Opinion
16-P-565
07-13-2017
COMMONWEALTH v. Richard A. KELLEY.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor, fourth offense; negligent operation of a motor vehicle; and operating a motor vehicle with a suspended license. On appeal, he claims that (1) the motion judge erred in denying his motion to suppress statements he made to the police, (2) the trial judge erroneously admitted opinion testimony on the issue whether the defendant's ability to drive safely was impaired by the consumption of alcohol, and (3) the Commonwealth failed to present sufficient evidence to prove that he operated his motor vehicle negligently. We affirm.
1. Motion to suppress. The motion judge made the following findings of fact after an evidentiary hearing at which Massachusetts State Trooper Daniel Navin was the only witness. At around 7:30 P.M. on January 18, 2015, Navin was dispatched to exit 6 of Route 93 in Braintree. Upon his arrival, Navin saw a Chevrolet Avalanche pickup truck in the woods near the entrance ramp to Route 93. A second trooper, Davidson Lamarre, was already at the scene. Lamarre advised Navin that the driver of the truck, the defendant, had refused medical treatment. The defendant was sitting on the ground some distance from his truck, which had sustained damage. Tracks on the road indicated to Navin that the defendant did not complete the curve to the on-ramp and went off the road. When the troopers asked the defendant if he was okay, he responded affirmatively with slurred speech and then began to giggle. The defendant attempted to stand, but instead he fell to his knees and said, "Whoops. Hold on a second here." Because the defendant was unsteady on his feet, the troopers helped him to the breakdown lane in order to conduct field sobriety tests. As he walked, the defendant stated that "he knew where this conversation was going and didn't like the looks of it." Navin "detected an overwhelming odor of alcohol at that point," and the defendant acknowledged that he had a couple of drinks earlier that day. Navin then asked the defendant if he was familiar with field sobriety tests. The defendant responded, "You can stop. My lawyer told me never to do this again, these tests, if this happened again."
Having concluded that the defendant was under the influence of alcohol, the troopers arrested him and advised him of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444-445 (1966). They transported him to the State police barracks in Milton, where he again was advised of his Miranda rights. The defendant indicated that he wished to talk to the police by checking a box on the Miranda form. During the booking process, Lamarre showed the defendant an open bottle of Southern Comfort that Lamarre had found in the driver's side door of the defendant's truck. The defendant said that the bottle was his, then he said, "Oh, that's not fair." When Navin asked the defendant if he wanted to make a telephone call, the defendant said that "[i]t would be more beneficial to him to just sleep it off than have the judge release him in court the next morning." The judge specifically credited Navin's testimony that the defendant was responsive and appeared to understand what was being asked of him by the time he was at the barracks.
The defendant checked "no" to the question, "Do you consent to submit to the chemical test that this officer requested to determine your blood alcohol concentration?"
After concluding that the defendant was not in custody at that time and that the environment was not coercive, the motion judge denied the defendant's motion to suppress his statements at the scene of the accident. He denied the defendant's motion to suppress his statements at the barracks, ruling that the defendant's waiver of his Miranda rights was voluntary, knowing, and intelligent. The defendant argues error. He claims that his statements in response to questions at the scene of the accident were elicited without the benefit of Miranda warnings, and could not have been voluntary in light of his condition. He further contends that his waiver of Miranda at the barracks was not voluntary or intelligent, because Navin read him his rights in a "perfunctory way despite knowing of [the defendant's] condition." We are not persuaded.
The defendant's rights under Miranda were not triggered at the scene of the accident because his interaction with the troopers did not amount to a custodial interrogation. Rather, it constituted the type of general questioning that does not implicate Miranda. See Commonwealth v. Kirwan, 448 Mass. 304, 311 (2007), citing Berkemer v. McCarty, 468 U.S. 420, 439-440 (1984) ; Commonwealth v. McNelley, 28 Mass. App. Ct. 985, 986 (1990) ; Commonwealth v. LaFleur, 58 Mass. App. Ct. 546, 548-549 (2003). Navin's questioning of the defendant did not become custodial simply because he may have suspected that the defendant committed a crime. See Commonwealth v. Cameron, 44 Mass. App. Ct. 912, 914 (1998), quoting from Vanhouton v. Commonwealth, 424 Mass. 327, 331 (1997) (investigating police officer not required to furnish Miranda warnings "to a motorist who is temporarily detained after being stopped on suspicion of operating a motor vehicle while under the influence of intoxicating liquor").
