Opinion
11-P-512
03-01-2012
COMMONWEALTH v. RICHARD HOLDER.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Boston Municipal Court, the defendant was convicted of operating a motor vehicle after his license had been suspended, G. L. c. 90, § 23; and operating a motor vehicle while under the influence of alcohol (OUI), G. L. c. 90, § 24(1)(a)(1). After a subsequent bench trial, he was convicted as a fourth offender on the OUI charge. We affirm.
Incriminating comment. On January 15, 2009, a car that the defendant was driving sideswiped a truck parked in the East Boston section of Boston. The owner of the truck, Eric Stack, got into his vehicle and chased down the car, thus creating a roadblock in the street. The police arrived at a somewhat chaotic scene and began to make preliminary inquiries. In this context, and in response to a question whether he had been in an accident and had been driving, the defendant responded: 'Yeah. I did a bad thing, but now I'm corrected.'
The defendant sought suppression of that statement in a motion filed in the midst of trial. The judge held a voir dire of the officer to whom the comment was made, issued oral findings from the bench, and concluded that the comment was 'voluntarily and rationally given' and should not be suppressed. Although the judge did not make any specific ruling as to whether the defendant was in custody at the time he made his admission, the judge's findings and the evidence support the conclusion that the defendant was not. The police were conducting only a preliminary investigation of an accident and suspected OUI incident at the scene, on a public street, without any show of force. See Commonwealth v. Wholley, 429 Mass. 1010, 1010-1011 (1999). There was no error in the judge's decision allowing the testimony in evidence. See Commonwealth v. DePeiza, 449 Mass. 367, 375-376 (2007) (police under no obligation to provide Miranda warning to someone not yet in custody).
There was testimony that, before the investigating police arrived, an off-duty police officer stopped at the scene and, after the defendant became combative, 'took [the defendant] to the ground.' The off-duty officer informed the investigating officers of this after they arrived. The off-duty officer's action did not render the defendant in custody when he faced the investigating officer's preliminary questions.
Stack's testimony. The defendant challenges the judge's declaring Stack a hostile witness. Our review of the trial record reveals that Stack, who became friends with the defendant after the incident, was openly hostile and evasive as a witness. The judge acted well within her discretion in declaring Stack a hostile witness and allowing the Commonwealth to employ leading questions. See Commonwealth v. Carrion, 370 Mass. 408, 411 (1976). Similarly, there was no error in the judge's asking Stack a question to clarify his confusing testimony. The question was 'not partisan in nature, biased, or a display of [the judge's] belief in the defendant's guilt.' Commonwealth v. Festa, 369 Mass. 419, 422 (1976).
Judgments affirmed.
By the Court (Graham, Rubin & Milkey, JJ.),