Opinion
20-P-1013
02-16-2022
COMMONWEALTH v. Donald J. DERRICO.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
A jury of the District Court found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor and negligent operation of a motor vehicle. See G. L. c. 90, § 24 (1) (a ) (1) ; G. L. c. 90, § 24 (2) (a ). On appeal, the defendant argues (1) that there was insufficient evidence to sustain his conviction for negligent operation, (2) that the judge erred in admitting statements, alleged to be testimonial refusals, made by the defendant while performing field sobriety tests, and (3) that certain comments made by the prosecutor during closing argument caused a substantial risk of a miscarriage of justice. For the reasons that follow, we affirm.
The defendant waived a jury trial on the subsequent offense portion of operating under the influence, and the judge found him guilty of a fifth offense.
Background. We summarize the relevant facts as the jury could have found them, reserving certain details for later discussion. In the evening of June 27, 2018, at around 9:50 P.M. , Sergeant Daniel Deschamps was on patrol traveling down Route 6, a forty mile per hour, four-lane highway in Eastham populated with businesses and homes. Traffic was moderate. As he drove, he spotted the defendant's dark SUV coming toward him at a high rate of speed. Deschamps used his radar device to determine that the car was driving seventy miles per hour, thirty miles over the posted speed limit. He activated his emergency lights and followed the defendant, eventually catching up with him when the defendant pulled into a local 7-Eleven store.
The defendant parked and stepped out of the vehicle. Sergeant Deschamps approached and asked him to get back in the car. The defendant stared at him blankly. Deschamps instructed him twice more before the defendant "stumbled" into the driver's seat. At this time, Deschamps detected a strong odor of alcohol coming from the car. Nevertheless, he informed the defendant that he was being pulled over for speeding and asked him to produce his license and registration. The defendant appeared to comply, slowly searching through papers in his glove compartment before producing a receipt for an oil change. When Sergeant Deschamps informed him that the receipt was not his registration, he again looked through the papers and, this time, produced his State vehicle inspection report. The defendant likewise struggled to locate and produce his license even though it was in his wallet lying next to him. Deschamps next inquired whether the defendant had had anything to drink. The defendant admitted that he had, but when asked how many drinks he consumed, he replied, "not much." Throughout the course of these interactions, Sergeant Deschamps noticed that the defendant's eyes were "red and watery" and that his speech was "slow and slurred."
The defendant agreed to take some field sobriety tests. Deschamps instructed the defendant to recite the alphabet; the defendant did so but paused after realizing that he had skipped the letter F. On his second attempt, the defendant reached the letter H before beginning to mumble and eventually stopping this test altogether. Sergeant Deschamps then asked him to complete the one-leg stand test, a test which contains an instructional phase, where the motorist listens to the officer's directions and views a demonstration, and an execution phase. The defendant improperly began the test during the instructional phase, as Deschamps was still providing the demonstration. The defendant attempted to lift his foot off the ground and quickly threw up his arms in an effort to keep his balance. Deschamps cautioned the defendant not to start the test until he was instructed to do so and began to give the instructions a second time. But the defendant again failed to pay attention to the instructions and attempted the test. Deschamps gave him another reminder not to start. After receiving this reminder, the defendant paused, leaned back against the car as if to maintain his balance, and "stared off to the side," not responding to Deschamps or making eye contact with him. Deschamps asked the defendant if he was okay, and the defendant stared at the ground for several seconds before putting up his arms and stating, "Take me in," "Take me in." Given the defendant's appearance, speech, behavior, speed, failed sobriety tests, and smell of alcohol, Sergeant Deschamps concluded that he was under the influence of alcohol and took him into custody. The defendant was later charged, and his trial held in October of 2019.
At trial, Deschamps testified that the test involves "standing with both your feet together and your arms down at your side. Whichever foot somebody feels more comfortable with, they're supposed to lift approximately 3 to 5 inches off the ground with their heel down and their toe up, and they're supposed to just hold their foot in that position and start counting from 1 to 30."
The defendant subsequently stated, "I'm done," which was excluded by the trial judge after a motion in limine.
Discussion. 1. Sufficiency of the evidence. After the Commonwealth rested its case at trial, the defendant moved for a required finding of not guilty on the negligent operation charge. The judge denied the motion, allowing the case to proceed to the jury. The defendant now argues that this denial was error because the evidence was insufficient to satisfy the third element of negligent operation: that the defendant operated his vehicle negligently "so that the lives or safety of the public might be endangered." G. L. c. 90, § 24 (2) (a ). We disagree.
We review the denial of a motion for a required finding of not guilty in the light most favorable to the Commonwealth to determine whether "[a]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). General Laws c. 90, § 24 (2) (a ), requires the Commonwealth to prove only that the defendant's operation may have endangered the lives or safety of the public; it need not prove actual endangerment. Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256 (2006). The occurrence of a collision or even erratic driving by the defendant is therefore not required. See Commonwealth v. Teixeira, 95 Mass. App. Ct. 367, 370-371 (2019). However, "[e]xcessive speed," standing alone, does not "mandate a finding" of potential endangerment, though it may be sufficient in combination with other evidence. Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 922 (2004). Among the other evidence we consider is the time, place, and conditions in which the defendant was traveling, see id. at 922-923, as well as his behavior when interacting with the police, including his inability to follow the directions of an officer, see Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 220 (2019).
