Petition for Writ of Certiorari — Yameen v. Massachusetts

sv-158y Te

Supreme Court of the United States.

OCTOBER TERM, 1987.

THOMAS K. YAMEEN,

PETITIONER,

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for Writ of Certiorari to the Supreme Judicial

Court for the Commonwealth of Massachusetts.

BRUCE T. MACDONALD,

678 Massachusetts Avenue,

Suite 901,

Cambridge, Massachusetts 02139.

(617) 354-1711

Counsel for Petitioner

BATEMAN & SLADE, INC _ ae ‘ BOSTON, MASSACHUSETTS

Question Presented.

Where, under state law, a motorist accused of operating

under the influence of intoxicating liquor was afforded a choice

of consenting to or refusing a breath test, and where, unlike

the motorist in South Dakota v. Neville, he took the test, was

it fundamentally unfair under the due process clause of the

Fourteenth Amendment to use his choice to take the test, apart

from his test result, as evidence of guilt?

Table of Contents.

Opinions below 2

Jurisdiction 2

Constitutional provision involved 2

Statement of the case 3

Reasons for granting the writ 5

I. The Supreme Judicial Court’s holding offends

notions of fundamental fairness under the Four-

teenth Amendment 5

Il. The Supreme Judicial Court considered and de-

cided petitioner's federal question which was

raised at the first opportunity 8

Conclusion 10

Appendix follows page 10

Table of Authorities Cited.

CASES.

Allenberg Cotton Co. v. Pittman, 419 U.S. 20 (1974) 9

Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281

U.S. 673 (1930) pe

Commonwealth v. Alano, 388 Mass. 871, 448 N.E.2d

1122 (1983) 5

Commonwealth v. Moreira, 385 Mass. 792, 434 N.E.

2d 196 (1982) 6

Commonwealth v. Preziosi, 399 Mass. 748, 506 N.E.

2d 887 (1987) 8

Commonwealth v. Trapp, 396 Mass. 202, 485 N.E.2d

162 (1985) )

li TABLE OF AUTHORITIES CITED.

Doyle v. Ohio, 426 U.S. 610 (1976) 6

Fletcher v. Weir, 455 U.S. 603 (1982) 7

Honeyman v. Hanan, 300 U.S. 14 (1937) : 10

Mackey v. Montrym, 443 U.S. 1 (1979) >, 0

South Dakota v. Neville, 459 U.S. 553 (1983) 7

Street v. New York, 394 U.S. 576 (1969) 10

United States v. Hale, 422 U.S. 171 (1975) 7,8

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Fourteenth Amendment 2,6

United States Code

28 U.S.C. § 1257(3) 2

Massachusetts General Laws

c. 90, § 24(1)(a)(1) 3n

c. 90, § 24(1)(e) 5n, 6n

c. 90, § 24(1)(f) 5n

MISCELLANEOUS.

U.S. Dept. of Justice, Crime in the United States, 1986 5n

No. -

In the

Supreme Court of the United States.

OcTOBER TERM, 1987.

THOMAS K. YAMEEN,

PETITIONER,

COMMONWEALTH OF MASSACHUSETTS,

RESPONDENT.

Petition for Writ of Certiorari to the Supreme Judicial

Court for the Commonwealth of Massachusetts.

Petitioner, Thomas K. Yameen, respectfully prays that a

writ of certiorari be issued to review the decision of the Mas-

sachusetts Supreme Judicial Court dated December 17, 1987,

and affirmed by denial of Petition for Rehearing dated January

25, 1988.

2

Opinions Below.

The opinion of the Supreme Judicial Court of Massachusetts

is reported at 401 Mass. 331, 516 N.E.2d 1149 (1987) and is

reproduced as Appendix A to this Petition at la to 7a, infra.

The Petition for Rehearing is reproduced as Appendix B at 8a

to 22a, and the denial thereof is reproduced as Appendix C at

23a.

Jurisdiction.

On December 17, 1987, the Supreme Judicial Court affirmed

petitioner's conviction for operating a motor vehicle under the

influence of intoxicating liquor. A petition for rehearing, which

was timely filed after an extension granted by the court, was

denied on January 25, 1988. See Appendices B and C at 8a

and 23a, respectively. Jurisdiction of this Court is invoked

under 28 U.S.C. § 1257(3) and Brinkerhoff-Faris Trust &

Savings Co. v. Hill, 281 U.S. 673, 677-678 (1930). See p.

9, infra.

Constitutional Provision Involved.

This case involves the portion of the Fourteenth Amendment

to the Constitution which provides:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any state deprive any

person of life, liberty, or property, without due proc-

ess of law...

U.S. Constitution, Amendment XIV, Sec. 1.

3

Statement of the Case.

On the evening of March 12, 1986, petitioner Thomas K.

Yameen was stopped by a police officer of the Town of North

Andover, Massachusetts for a moving violation. After further

investigation and observations, the officer concluded that

petitioner was operating a motor vehicle under the influence

of intoxicating liquor,’ and arrested him. At the police station,

petitioner was advised that he had a right to a breath test and,

according to the officer, he “elected to take the intoxilyzer.”

(Trial Transcript Vol. Il, page 55.) The reading on the test

was .16.

At trial, petitioner vigorously contested the charge. In addi-

tion to his own testimony that he was not under the influence

that evening, the bartender who served him testified that he

thought petitioner was sober when he last saw him, which was

a short time before the arrest.

A chemist, qualified by the court as an expert in infrared

breath measurement, testified concerning the numerous poten-

tial sources of error in the Intoxilyzer 5000 and further stated

that he would have no confidence in the test reading resulting

from the procedures that were employed with that machine in

petitioner's case. Finally, in answer to a hypothetical question

incorporating facts in evidence concerning the number and

timing of drinks petitioner consumed, the chemist estimated

that petitioner's blood alcohol content at the time of his breath

test was .07, not .16.

On cross-examination cf petitioner, the prosecutor (Mr.

Hayden) attempted to place into evidence the consequences of

breath test refusal, and the following exchange occurred:

Mr. HayDEN: And when he gave you the rights

about that concerning the test, he also told you, that

Massachusetts General Laws (M.G.L.) c. 90, § 24(1 awl)

ee

4

if you didn’t take it, you were going to lose your

license for 90 days?

Mr. Macponacp: Objection, Your Honor. Mo-

tion to strike.

THe Court: Well, may I see counsel? (Bench

conference) Your objection?

Mr. MACDONALD: I think it’s irrelevant whether

or not he was going to lose his license. In fact, he

said he was offered the test, and he took it.

THe Court: I disagree. Objection is overruled.

(End of bench conference) Repeat the question,

counsel.

Mr. Haypen: Did Lieutenant Lynch tell you, that

if you didn’t take that breathalyzer test, you were

going to lose your license for 90 days, correct?

DEFENDANT: Yes, sir.

