Opinion
14-P-739
05-27-2015
COMMONWEALTH v. SARAH J. CLANCY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its 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 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).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Sarah J. Clancy, was convicted by a jury of operating a motor vehicle while under the influence of intoxicating liquor. She raises three issues on appeal, all related to statements she made when the police encountered her. We see no error and affirm.
1. The motion to suppress. The defendant argues that her motion to suppress statements should have been allowed because she was asked who the driver was without receiving Miranda warnings. The judge concluded that "the questions asked by the police were reasonable and an integral part of the initial scene investigation." This issue is controlled by well-settled authority. See, e.g., Vanhouton v. Commonwealth, 424 Mass. 327, 331 (1997); Commonwealth v. McNelley, 28 Mass. App. Ct. 985, 986 (1990); Commonwealth v. Ayre, 31 Mass. App Ct. 17, 20-21 (1991); Commonwealth v. Samneang Ka, 70 Mass. App. Ct. 137, 140 (2007). There was no error.
2. Corroboration. The defendant claims that her statement that she was driving was not corroborated and that the evidence of operation was insufficient under the principles of Commonwealth v. Forde, 392 Mass. 453, 458 (1984). All that is required under Forde and its progeny is 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." Ibid. See also Commonwealth v. Costello, 411 Mass. 371, 374 (1991). The evidence is more than sufficient in these circumstances. See the facts as discussed in the Commonwealth's brief at pages 24 through 25. There was no error.
3. Voluntariness. The defendant argues that the judge should have, sua sponte, conducted a voir dire regarding the voluntariness of her statement and also should have, sua sponte, instructed the jury on the humane practice. We conclude, for substantially the reasons set forth in the Commonwealth's brief at pages 27 through 34, and based on the authorities cited therein, that there was no error.
Judgment affirmed.
By the Court (Cypher, Trainor & Katzmann, JJ.),
The panelists are listed in order of seniority.
Clerk Entered: May 27, 2015.