Opinion
15-P-899
06-13-2017
COMMONWEALTH v. Pierre D. LEZIN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), operating a motor vehicle after his license or right to operate had been suspended, and negligently operating a motor vehicle. He appeals from the judgments, and from the denial of his postverdict motion for required findings of not guilty, arguing that the judge erred in denying (1) his motion to suppress statements and contraband; (2) his motion in limine seeking to exclude evidence of his refusal to perform field sobriety tests, and of his performance on a breathalyzer test; (3) his motion for a required finding of not guilty on the OUI and negligent operation charges; and (4) his motion for a required finding of not guilty on the charge of operating with a suspended license. In this last motion, he argued that the jurors improperly were permitted to consider certain Registry of Motor Vehicle (registry) records not entered in evidence. The Commonwealth concedes this last argument is correct; we agree and reverse the judgment. The convictions on the remaining charges are affirmed.
The defendant's motion for a required finding of not guilty was allowed on the charge of leaving the scene of an accident after causing property damage.
In fact, evidence of the defendant's refusal to perform field sobriety tests was excluded by the motion judge and the Commonwealth agrees that was proper.
Background. At the hearing on the motion to suppress, Randolph Police Officers Jeffrey Lucas and Stephen Elman were the only witnesses. Lucas testified that, while he was on patrol during the late evening hours of June 3, 2013, he was dispatched to an accident scene at the corner of Scannell Road and Oak Street. When he arrived, he found a black pickup truck, with no occupant; the truck apparently had crashed into an obstruction (a "jersey barrier"); there was "heavy front end damage and both front airbags deployed."
Lucas previously had responded to "maybe five" accidents at this location.
While the truck had "heavy front end damage and both ... airbags were deployed," the officer could not tell if there was damage to the barrier, as "[t]he car was attached to it"; he did not further investigate that issue.
While Lucas was at the scene, an unidentified party told him that he had heard the crash, and that a neighbor was "chasing" the driver of the abandoned truck, who had fled the scene and was heading towards North Street. Lucas, in his marked police cruiser, went looking for the witness, John Greene, and found him a short distance away at the end of Scannell Road. Greene described the fleeing occupant as "a tall, skinny black male wearing a green button down shirt and jeans" running with two pieces of luggage. As he was speaking with Greene, Lucas looked across the street to the parking lot of a convenience store (Tedeschi's) about 60 yards away; he saw a male, later identified as the defendant, matching the description he had just been given, "hiding" between two vehicles parked in the lot.
Greene testified at trial that, after hearing the crash and walking from his nearby home to the accident site, he observed the defendant "slumped over" the steering wheel of his truck; when he opened the truck door to help the defendant out, the defendant stated "no police" and then got out of the cab, grabbed two bags from the truck, and walked off. Greene followed the defendant about fifty yards down Oak Street, then turned right onto Pane Street; he lost sight of the defendant when he turned into a wooded area.
Lucas got back into his cruiser and, without turning on his "blue lights," drove to the parking lot. He parked approximately 20 yards from where he had seen the defendant, then got out of his cruiser and started walking toward the defendant; at that time, the defendant was walking toward him. Lucas spoke with the defendant and noticed that he "was sweating profusely and he was also breathing heavily." In response to Lucas's inquiry, the defendant confirmed that he had just been involved in a car accident. The defendant told the officer that he had run away from the crash site because he was scared. The officer asked him why he was scared, and the defendant responded that it was because he was drunk. He also stated that he had been watching a basketball game and drank too much. The defendant refused to perform field sobriety tests, and he was placed under arrest for operating under the influence of alcohol; the police obtained his identification from his Massachusetts driver's license after his arrest.
At no time did Lucas give the defendant Miranda warnings.
During his discussion with the defendant, Lucas was receiving radio reports from Officer Elman that a prescription bottle with the defendant's name on it had been found in the abandoned pickup truck.
The defendant was transported to the police station by another officer, as Lucas "backtrack[ed]" with a dog to retrieve the two pieces of luggage that the defendant had dropped along his way to the parking lot. The defendant confirmed at the police station that the items that the dog found were, in fact, his luggage. Lucas later discovered that the defendant had a suspended license.