In reference to the defendant's argument that his statements could not have been voluntary in light of his condition at the scene of the accident, we note that the defendant was able to hold a conversation with the troopers. He was able to describe the circumstances immediately leading to the accident, he recalled events that had occurred earlier in the evening, and he had the presence of mind to decline to participate in field sobriety tests on the advice of his lawyer. Such evidence demonstrates that the defendant could understand and respond rationally to the questions he was asked. See Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 79-81 (2011). The defendant "behaved calmly and seemed aware of his circumstances," Commonwealth v. Ward, 426 Mass. 290, 295 (1997), and he showed a presence of mind that is inconsistent with a claim that his statements were not voluntary. See Liptak, supra at 81. While there was evidence that the defendant's speech was slurred, that he smelled of alcohol, and that he was unsteady on his feet, it is well settled that an "otherwise voluntary act is not necessarily rendered involuntary simply because an individual has been drinking or using drugs." Commonwealth v. Brown, 462 Mass. 620, 627 (2012), quoting from Commonwealth v. Silanskas, 433 Mass. 678, 685 (2001). "The record before us contains no evidence which indicates that the defendant's appearance or behavior was such that the police should have discerned, or the judge should have found, that the defendant could not comprehend the significance of his actions." Commonwealth v. Burke, 6 Mass. App. Ct. 697, 704 (1978).
We decline to address in detail the defendant's next argument, set forth in a single paragraph, that the statements he made at the police barracks should be suppressed because he failed to understand his rights, which were allegedly explained to him in a perfunctory manner. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). However, we see no error in the judge's conclusion that the defendant's statements at the barracks were made following a knowing and voluntary waiver of his Miranda rights. In sum, the motion judge properly denied the motion to suppress.
2. Opinion testimony. The evidence at trial largely mirrored Navin's testimony at the hearing on the motion to suppress. Navin testified about his observations at the scene and his conversation with the defendant. During the course of his direct examination, the following exchange took place:
Although the jury heard additional evidence that the defendant was on medication, and that it was wet and muddy in the area following a snowstorm.
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PROSECUTOR : "And at any point did you form an opinion regarding his sobriety?"
WITNESS : "I did, sir."
PROSECUTOR : "And what was that opinion?"
WITNESS : "That he had operated a motor vehicle while impaired."
While Navin certainly could offer his opinion on the defendant's sobriety, it was improper for him to opine on the ultimate issue in the case. See Commonwealth v. Canty, 466 Mass. 535, 544 (2013) ; Commonwealth v. Saulnier, 84 Mass. App. Ct. 603, 605 (2013). Because the defendant did not object, we must determine whether the error "created a substantial risk of a miscarriage of justice." Id. at 607, quoting from Commonwealth v. Freeman, 352 Mass. 556, 563-564 (1967).
We see no such risk in light of substantial evidence of the defendant's guilt. The evidence established that the defendant lost control of his truck, smelled of alcohol, was unsteady on his feet, slurred his words, and admitted that he had been drinking earlier in the day. The police found an open bottle of liquor in the driver's side door of the defendant's truck, and when he was asked whether he wanted to make a telephone call, the defendant said that "it would just be more beneficial ... to just sleep it off." While Navin's error was not minor, we have no "serious doubt [that] the result of the trial might have been different had the error not been made." Commonwealth v. Azar, 435 Mass. 675, 687 (2002), quoting from Commonwealth v. LaFave, 430 Mass, 169, 174 (1999).
3. Sufficiency of the evidence. The defendant claims that the evidence was insufficient to support his conviction of negligent operation of a motor vehicle. When viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), the evidence was sufficient to sustain a conviction under G. L. c. 90, § 24(2)(a ), as amended by St. 2013, c. 38, § 80. See Commonwealth v. Ferreira, 70 Mass. App. Ct. 32, 35 (2007) ("The statute only requires proof that the defendant's conduct might have endangered the safety of the public, not that it in fact did"). "A conviction may be based on circumstantial evidence alone," and here "[t]he defendant's contention essentially concerns the weight and credibility of the evidence, ‘a matter wholly within the province of the jury.’ " Commonwealth v. Platt, 440 Mass. 396, 400, 401 (2003), quoting from Commonwealth v. Martino, 412 Mass. 267, 272 (1992).
Judgments affirmed.