(Trial Transcript Vol. Il, pages 135-136.)

The Supreme Judicial Court, in affirming petitioner's con-

viction, held that the prosecutor's question was relevant “to

show that the defendant's willingness to take the breathalyzer

test was not due to his consciousness of innocence.” (App. A

at 7a.) Although recognizing petitioner's contention that allow-

ing the prosecution to inquire into this matter created an “un-

tenable dilemma” for a motorist arrested for driving under the

influence, the court resolved this question of first impression

against petitioner because his protestations of innocence and

decision to take the test “could have” raised an inference of

consciousness of innocence before the jury (App. A at 7a,

n.4) (emphasis added).

5

Reasons for Granting the Writ.

1. THE SUPREME JUDICIAL CoURT’S HOLDING OFFENDS No-

TIONS OF FUNDAMENTAL FAIRNESS UNDER THE FOuR-

TEENTH AMENDMENT.

Driving under the influence (of liquor or narcotics) is the

most frequently committed criminal offense in the United

States, with an estimated 1.8 million arrests in !986.’ The

tragedy caused by the drunk driver is well documented and

the aggressive efforts of state governments and courts to combat

the problem are far reaching, and multi-faceted. But many of

these procedures and laws have undergone constitutional

scrutiny. One effective procedure to obtain evidence against

the drunk driver is the “implied consent” law. At the time of

petitioner's arrest, the Massachusetts statute,’ which was up-

held by this Court in Mackey v. Montrym, 443 U.S. 1 (1979),

provided that a motorist who refused to submit to a test of his

breath lose his license to operate for ninety days. State law

further provides that a motorist’s refusal to submit to such test

is not admissible against him in any criminal or civil proceed-

ing.*

A Massachusetts motorist does not have a statutory right to

a police administered breath test, but rather has a right to

consent to such a test. Commonwealth v. Alano, 388 Mass.

871, 874, 448 N.E.2d 1122, 1125 (1983). In this case the

petitioner, in the words of the breathalyzer operator, “elected”

to exercise that right and scored a reading of .16. Clearly,

Massachusetts wants its motorists to take such a test because

then it will have “reliable and relevant evidence for use in sub-

U.S. Dept. of Justice, Crime in the United States, 1986.

M.G.L. c. 90, § 24(1)(f).

*M.G.L. c. 90, § 24(1 fe)

6

sequent criminal proceedings,’ Mackey v. Montrym, supra,

443 U.S. at 18, and may reap the benefit of the statutory

presumption ®* should the reading be .10 or greater. That reading

alone can carry a case to the jury. Commonwealth v. Moreira,

385 Mass. 792, 795, 434 N.E.2d 196, 199 (1982).

Once a motorist has made the choice the state wants him

to make, it is fundamentally unfair and a denial of due process

under the Fourteenth Amendment to then penalize him for that

choice. Petitioner’s contentions at trial that he was sober and

that he therefore chose to take the breath test, were styled by

the Supreme Judicial Court as “consciousness of innocence.”

Citing one decision in a footnote (App. A at 7a, n.4), the court

held that those contentions could be rebutted by evidence of

the breath test refusal penalty, i.e., 90 day loss of license.

The court erroneously assumed that the threatened penalty

prompts the motorist to take the test when, in reality, that

motivation exists “if drivers are informed not only of this

sanction for a refusal but also realize that cooperation may

conclude the entire case in their favor.” Mackey v. Montrym,

supra, 443 U.S. at 26 (Stewart, Brennan, Marshall, and Stev-

ens, JJ., dissenting) (emphasis added).

The court’s holding truly places an arrested motorist in an

untenable dilemma: refuse the test and suffer a loss of license;

take the test and be subject to the suggestion at trial that the

threatened loss of license, not sobriety, was the motivating

factor. The government, in effect, has it both ways.

This Court ruled a similar dilemma to be unconstitutional

in Doyle v. Ohio, 426 U.S. 610 (1976). As in Doyle, petitioner

was Offered a lawful choice; his choice to take the breath test

was equivalent to Doyle’s choice to remain silent; and that

choice had the effect, whether it was intended or not, of avoid-

ing a loss of license. And although petitioner’s right to consent

*M.G.L. c. 90, § 24(1)(e).

7

to or refuse a breath test is not one of constitutional dimension,

South Dakota v. Neville, 459 U.S. 553, 565 (1983), the imbal-

ance in the delivery of warnings to him, i.e., the absence of

any mention of adverse consequences from choosing to take

the test, creates the fundamental unfairness when his choice

to take the test is used as evidence of guilt. In contrast is this

Court’s holding in Neville, supra, which stated:

Unlike the situation in Doyle, we do not think it

fundamentally unfair for South Dakota to use the

refusal to take the test as evidence of guilt, even

though respondent was not specifically warned that

his refusal could be used against him at trial.

459 U.S. at 565 (emphasis added).

In explaining to the Massachusetts motorist his two options,

the government has thus implicitly assured the motorist who

takes the breath test that his avoidance of license loss will not

be used against him. See Fletcher v. Weir, 455 U.S. 603, 606

(1982).

Not only did the Supreme Judicial Court’s reasoning create

the constitutional violation, it rendered it more egregious than

in Doyle, because unlike Doyle, petitioner made the choice

the government wanted him to make and provided them with

inculpatory evidence.

The applicability of Doyle to petitionez’s situation can best

be illustrated by a paraphrase of Justice White’s concurring

opinion in United States v. Hale, 422 U.S. 171, 182-183

(1975):

|W Jhen a person under arrest is informed, as [Chapter

90] requires, that he [has a right to consent to a breath

8

test and will lose his license for 90 days if he does

not], . . . it seems to me that it does not comport

with due process to permit the prosecution during

the trial to call attention to [the defendant’s avoidance

of the penalty for refusing the test] . . . and to insist

that because he [chose to take the test], . . . as he

was told he need not do, an unfavorable inference

might be drawn as to the truth of his trial testimony.

. . . Surely [Yameen] was not informed here that

his [avoidance of license loss], as well as his [test

result], could be used against him at trial. Indeed,

anyone would reasonably conclude from [what he

was told] . . . that this would not be the case.

(Citations omitted. )

In allowing petitioner’s claim of innocence to be rebutted

by evidence of a penalty that was automatically avoided as a

consequence of his choice to take the test, the court bypassed

basic notions of fundamental fairness.

Il. THE SUPREME JUDICIAL COURT CONSIDERED AND DECIDED

PETITIONER’S FEDERAL QUESTION WHICH WAS RAISED AT

THE FIRST OPPORTUNITY.

