#### Commonwealth *vs.*Anthony D'Agostino.

Essex.

September 11, 1995.

November 9, 1995.

Present: Liacos, C.J., Wilkins, Abrams, Lynch, O’Connor, & Grbanby, JJ.

*Motor Vehicle,*Operating under the influence. *Practice, Criminal,*Retro-activity of judicial holding, Instructions to jury, Failure to make objection. *Evidence,*Blood alcohol test, Admissions and confessions. *Constitutional Law,*Self-incrimination, Admissions and confessions.

A criminal defendant convicted in March, 1992, of operating a motor vehicle while under the influence of intoxicating liquor in violation of G. L. c. 90, § 24, before this court submitted *Opinion of the Justices,*412 Mass. 1201 (1992), to the Legislature, was excused from having failed to object at his trial to the judge’s instructing the jury as required by G. L. c. 90, § 24 (1) (e), and the defendant was entitled to claim on appeal the retroactive benefit of the holding of *Commonwealth*v. *Zevitas,*418 Mass. 677 (1994). [283-287]

At the trial of a complaint for operating a motor vehicle while under the influence of alcohol, the judge violated the defendant’s privilege against self-incrimination under art. 12 of the Massachusetts Declaration of Rights by instructing the jury pursuant to G. L. c. 90, § 24 (1) (e), warning against drawing any inferences for or against any party from the absence of any blood alcohol level test; in the circumstances, the error was not harmless beyond a reasonable doubt and the defendant was entitled to a new trial. [287-288]

Complaint received and sworn to in the Lynn Division of the District Court Department on June 28, 1991.

On transfer to the jury session of the Peabody Division, a pretrial motion to suppress evidence was heard by *Domenic J.F. Russo,*J., and the case was tried before him.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

*Risa E. Freeman*for the defendant.

*Margaret J. Perry,*Assistant District Attorney, for the Commonwealth.

*282Greaney, J.

In *Commonwealth*v. *D’Agostino,*38 Mass. App. Ct. 206 (1995), the Appeals Court reversed the defendant’s conviction of operating a motor vehicle while under the influence of intoxicating liquor, in violation of G. L. c. 90, § 24 (1) *(a)*(1) (1994 ed). The Appeals Court determined that the rule announced in *Commonwealth*v. *Zevitas,*418 Mass. 677 (1994), in which it was concluded that a jury instruction mandated by G. L. c. 90, § 24 (1) *(e)*(1994 ed.), had the effect of unconstitutionally compelling an accused to furnish evidence against himself or herself, *id.*at 683, should be applied retroactively to the defendant’s case. We granted the Commonwealth’s application for further appellate review. We also conclude that the defendant is entitled to the benefit of the rule announced in the *Zevitas*case, and that his conviction must be reversed.1 In the decisions which follow, *Commonwealth*v. *Adams, post*289 (1995), and *Commonwealth*v. *Koney, post*295 (1995), we deal with other issues pertaining to the retroactivity of the *Zevitas*decision.

The background of this case is set forth at 38 Mass. App. Ct. at 207-208 (with one footnote omitted), as follows: “The two arresting officers testified that they had observed the defendant at the scene. Through them evidence was presented that the defendant was unsteady on his feet, his eyes were ‘glossy’ *[sic]*and ‘watery,’ his breath had a strong odor of alcohol, and his speech was slurred. The officers described the defendant as verbally abusive and belligerent. Each of the police officers testified that he formed an opinion, at the time of arrest, that the defendant was under the influence of alcohol. An emergency medical technician who observed the defendant at the police station in response to his request for medical treatment likewise testified that he formed the opinion that the defendant was intoxicated at the time of his arrest.

*283“The police officers were also permitted to testify to statements made by the defendant during the roadside stop. When asked by an officer where he was coming from, the defendant replied, T had a couple drinks.’ One of the officers requested that the defendant perform a field sobriety test which he refused stating that he ‘didn’t want to take any test.’ ” At the conclusion of the evidence, the judge instructed the jury as required by G. L. c. 90, § 24 (1) (e).2 There was no objection to the instruction.

We turn now to the merits. In *Opinion of the Justices,*412 Mass. 1201 (1992), we advised the Legislature that proposed legislation mandating the admission of evidence of an accused’s refusal to submit to a breathalyzer test of his or her blood alcohol level would violate the privilege against self-incrimination contained in art. 12 of the Declaration of Rights of the Massachusetts Constitution. *Id.*at 1211. In *Commonwealth*v. *Zevitas, supra,*we concluded that the instruction mandated by G. L. c. 90, § 24 (1) (e), had the effect of telling the jury, “by strong implication at least, that the defendant’s blood alcohol level had not been tested, and that the reason no test was conducted was that the defendant refused to submit to such a procedure,” *id.*at 683, presumably because the defendant believed himself to be intoxicated. Thus, this instruction was found to “unconstitutionally *284compel [] an accused to furnish [testimonial] evidence against himself or herself.” *Id.*Measured by the *Zevitas*standard, the instruction given at the defendant’s trial was error. We consider whether, in the absence of an objection, the defendant nonetheless is entitled to claim the retroactive benefit of the *Zevitas*decision, and, if so, by what standard the effect of the error at his trial should be assessed.

