influenced his decision to admit to sufficient facts. Here, the

evidence of the defendant's impairment, apart from the breath

test, is sufficiently similar to the evidence of impairment

present in Hallinan, supra at 750, such that we conclude there

exists a reasonable probability that the defendant would not

have admitted to sufficient facts had he known that the breath

test results could not be used against him at trial.5 Similar to

the court in Hallinan, we view the evidence of the defendant's

breathalyzer result of .18 percent, which was more than double

the legal limit of .08 percent, as the "'crown jewel' -- the

most inculpatory piece of evidence against the defendant." Id.

5 To be sure, there are some differences in the facts
between the cases. For example, the police had less interaction
with Hallinan than they did with the defendant here, and while
Hallinan admitted that she had been drinking, the defendant made
a potentially more inculpatory admission when he surmised that
his blood alcohol content was over the legal limit. Contrast
Hallinan, 491 Mass. at 750. In addition, we note that the
defendant did not provide an affidavit from his attorney to
support his contention that he was "told" the Commonwealth
needed only the breath test results to convict him, whereas
Hallinan's motion was supported by an affidavit from her
attorney who averred that had he known that the breath test was
not admissible, he would have advised her to proceed to trial.
See id. at 751. Generally, the absence of an affidavit from
counsel renders the defendant's position less credible. E.g.,
Commonwealth v. Lys, 91 Mass. App. Ct. 718, 722 (2017). Here,
however, given that the defendant did not learn of the
governmental misconduct until seven years after he appeared in
court, we are not inclined to hold the absence of an affidavit
against him.

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Conclusion. The order denying the defendant's motion to

withdraw his admission to sufficient facts is reversed and the

matter is remanded to the District Court for further

proceedings.

So ordered.

By the Court (Vuono, Rubin &
Smyth, JJ.6),

Assistant Clerk

Entered: June 13, 2024.

6 The panelists are listed in order of seniority.

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