The Supreme Judicial Court ruled as a matter of state eviden-

tiary law that the prosecutor’s question, which is at issue, was

relevant. The only authority cited lending support to its holding

was in footnote 4 of the opinion (App. A at 7a). Commonwealth

v. Preziosi, 399 Mass. 748, 506 N.E.2d 887 (1987), however,

involved a situation where defense counsel argued defendant's

consciousness of innocence to the jury, and the prosecutor

properly rebutted that suggestion. Petitioner’s counsel did not

9

so argue in the instant case. From a question asked of the

assistant district attorney at oral argument, it appeared that the

court appreciated the impropriety of rebutting evidence that

had not yet been introduced.°

The issue raised by petitioner was one of first impression

for the Supreme Judicial Court and it is submitted that a critical

examination of other cases concerning relevancy would not

have foreshadowed the court’s holding. Likewise there was

no basis to expect that the court’s logic and holding would

transform a state evidentiary question into a constitutional

issue, but by ruling against petitioner, that is in fact what

happened. See Commonwealth v. Trapp, 396 Mass. 202, 207

n.4, 485 N.E.2d 162, 166 n.4 (1985) (hearsay evidence admit-

ted under state evidentiary practice may raise issue of defend-

ant’s constitutional right to confrontation).

The federal question was therefore raised at the first oppor-

tunity, on the Petition for Rehearing (App. B at 8a), and was

considered by the court (App. C at 23a). Brinkerhoff-Faris

Trust & Savings Co. v. Hill, 281 U.S. 673, 677-678 (1930).

In an attempt to further certify that the federal question had

been raised and decided, petitioner requested a certificate (App.

D at 24a) from the Supreme Judicial Court under the procedure

approved in Allenberg Cotton Co. v. Pittman, 419 U.S. 20,

22 (1974). Rather than deny such request, the court issued a

certificate that the federal question was raised but “not consid-

ered” (App. E at 27a) (emphasis by the Court). That document

contradicts their earlier decision (App. C at 23a), and because

it is not in the required form, a certified copy has not been

filed with the Clerk of this Court.

[Justice NOLAN:] Well, do you think you have a right to rebut

something that hasn't been raised, that wasn’t even raised; kind

of anticipatory, isn’t it?

(Official tape recording of oral argument.)

10

In issuing that document, the Supreme Judicial Court has

attempted to deprive this Court of jurisdiction of a meritorious

federal question. It is somewhat ironic that, had petitioner

done nothing, the original denial of the petition for rehearing

would have sufficed to give this Court jurisdiction. Inasmuch

as a State court certificate is not conclusive, Honeyman v.

Hanan, 300 U.S. 14, 18-19 (1937), and because “‘[t]he issue

whether a federal question was sufficiently and properly raised

in the state courts is itself ultimately a federal question, as to

which this Court is not bound by the decision of the state

courts,” Street v. New York, 394 U.S. 576, 583 (1969),

petitioner urges this Court to disregard the alleged certificate.

Conclusion.

For the foregoing reasons, petitioner requests that certiorari

be granted.

Respectfully submitted,

BRUCE T. MACDONALD,

678 Massachusetts Avenue,

Suite 901,

Cambridge, Massachusetts 02139.

(617) 354-1711

Counsel for Petitioner

Appendix.

Table of Contents.

Appendix A

Opinion of the Supreme Judicial Court of Massachu-

setts, dated December 17, 1987

Appendix B

Petition for Rehearing, dated January 13, 1988

Appendix C

Denial of Petition for Rehearing, dated January 25,

1988

Appendix D

Request for Certificate that Federal Question was

Raised and Decided, dated January 29, 1988

Appendix E

Cover Letter, dated February 23, 1988

Clerk’s Certificate, dated February 22, 1988

la

8a

23a

24a

26a

27a

la

401 Mass. 331

Appendix A. 331

Commonwealth v. Yameen

COMMONWEALTH vs. THOMAS K. YAMEEN.

No. 4424.

Suffolk. Essex. November 2, 1987. — December 17, 1987

Present: HENNESSEY, C.J... Liacos, Notan, Lyncu, & O'Connor, JJ

Motor Vehicle, Operating under the influence. Moot Question. Practice,

Criminal, Examination of jurors. Evidence, Relevancy and materiality,

Breathalyzer test.

Although the question of error in denying a criminal defendant's motion

for a stay, pending appeal, of the revocation of his driver's license had

become moot through the passage of time, this court reached the issue

as one that was capable of repetition yet apt to evade review. [333]

A judge may, in his discretion, grant a stay of the automatic license revo-

cation mandated by G. L. c. 90, § 24(1) (b), pending a defendant's

appeal from his conviction of operating a motor vehicle while under the

influence of intoxicating liquor. [333-335]

No error appeared in the trial of a complaint for operating a motor vehicle

while under the influence of intoxicating liquor by the judge’s denial of

the defendant’s motion to pose questions to prospective jurors in addition

to those required by G. L. c. 234, § 28 [335], nor by the judge's

declining to instruct the prospective jurors during the empanelment proc-

ess on the concepts of reasonable doubt, burden of proof and presumption

of innocence [335-336].

At the trial of a complaint for operating a motor vehicle while under the

influence of intoxicating liquor, the judge properly submitted to the jury

the issue of the accuracy of a breathalyzer test administered to the

defendant. [336] .

No error was created at the trial of a complaint for operating a motor vehicle

while under the influence of intoxicating liquor for the judge’s allowing

the prosecution to suggest on cross-examination of the defendant that

he took a breathalyzer test to avoid the loss of his driver's license for

ninety days, under the provisions of G. L. c. 90, § 24 (1) (f), where

defense counsel had raised the issue of the defendant's consciousness

of innocence in his taking the test. [336-337]

COMPLAINT received and sworn to in the Lawrence Division

of the District Court Department on March 13, 1986.

2a

332 401 Mass. 331

Commonwealth v. Yameen

In the jury session of the Haverhill Division the case was

tried before William H. Sullivan, J.

The Supreme Judicial Court granted a request for direct

appellate review.

A proceeding seeking a stay of revocation of the defendant's

motor vehicle operator’s license was heard by Abrams, J., in

the Supreme Judicial Court for the county of Suffolk.

Bruce T. Macdonald for the defendant.

David A. Grossbaum, Assistant District Attorney, for the

Commonwealth.

HENNESSEY, C.J. The defendant was convicted by a jury of

six in the District Court Department of operating a motor ve-

hicle while under the influence of intoxicating liquor.' The

judge imposed a fine and a surfine and ordered the defendant

forthwith to surrender his driver’s license, pursuant to the au-

tomatic revocation provisions of G. L. c. 90, § 24 (1) (d)

(1986 ed.). The judge stayed the fines pending the defendant's

appeal, but declined to stay the revocation of the defendant's

license.

The defendant appealed his conviction to the Appeals Court

and filed a motion in that court requesting a stay of the license

revocation pending appeal. A single justice denied this motion.

