COMMONWEALTH vs. ROBERT J. LEONARD.

GREEN, C.J. On appeal from his convictions of various charges stemming from his operation of a motor vehicle while under the influence of intoxicating liquor (OUI), [Note 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 being driven 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 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

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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 defendant was transported to a local hospital. Empty alcohol bottles were located in the rear of the Explorer during an inventory search. [Note 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, [Note 3] under District Court Standing Order 1-18 (2018) (standing order). [Note 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 trial. [Note 5] We agree. [Note 6] However, our conclusion that the judge erroneously denied the motion does not

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end our inquiry; it remains to consider whether the error warrants any relief.

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. [Note 7] We accordingly consider whether the judge's violation of the standing order gave rise to any prejudice and conclude

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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 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. [Note 8]

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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. 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. 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

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in declining to administer the defendant's requested instruction. [Note 9]

We likewise discern no abuse of discretion in the judge's refusal to administer the supplemental instruction requested by the defendant on prejudice. [Note 10] "A defendant is 'not entitled to 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 statements he made while in custody. Any such instruction would likely have

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confused the jury.

Judgments affirmed.