> *283“When there is no evidence presented at a civil or criminal proceeding of the percentage, by weight, of alcohol in the defendant’s blood, the presiding judge at a trial before a jury shall include in his instructions to the jury a statement of an arresting officer’s responsibilities upon arrest of a person suspected to be operating a motor vehicle under the influence of alcohol and a statement that a blood alcohol test may only be administered with a person’s consent; that a person has a legal right to take or not take such a test; that there may be a number of reasons why a person would or would not take such a test; that there may be a number of reasons why such test was not administered; that there shall be no speculation as to the reason for the absence of the test and no inference can be drawn from the fact that there was no evidence of a blood alcohol test; and that a finding of guilty or not guilty must be based solely on the evidence that was presented in the case.”

*284“Retroactive application of a rule of criminal law is indicated if (1) a case is on direct appeal or as to which time for direct appeal has not expired when the new rule is announced, and (2) the issue was preserved at trial.” *Commonwealth*v. *Figueroa,*413 Mass. 193, 202 (1992), quoting *Commonwealth*v. *Libran,*405 Mass. 634, 645 (1989). See *Commonwealth*v. *Bellamy,*391 Mass. 511, 515 (1984).3 ****8 “However, we have ruled in a number of cases that a defendant does not waive a constitutional issue by failing to raise it before the theory on which his argument is premised has been sufficiently developed to put him on notice that the issue is a live issue. Counsel need not be ‘clairvoyant.’ ” *Commonwealth*v. *Bowler,*407 Mass. 304, 307 (1990).

The defendant’s trial was held in March, 1992. *Opinion of the Justices, supra,*was submitted to the Legislature on May 12, 1992. That opinion carefully examined decisional law on the question of refusal evidence. It was observed that the *285United States Supreme Court had held that the admission of evidence of a defendant’s refusal to take a breathalyzer test does not offend against the Fifth Amendment to the United States Constitution. See *South Dakota*v. *Neville,*459 U.S. 553, 564 (1983). A number of courts in other jurisdictions had considered the issue under provisions in their State Constitutions which are analogous to the Fifth Amendment. In a majority of those decisions, it also had been concluded that admission of refusal evidence did not violate the privilege against self-incrimination. See *Opinion of the Justices, supra*at 1202-1203. In New Hampshire, a State which has a constitutional guarantee against self-incrimination identical to that found in art. 12, the Supreme Court of New Hampshire held that the State constitutional privilege against self-incrimination did not prevent the introduction of evidence of an accused’s refusal to take a breathalyzer test *(id.*at 1206-1207 n.5). See *State*v. *Cormier,*127 N.H. 253, 260 (1985). Most of these decisions rested on the rationale “that, since a person’s breath constitutes real or physical evidence rather than testimonial or communicative evidence,” *Opinion of the Justices, supra*at 1204, there was no constitutional right to refuse to take a breathalyzer test, and, thus, no bar to the introduction of refusal evidence. The distinction between real or physical evidence and communicative evidence had also been recognized as applicable to the self-incrimination provision of art. 12. See *Commonwealth*v. *Brennan,*386 Mass. 772, 783 (1982) (result of breathalyzer test noncommunicative evidence that does not evoke protections of art. 12). The precise question posed in the *Zevitas*case, whether a mandatory jury instruction bringing to the attention of the jury a defendant’s refusal to have his or her blood alcohol tested, even if couched in arguably neutral terms, would violate the privilege against self-incrimination contained in art. 12, had not been addressed by this court or the Appeals Court.

In view of the state of the law at the time of his trial, the defendant should be excused for having failed to foresee that there might be a sound legal basis for an objection to the *286jury instruction mandated by G. L. c. 90, § 24 (1) *(e).*Not until *Opinion of the Justices, supra,*was there anything in the nature of discussion by an appellate court in the Commonwealth which would have put the defendant fairly on notice that an instruction calling the jury’s attention to a defendant’s probable refusal to submit to a breathalyzer test might be held to violate art. 12’s right against self-incrimination. These are appropriate circumstances for application of the so-called clairvoyance exception, and the Appeals Court properly invoked that exception to excuse the lack of an objection by the defendant’s trial counsel. Contrast *Commonwealth*v. *Bowler,*407 Mass. 304, 307-308 (1990) (declining to apply clairvoyance exception where rule sought to be applied retroactively was “logical extension” of rule announced in case decided prior to defendant’s trial).