The defendant then sought review of this ruling by a single

justice of this court under G. L. c. 211, § 3 (1986 ed.). Relief

was denied. Thereupon the defendant filed an appeal from the

order of the single justice to the full bench of the Supreme

Judicial Court. We granted the defendant’s application for di-

rect appellate review and consolidated his appeals from his

conviction and from the single justice’s order declining to stay

the revocation of his license.

On appeal of his conviction for operating under the influence,

the defendant assigns as error certain actions of the trial judge

which are discussed below. The defendant also contends that

the single justices of the Appeals Court and of the Supreme

Judicial Court erred in denying his motions for a stay of the

revocation of his license.

‘A second conviction for failure to use care when turning was not appealed.

3a

401 Mass. 331 333

Commonwealth v. Yameen.

1. Motion for stay pending appeal. At the outset, we note

that the issue as to the stay is moot as regards the defendant,

since the one-year revocation period has passed. However,

both parties urge us to reach this issue as one that is capable

of repetition, yet evading review. “[WJe have on occasion

answered questions in moot cases where the issue was one of

public importance, where it was fully argued on both sides,

where the question was certain, or at least very likely, to arise

again in similar factual circumstances, and especially where

appellate review could not be obtained before the recurring

question would again be moot.” Lockhart v. Attorney Gen.,

390 Mass. 780, 783 (1984), and cases cited. These consider-

ations make resolution of the present issue desirable. Defend-

ants convicted of operating under the influence will continue

to appeal their convictions. Because the revocation period gen-

erally will be shorter than the period of time necessary to

complete the appellate process, this issue is apt to evade review.

See First Nat'l Bank v. Haufler, 377 Mass. 209, 211 (1979)

(“An issue apt to evade review is one which tends to arise

only in circumstances that create a substantial likelihood of

mootness prior to completion of the appellate process’’).

The single justice of the Appeals Court believed that he

lacked statutory or inherent power to grant the requested stay.

It is not clear on what basis the single justice of the Supreme

Judicial Court denied the defendant’s request for a stay. She

Stated that it was “not clear” that she had such power, but it

is just as likely that she declined to act because she determined

in her discretion that a stay was not warranted. The Common-

wealth contends that the power to stay a license revocation

resides only in the Registrar of Motor Vehicles and not in the

judiciary. The defendant, of course, disagrees.

The Commonwealth argues that Mass. R. Crim. P. 31, 378

Mass. 902-903 (1979), which authorizes stays of sentences

pending appeal, applies only to sentences of imprisonment or

fines and not to a driver’s license revocation; that under G. L.

c. 90, § 24 (1) (b), the courts specifically are prohibited from

Staying a license revocation pending appeal; and that the courts

do not have inherent power to stay a license revocation absent

4a

334 401 Mass. 331

Commonewceltth » VYameen

Statutory authorization, much less in the face of a statutory

interdiction of such stays.

We agree with the Commonwealth that Mass. R. Crim. P.

31 does not authorize a stay of a license revocation. By its

terms, that rule applies only to sentences of imprisonment or

fines. But we do not think that G. L. c. 90, 8 24 (1) (b),

specifically prohibits a court from staying a license revocation

pending appeal. That statute says only that “no appeal, motion

for new trial or exceptions shall operate to stay the revocation

of the license or the right to operate.” This language does not

purport to divest the judiciary of the power to issue a discretion-

ary stay of a license revocation pending appeal, but comports

with the normal criminal law practice that entry of an appeal

does not automatically operate to stay the execution of a sen-

tence. See Mass. R. Crim. P. 31 (a) (where sentence of impris-

onment imposed, “the entry of an appeal shall not stay the

execution of the sentence unless the judge imposing it or a

judge of the Supreme Judicial Court or the Appeals Court

determines in his discretion that execution of said sentence

shall be stayed pending the final determination of the appeal”).

That the Legislature would purport to divest the judiciary

of the power to grant a discretionary stay pending appeal in a

driver's license revocation case is a proposition that we will

not accept absent a clearer indication of legislative intent. To

construe G. L. c. 90, § 24 (1) (6), as prohibiting a court from

issuing a discretionary stay pending appeal would be inconsist-

ent with the statutorily granted right of appeal from a convic-

tion of operating under the influence, G. L. c. 211A, § 10

(1986 ed.). To allow a defendant to appeal his conviction yet

mandate that his punishment could not be stayed while he did

so would be to “pay lip service to the statutory provisions that

establish the right for a licensee to appeal while eradicating

any practical reason for taking the appeal. . . . A licensee

whose license has been revoked or suspended immediately

suffers the irreparable penalty of loss of [license] for which

there is no practical compensation. This happens even if said

licensee wins an appeal and a decision holding that the license

was wrongfully revoked. The purpose and impetus for appeal-

a

401 Mass. 331 335

Commonwealth » Yameen

ing|.] i.e., to prevent having an irrevocable and irreparable

penalty imposed, is erased when the statute requires imposition

of the penalty prior to and despite the outcome of the appeal.

. . . The practical effect is to render the appeal a meaningless

and merely ritualistic process.” Smothers v. Lewis, 672 S.W.2d

62, 65 (Ky. 1984) (statute denying courts the power to stay

liquor license revocation pending appeal violates Kentucky

Constitution's mandate of separation of powers; courts have

inherent powers to stay execution of sentence pending appeal).

We therefore conclude that a judge in his discretion may stay

a license revocation pending appeal.

2. Motion for additional voir dire questions. The defendant

contends that the trial judge erred in denying his motion for

questions to be posed to prospective jurors, and that this ruling

deprived him-of a meaningful opportunity to discover biases

of the prospective jurors regarding the consumption of alcoholic

beverages and the offense of operating a motor vehicle while

under the influence of intoxicating liquor. He argues that the

judge's denial of his motion prevented the defendant from

intelligently exercising his peremptory challenges and chal-

lenges for cause. The judge asked the prospective jurors the

questions required by G. L. c. 234, § 28 (1986 ed.). He

declined to ask the defendant's additional questions, which

sought to explore specific areas of possible juror bias, to explain

certain areas of the law prior to the final charge, and to ensure

that the jurors would follow the judge's statements of the law.

“The decision not to ask the further questions requested by

the defendant| ] was not error. Whether questions other than

those required by statute and case law should be put to prospec-

tive jurors has been viewed historically as discretionary with

the trial judge.” Commonwealth v. Horton, 376 Mass. 380,

393 (1978), and cases cited. Commonwealth v. Monahan, 349

Mass. 139, 156 (1965), and cases cited. See Commonwealth

v. Khoades, 379 Mass. 810, 821 (1980) (“Questions not aimed

at ‘revealing racial bias or any similarly indurated and pervasive

prejudice’ are not constitutionally required,” quoting Common-

wealth v. Bailey, 370 Mass. 388, 399 [1976]), and cases cited.

