Commonwealth v. Leonard

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22-P-1187 Appeals Court

COMMONWEALTH vs. ROBERT J. LEONARD.

No. 22-P-1187

Barnstable. November 1, 2023. – December 28, 2023.

Present: Green, C.J., Blake, & Henry, JJ.

Motor Vehicle, Operating under the influence, License to
operate. Practice, Criminal, Voir dire, Jury and jurors,
Bifurcated trial, Prior conviction, Instructions to jury.
District Court.

Complaint received and sworn to in the Barnstable Division
of the District Court Department on July 20, 2020.

Complaint received and sworn to in the Plymouth Division of
the District Court Department on October 9, 2020.

After consolidation, the cases were tried before Edward F.
X. Lynch, J.

Robert J. Spavento for the defendant.
Rose-Ellen El Khoury, Assistant District Attorney, for the
Commonwealth.

GREEN, C.J. On appeal from his convictions of various

charges stemming from his operation of a motor vehicle while
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under the influence of intoxicating liquor (OUI),1 the defendant

contends that the judge improperly denied his requests (1) for

attorney-led voir dire of prospective jurors, (2) to bifurcate

from the trial the charge of operating a motor vehicle with a

license suspended for OUI, and (3) for certain jury

instructions. Discerning in the defendant's claims no cause to

disturb the judgments, we affirm and address the defendant's

arguments in turn.

Background. We summarize the facts the jury could have

found based on the evidence at trial. On July 18, 2020, a

driver near the Sagamore Bridge saw a white Ford Explorer

driving erratically. He described the Explorer coming within

five to seven feet of the rear driver's side of his vehicle, at

a speed of approximately seventy-five miles per hour. The

driver of the Explorer, who was later identified as the

defendant, had a "very red face" as he tailgated another

vehicle. At one point, the defendant "almost went underneath

the steering wheel" to retrieve an object and, within a short

1 The defendant was convicted of OUI, fifth offense, G. L.
c. 90, § 24 (1) (a) (1); negligent operation of a motor vehicle,
G. L. c. 90, § 24 (2) (a); leaving the scene of an accident
resulting in property damage, G. L. c. 90, § 24 (2) (a);
operating a motor vehicle with a license suspended for OUI,
G. L. c. 90, § 23; failure to stop for police, G. L. c. 90,
§ 25; and resisting arrest, G. L. c. 268, § 32B. The
Commonwealth filed a nolle prosequi on the charge of assault and
battery by means of a dangerous weapon, G. L. c. 265, § 15A (b).
3

time thereafter, "a metallic object . . . [went] out the window"

of the Explorer. The driver who observed the erratic operations

called 911, and police responded.

A responding police officer located the Explorer, activated

her cruiser's blue lights to signal the defendant to pull over,

and, when he failed to pull over, activated her siren. Other

officers joined in pursuit of the Explorer. The original

responding police officer saw the Explorer illegally pass other

vehicles in front of it on the road, and saw the defendant throw

a paper bag out the window of the Explorer. As the Explorer

moved into an area with fewer vehicles around it, the officers

attempted to box the Explorer in, but the defendant rammed the

Explorer into one of the cruisers. The defendant used the wrong

entrance to the ramp leading to the Sagamore Bridge, and an

officer saw it travel across the bridge at a speed "in excess of

[ninety] miles per hour." Eventually, while traveling at a high

rate of speed, the Explorer struck another vehicle from behind,

struck it again while passing on its left, and then went off the

road into the median and struck a tree.

As officers approached the Explorer after it crashed into

the tree, they observed the defendant "stumbling as he ran" from

the vehicle. The defendant had "bloodshot, glassy eyes, slurred

speech, and a strong odor of alcohol." The arresting officer

formed the opinion that the defendant was intoxicated. The
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defendant was transported to a local hospital. Empty alcohol

bottles were located in the rear of the Explorer during an

inventory search.2

1. Denial of attorney-led voir dire. On March 4, 2022,

approximately seven weeks before trial was scheduled to occur,

the defendant filed a motion for attorney-led voir dire of

prospective jurors,3 under District Court Standing Order 1-18

(2018) (standing order).4 On March 7, 2022, the motion was

denied by margin endorsement but without explanation. On the

first day of trial, defense counsel raised the issue again and

the judge stated how he would handle voir dire. The defendant

contends that the denial of his motion violated the clear

mandate of the standing order requiring that a District Court

judge allow attorney-led voir dire if properly requested before

2 The Commonwealth introduced a photograph of beer cans and
a beer bottle. A copy of that exhibit was not provided to us,
and no testimony shows whether the containers were full,
partially full, or empty, but defense counsel in his closing
argument described the containers as empty.

3 The motion was styled as one for individual voir dire,
but, in substance, the defendant requested permission for his
counsel to conduct the voir dire examination of prospective
jurors.

4 Attorney-led voir dire in the District Court is governed
by the standing order, whereas attorney-led voir dire in the
Superior Court is governed by statute, see G. L. c. 234A, § 67D.
5

trial.5 We agree.6 However, our conclusion that the judge

erroneously denied the motion does not end our inquiry; it

remains to consider whether the error warrants any relief.