Lucas's trial testimony was essentially the same or similar to his testimony during the motion to suppress hearing. However, at trial, Lucas also testified that, while speaking with the defendant in the Tedeschi parking lot, he could smell a strong odor of alcohol from the defendant due to his heavy breathing; he noticed that the defendant had bloodshot eyes; the defendant's speech was slurred; and he was swaying from side to side while standing during their conversation.
Officer Elman testified at the motion hearing that, after reporting to the accident site, he "stayed back with the car" while Lucas went looking for the operator of the abandoned truck. Elman arranged to have the truck towed and performed an inventory search before it was towed. During the search, he found a prescription pill bottle with the defendant's name printed on it and radioed that information to Lucas. Elman then returned to the police station to administer the breath test to the defendant.
At the police station, the defendant agreed to perform a breath test and signed the "rights sheet," which Elman read to him "word for word off the sheet." Elman both instructed and physically demonstrated how to perform the breath test; the defendant was unable to complete the breath test successfully, as he could provide only one complete test, after multiple attempts, rather than the two required. As a result, Elman entered the breath test "as a refusal." Before the breath test, Elman and the defendant spoke and the defendant told him, without any prompting, that "he had been drinking [Elman] believe[d] Hennessey's during a—watching basketball, [a] Miami Heat basketball game on TV."
Prior to performing the breath test, Elman did not inform the defendant of his Miranda rights because the usual practice was for the booking officer to administer those rights before the defendant came to Elman to perform the breath test.
Elman's trial testimony was the same or similar to his testimony at the motion to suppress hearing; however, as noted, evidence that Elman had marked the test as a "refusal" was excluded. In addition, at trial, Elman added that, while administering the breath test he observed the defendant to have slurred speech, red and watery eyes, and he smelled of alcohol.
After the motion hearing, the judge found that the defendant's statements to Lucas in the Tedeschi parking lot were made in response to the officer's threshold inquiry and she denied the motion to suppress them. She also found that the defendant's statements made during the breath test were volunteered and not given as a result of Elman's questions.
At trial, the defendant testified that, prior to the accident, he did not know that his license was suspended. He stated that, prior to the accident, he had a taste of Cognac from a small cup while at a friend's house to watch a basketball game; he had never before had a drink of alcohol. The defendant left his friend's house immediately after "tast[ing]" the alcohol, driving the truck, which belonged to a friend.
The defendant explained that, when he told Lucas that he had consumed a "quart" of cognac, he meant only that he had a small taste of the liquid contained in the small glass that was given to him.
The defendant further explained that, while he was in the Tedeschi parking lot, Lucas "gestured" to him and told the defendant to "raise [his] hands" as he put his hand on his gun, and this scared the defendant. Lucas then walked to the defendant and patted his pockets. According to the defendant, he admitted to the officer that he had been in an accident, but never told the officer that he crashed his truck because he was drunk. He testified that he understood Elman's instructions for performing the breath test, but the way the officer spoke to him made him nervous. The defendant thought that Elman misunderstood what he said about the amount of alcohol he had consumed—he had "a quart of glass"—and explained why the officer smelled alcohol coming from the defendant.
At the close of the Commonwealth's evidence, the defendant's motion for a required finding of not guilty was allowed as to the charge of leaving the scene of an accident after causing property damage, as the judge found there was no evidence offered as to damage to anything other than the defendant's vehicle.
Discussion. 1. Motion to suppress. The defendant argues first that the judge erred in denying his motion to suppress because (1) Lucas lacked reasonable suspicion to justify the investigatory stop of the defendant in the Tedeschi parking lot, as there was no evidence that he had committed, was committing or was about to commit a crime, and, also, that the informant information was unreliable; (2) the defendant was improperly subjected to custodial interrogation (while in the Tedeschi parking lot, as well as during administration of the breath test) without first being given Miranda warnings; and (3) Elman performed an unlawful investigatory, rather than inventory, search of the truck.
