Opinion
20-P-833
05-10-2021
COMMONWEALTH v. Julio Cesar SANCHEZ-GARCIA.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of liquor (OUI). On appeal, he claims that the motion judge erred in denying his motion to suppress, there was insufficient evidence to support his conviction, and that the prosecutor's closing argument was improper. We affirm.
Prior to trial, a charge of reckless operation of a motor vehicle was dismissed, and the defendant was found not responsible of speeding in violation of special regulation.
1. Motion to suppress. The defendant claims that the motion judge erred in denying his motion to suppress because the statements he made were involuntary and unknowing based on his limited ability to speak and understand English. We disagree.
For a defendant's statements to be admissible, due process requires that they "be voluntarily made, as a product of rational intellect and free will, and not as a result of ‘inquisitorial activity’ by the government such as coercion or threats." Commonwealth v. Hoose, 467 Mass. 395, 403 (2014), quoting Commonwealth v. Walker, 466 Mass. 268, 277 (2013). Once the defendant sufficiently raises a voluntariness issue, the burden shifts to the Commonwealth to "prove beyond a reasonable doubt that ‘in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was [not] overborne,’ but rather that the statement was ‘the result of a free and voluntary act.’ " Commonwealth v. Baye, 462 Mass. 246, 256 (2012), quoting Commonwealth v. Durand, 457 Mass. 574, 595-596 (2010).
Considering the totality of the circumstances, the motion judge found that the atmosphere at the scene of the crash "was neither coercive nor intimidating," and that "[t]he defendant remained sitting, was never placed in handcuffs, and was not arrested at the scene." See Commonwealth v. Moran, 75 Mass. App. Ct. 513, 520-521 (2009). The motion judge properly considered the defendant's "limited ability to speak English," but nonetheless noted that he was able to answer the police officer's questions "on the scene with a cooperative demeanor," and that the words used by the defendant were words the defendant's own expert testified that the defendant understood. See Commonwealth v. Sanchez, 476 Mass. 725, 736 (2017) ; Commonwealth v. Siny Van Tran, 460 Mass. 535, 559 (2011). The officer's questions were "investigative rather than accusatory." Sanchez, supra, quoting Commonwealth v. Kirwan, 448 Mass. 304, 311 (2007). The defendant's responses were logical, which indicated some comprehension of the questions. See Siny Van Tran, supra. The motion judge further found that the "defendant's will was not overborne," and that "linguistic barriers [did not] render the defendant's roadside answers involuntary in nature." Id.
The defendant's reliance on Miranda case law in which non-English speaking defendants received the Miranda warnings in English, is misplaced. The motion judge found, and the defendant does not argue otherwise, that the defendant was not subjected to custodial interrogation, which renders Miranda inapplicable. See, e.g., Sanchez, 476 Mass. at 735. Furthermore, the defendant's suggestion that the police officer should have summonsed an interpreter to the scene is without merit. As the motion judge found, the officer's two or three question conversation with the defendant lasted no more than one minute before the ambulance arrived to transport the injured defendant to the hospital.
For the first time on appeal, the defendant also claims the defendant's statements were involuntary due to his intoxication. "Because the defendant did not raise this issue before the motion judge, he has waived the argument. ... We nonetheless review to determine whether there was a substantial risk of a miscarriage of justice." Commonwealth v. Dew, 478 Mass. 304, 309–310 (2017).
"Although alcohol intoxication is an important factor bearing on the issue of voluntariness, intoxication alone is not sufficient to negate an otherwise voluntary act." Commonwealth v. Parker, 402 Mass. 333, 341 (1988). The totality of the circumstances here revealed that the defendant was cooperative during the brief exchange with the officer, he readily answered the officer's questions, and as the motion judge found, his answers were logical responses to the questions. See Commonwealth v. Tremblay, 480 Mass. 645, 657 (2018). Specifically, the defendant was able to tell the officer where he was coming from and where he was going. He was also able to indicate to the officer that he was suffering from back and neck pain. Given the evidence and the motion judge's findings, the defendant has failed to establish that his consumption of alcohol rendered his statements involuntary, let alone that a substantial miscarriage of justice was created.