336 401 Mass. 331

Commonwealth » Yameen

Nor was there error in the judge's declining to instruct the

prospective jurors as to the meaning of certain concepts in-

cluded in the statutory questions.’ The argument is that the

prospective jurors could not respond intelligently to the ques-

tions for lack of understanding of the legal terms, and con-

sequently the defendant could not effectively use his chal-

lenges. The defendant emphasizes that the judge should have

defined the term “reasonable doubt” for the prospective jurors

and inquired of them whether they would have difficulty accept-

ing and applying this legal principle. The short answer to these

contentions is that the Legislature did not mandate that such

explication must occur as part of the empanelling process.

Whether such preliminary instruction should be given rested

in the discretion of the judge. See Horton, supra at 391. We

add that the judge charged fully and correctly at the conclusion

of the trial, and nothing appears in this record to indicate that

the jury did not understand and apply the law correctly.

Rhoades, supra at 822.

3. Evidentiary rulings. The evidence showed that the defend-

ant submitted to a breathalyzer test. The defendant contends

that the judge erred in admitting the results of the breathalyzer

test where testimony of police witnesses showed that the test

was not properly administered. These witnesses, however, tes-

tified that although the procedure followed was not ideal, it

was adequate , and that they believed that the test results were

accurate. The defendant's contention goes to the weight of the

evidence, not its admissibility. This issue was for the jury,

and it was not error to submit it to them.

The defendant further contends that the trial judge erred in

requiring the defendant to answer on cross-examination that

he was informed that he would lose his driver's license for

ninety days if he refused to take a police-administered

breathalyzer test. He argues that this evidence was irrelevant

‘The defendant's motion for jury questions focused on the statutory

provisions that inquiry must be made as to the concepts that a defendant is

presumed innocent until proven guilty, that the Commonwealth has the

burden of proving guilt beyond a reasonable doubt, and that the defendant

need not present evidence in his behalf. G. L. c. 234, § 28.

7a

401 Mass. 331 337

Commonwealth v. Yameen

to any issue in the case, or, if relevant, should have been

excluded because its probative value was substantially out-

weighed by the danger of unfair prejudice to the defendant.’

In the defendant's view, allowing the prosecution to inquire

into this matter created an untenable dilemma for a motorist

arrested for driving under the influence. If he refuses the test,

he loses his license for 120 days (ninety days, at the time the

defendant was arrested), G. L. c. 90, § 24 (1) (f) (1986 ed.).

If he consents to the test, he is subject to the suggestion at

trial that he took the test not because of his consciousness of

innocence but rather because of the threatened loss of license.

The evidence was relevant to show that the defendant’s willing-

ness to take the breathalyzer test was not due to his conscious-

ness of innocence. The judge in his discretion was warranted

in concluding that the probative value of the inquiry was not

substantially outweighed by the danger of prejudice to the

defendant.* Fairness undoubtedly will be promoted in such

cases if the aspect of “voluntariness” does not arise in the

evidence at all, by preliminary direction of the judge, upon

motion of any party.

Judgment affirmed.

Order of the single justice affirmed.

‘Evidence that the defendant had declined to take a breathalyzer test

would not be admissible. G. L. c. 90, § 24 (e) (1986 ed).

‘It his opening statement, defense counsel made reference to the fact

that the defendant had “voluntarily submitted” to the test. The defendant

testified that he was not intoxicated on the night of the arrest; that he

“couldn't believe” that he had been stopped for driving under the influence;

and that he was informed of the right to take the test, and “so I decided to

take it.” The judge could reasonably conclude that an inference of the

defendant's consciousness of innocence could have been drawn by the jury.

Cf. Commonwealth v. Preziosi, 399 Mass. 748, 752-753 (1987) (no impro-

priety in prosecutor's suggestion that the jury draw inferences contrary to

defense counsel's argument that they could infer the defendant's conscious-

ness of innocence from his cooperation with the police).

8a

Appendix B.

Bruce T. Macdonald

Attorney at Law

cee 678 Massachusetts Avenue

(617) 354-1711 Suite 901

Cambridge, Massachusetts 02139

To: Chief Justice Edward F. Hennessey

Supreme Judicial Court

Re: Commonwealth v. Thomas K. Yameen

No. 4424

PETITION FOR REHEARING

It is respectfully requested that the Supreme Judicial Court

grant a rehearing in the above-entitled case for the following

reasons:

i. GL. CH. 2356, SEL. 2

A. The Court Misinterpreted the Legislative Intent Under-

lying the 1985 Amendment to G.L. Ch. 234, Sec. 28

In Section 2 of its opinion, the Court held that “(t]he short

answer to [defendant’s contention that the amendment required

an explanation of the legal concepts contained therein] is that

the Legislature did not mandate that such explication must

occur as part of the empanelling process.”

The critical language of the amendment, which the Court

failed to set forth in its opinion, is: “such examination shall

include questions designed to learn whether such juror under-

stands . . .” (emphasis added). This language plainly directs

9a

trial judges to probe jurors as to their understanding and re-

quires far more than merely rote recitation of concepts set out

in the statute. The legislative intent, which the Court’s decision

missed, is set out by Representative Richard J. Rouse, the

bill’s sponsor, in a letter included herein as “Attachment A.”

This Court should consider its contents in deciding this Petition.

If the legislative intent is not clear from a fair reading of the

Statutory language, then Representative Rouse’s letter should

make it so; hence, the legislature did, in fact, mandate that an

“explication” of these legal concepts be given by trial judges,

who should have flexibility in “designing” appropriate ques-

tions.

B. Constitutionality of G.L. Ch. 234, Sec. 28, Par. 1

In a case decided a week before the decision in this case,

this Court suggested that G.L. Ch. 234, Sec. 28, par. 1, may

violate Article 30 of the Declaration of Rights of the Massachu-

setts Constitution. Commonwealth v. Mickel, 401 Mass. 1003,

1005, n. 2.

If the Court is now uncertain or seriously questions the

constitutionality of the statute, the administration of justice

would be advanced if this Court would rehear the case and

permit the parties to brief and reargue the constitutionality of

the 1985 amendment.

Il. Ir WAS FUNDAMENTALLY UNFAIR TO ADMIT EVIDENCE

OF CONSEQUENCES DEFENDANT WOULD HAVE SUFFERED

HAD HE REFUSED THE BREATH TEST IN A CASE WHERE HE,

IN FACT, TOOK THE TEST =

A. Defendant’s Alleged “Consciousness of Innocence”

At trial, defense counsel objected to the prosecutor’s ques-

tion to the defendant as to whether he was informed, at the po-

10a

lice station, that he would lose his license for 90 days if he

refused the breath test. Without citing any direct authority,

this Court held the question and answer to be relevant. The

Court reasoned that the evidence was admissible to rebut an

inference of “consciousness of innocence” which the Court

unfairly attributed to the defendant having injected into the

trial. In finding such inference, however, the Court has over-

looked important facts. In Footnote 4 of the opinion,' the Court

lists four factors which apparently are felt to be important ones

suggesting “consciousness of innocence.” They are: 1) defense

counsel’s reference, in his opening, to the fact that the defend-

ant “voluntarily submitted” to the breath test; 2) defendant's

testimony that he was not intoxicated; 3) defendant's statement

that he “couldn't believe” that he had been stopped for driving

undér the influence; and 4) defendant's statement: “so, I de-

cided to take it” after being informed of his right to take the test.