The Commonwealth concedes that the pill bottle was admitted improperly on the basis that, while the search itself was a reasonable inventory search, given the facts—i.e., the defendant was under arrest, the truck had crashed in the street and thereafter had been abandoned—the bottle should have been excluded because there was no evidence that the Randolph police had a written inventory policy or that the search was conducted pursuant to that policy. Nor was the policy admitted in evidence. See Commonwealth v. Oliveira, 474 Mass. 10, 13 (2016) ("Because an inventory search is conducted without a warrant, the Commonwealth bears the burden of proving that the search was lawful.... Under both the United States and Massachusetts Constitutions, an inventory search is lawful only if, first, the seizure [or impoundment] of the vehicle was reasonable, ... and, second, the search of the vehicle that follows its seizure was conducted in accord with standard police written procedures").
Nonetheless, we are satisfied, as the Commonwealth argues, that the admission of evidence about the pill bottle was harmless beyond a reasonable doubt. Its only purpose was to connect the defendant with the truck. Moreover, the other evidence on that point, including the defendant's own admissions and Greene's observation, was overwhelming. See Commonwealth v. Depina, 456 Mass. 238, 249 (2010).
a. Initial stop of defendant. The judge denied the motion to suppress "the initial statement" in the parking lot because Lucas's stop of the defendant in the parking lot was a threshold inquiry justified by reasonable suspicion. Although we accept the motion judge's subsidiary findings of fact absent clear error, we conduct an independent review of the ultimate findings and conclusions of law. Commonwealth v. Hensley, 454 Mass. 721, 730 (2009).
" ‘Not every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions that requires justification.’ Commonwealth v. Gomes, 453 Mass. 506, 510 (2009). ‘The particular character of such an encounter will determine’ what level of justification, if any, is required. Commonwealth v. Lyles, 453 Mass. 811, 814 (2009). Thus, police officers may approach individuals on the street to ask them about their business without implicating the balance between State power and individual freedom. See Florida v. Bostick, 501 U.S. 429, 434 (1991), quoting Florida v. Royer, 460 U.S. 491, 497 (1983)... (‘law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or another public place’); Commonwealth v. Lyles, supra at 815, and cases cited. Such interactions, field interrogation observations, ... properly are deemed consensual encounters because the individual approached remains free to terminate the conversation at will. See id. at 814-815. That is, they are constitutionally insignificant, and a police officer may initiate such an encounter without any information indicating that the individual has been or is presently engaged in criminal activity." Commonwealth v. Narcisse, 457 Mass. 1, 5-6 (2010).
Here, even if we determined that, during Lucas's conversation with the defendant in the parking lot, the encounter became a stop, it "was justified by a reasonable suspicion, based on reasonable inferences from specific and articulable facts" that the defendant was the driver of the abandoned truck that had struck the jersey barrier on Scannell Road and then run away. Commonwealth v. Lopes, 455 Mass. 147, 155 (2009). "In assessing the reasonableness of an officer's acts our function is not to probe each fact and inference underlying his suspicion individually, but rather collectively, ‘as a whole.’ " Commonwealth v. Nickerson, 79 Mass. App. Ct. 642, 645-646 (2011), quoting from Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981).
Lucas had responded to the accident scene on Scannell Road to find that a truck had crashed into the jersey barrier; the truck was abandoned; someone at the scene pointed Lucas in the direction that Greene was "chasing" after the defendant who had abandoned the truck; Greene gave a description that precisely matched the defendant; Lucas saw the defendant only a few hundred yards away from where he had received the description, and observed the defendant "hiding" between cars in the Tedeschi parking lot. Lucas drove to the parking lot without his blue lights on, then approached the defendant while the defendant was walking toward him. Based on these facts, Lucas "possessed the requisite reasonable suspicion to stop the defendant to effectuate a threshold inquiry." Commonwealth v. Sykes, 449 Mass. 308, 314-315 (2007).
The defendant's argument that Greene had no "basis of knowledge" of the crime and was an unreliable "informant" also fails. Greene, who identified himself to police, personally witnessed the defendant abandon the truck at the crash scene, observed the direction the defendant was traveling once he left the scene (because he followed), and provided a precise description of the defendant. See Commonwealth v. Costa, 65 Mass. App. Ct. 640, 643 (2006), S.C., 448 Mass. 510 (2007) (the guiding principle of reliability of an "informant" is whether that person "places his anonymity at risk" and a court may weigh this factor in determining reliability of the tip).
b. Custodial interrogation. i. Parking lot. The defendant next argues that his statements to Lucas in the parking lot should have been suppressed because he was subjected to a custodial interrogation without being informed of his Miranda rights. "The crucial question in determining whether an interrogation is custodial is whether a reasonable person in the defendant's position would have believed that he was in custody.... There are four factors that the court considers to determine whether an interrogation is custodial: (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.... There is no specific formula for weighing the relevant factors; however, rarely is any single factor conclusive." Commonwealth v. Molina, 467 Mass. 65, 73 (2014) (quotation omitted).
