Commonwealth v. Owen R. Broadhurst - Non-Precedential Opinion

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• Combined Opinion from the Court Add Note # Commonwealth v. Owen R. Broadhurst.

Massachusetts Appeals Court

• Citations: None known
• Docket Number: 24-P-0766

• Precedential Status: Non-Precedential

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Combined Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

24-P-766

COMMONWEALTH

vs.

OWEN R. BROADHURST.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Owen R. Broadhurst, was convicted by a jury

in 2018 of operating a motor vehicle under the influence of

alcohol (OUI), pursuant to G. L. c. 90, § 24 (1) (a) (1), and

negligent operation of a motor vehicle, pursuant to G. L. c. 90,

§ 24 (2) (a). After the jury returned their verdicts, the

defendant admitted to sufficient facts to warrant a finding of

guilty to being a subsequent offender, having previously been

charged with OUI in 2012 and having received a continuance

without a finding (CWOF) pursuant to G. L. c. 90, § 24D. The

defendant was sentenced to two years of probation, which he

completed in 2020. Following the Supreme Judicial Court's

decision in Commonwealth v. Hallinan, 491 Mass. 730 (2023), the
defendant filed a motion for a new trial in his first OUI case,

the 2012 case, which had involved breathalyzer evidence subject

to Hallinan. The motion was allowed without objection, the

prior CWOF disposition was vacated, and the Commonwealth filed a

nolle prosequi. Subsequently, the defendant filed, and the

judge allowed, a motion to withdraw the admission to a second

offense in the present case. At that time, this appeal of the

defendant's 2018 convictions remained pending.

On appeal, the defendant argues that the judge abused his

discretion in denying the defendant's motion for a mistrial. He

also argues that the vacatur of his prior OUI disposition due to

government misconduct entitles him to a new trial in the present

case, or alternatively to a refund of expenses "incurred as a

result of his being treated as a second offender," though the

defendant has not sought either type of relief in the trial

court. We affirm the convictions and deny the relief now sought

by the defendant in this court in the first instance.

Discussion. 1. Denial of motion for mistrial. Prior to

trial, a judge who was not the trial judge allowed the

defendant's motion in limine to preclude all lay testimony

concerning the horizontal gaze nystagmus (HGN) test. At trial,

the police officer who administered the field sobriety tests

(FSTs) to the defendant testified on direct examination that, of

2
the standardized FSTs, he "first conducted the horizontal gaze

nystagmus." Counsel for the defense promptly objected and

sought a mistrial. The judge offered to give a curative

instruction but maintained that the mistake "clearly doesn't

rise to the level of a mistrial." Counsel declined the curative

instruction and did not move to strike the testimony or to have

the judge sustain the objection, preferring to "not draw[] any

more attention to" the matter. Examination of the witness

resumed with the prosecutor asking the witness, "at some point

did you have the [d]efendant perform what's called a walk-and-

turn test?"

We conclude that the judge did not abuse his discretion in

denying the motion for a mistrial. Commonwealth v. Lao, 460

Mass. 12, 19 (2011) (we review denial of motion for mistrial for

abuse of discretion). The officer's fleeting mention of the HGN

test left the jury without any explanation of the test or

indication of its result. Even if the jury had concluded that

an additional FST was administered besides the tests they heard

about in detail -- the alphabet, finger-count, walk-and-turn,

and one-leg-stand tests -- it is "speculative" to conclude "that

the jury . . . would have inferred [that] the defendant had

failed this additional test." Commonwealth v. Dumais, 60 Mass.

App. Ct. 70, 73 (2003).

3
2. Requests for relief. a. New trial. The defendant

contends that "he proceeded to trial hamstrung both in his

preparation and plea negotiations by his prior CWOF to an OUI

offense," which precluded him from seeking a CWOF in the present

case. He argues that he "should not be forced to pursue post-

conviction relief under Mass. R. Crim. P. 30," as appearing in

435 Mass. 1501 (2001), because "every defendant in his position

-- having been forced to trial as a second offender in the face

of a prior Hallinan violation -- should be awarded a new trial"

as a "global remedy." The relief which the defendant requests

is not warranted by Hallinan, and we do not grant it.

In Hallinan, the Supreme Judicial Court held that

"defendants who pleaded guilty or who were convicted after

trial, and the evidence against whom included breath test

results from an Alcotest 9510 device last calibrated and

certified prior to April 18, 2019, are entitled to a conclusive

presumption of egregious government misconduct." Hallinan, 491

Mass. at 731. However, Hallinan did not establish a presumption

of prejudice, instead leaving each defendant with the individual

burden to demonstrate that the government's presumptive

misconduct materially influenced the adverse outcome of their

case. Id. at 744-745, 750-751. In Hallinan, the court

considered the affidavits from the defendant and trial counsel

4
in concluding that the defendant had made the requisite showing

of prejudice. Id. at 750-751. Here, we cannot determine from

the record before us whether the defendant has demonstrated the

requisite prejudice. "[W]hen possible, case-by-case

adjudication remains 'the fairest and best alternative' to

resolve individual cases potentially tainted by government

misconduct" (citation omitted). Graham v. District Attorney for

the Hampden Dist., 493 Mass. 348, 376-377 (2024). As in

Hallinan, the "appropriate vehicle [for the defendant] to attack

the validity" of his convictions, which he has yet to pursue, is

a motion for a new trial pursuant to Mass. R. Crim. P. 30 (b).

Hallinan, supra at 744.

b. Refund. We deny the defendant's request that we remand

the case to the trial court with instructions "to return to [the

defendant] any fines, costs, and fees he incurred as a result of

being treated as a second offender." In Commonwealth v.

Martinez, the Supreme Judicial Court "outline[d] the procedure

to be followed in cases where the defendant applies for a refund

of monies paid as a direct consequence of a conviction that has

been invalidated." Commonwealth v. Martinez, 480 Mass. 777, 793

(2018). The defendant concedes that he has not complied with

the first basic requirement of that procedure, to "file a motion

for refund in the court where [the defendant] was convicted."

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Id.1 He is free to pursue a refund by following the procedure

set forth in Martinez.

Conclusion. We affirm the 2018 judgments of operating a

motor vehicle under the influence of alcohol and negligent

operation of a motor vehicle.2

So ordered.

By the Court (Blake, C.J.,
Meade & Tan, JJ.3),

Clerk

Entered: February 26, 2026.

Furthermore, nothing in the record before us satisfies any
1

part of the requirement in Martinez that the motion for refund
contain or be accompanied by statements, sworn or attested by
the defendant to be true, "(1) that the defendant's conviction
is no longer valid and is not subject to retrial; (2) that the
requested refund consists of fines, fees, costs, or restitution
assessed solely as a result of the invalidated conviction; (3)
the amount of the requested refund; and (4) that the defendant
has paid the requested amount." Martinez, 480 Mass. at 793-794.

As noted supra, after this appeal was filed, the trial
2

court granted the defendant's motion to withdraw the defendant's
admission to a subsequent offense OUI. We do not disturb that
ruling in this appeal.

3 The panelists are listed in order of seniority.

6