As to No. 1, the Court creates the false impression that

defense counsel opened the door to such rebuttal evidence by

having referred to defendant “voluntarily submitting” to the

test. In fact, counsel was merely anticipating the judge’s use

of the same phrase in Instruction 4.10 of the Model Jury

Instructions for Criminal Offenses Tried in the District Court

Department (“Attachment B”). The judge, as expected, gave

that instruction, including the language: “Now, Chapter 9 (sic),

Section 24 of our laws provides that a defendant may voluntar-

ily submitto abreath test. . .” (Tr. III/48 and D. Brief at 21).

It would be extremely unfair to penalize defendant for antic-

ipating use of a model jury instruction in existence for many

years and used on a daily basis in jury of six sessions throughout

the Commonwealth. This Court's opinion now calls into ques-

tion future use by trial judges of that instruction. It was entirely

Taken virtually verbatim from the Commonwealth's Brief (Page 39, lines

13-19)

lla

proper for counsel to rely, in his remarks to the jury, on the

law that he anticipated the judge would give in his charge.

Cf. Mass.R.Crim.P. 24(b). “The purpose of the rule is to

enable counsel to argue intelligently to the jury.” Common-

wealth v. Thomas, 21 Mass.App.Ct. 183, 186-187, 486

N.E.2d 66 (1985). Defense counsel did not, therefore, open

the door by using the words “voluntarily submitted,” and this

Court erred when it so implied. 7

As to No. 2, it goes without saying that this, or any, defend-

ant would likely deny his intoxication when he takes the witness

stand. Characterizing denial testimony as “consciousness of

innocence” so broadens this concept as to make it meaningless. _

As to No. 3, the Court misstates the evidence where it

credits the defendant with having said that he “couldn’t believe”

that he had been stopped for driving under the influence. What

defendant actually said was that, at the scene of the stop, “I

was nervous, the lights, and everything, and I couldn’t believe

what was happening there.” (Tr. II/111). Later, when he re-

fused to be bailed from a cold jail cell at the urging of Lt.

Lynch, he said: “And then, I sat there, and I just couldn’t

believe what happened.” (Tr. II/118). These are perfectly un-

derstandable and expected reactions from a motorist who had

never been arrested before. (Tr. II/112). To also characterize

this as evidence of “consciousness of innocence” impinges on

a defendant’s right to testify on his own behalf.

In No. 4, the Court mistakenly penalizes defendant for in-

troducing evidence that had first come in through the Common-

wealth. Defendant testified that he “decided to take it [the

test].”’ The almost identical description had earlier been given

by Lt. Lynch when being questioned by the prosecutor on

direct examination:

Q. Did Mr. Yameen elect to exercise any of the rights

you advised him of?

12a

A. Yes, he did.

Q. Which right was that?

A. He elected to take the intoxilyzer. (Tr. II/55).

B. The Court's Analysis and Holding Denies Defendant

Due Process under the Fourteenth Amendment

In Massachusetts a motorist has a right to consent to a breath

test. Commonwealth v. Alano, 388 Mass. 871, 874, 448

N.E.2d 1122 (1983). In this case the defendant, in the words

of the breathalyzer operator, “elected” to exercise that right

(Tr. 11/55). Had the defendant declined the test he would have

lost his driver’s license for 90 days. G.L. Ch. 90, Sec. 24(1)(f).

That penalty is unquestionably legitimate. Mackey v. Montrym,

443 U.S. 1,99 S.Ct. 2612 (1979). Clearly the Commonwealth

wants a motorist to take the test because then it will have the

benefit of the statutory presumption under G.L. Ch. 90, Sec.

24(1)(e) should the reading be .10 or greater. See Common-

wealth v. Moreira, 385 Mass. 792, 434 N.E.2d 196 (1982).

Once a motorist has made the choice the Commonwealth

wants him to make, it is fundamentally unfair and a denial of

due process to then penalize him at trial for that choice. See

Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240 (1976). Even in

states that, unlike Massachusetts, allow a motorist’s refusal to

take the test to be used in evidence against him, the state

‘wants [the motorist] to choose to take the test, for the inference

of intoxication arising from a positive blood-alcohol test is far

stronger than that arising from a refusal to take the test.” South

Dakota v. Neville, 459 U.S. 553, 563-564, 103 S:Ct. 916

(1983). The Commonwealth in this case got the inference they

were seeking because the defendant’s test reading was .16.

The Court's logic and holding in the case at bar transformed

a State evidentiary question into a constitutional issue. See

13a

Commonwealth v. Trapp, 396 Mass. 202, 207, n. 4, 485

N.E.2d 162 (1985).

In Doyle,a defendant was given Miranda warnings after his

arrest and elected to remain silent. At trial the prosecutor, who

was confronted with an exculpatory explanation by defendant,

cross-examined him as to his failure to tell his story to the

police at the time of his arrest. The court stated that:

In such circumstances, it would be fundamentally unfair

and a deprivation of due process to allow the arrested

person’s silence to be used to impeach an explanation

subsequently offered at trial. Doyle, supra, at 618.

As in Doyle, Yameen was offered a lawful choice; his choice

to take the breath test was equivalent to Doyle’s choice to

remain silent; and that choice had the effect, whether it was

intended or not, of avoiding a loss of license. The Supreme

Court, in subsequent cases, has “consistently explained Doyle

as a case where the government had induced silence by im-

plicitly assuring the defendant that his silence would not be

used against him.” Fletcher v. Weir, 455 U.S. 603, 606, 102

S.Ct. 1309 (1982). In explaining to the Massachusetts motorist

his two options, the government has implicitly assured the

motorist who takes the breath test that his avoidance of license

loss will likewise not be used against him.

To paraphrase Justice White in his concurring opinion in

United States v. Hale, 422 U.S. 171, 182-183, 95 S.Ct. 2133

(1975), cited in Doyle, supra, at 619:

when a person under arrest is informed, as [Chapter 90]

requires, that he [has a right to consent to a breath test

and will lose his license for 90 days if he does not], it

seems to me that it does not comport with due process

to permit the prosecution during the trial to call attention to

l4a

[the defendant’s avoidance of the penalty for refusing the

test] and to insist that because he [chose to take the test],

as he was told he need not do, an unfavorable inference

might be drawn as to the truth of his trial testimony. . .