Therefore, the defendant's focus on his lack of erratic driving is misplaced.
Here, the Commonwealth presented evidence that the defendant was driving while intoxicated, thirty miles over the speed limit, in a populated area during its busy season, in moderate traffic, and late at night as well as that he appeared dazed and struggled to comply with police orders. Viewed in the light most favorable to the Commonwealth, this evidence was more than sufficient to allow a rational trier of fact to find, beyond a reasonable doubt, that the defendant's driving could have posed a risk to others. See Latimore, 378 Mass. at 676-677 ; Daley, 66 Mass. App. Ct. at 256.
The defendant was driving nearly double the speed limit. See Duffy, 62 Mass. App. Ct. at 922 ("Here, there is evidence the defendant's speed was not merely over the posted limit, but was more than twice that permitted on the road he was traveling").
We have previously recognized that a defendant's high speed "increase[s] the probability of a collision by impairing the defendant's ability to react to hazards -- whether expected or unexpected, natural or human -- likely to occur in the area." Commonwealth v. Ross, 92 Mass. App. Ct. 377, 380 (2017). Such a risk is compounded when the defendant is also intoxicated.
Because of the many factors identified above, this case is distinct from Commonwealth v. Zagwyn, 482 Mass. 1020 (2019), which the Tsonis court subsequently described as "a case where the Commonwealth relied upon only the defendant's intoxication and a nonworking headlight ... to prove negligent operation." Tsonis, 96 Mass. App. Ct. at 220.
2. The defendant's statements during the field sobriety test. The defendant next argues that the admission of his statement, "Take me in," violated his rights under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights against self-incrimination as well as his right to due process.
Specifically, the defendant alleges violations of his due process rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
Prior to trial, defense counsel filed a motion in limine to exclude the statements, "Take me in," and, "I'm done," made by the defendant during the field sobriety tests, arguing that they were protected testimonial refusals. After hearing arguments from both sides, the trial judge excluded the statement, "I'm done," but allowed the statement, "Take me in." Defense counsel properly objected.
Because the judge's "ultimate findings and rulings bear on issues of constitutional dimension, they are open for review," and we must "make our own independent determination on the correctness of the judge's application of constitutional principles to the facts as found" (quotation and citation omitted). Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 61 (1998). See Commonwealth v. Brown, 83 Mass. App. Ct. 772, 774-779 (2013). If we conclude that the judge committed error, we must ascertain whether it was harmless beyond a reasonable doubt. See Commonwealth v. Tyree, 455 Mass. 676, 700-701 (2010) ; Grenier, supra at 62.
The judge's decision to admit the statement was a legal conclusion based on the facts presented. Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 60-61 (1998).
Article 12 of the Massachusetts Declaration of Rights precludes the use of "evidence that is (1) the product of governmental compulsion and (2) testimonial." Brown, 83 Mass. App. Ct. at 775. Our cases have held that a defendant's refusal to perform a police sobriety test is both testimonial, because it reveals the defendant's "consciousness of guilt," and compelled, because the defendant is forced to choose "between two alternatives, both of which are capable of producing evidence against him." Opinion of the Justices, 412 Mass. 1201, 1202 n.1 & 1211 (1992). See Brown, supra at 777, quoting Commonwealth v. Lopes, 459 Mass. 165, 170 (2011) ("admissibility of such a refusal would place a defendant in a coercive ‘Catch-22’ situation"). A driver faces an impossible "Catch-22" -- they can either "take the test and perhaps produce potentially incriminating real evidence" or "refuse and have adverse testimonial evidence used against [them] at trial." Brown, supra at 775, quoting Opinion of the Justices, 412 Mass. at 1211. This is the case "[e]ven if the defendant agrees to perform field sobriety tests and attempts one or more of the tests administered by the officer" before refusing to proceed further. Brown, supra at 779. Where a defendant consents to take a test, however, and makes unsolicited comments while endeavoring to perform it, such comments are admissible as they are not "the products of compulsion." Id. See Commonwealth v. Sands, 424 Mass. 184, 189 (1997) (no "Catch-22" situation where defendant "merely had to say, ‘No’ to withhold consent to taking [a] breathalyzer test, but instead, he blurted-out that he was intoxicated beyond the legal limit").
"We have consistently held that art. 12 requires a broader interpretation than that of the Fifth Amendment." Opinion of the Justices, 412 Mass. 1201, 1210 (1992), quoting Attorney Gen. v. Colleton, 387 Mass. 790, 796 (1982).
" ‘[I]f refusal evidence has relevance to any issue essential to the prosecution's case, it is because it is reflective of the knowledge, understanding, and thought process of the accused.’ For this reason, evidence of the refusal to perform field sobriety tests when directed or requested by the police to do so violates the privilege against self-incrimination safeguarded by art. 12." Brown, 83 Mass. App. Ct. at 777, quoting Opinion of the Justices, 412 Mass. at 1211.