5 As relevant to the issues in this appeal, the standing
order provides as follows:

"In civil and criminal cases, the parties shall submit in
writing: any requests for attorney/party voir dire;
motions in limine concerning the method of jury selection;
proposed subject matters or questions for inquiry by the
parties or judge; any proposed preliminary legal
instructions to the venire or juror panels; the location
within the courtroom where jurors and parties will stand or
sit during voir dire; and any other matter setting forth
the party's position regarding impanelment. . . .

"In a criminal case, all voir dire related requests shall
be filed by a date set by the Court, but not later than
five (5) business days before trial. . . .

"The trial judge shall allow attorney or party voir dire if
properly requested according to the time as set forth in
paragraph I above. The trial judge has discretion
regarding the scope and manner of voir dire.

"The judge should, at a minimum, allow the attorneys or
parties to ask reasonable follow-up questions seeking
elaboration or explanation concerning juror responses to
the judge's questions, or concerning any written
questionnaire."

6 The Commonwealth does not dispute that the standing order
requires a District Court judge to allow attorney-led voir dire
on a properly submitted request but asserts that the defendant's
motion was untimely because it was filed more than twenty-one
days after the trial date was assigned. See Mass. R. Crim. P.
13 (d) (2), as appearing in 442 Mass. 1516 (2004), which
requires all pretrial motions not seeking discovery to be filed
within such time. However, the standing order specifically
provides that "[i]n a criminal case, all voir dire related
requests shall be filed by a date set by the Court, but not
later than five (5) business days before trial." The
6

Though the defendant asserts that the violation of the

standing order is of constitutional magnitude, implicating his

right to trial by an impartial jury under the Sixth Amendment to

the United States Constitution and art. 12 of the Massachusetts

Declaration of Rights, he cites no authority for the proposition

that a violation of the standing order constitutes a denial of

that right, or that it requires automatic reversal of a

conviction. We view the standing order not as a constitutional

imperative, but as a mechanism developed by the chief justice of

the District Court to support accomplishment of the objective of

empanelling a fair and impartial jury.7 We accordingly consider

Commonwealth did not raise any objection directed to timeliness
of the motion when it was filed, and the judge made no reference
to timeliness in his denial of the motion. Under the principle
that the specific controls the general, see Doe v. Attorney Gen.
(No. 1), 425 Mass. 210, 215-216 (1997), and in the absence of
any engagement of the question of timeliness in the trial court,
we consider the timeliness of the defendant's request for voir
dire to have been governed by the time limits set forth in the
standing order.

7 General Laws c. 218, §§ 43-43B, authorizes the chief
justice of the District Court to make and promulgate rules of
practice and procedure, standing orders, and forms, to regulate
the practice and conduct of business in the District Court.
Procedures regulating the issuance of standing orders are set
forth in Trial Court Rule V, which provides, among other things,
for publication of standing orders and review by the "[c]hief
[a]dministrative [j]ustice" of the trial court before they
become effective. By successive amendments to G. L. c. 211B,
§ 9, the title of the chief administrative justice was changed,
first to the chief justice for administration and management,
see St. 1992, c. 379, § 77, and then to its current form, the
chief justice of the trial court, see St. 2011 c. 93, § 52.
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whether the judge's violation of the standing order gave rise to

any prejudice and conclude that the defendant has not shown

prejudice. See Commonwealth v. Leopold L., 96 Mass. App. Ct.

796, 808 (2020) (applying prejudicial error standard to

violations of Juvenile Court Standing Order 1-17 and G. L.

c. 119, § 56, concerning continuances).

The defendant broadly suggests that allowing counsel to

question prospective jurors directly improves the process of

discovering possible juror prejudice. While that may generally

be true, the defendant has not shown that allowing counsel to

question the prospective jurors here would have improved the

process. The judge asked follow-up questions to the jurors on

specific topics, within reason, when the parties requested them.

Though the defendant asserts on appeal that the judge improperly

denied certain questions the defendant wished to pose to the

jurors, the portions of the transcript cited by the defendant

reveal that the judge declined to ask those questions because he

addressed them in substance in other ways, and the defendant has

not identified any topic he wanted to explore that was not

covered by the judge's questions. It is settled that though the

judge must determine that jurors are impartial, the "judge has

broad discretion as to the questions to be asked, and need not

put the specific questions posed by the defendant."

Commonwealth v. Morales, 440 Mass. 536, 548-549 (2003), quoting
8

Commonwealth v. Sanders, 383 Mass. 637, 641 (1981). Even in the

Superior Court, where the right of counsel to conduct attorney-

led voir dire of prospective jurors is secured by statute, see

G. L. c. 234A, § 67D, the scope of questioning is subject to the

sound discretion of the judge. See Commonwealth v. Dabney, 478

Mass. 839, 848-851, cert. denied, 139 S. Ct. 127 (2018). We

note as well that the defendant raised no objection when, on the

conclusion of empanelment, the judge found that the jurors stood

indifferent in the case. See G. L. c. 234A, § 67A.

