Opinion
20-P-154
07-09-2021
COMMONWEALTH v. Froilan SENCU-US.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Froilan Sencu-us, appeals from his convictions after a District Court bench trial of operating a motor vehicle under the influence of alcohol, G. L. c. 90, § 24 (1) (a ) (1), and negligent operation of a motor vehicle, G. L. c. 90, § 24 (2) (a ). Concluding that the defendant's prearrest and postarrest statements were voluntary and that the probative value given to his statements and sobriety test performance was appropriate, we affirm.
The defendant raises no issue concerning the conviction for negligent operation.
1. Voluntariness of the defendant's statements. A defendant's statement "is admissible in evidence only if it is made voluntarily." Commonwealth v. Tremblay, 460 Mass. 199, 206 (2011). "A voluntary statement is one that ‘is the product of a "rational intellect" and a "free will," and not induced by physical or psychological coercion.’ " Id. at 207, quoting Commonwealth v. LeBlanc, 433 Mass. 549, 554 (2001). Questioning a defendant in a language with which he has limited facility may render the statements involuntary. See Commonwealth v. Lujan, 93 Mass. App. Ct. 95, 102 (2018) (holding statements involuntary where obtained through untrained interpreter using language defendant did not completely understand and interpreter "mistranslated questions and answers, supplied questions and answers of his own, led the defendant into making incriminating statements, and suggested words to the defendant to the defendant's detriment"). Because there was no objection at trial, we review the claim for a substantial risk of a miscarriage of justice. See Commonwealth v. Bohigian, 486 Mass. 209, 219 (2020).
a. Prearrest statements. Prearrest, the officer asked the defendant, in Spanish, how many beers he had consumed. The defendant responded in Spanish, "una cerveza," which the officer understood to mean one beer. The officer then asked the defendant, again in Spanish, whether it was a large beer, and the defendant laughed. The defendant's responses were not induced by physical or psychological coercion, and nothing suggested that they were anything but voluntary statements. See Tremblay, 460 Mass. at 206-207. Moreover, the officer conversed with the defendant in his primary language, Spanish. Accordingly, there was no basis for excluding the defendant's responses as involuntary. See Commonwealth v. Byrd, 52 Mass. App. Ct. 642, 647 (2001).
The transcriber recorded it as "uno cerveza," but we think it more likely that the defendant said, "una cerveza."
b. Postarrest statements. After being arrested, the defendant "became belligerent," calling the officer a whore and telling him to eat feces in Spanish. Again, there was no indication of coercion or even that these statements were elicited, and the officer reported the defendant's statements in Spanish. Accordingly, there was no basis for excluding these statements as involuntary. See Tremblay, 460 Mass. at 207.
Furthermore, the absence of Miranda rights in Spanish did not render these postarrest statements inadmissible. "Miranda warnings are only necessary for ‘custodial interrogations.’ " Commonwealth v. Kirwan, 448 Mass. 304, 309 (2007), quoting Commonwealth v. Jung, 420 Mass. 675, 688 (1995). "Spontaneous or unprovoked statements are not the product of custodial interrogation." Commonwealth v. Martin, 467 Mass. 291, 309 (2014). Here, the defendant's statements were spontaneous and not elicited by the officer. Accordingly, the absence of effective Miranda warnings did not render them inadmissible. See Commonwealth v. Brown, 474 Mass. 576, 585 (2016).
2. Probative value of the defendant's statements and the field sobriety test. To be admissible, evidence must be relevant, which means it must have a "tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Commonwealth v. Rousseau, 465 Mass. 372, 388 (2013), quoting Mass. G. Evid. § 401 (2012). Furthermore, "relevant evidence may be excluded if its probative value is substantially outweighed by its unfair prejudicial effect." Commonwealth v. Roe, 90 Mass. App. Ct. 801, 806 (2016). "[I]n weighing the probative value of evidence against any prejudicial effect it might have ... we afford trial judges great latitude and discretion, and we uphold a judge's decision in this area unless it is palpably wrong." Commonwealth v. Arroyo, 442 Mass. 135, 144 (2004), quoting Commonwealth v. Sicari, 434 Mass. 732, 752 (2001), cert. denied, 534 U.S. 1142 (2002).
Here, the judge acted well within his discretion in determining that the probative value of the defendant's statements outweighed any prejudicial effect. A defendant's admission of alcohol consumption is relevant evidence that he operated under the influence of that alcohol. See Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 350, 353 (2015). Similarly, a defendant's belligerence is relevant evidence of intoxication. See Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 219 (2019).
The defendant's suggestion that a required finding of not guilty be entered because, without the defendant's statements, the evidence was insufficient to find him guilty is without merit. "In determining the sufficiency of the evidence, we consider ‘the evidence in its entirety, including, not excluding, that admitted [at] trial but found inadmissible on appeal.’ " See Commonwealth v. Villagran, 477 Mass. 711, 722 (2017), quoting Commonwealth v. DiBenedetto, 414 Mass. 37, 46 (1992).
The field sobriety test stands on a different footing. The defendant "missed heel to toe and stepped off line in nearly every single step." The instructions, however, were given in English, and thus the probative value of the defendant's missteps was minimal. The judge, as the trier of fact, assigned minimal weight to the field sobriety test, explaining, "I don't credit necessarily that I can give a whole lot of weight to the one test that he did give because I think it can be lost in translation." Accordingly, we are confident that the admission of the field sobriety test had, at most, "very slight effect." Commonwealth v. Sanchez, 96 Mass. App. Ct. 1, 2 (2019), quoting Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983). The defendant was not prejudiced by the admission of this evidence. See Commonwealth v. Suarez, 95 Mass. App. Ct. 562, 570 (2019).
Judgments affirmed.