We are not persuaded by the Commonwealth’s contention that the defendant’s failure expressly to invoke art. 12 in his principal appellate brief amounts to a waiver of his right to rely on that provision. That brief was filed in the Appeals Court after *Opinion of the Justices, supra,*had been submitted to the Legislature. The brief cites *Opinion of the Justices,*and relies principally on its reasoning to argue, at some length, that the mandated instruction amounted to a violation of the defendant’s constitutional right against self-incrimination. While the defendant’s argument was not clearly focused on art. 12, the Commonwealth could not have failed to apprehend the substance of the contention being advanced by the defendant. Essentially the same argument was accepted by this court in the *Zevitas*decision, which was released after the defendant’s principal brief had been filed. The defendant could not have raised the applicability of the *Zevitas*decision in any brief other than his reply brief, and in discussing the *Zevitas*decision in that brief, the defendant was supplementing the argument made in his principal brief.4 We conclude, therefore, that the defendant is entitled *287to the benefit of the rule announced in *Opinion of the Justices, supra,*and applied in the *Zevitas*case.

The remaining question is whether the error was harmless beyond a reasonable doubt. See *Commonwealth*v. *McGrail,*419 Mass. 774, 780 (1995); *Commonwealth*v. *Perrot,*407 Mass. 539, 548-549 (1990). The jury heard sufficient evidence to warrant a conclusion that the defendant had operated a motor vehicle while intoxicated. The defendant, however, furnished evidence that he was ill due to allergies and a new medication he had begun taking that day, and that this was the explanation for his erratic driving and the other behavior he exhibited on the night he was arrested. The case raised an issue of credibility which was within the jury’s province to resolve. It cannot be said with confidence that an instruction calling to the jury’s attention the absence of a breathalyzer test, thus giving rise to a possible inference that the defendant knew himself to be intoxicated, could not have contributed to the jury’s rejection of the defendant’s evidence. See *Commonwealth*v. *McGrail, supra*(erroneous admission of refusal evidence despite ample evidence of intoxication not harmless). We note, as did the Appeals Court, 38 Mass. App. Ct. at 210, quoting *Commonwealth*v. *Zevitas, supra*at 684, that, “[wjhere the prejudicial remarks fall from the judge himself, the effect on the jury is likely to be more damaging [than the erroneous admission of testimony]. . . .” *Commonwealth*v. *Goulet,*374 Mass. 404, 414 (1978). The error was not harmless beyond a reasonable *288doubt. For this reason, the judgment of conviction must be reversed and the verdict set aside.

*So ordered.*

1

Before the Appeals Court, the defendant also argued that certain statements he made to police officers at the scene of the offense should be suppressed. The Appeals Court rejected this claim. 38 Mass. App. Ct. 206, 208 (1995). We agree with the Appeals Court’s resolution of this issue and need not discuss it separately.

2

General Laws c. 90, § 24 (1) (e), reads, in pertinent part, as follows:

3

We are concerned in this case with the possible retroactive application of a new criminal rule based on art. 12, rather than on a provision of the United States Constitution. The statement in *Commonwealth*v. *Figueroa,*413 Mass. 193, 202 (1992), concerning when retroactive application of a new criminal rule is required, follows the Federal rule set out in *Griffith*v. *Kentucky,*479 U.S. 314 (1987), and related cases. We have previously expressed some doubt as to whether the *Griffith*decision sets the standard for retroactive application of a new criminal rule based on a State constitutional provision. See *Commonwealth*v. *Bowler,*407 Mass. 304, 306 (1990); *Commonwealth*v. Waters, 400 Mass. 1006, 1007 (1987). See also *Harper*v. *Virginia Dep’t of Taxation,*509 U.S. 86, 99-102 (1993), citing *Great N. Ry.*v. *Sunburst Oil & Ref. Co.,*287 U.S. 358, 364-366 (1932) (recognizing that States enjoy some freedom in determining retroactive application of rules based on State law). The parties have not suggested that we should adopt a rule for retroactivity differing from the Federal rule. Thus, we need not, and do not, consider that question.

4

The cases relied on by the Commonwealth to challenge the defendant’s presentation of the art. 12 issue address the situation in which an entirely *287novel or separate issue or argument was alluded to only in a reply brief. See *Kelley*v. *Rossi,*395 Mass. 659, 665 n.6 (1985) (“argument” not raised in initial brief); *Travenol Lab., Inc.*v. *Zotal, Ltd.,*394 Mass. 95, 97 (1985) (refusing to address request for a stay which had not been raised in the trial court or raised as an issue in initial brief); *Commissioner of Revenue*v. *Plymouth Home Nat'l Bank,*394 Mass. 66, 67-68 n.3 (1985) (noting obligation to raise “argument” in initial brief). The defendant was not raising a new or separate issue in his reply brief.