Lucas asked the defendant four questions: (1) "if he was just involved in a car accident" and the defendant responded that he was and "that he ran from the crash because he was scared"; (2) "why he was scared, and he stated to [Lucas] because he was drunk"; and (3) "how much he was drinking ... and he stated that ... he was watching the Miami Heat basketball game, and ... he drank too much because they won." The fourth question, whether the defendant would agree to take field sobriety tests, as noted, was excluded because the defendant refused. Under all of the circumstances, we are satisfied that posing those three questions in the aftermath of a motor vehicle accident, in a public parking lot, with no blue lights activated on the police cruiser, no display of weapons and no handcuffs or other indications of custody did not constitute a custodial interrogation.
ii. Statements made at the time of the breath test. As noted, the judge found that the statements made during the time that Elman tried to administer a breath test were volunteered and "not as a result of any questioning by the officer." We agree. "Notwithstanding the protections of the Sixth Amendment, statements ‘spontaneously volunteered’ by a defendant in the absence of counsel do not have to be suppressed." Commonwealth v. Hilton, 443 Mass. 597, 618 (2005), quoting from United States v. Melanson, 691 F.2d 579, 586 (1st Cir. 1981). "Statements obtained ‘by luck or happenstance’ do not implicate the Sixth Amendment." Hilton, supra, quoting from Maine v. Moulton, 474 U.S. 159, 176 (1985).
2. Motion in limine. The defendant next argues that the judge erred in allowing evidence of the unsuccessful performance of the breath test in violation of his rights against self-incrimination and confrontation. He contends that the judge's reliance on Commonwealth v. Curley, 78 Mass. App. Ct. 163 (2010), in admitting the evidence was error, because the facts here are distinguishable from those in Curley.
The defendant makes no substantive argument regarding admission of the refusal to take the test, other than an initial reference in the section heading and first sentence of section III of his brief. The fact that the officer recorded the defendant's performance as a "refusal" was excluded and, at trial, the judge instructed the jurors that the evidence was offered "only ... for the observations that the Officer has testified to." They were told specifically not to draw any inference about "what the reading of the breathalyzer might have been."
In Curley, we said that "the defendant did not refuse to take the breathalyzer test; had he done so, evidence of that refusal would have been inadmissible against him. Instead, he signed a form indicating that he consented to take the test. What followed—a series of physical actions—was properly the subject of the observing police officer's testimony. This is not the 'Catch 22' situation that gave rise to the court's concern in Opinion of the Justices, [412 Mass. 1201, 1211 (1992) ]—one in which a criminal defendant has no choice but to provide incriminating evidence against himself. This defendant had a choice that would not have incriminated him, that is, he could have refused to take the breathalyzer test. Instead, he chose to sign the consent form. Thereafter, the jury could have inferred from his actions, as the Commonwealth argued, that he was trying to avoid giving a sample while appearing to try to take the test. Accordingly we conclude that the evidence was properly admitted." 78 Mass. App. Ct. at 168.
So, too, here: as Elman testified, the defendant agreed to the breath test, then signed the "rights sheet" after Elman read it to him "word for word off the sheet." "The defendant's initial consent to the breathalyzer test ... was all that was required for admissibility." Commonwealth v. AdonSoto, 475 Mass. 497, 501 (2016). "Any explanation for the failure to complete the test was properly left to the jury." Ibid.
3. Motion for required finding of not guilty. The defendant argues finally that his motion for a required finding of not guilty on the OUI and negligent operation charges was denied wrongly, because the Commonwealth failed to present sufficient evidence to prove that the defendant operated the truck negligently on a public way. We disagree.
