Opinion
16-P-66
03-16-2017
COMMONWEALTH v. Karen BLAU.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of vehicular manslaughter by operating under the influence of liquor, vehicular homicide by operating under the influence of liquor, vehicular homicide by negligent operation, and reckless endangerment of a child. The sole issue raised on appeal concerns the denial of the defendant's motion to suppress a statement made to police. We affirm.
Nolle prosequi was entered for this charge.
Background . After a hearing on the defendant's motion to suppress, the judge found the following facts. On July 21, 2013, the defendant drove into a driveway in Stoughton, while looking for her daughter, and then began to back out of the driveway. She then lost control of the car and it accelerated. At the same time, a pregnant woman and her son were walking on the sidewalk, and the woman was hit by the defendant's car. Her son, who was uninjured, hid behind a tree that the defendant's vehicle eventually struck. The woman and her unborn child later died.
The defendant remained at the scene and approached one of the police officers who had arrived, identifying herself as the driver of the vehicle that had struck the victim. The officer noticed that she was drinking from a Styrofoam cup and the front of her shirt appeared to be wet. Two officers at the scene noticed that the defendant was slightly slurring her words and had glassy eyes. She told the officers that the car had accelerated on its own. After noticing that the defendant was walking in a zig-zag fashion, was unsteady on her feet, and had breath that smelled of alcohol, one of the officers asked her if she had been drinking. The defendant responded that she had not been drinking and that she had not had any alcohol for several years. The officer inquired whether she was on any medication, to which she responded that she took Percocet twice per day. At this point, the officers, who did not order the defendant to remain on the scene, left the defendant unattended sitting on a nearby stone wall.
A drug recognition expert, Lieutenant John Bonney, later arrived. He introduced himself to the defendant, who was still seated on the stone wall. She repeated to him that she did not drink alcohol, but that she took Percocet twice per day. Having noticed that her speech was slurred and that she smelled of alcohol, Lieutenant Bonney asked the defendant if she would perform field sobriety tests, to which she agreed. After determining that she had failed the tests, Lieutenant Bonney asked the defendant if she would be willing to take a portable alcohol breath test. She consented, and the test was positive for a .049 blood alcohol content. Lieutenant Bonney then asked the defendant why the breath test registered the presence of alcohol if she had not been drinking, and the defendant responded that she had a glass of wine that evening. She was then advised of her Miranda rights and placed under arrest.
The judge expressly noted there was no evidence that Lieutenant Bonney informed the defendant of his opinion of her performance on the field sobriety tests.
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The defendant filed a motion to suppress her statement regarding the wine, contending that the admission was the result of custodial interrogation and therefore violated her Miranda rights. The judge concluded that, at the relevant times, to all appearances the defendant was free to leave the scene, and if any interrogation was conducted, it was not custodial.
Discussion . "On review of a motion to suppress, we do not disturb the judge's findings of fact unless they are clearly erroneous." Commonwealth v. Sicari , 434 Mass. 732, 746 (2001). While we "give[ ] substantial deference to the judge's ultimate findings and conclusions of law," Commonwealth v. Morse , 427 Mass. 117, 122 (1998), quoting from Commonwealth v. Magee , 423 Mass. 381, 384 (1996), we ultimately "conduct an independent review of the judge's application of constitutional principles to the facts found." Commonwealth v. Hoose , 467 Mass. 395, 400 (2014).
Having considered the record and the judge's memorandum of decision on the motion to suppress, we conclude that there was no error in his findings of fact and, accordingly, will not disturb them. As such, we independently review the judge's facts to determine whether the defendant's statement was elicited through custodial interrogation. See Commonwealth v. Jung , 420 Mass. 675, 688 (1995) ("Miranda warnings are only necessary for custodial interrogations" [quotation omitted] ).
In considering whether an individual is "in custody," we consider four factors: "(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest." Commonwealth v. Simon , 456 Mass. 280, 287 (2010), quoting from Commonwealth v. Groome , 435 Mass. 201, 211-212 (2001). The ultimate question is "whether a reasonable person in the suspect's shoes would experience the environment ... as coercive." Commonwealth v. Larkin , 429 Mass. 426, 432 (1999). As it relates to interrogation, "Miranda warnings are only required when ‘a person in custody is subjected to either express questioning or its functional equivalent’ " which "police should know are reasonably likely to elicit an incriminating response from the suspect." Commonwealth v. Torres , 424 Mass. 792, 796-797 (1997), quoting from Rhode Island v. Innis , 446 U.S. 291, 300-301 (1980).
The defendant argues that the question that led to her admission that she had had a glass of wine favorably triggered each of the four factors considered when determining whether a person is in custody. We disagree.
The defendant asserts that the judge did not give proper weight to the "police-dominated atmosphere" at the time of the question. We note that courts have considered an ordinary traffic stop to not rise to a level of being "police-dominated," while interrogations in police stations are thought of far differently. See Commonwealth v. LaFleur , 58 Mass. App. Ct. 546, 549 (2003). While it is true that there were three police officers present on the scene when the defendant admitted to having had a glass of wine, there is insufficient evidence to suggest that the atmosphere of the conversation was police-dominated. In fact, the conversation took place on the side of the road (rather than in a police station or vehicle), the defendant initiated the contact with police, and given that she was left unattended for a substantial period of time between police contact, there was nothing to suggest that she was not free to leave prior to her arrest.
Further, the defendant contends that police had identified her as a suspect through the nature of their conversation. In the two separate conversations she had with police, the defendant maintains that the focus on whether she had consumed alcohol or drugs was sufficient to indicate that she was a suspect. Such conversations are commonplace at a scene such as this, and it is well established that police may ask people preliminary questions without triggering the need for Miranda warnings. See Commonwealth v. Smith , 35 Mass. App. Ct. 655, 658 (1993). At no point was the defendant informed that she had failed field sobriety tests, and she knew only that the portable breath test had revealed the presence of alcohol. We conclude that Lieutenant Bonney's question to the defendant—inquiring as to how the portable breath test registered the presence of any alcohol when she had said that she had not been drinking and had not consumed alcohol in years—can properly be considered a preliminary fact-finding question, rather than a conveyance to the defendant that she was a suspect.
The defendant's insistence that her statement was the result of aggressive, inherently coercive police questioning is unsupported by the record. Each conversation between the defendant and police appeared to be amicable. Police gathered information from her, asked if she would consent to performing field sobriety tests, and asked for her consent to administer the portable breath test. There is nothing to suggest that there was anything aggressive about the police action.
Finally, the defendant contends that she was not free to end her conversation with police after the portable breath test. This argument also lacks record support. The defendant had previously conversed with police and remained on scene voluntarily without direction, handcuffs, or other restraints. Police were continuing to collect preliminary information about the accident, and the inquiry about the breath test was an apparent attempt to resolve an ambiguity in the defendant's version of that night's events. As such, the question that elicited the defendant's admission did not rise to the level of custodial interrogation. See Larkin , 429 Mass. at 432.
Judgments affirmed .