We agree with the trial judge that the defendant's statements of, "Take me in," do not constitute testimonial refusals as he made them without government compulsion. The defendant faced no "Catch-22" dilemma at the time he made the statements. Instead, he volunteered them after he consented to field sobriety testing and after he unsuccessfully attempted the one-leg stand test. Contrast Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 371-373 (2006) ; Grenier, 45 Mass. App. Ct. at 60-62. The statements also went far beyond what was necessary to refuse further testing. The defendant only needed to say "No," or as he did here, "I'm done," to properly refuse. See Sands, 424 Mass. at 189. Finally, Deschamps did not purposefully elicit the statements from the defendant, nor did he ask the defendant to finish the test. He instead exhibited noncoercive behavior by asking the defendant whether he was okay. For these reasons, the defendant's statements were more akin to a reflection on his failed attempts at the test, not a compelled response to a question about his willingness to continue. There was no constitutional error.
The statements were testimonial, but as the Brown court explained, "[T]he basis for distinguishing between the defendant's refusal to take a test and volunteered statements made while attempting to perform the test does not turn on the distinction between testimonial and physical evidence" but rather "on the presence or absence of governmental compulsion." Brown, 83 Mass. App. Ct. at 778.
The defendant argues that his conduct in beginning the test during the instruction phase and then stating, "Take me in," after he lost his balance twice was not an attempt to take the test but rather a "refus[al] to try to take it during the instructions." In effect, he suggests that his actions do not count as valid attempts because they occurred during the instruction phase of the test. This argument is inconsistent with the design of field sobriety tests, which in addition to performance, evaluate a driver's ability to comply with instructions. See Commonwealth v. Gerhardt, 477 Mass. 775, 779 (2017). Some tests, including the walk and turn test, explicitly consider whether the defendant began the test during the instructional phase as an indicator of intoxication. Id. at 780. Our case law, therefore, does not reflect a distinction between attempts undertaken before and attempts undertaken after the instructional phase.
3. The prosecutor's comments. The defendant lastly challenges two comments made by the prosecutor during his closing arguments.
The defendant also argues that his trial counsel's failure to object to these comments constituted ineffective assistance of counsel. Because we conclude that there was no substantial risk of a miscarriage of justice, we need not address this claim. See Commonwealth v. LaChance, 469 Mass. 854, 858 (2014) (standard for determining substantial risk of miscarriage of justice is "essentially the same" as standard for determining prejudice on ineffective assistance of counsel claim).
Because the defendant failed to object to these comments, we review for a substantial risk of a miscarriage of justice. Commonwealth v. Grandison, 433 Mass. 135, 141-142 (2001). In doing so, we examine the closing argument as a whole, the evidence presented at trial, and any instructions given by the judge. Commonwealth v. Lugo, 89 Mass. App. Ct. 229, 233 (2016).
First, during his closing arguments, the prosecutor improperly quoted the defendant's statement to the police during the field sobriety tests as "just take me" instead of "Take me in." The defendant argues that this misstatement caused him prejudice and "materially influenced the jury's verdict."
In his closing argument, the prosecutor stated: "[P]lus the big statement, I would suggest here as one final point, is that ‘Just take me. Just take me,’ and he even sticks his arms out for the sergeant. I would give that some serious thought in the deliberation room."
While it is true that a prosecutor may not misstate evidence, the prosecutor's addition of the word "just" did not change the substance of the defendant's statement. Compare Commonwealth v. Kozec, 399 Mass. 514, 516 (1987) (prosecutor's closing improper where, amid other errors, argument contradicted evidence). Considering the minor nature of the misstatement, the strength of the evidence against the defendant, and the judge's instructions to the jury that closing arguments were not evidence, we discern no substantial risk of a miscarriage of justice. See Lugo, 89 Mass. App. Ct. at 233.
The Commonwealth's brief erroneously states that the judge failed to provide such instructions. However, the judge provided them before the start of trial stating: "After all the evidence is closed, you'll hear what are known as closing arguments. Each side will have an opportunity to offer you arguments about what conclusions you might draw from the evidence. I, again, remind you that the closing arguments of the attorneys like their opening statements are not evidence. We have closing arguments to assist you as jurors in understanding the evidence and what each party contends that the evidence means."
Second, to emphasize the defendant's state of intoxication, the prosecutor referred to the vehicle inspection report that the defendant handed Deschamps instead of his registration, stating:
"[H]e doesn't produce an expired registration or something that looks like a registration. You have a receipt for an oil change and a Mass. [v]ehicle [i]nspection [r]eport, which I'm sure some of you have seen really if you keep it -- it isn't even a full piece of paper. There's a missing part of this paper that goes on the windshield. Not even similar documents."
The defendant claims that this argument was improper because no witness ever testified to an inspection report's appearance. He likewise claims that it was improper because the prosecutor used it to infer that the defendant was "so intoxicated that he could not tell the difference between a registration and an inspection report."
Although the reference to information not in evidence may well have been improper, there was no substantial risk of a miscarriage of justice because there was ample other evidence that the defendant could not provide proper documents when requested, and even beyond that, other strong evidence his intoxication.
Judgments affirmed.