Accordingly, the judge's denial of the defendant's request for

attorney-led voir dire, even though error, on this record,

provides no basis for reversal of the defendant's convictions.8

2. Bifurcation. The defendant also contends that the

judge erred in denying his request to bifurcate from the trial

the charge of operating a motor vehicle with a license suspended

for OUI, due to the potential for prejudice from evidence of

prior bad acts. The question is controlled in material respects

by our decision in Commonwealth v. Beaulieu, 79 Mass. App. Ct.

8 We do not intend that our denial of relief to the
defendant in the present case be construed to excuse the
violation of the mandate set forth in the standing order to
allow attorney-led voir dire when requested. To the extent
there should or might arise a concern that judges in the
District Court regularly ignore the mandate of the standing
order, it is in the first instance a matter for oversight by the
chief justice of the District Court, or may be raised in a
future case based on a properly developed record.
9

100, 103 (2011), where we rejected the contention that admission

of evidence of a prior conviction caused prejudice to the jury's

consideration of the more recent charge. In the present case,

the Commonwealth offered an attested copy of a certificate from

the registry of motor vehicles relating to the suspension of the

defendant's license, rather than a record of the conviction

itself. As in Beaulieu, the judge gave limiting instructions on

the use of such evidence at the time the evidence was offered

and again during his final instructions to the jury, see id.; we

presume that the jury followed them, see Commonwealth v.

Cheremond, 461 Mass. 397, 414 (2012), abrogated on other grounds

by Commonwealth v. Wardsworth, 482 Mass. 454 (2019). Likewise,

the prosecutor's references to the prior offense were

appropriately limited to the proper purpose of such evidence,

and he did not mention it during his closing argument. See

Beaulieu, supra. Just as the admission of such evidence in

Beaulieu caused no undue prejudice, the judge's denial of the

defendant's request to bifurcate the trial here did not

constitute an abuse of discretion. See L.L. v. Commonwealth,

470 Mass. 169, 185 n.27 (2014).

3. Jury instructions. With respect to the jury

instructions, the defendant first claims error in the judge's

refusal to administer a jury instruction that the defendant

proposed based on the model jury instruction on implicit bias.
10

This was not a case where the victim and defendant were of a

different race or ethnicity, or where implicit bias was

otherwise at the forefront, and the judge's general instructions

reminded jurors "not [to] allow bias, whether held consciously

or subconsciously, to interfere with [their] ability to fairly

evaluate the evidence, apply the law as . . . instruct[ed]

. . . , or render a fair and impartial verdict based on the

evidence before [them]." The judge did not abuse his discretion

in declining to administer the defendant's requested

instruction.9

We likewise discern no abuse of discretion in the judge's

refusal to administer the supplemental instruction requested by

the defendant on prejudice.10 "A defendant is 'not entitled to

9 Nonetheless, we note that in a statement addressing the
model instruction, the justices of the Supreme Judicial Court
said that "[t]he instruction should be given at all criminal and
civil trials," and we encourage judges to do so.

10The requested instruction would have advised the jury as
follows:

"It would be improper for you to allow any feelings you
might have about the nature of the crime to interfere with
your decision. Any person charged with any crime is
entitled to the same presumption of innocence, and the
Commonwealth has the same burden of proving the defendant's
guilt beyond a reasonable doubt. . . . The word 'verdict'
comes from two Latin words meaning 'to tell the truth,' and
that is what the law looks to your verdict(s) to do based
solely on the evidence in the case. Justice is done when a
verdict is returned based on the evidence and the law
regardless of whether that verdict is guilty or not
guilty."
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any particular instruction as long as the charge as a whole was

adequate.'" Commonwealth v. Comtois, 399 Mass. 668, 676 (1987),

quoting Commonwealth v. Sherry, 386 Mass. 682, 696 (1982). The

judge instructed the jury to "base [their] verdict on the

evidence and any reasonable inferences," and also instructed the

jury on the presumption of innocence. Nothing more was required

on this point.

There was also no abuse of discretion in the judge's denial

of the defendant's request for a Bowden instruction. See

Commonwealth v. Bowden, 379 Mass. 472, 485-486 (1980). Nothing

in the record before us suggests that the judge prevented the

defendant from arguing that there were inadequacies in the

police investigation. To the contrary, defense counsel cross-

examined the police officers on the lack of an investigation at

the crash site. "[T]he Bowden instruction may be given in the

judge's discretion, but it is never required." Commonwealth v.

Bresilia, 470 Mass. 422, 439 (2015).

Finally, there was no abuse of discretion in the judge's

denial of the defendant's request for a jury instruction on

unrecorded custodial interrogations. See Commonwealth v.

DiGiambattista, 442 Mass. 423, 446-448 (2004). Though the

defendant was taken into custody, there was no evidence that he

was interrogated while in custody, and no evidence of any
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statements he made while in custody. Any such instruction would

likely have confused the jury.

Judgments affirmed.