Opinion
19-P-320
02-07-2020
COMMONWEALTH v. Leland RITCHIE.
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 alcohol. On appeal, he claims his prearrest silence and portions of his booking video recording were improperly admitted in evidence. We affirm.
The defendant stipulated that this was his third such offense.
1. Prearrest silence. In the Commonwealth's opening statement, the prosecutor described several events that preceded the defendant's arrest. Among those events, the prosecutor stated that when the responding police officer asked whether the defendant had consumed any alcohol that evening, the defendant "just stared back. The[ ] [officer] asked him a number of times and all he did was stare at [him]." There was no objection to these comments. At trial, without objection, the responding officer testified to similar effect that the defendant just stared at him when twice asked if he had consumed any alcohol. The defendant did not testify, and the prosecutor made no mention of the defendant's nonresponsive stares in his closing argument. The defendant claims the officer's testimony was an improper comment on his prearrest silence, which created a substantial risk of a miscarriage of justice. We disagree.
Based on our common-law rules of evidence, the Supreme Judicial Court has noted that "impeachment of a defendant with the fact of his prearrest silence should be approached with caution." Commonwealth v. Thompson, 431 Mass. 108, 117, cert. denied, 531 U.S. 864 (2000), quoting Commonwealth v. Nickerson, 386 Mass. 54, 62 (1982). The court has further noted that such evidence is of "extremely limited probative worth." Nickerson, supra at 61 n.6, quoting People v. Conyers, 52 N.Y.2d 454, 458 (1981).
Here, the responding officer was properly conducting an investigation of a probably intoxicated driver with a standard threshold inquiry of whether the defendant had been drinking alcohol. See Commonwealth v. Cameron, 44 Mass. App. Ct. 912, 914 (1998). Although the defendant did not respond to the inquiry, the evidence was not used to impeach him, but rather to set the evidentiary stage for the defendant's eventual arrest. See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992), quoting McCormick on Evidence § 249, at 734 (3d ed. 1984) ("an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct"). Indeed, the defendant did not testify. See Commonwealth v. Habarek, 402 Mass. 105, 110 (1998). Despite the absence of misuse, the defendant's silence left the possibility that it might have been interpreted by the jury as consciousness of guilt. See Commonwealth v. Irwin, 72 Mass. App. Ct. 643, 655 (2008). At the very least, such evidence is of "extremely limited probative worth" (citation omitted). Nickerson, 386 Mass. at 61 n.6.
Even if the defendant's lack of response should have been kept from the jury, given the overwhelming evidence of his guilt, any improper or unfairly prejudicial inference that could have been drawn from the defendant's prearrest silence did not create a substantial risk of a miscarriage of justice. Moreover, the defendant's prearrest silence did not affect the defendant's attempt (through cross-examination) to explain his condition as a byproduct of being a diabetic suffering from neuropathy, a claim that lacked a firm evidentiary basis.
The defendant had bloodshot and glassy eyes, and a strong odor of an alcoholic beverage emanated from his person. When he emerged from his car, he was barefoot, disheveled, his pants were unzipped, and he struggled to maintain his balance. His speech was slurred, he repeated the same questions many times, and he failed three field sobriety tests.
On cross-examination of the responding officer, defense counsel revisited the subject of the defendant's lack of response, which further illustrates the lack of any perceived prejudice.
2. Booking video recording. The defendant also claims that the judge abused his discretion by denying his pretrial request to redact a portion of his booking video recording (video) in which he repeatedly states that he knew a bail bondsman. We disagree.
The defendant argued that the jury might infer he had a criminal history because he knew a bail bondsman. The Commonwealth countered, and the judge apparently agreed, that the repetitive nature of the defendant's behavior was indicative of the defendant's intoxication.
Because the defendant objected, we review the judge's decision to admit this portion of the video for prejudicial error. See Commonwealth v. Mulgrave, 472 Mass. 170, 176 (2015). As part of the review, we are cognizant of the judge's discretion to decide whether evidence is admissible by determining whether its probative value outweighs the risk of undue prejudice. See Commonwealth v. Bannister, 94 Mass. App. Ct. 815, 822 (2019). We will leave the judge's exercise of discretion undisturbed absent "palpable error." Commonwealth v. Khan, 92 Mass. App. Ct. 487, 495 (2017).
Booking video recordings are "on balance, a reliable evidentiary resource." Commonwealth v. Mahoney, 400 Mass. 524, 527 (1987), quoting Commonwealth v. Harvey, 397 Mass. 351, 359 (1986). Here, the defendant's repeated statement that he knew a bail bondsman was probative evidence of his intoxicated state as depicted on the video. Contrary to the defendant's claim, the defendant's repeated statement that he knew a bail bondsman was not prior bad act evidence in and of itself. Although one could infer the genesis of the defendant's knowledge as vesting in his past use of the bondsman's services because he had been charged with a crime, that is but one inference. As the judge stated, "[A]s we go through life, we know people with different occupations," pointing to an equally plausible innocent explanation of the defendant's knowledge. One could also understand the defendant's knowledge was generated from him utilizing bond services on behalf of another. At bottom, because the judge did not make "a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives," there was no abuse of discretion (quotations and citations omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
We further note that the defendant's bail bondsman statements were not mentioned in the Commonwealth's closing argument.
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For the first time on appeal, the defendant further claims that a portion of the video depicting the removal of a nip bottle of vodka from his pocket should have been redacted. Because this claim was not preserved, we review to determine if there was error and, if so, whether that error created a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 297 (2002).
Here, the defendant's possession of a nip bottle of vodka, which may be used for quick and surreptitious alcohol consumption, may be understood as a "sign of alcohol use." Commonwealth v. Flanagan, 76 Mass. App. Ct. 456, 458 n.3 (2010). From the fact that the bottle was unopened, the prejudice to the defendant is significantly mitigated. In fact, during pretrial discussions, the prosecutor informed the judge that following the booking officer's discovery of the closed container, the defendant denied drinking any alcohol earlier. When the judge asked defense counsel how his client was prejudiced by this portion of the video, counsel indicated that there was no harm. We agree. As such, there was no error, and no risk that justice miscarried.
Judgment affirmed.