First, elements such as operation on a public way may be proved by circumstantial evidence. See Commonwealth v. Cromwell, 56 Mass. App. Ct. 436, 438-439 (2002). Here, Lucas and Elman each testified at trial that they previously had been dispatched for car accidents at the intersection of Oak Street and Scannell Road; due to the frequency of accidents in this intersection, a jersey barrier was installed to protect the house on the corner of Scannell Road; and the posted speed limit in the accident area is thirty miles per hour. Greene testified that the curve is marked with "big yellow and black arrows." Based on these facts, the jurors reasonably could have inferred that the road was maintained and patrolled by the town. The defendant himself testified that he was driving his truck on Oak Street approaching the intersection with Scannell Road, when he collided with the jersey barrier while attempting to avoid crashing with an oncoming car. Altogether, there was sufficient evidence that the defendant was operating his truck on a public way.
The element of public way may be proven by establishing either that the way was in fact accessible to the public or that it was a way upon which the public had access as invitees or licensees. See G. L. c. 90, § 24(1)(a )(1), first par.
Second, the evidence was sufficient to prove that the defendant operated negligently so that the lives and safety of the public were endangered. "To establish guilt under the driving to endanger statute, G. L. c. 90, § 24(2)(a ), the Commonwealth must prove that the defendant (1) operated a motor vehicle, (2) upon a public way, (3) ... negligently so that the lives or safety of the public might be endangered." Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 921 (2004). As established, there was sufficient evidence showing that the defendant was driving his truck on a public way at the time he crashed into the jersey barrier. Lucas testified that, if driving within the posted speed limit of thirty miles per hour, a driver could successfully navigate the curve at the intersection where the accident occurred; he also stated that previous accidents occurring at this location "all involve—speeding and OUIs." In addition, the defendant testified he lost control of his truck in avoiding a collision with an oncoming car. We conclude there was sufficient evidence for the jury reasonably to infer that the defendant operated his truck negligently, when he lost control of his truck, striking the jersey barrier, potentially endangering the lives and safety of the public. See id. at 922-923.
Finally, it also was reasonable for the jury to infer that the defendant was under the influence of alcohol while he was driving on the public way because, shortly after he abandoned his truck, when Lucas spoke to him in the Tedeschi parking lot, Lucas smelled alcohol on the defendant's breath as he was "breathing heavy"; his eyes were bloodshot, and he was swaying back and forth while standing and talking to the officer. Elman also testified that when he was administering the breath test, the defendant had slurred speech, red and watery eyes, and smelled of alcohol. "Proof of operating under the influence on a public way may rest entirely on circumstantial evidence." Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010) (quotation omitted). In this case, however, the defendant also admitted to Lucas that he was "drunk" and to Elman that he had been drinking.
After reviewing the evidence in the light most favorable to the Commonwealth, as we must, see Commonwealth v. Lawson, 475 Mass. 806, 816 (2016), we conclude that the jury could have found that the defendant was negligently driving, and driving under the influence of alcohol, while on a public way. Thus, the judge properly denied the defendant's motion for a required finding of not guilty as to these charges.
4. RMV records. The defendant finally argues, and the Commonwealth concedes, that his motion for a required finding of not guilty as to the charge of operating with a suspended license should have been allowed, because the Commonwealth never entered in evidence registry records of the defendant's driving history. "Our review confirms the necessity of this concession." Commonwealth v. Santos, 65 Mass. App. Ct. 122, 124 (2005). As a result, the operating with a suspended license conviction cannot stand.
Prior to trial, the judge allowed the Commonwealth's motion in limine to admit registry records, and stated that the records would be entered at trial as Exhibit 1. However, during its case in chief, and even after the issue was raised by the defendant at the close of the Commonwealth's case, the Commonwealth failed to offer the registry records in evidence as a trial exhibit.
We have carefully considered each of the arguments presented in the defendant's brief. To the extent that any particular claim has not been specifically addressed herein, we have found it to be without merit.
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Conclusion. The judgments on the charges of operating a motor vehicle while under the influence of alcohol and negligent operation are affirmed. The judgment on the charge of operating a motor vehicle with a suspended license is reversed, the verdict is set aside, and judgment shall enter for the defendant on that count. So much of the order on the postverdict motion for required findings as denied the motion on the charge of operating a motor vehicle with a suspended license is reversed. In all other respects, the order is affirmed.
So ordered.
Affirmed in part; reversed in part.