Surely [Yameen] was not informed here that his [avoid-

ance of license loss] as well as his [test result], could be

used against him at trial. Indeed, anyone would reasonably

conclude from [what he was told] that this would not be

the case.

See also Brooks v. Tennessee, 406 U.S. 605, 607-613, 92

S.Ct. 1891 (1972) (statutory requirement that a defendant de-

siring to testify must do so before any other witness for the

defense constituted “‘an impermissible restriction on the defend-

ant’s right against self-incrimination”). /d. at 609; Griffin v.

California, 380 U.S. 609, 614, 85 S.Ct. 1229 (1965) (viewing

prosecutor’s argument on defendant's failure to testify as con-

Stituting “‘a penalty imposed . . . for exercising a constitutional

privilege’).

The fallacy in the Court’s reasoning in the instant case

becomes obvious when one realizes that it applies only to

incriminating breath test results, i.e. .10 or greater. (Readings

less than .10 would themselves be “consciousness of inno-

cence” and make refusal evidence undisputably irrelevant).

Not only does this reasoning create the constitutional viola-

tion, it renders it more egregious than in Doyle, because unlike

Doyle, Yameen made the choice the government wanted him

to make, providing them with inculpatory evidence.

A rehearing on this issue, in view of the erroneous foundation

upon which the Court’s decision is based, is appropriate. Any

deprivation of a federal constitutional right necessarily invokes

the cognate provisions of the Declaration of Rights of the

Massachusetts Constitution. Commonwealth v. McGeoghe-

gan, 389 Mass. 137, 141, n. 2, 449 N.E.2d 349 (1983). The

Court, therefore, should first address the issue under the state

1Sa

constitution and if that is not dispositive, it should then consider

the issue under the federal constitution. Failure to do both may

“unnecessarily invite” the United States Supreme Court to

undertake a review of this judgment. See Massachusetts v.

Upton, 466 U.S. 727, 737, 104 S.Ct. 2085 (1984) (Stevens,

J. concurring) (“The States in our federal system . . . remain

the primary guardian of the liberty of the people.”’) /d. at 739.

II]. REQUESTED CORRECTIONS TO THE OPINION.

The defendant requests that the Court make the following

corrections to the opinion:

A. Footnote | incorrectly states that the conviction for fail-

ure to use care when turning was not appealed. That conviction

was, in fact, appealed as is indicated by docket numbers appear-

ing on the Notice of Appeal. R. 8. Although a minor motor

vehicle offense, that conviction would also have been reversed

had the defendant prevailed on the Ch. 234, Sec. 28 issue.

Footnote | unfairly suggests inattention by defense counsel

and perhaps negligence in failing to include that conviction in

the appeal. For these reasons the footnote should be deleted.

B. In Footnote 4, the Court leaves the clear impression that

the words “voluntarily submitted” were the invention of de-

fense counsel and that he opened the door to his client’s demise.

As noted above at II A., that phrase appears in Instruction

4.10 of the District Court Model Jury Instructions and was

used by the judge in his charge. The Court should also note

this fact in the opinion.

l6a

For all the foregoing reasons, it is respectfully requested

that the Court grant the Petition.

Respectfully submitted,

THOMAS K. YAMEEN

By his attorney,

/s/

Bruce T. Macdonald

678 Massachusetts Avenue

Suite 901

Cambridge, MA 02139

354-1711

January 13, 1988

17a

THE COMMONWEALTH OF MASSACHUSETTS

HOUSE OF REPRESENTATIVES

STATE HOUSE, BOSTON 02133

RICHARD J. ROUSE Room 445

Assistant Majority Leader Tel. 722-2460

5th Suffolk District

Boston

January 8, 1988

Bruce T. Macdonald

Attorney At Law

678 Massachusetts Avenue

Suite 901

Cambridge, Massachusetts 02139

Dear Mr. Macdonald:

In response to your concerns as to the Supreme Judicial

Court’s decision in Commonwealth v. Thomas K. Yameen, |

have reviewed that decision as it relates to the 1985 amendment

toG.L. Ch. 234, Sec. 28, an amendment which I sponsored.

As you know, and as I understand the Court was made

aware through your brief, the original bill (H. 1590) contained

two questions which were to be posed verbatim to prospective

jurors. As the bill progresses through the Judiciary Committee,

it was modified because of the feeling among the legislators

that the underlying legal concepts needed to be explained to

prospective jurors during the empanelling process. It was for

this reason that the language “such examination shall include

questions designed to learn whether such juror understands

that . . .” was included in the final draft of the bill. (emphasis

added).

Attachment A

Ika

The intent of the bill, as enacted, was to allow trial judges

Nexibihty in “designing” appropriate questions to cxplam these

concepts It was not intended that they merely quote the words

of the amendment, te. “that a defendant 1s presumed innocent

until proven guilty, that the commonwealth has the burden of

proving guilt beyond a reasonable doubt. and that the defendant

need not present evidence in his behalf” Your assertion to the

Supreme Judicial Court that the term “reasonable doubt™ should

have been defined in some way, correctly perceives the intent

of this legislation

Support for this bill stemmed from the result of a survey

conducted by the Hearst Corporation entitled The American

Public, The Media and the Judicial System .. . . which

tound that

1) 50% of the American public mistakenly believe it

is the responsibility of the person who ts accused of a

emme to prove his or her innocence

2) Almost half of all the respondents who have served

on a jury also mistakenly believe the accused person must

prove his or her own innocence and 31% of all college

graduates hold the same erroneous opinion.

3) 54% of the public say they frequently get their infor-

mation from TV news.

4) The most common reason for Americans to have

gone to court — an experience shared by 20% of the

public — is a civil case, typically, a divorce, a child-sup-

port or a breach of contract action.

3) More than half of the American public (63%) believe

it would be good public policy to “step up” punishment

for victimless crimes such as possession of small amounts

of illegal drugs, illegal sex between consenting adults and

certain juvenile offenses such as school truancy, breaking

curfew and dmnking

|Va

—

| understand that you will be attaching this letter t

vour Petition tor Rehearing in your case. If | can be of

any further assistance to you. please fee! free to cuntact

my

Sn ere!\ \ ur

State Representat ve

RIR «ib

20a

Instruction 4.10

Revised December, 1983

BLOOD OR BREATH ANALYSIS

G.L. c. 90s. 24 provides that a defendant may voluntarily

submit to a [breath] [blood] test to assist in determining whether

at a time the defendant was under the influence of intoxicating

liquor. Evidence has been presented that the defendant submit-

ted to such a test. In pertinent part, G.L. c. 90, s. 24(1)(e)

provides:

In any prosecution for a violation of paragraph (a) of

this subdivision [which pertains to the charge of operating

under the influence of intoxicating liquor], evidence of

the percentage, by weight, of alcohol in the defendant's

blood at the time of the alleged offense, as shown by

chemical test or analysis of his blood or as indicated by

chemical test or analysis of his breath, shall be admissible

and deemed relevant to the determination of the question

of whether such defendant was at such time under the

influence of intoxicating liquor; . . . . If such evidence

is that such percentage was five one-hundredths or less,

there shall be a presumption that such defendant was not

under the influence of intoxicating liquor .. . if such

evidence is that such percentage was more than five one-

hundredths but less than ten one-hundredths, there shall

be no presumption; and if such evidence is that such

percentage was ten one hundredths or more... .

you may draw an inference that such defendant was under the

influence of intoxicating liquor.