2. Sufficiency of the evidence. The defendant also claims there was insufficient evidence to support his conviction for OUI. We disagree. "When analyzing whether the record evidence is sufficient to support a conviction, an appellate court is not required to ‘ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.’ ... Rather, the relevant ‘question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 319 (1979)" (Citation omitted). Commonwealth v. Rocheteau, 74 Mass. App. Ct. 17, 19 (2009).
"When evaluating sufficiency, the evidence must be reviewed with specific reference to the substantive elements of the offense. See Jackson v. Virginia, supra at 324 n.16; Commonwealth v. Latimore, supra at 677-678. In the circumstances of this case, to establish the defendant's guilt of OUI in violation of G. L. c. 90, § 24 (1) (a ) (1), the Commonwealth was required to prove that the defendant (1) operated a motor vehicle, (2) on a public way, (3) while under the influence of alcohol." Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392 (2017). Here, the defendant challenges the sufficiency of the evidence supporting only the first and third elements.
a. Operation. The defendant claims there was insufficient evidence that he operated the van. More specifically, he asserts that because there was no direct evidence of operation, his admission that he operated the van was not corroborated. We disagree.
The standard for the necessary corroboration of an admission or confession is low. In other words, "[t]he corroboration rule requires only that there be some evidence, besides the confession, that the criminal act was committed by someone, that is, that the crime was real and not imaginary." Commonwealth v. Forde, 392 Mass. 453, 458 (1984). "The corroborating evidence need not point to the accused's identity as the doer of the crime."Id.
Here, when the police officer arrived at the scene, he saw a van that had struck a utility pole, which was cracked and leaning over. The van, which had suffered heavy front-end damage, was on the sidewalk, and the driver's side airbag had deployed. The defendant was sitting on the sidewalk across the street, ten feet from the van. There were other people in the area, who had heard the crash. The road was dry and clear, and there were no skid marks near the pole. The defendant admitted he was the operator of the van (which belonged to his boss) and its sole occupant. The defendant also admitted that he had been drinking and was attempting to drive home; following the accident, he complained about chest and back pain.
These facts provided ample corroboration of the defendant's admission to operation. Proof of operation may properly be established entirely by circumstantial evidence. See Commonwealth v. Beltrandi, 89 Mass App. Ct. 196, 199-200 & n.4 (2016). Indeed, there was a serious accident, a crowd had gathered, the van suffered serious front-end damage, the injured defendant sat ten feet from the van, and only the driver's side airbag deployed. These circumstances more than established the requisite corroboration that the crime was "real and not imaginary." Forde, 392 Mass. at 458.
To the extent the defendant relies on Commonwealth v. Leonard, 401 Mass. 470 (1988), that reliance is misplaced. In Leonard, the identity of the operator was dispositive of the question whether there had been a crime. Id. at 472-473. Here, however, as outlined above, the existence vel non of a crime was not dependent on the defendant's identity as the operator.
b. Under the influence. The Commonwealth proceeded on both an impairment theory and a per se theory to sustain the defendant's conviction of OUI. The defendant claims that there was insufficient evidence to support either theory. We disagree.
Because the verdict slip separately designated the defendant's guilt under both theories, "we need find sufficient evidence on only one of the two theories to affirm the defendant's conviction." Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 135 (2018). In any event, there was sufficient evidence under both theories.
In the light most favorable to the Commonwealth, there was ample evidence by which the jury could have concluded that the defendant was impaired at the time of the crash due to his consumption of alcohol. "A defendant may be found guilty of driving while under the influence of intoxicating liquor if the defendant's ability to operate a vehicle safely is diminished, and alcohol is one contributing cause of the diminished ability." Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988).
In addition to admitting at the scene of the crash that he had been drinking, the defendant exhibited several signs of intoxication, including a strong odor of alcohol when he spoke, slurred speech, and red and glassy eyes. He also required assistance to get into the ambulance, and once inside the ambulance, he behaved in a belligerent and disruptive manner, requiring restraint. Perhaps most indicative of the defendant's impairment was that he drove the van into a utility pole -- without any indication that he had applied the brakes -- at a rate of speed sufficient to break the pole. These facts provided sufficient evidence of impairment. See Commonwealth v. Johnson, 59 Mass. App. Ct. 164, 171-172 (2003).
