COMMONWEALTH vs. ANTHONY D'AGOSTINO.

GREANEY, J. In Commonwealth v. D'Agostino, 38 Mass. App. Ct. 206 (1995), the Appeals Court reversed the defendant's conviction for operating a motor vehicle while under the influence of intoxicating liquor, in violation of G. L. c. 90, Section 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, Section 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. [Note 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.

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"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, `I 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, Section 24 (1) (e). [Note 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, Section 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

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compel[] 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.

"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). [Note 3] "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

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United 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

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jury instruction mandated by G. L. c. 90, Section 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. [Note 4] We conclude, therefore, that the defendant is entitled

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to 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, "[w]here 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

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doubt. For this reason, the judgment of conviction must be reversed and the verdict set aside.

So ordered.