Attachment B

2la

If you are convinced beyond a reasonable doubt that the test

administered to the defendant is scientifically accurate and was

properly and competently administered, then you may consider

the test results in determining the defendant's guilt or inno-

cence. If you believe the test is inaccurate, either because it

is scientifically invalid or was not properly or competently

administered, then you should disregard the test and find the

defendant innocent or guilty based on other evidence presented

in this case.

[See Instructions on Presumption and Inference]

NOTE

The underlined portions of this charge indicate the revisions

made as a result of the language of the Supreme Judicial Court

in Comm. v. Moreira, 385 Mass. 792, 797, 434 N.E.2d 196,

200 (1982), which directed that trial judges “avoid the use of

the word ‘presumption,’ in any context which includes the

burden of proof in criminal cases.”

The term “prima facie evidence” may be substituted for the

reference to “inference.” See Comm. v. Brooks, 366 Mass.

423, 424-425 n. 2, 319 N.E.2d 901, 903 n. 2 (1974), which

reads: “Although G.L. c. 90, sec. 24(1)(e), speaks in terms

of presumptions, our decisions in other areas suggest that proof

of a defendant’s blood alcohol concentration might be better

termed prima facie evidence. While this distinction is technical,

and frequently emphemeral, it does have some practical effects

By its terms, the statute does not confer a right to a chemical

test, such as a breathalyzer, on one charged with the offense

of driving under the influence. The statute does no more than

regulate the admissibility, and establish the effect of chemical

tests of blood alcohol content. It does not establish a right to

a police administered test. A defendant is not entitled, under

22a

the State or Federal Constitution, to have a charge against him

dismissed because the police department did not give him a

blood alcohol test upon his request unless there is a showing

of bad faith on the part of the police. Comm. vy. Alano, 388

Mass. 871, 448 N.E.2d 1122 (1983).

23a

Appendix C.

SUPREME JUDICIAL COURT For THE COMMONWEALTH

ROOM 1412 COURT HOUSE

BOSTON, MASSACHUSETTS 02108

(617) 725-8055

JEAN M. KENNETT FREDERICK J. QUINLAN

Clerk Assistant Clerk

January 25, 1988

Bruce T. MacDonald, Esq.

678 Massachusetts Avenue - Suite 901

Cambridge, MA 02139

Dear Mr. MacDonald:

Re: Commonwealth vs. Thomas K. Yameen

Supreme Judicial Court No.-SJC-4424

Your Petition for Rehearing in the above captioned appeal

has been considered by the court and is denied.

Very truly yours,

/s/

Dolores G. Dupré

for Jean M. Kennett, Clerk

c.c.: David Grossbaum, A. D. A.

Essex County D.A.’s Office

70 Washington Street

Salem, MA 01970

PLEASE ADDRESS ALL CORRESPONDENCE TO CLERK

24a

Appendix D.

COMMONWEALTH OF MASSACHUSETTS

SUPREME JUDICIAL COURT

NO. 4424

COMMONWEALTH

VS.

THOMAS K. YAMEEN

Request for Certificate that Federal Question was Raised

and Decided

The defendant in the above-entitled matter respectfully re-

quests that this Honorable Court certify to the United States

Supreme Court that, in denying defendant's Petition for Re-

hearing, the federal question raised therein was considered and

passed upon by the Court. Whitney v. California, 274 U.S.

357, 361 (1927); Honeyman v. Hanan, 300 U.S. 14, 22 (1937);

Allenberg Cotton Co. v. Pittman, 419 U.S. 20, 22 (1974); R.

Stern, E. Gressman & S. Shapiro, Supreme Court Practice

§ 3.23 (6th ed. 1986).

The defendant further requests that the form of such certifi-

cate include a statement that: “In his Petition for Rehearing

the defendant asserted and argued that it was fundamentally

unfair and a denial of due process under the Fourteenth Amend-

ment to the United States Constitution to admit evidence of

the consequences defendant would have suffered had he refused

the breath test, when he in fact took the test; that the Court

considered the question of a federal constitutional violation;

that it was the judgment of the Court that there was no such

violation; that it was necessary to the Court’s denial of the

Petition for Rehearing to determine said federal question; and

25a

that such question was determined adversely to the defendant.”

See Allenberg Cotton Co. v. Pittman, 419 U.S. at 22.

Dated: January 29, 1988

By his attorney,

/s/

Bruce T. Macdonald

678 Massachusetts Avenue

Suite 901

Cambridge, MA 02139

354-1711

26a

Appendix E.

SUPREME JUDICIAL COURT FoR THE COMMONWEALTH

ROOM 1412 COURT HOUSE

BOSTON, MASSACHUSETTS 02108

(617) 725-8055

JEAN M. KENNETT FREDERICK J. QUINLAN

Clerk Assistant Clerk

February 23, 1988

Bruce T. MacDonald, Esquire

678 Massachusetts Avenue

Suite 901

Cambridge, Massachusetts 02139

RE: COMMONWEALTH vs. THOMAS K. YAMEEN

SJC-4424

Dear Mr. MacDonald:

Enclosed herewith is the Clerk’s certificate which you re-

cently requested in your motion of January 29, 1988.

Very truly yours,

/s/

Jean M. Kennett

Clerk

JMK/dmd

PLEASE ADDRESS ALL CORRESPONDENCE TO CLERK

27a

COMMONWEALTH OF MASSACHUSETTS

Suffolk, ss. Supreme Judicial Court

for the Commonwealth

I, Jean M. Kennett, Clerk of said Court, hereby certify that:

In his Petition for Rehearing in the case of Commonwealth

v. Thomas K. Yameen, SJC — 4424, which was denied by

the Court, the defendant asserted and argued that it was funda-

mentally unfair and a denial of due process under the Fourteenth

Amendment to the United States Constitution to admit evidence

of the consequences defendant would have suffered had he

refused the breath test, when he in fact took the test.

However, the Court further states that the federal question

was not adequately raised in briefs or arguments on appeal,

and was not considered by the Court in its denial of the defend-

ant’s Petition for Rehearing.

In witness whereof, I have hereunto set my

hand and affixed the seal of said Court, this

twenty-second day of February in the year of our

Lord one thousand nine hundred and eighty-eight.

/s/Jean M. Kennett, Clerk.