Under a per se theory, the evidence in the light most favorable to the Commonwealth demonstrated that the defendant's blood alcohol level was between .25 percent and .26 percent, which is more than three times the .08 percent legal limit. Although the medical records did not indicate the exact time that the defendant's blood was drawn, the laboratory results were noted in the medical records at 2:54 A.M. Because the police responded to the scene of the crash at approximately 1:11 A.M. , it is a permissible inference that the defendant's blood was drawn within a reasonable amount of his operation of the van. See Commonwealth v. Faherty, 93 Mass. App. Ct. 129, 134 (2018). See also Commonwealth v. Colturi, 448 Mass. 809, 816-817 (2007) (passage of time of up to three hours between administration of breathalyzer test and operation presumptively "reasonable;" "facts and circumstances in particular cases may establish that a lesser or greater time period ought to be applied"). Accordingly, the evidence was also sufficient under a per se theory of OUI.
3. Closing argument. Finally, the defendant claims that the prosecutor's closing argument improperly included his personal opinion and argued facts not in evidence, which prejudiced the defendant, and that another portion of the argument created a substantial risk of a miscarriage of justice. We disagree.
The prosecutor argued as follows:
"[The defendant] said I was the sole occupant of that car and that I was drinking on Moody Street, and I was driving home to Myrtle Street. And as the officer testified, Moody Street is two blocks away from his house. He could have walked home. Could have walked home, two blocks. But he drove."
At the close of arguments, the defendant did not object to the prosecutor's closing argument. Rather, counsel waited until after the jury instructions to object to the prosecutor's remark that the defendant "could have walked home." Ordinarily, "[w]e have a contemporaneous objection rule, not a retroactive objection rule," Commonwealth v. Coutu, 88 Mass. App. Ct. 686, 692 (2015), but because the judge "preserved" the claim, we treat the objection as timely.
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In reviewing the defendant's claims, we bear in mind that "[r]emarks made during closing arguments are considered in the context of the whole argument, the evidence admitted at trial, and the judge's instructions to the jury." Commonwealth v. Whitman, 453 Mass. 331, 343 (2009). Prosecutors cannot "misstate the evidence or refer to facts not in evidence" during closing argument (quotation and citation omitted). Commonwealth v. Walters, 472 Mass. 680, 703 (2015). Prosecutors are, however, "entitled to marshal the evidence and suggest inferences that the jury may draw from it." Commonwealth v. Roy, 464 Mass. 818, 829 (2013), quoting Commonwealth v. Drayton, 386 Mass. 39, 52 (1982).
Here, the prosecutor was not offering an opinion, nor was he commenting on facts not in evidence. Rather, he was referring to the officer's testimony as to how far away the defendant lived. Stating that the defendant could have walked home is a fair inference from that evidence, given how close the defendant lived, and the inference that the defendant made a choice to drive instead was based on his admission to having driven the van, as well as the other evidence that supported the defendant's operation of the van. It was also a fair inference that the defendant's exercise of poor judgment in choosing to drive rather than walk was further evidence of his impairment. The prosecutor did not speculate as to why the defendant made that choice, and thus, it was not a comment on the defendant's state of mind. The argument was neither improper, nor necessarily helpful to the Commonwealth's case, and therefore, there was no unfair prejudice to the defendant.
The defendant further claims, for the first time on appeal, that the prosecutor improperly argued the defendant's level of intoxication at the time of operation. Without an objection, we review this claim for error, and if any, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Gilman, 89 Mass. App. Ct. 752, 763 (2016). There was no error.
While no witness testified to when the defendant's blood was drawn, or the exact time of the crash, the prosecutor was entitled to remark on the defendant's medical records, which indicated that the defendant presented to the hospital intoxicated and combative; at 2:43 A.M. , his blood sample was taken to the lab; as explained by a chemist from the State police crime lab, the ethanol level recorded in the record at 2:54 A.M. showed that the defendant's blood alcohol level was well over the legal limit; and that the strong odor of alcohol remained on his breath at 8:57 A.M. See Commonwealth v. Atencio, 12 Mass. App. Ct. 747, 751 (1981). Based on the evidence that the police responded to the crash scene at 1:11 A.M. , the prosecutor properly urged the jury to draw the inference that the blood was tested within a reasonable amount of time after the defendant operated the van. See Commonwealth v. Carriere, 470 Mass. 1, 22 (2014) ("a prosecutor may argue zealously in support of inferences favorable to the Commonwealth's case that reasonably may be drawn from the evidence").
Judgment affirmed.