Opinion
19-P-226
12-19-2019
COMMONWEALTH v. Renata B. SCHARN.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a bench trial, the defendant was found guilty of operating a motor vehicle with a suspended license and operating a motor vehicle while under the influence of alcohol (OUI), second offense. On appeal, she contends that her statements were improperly admitted, and that the evidence of operation was insufficient. We affirm the OUI conviction. We vacate the second offense portion of the conviction of OUI, and remand for further proceedings or trial.
This conviction was filed.
Motion to suppress. The defendant maintains that she was subject to custodial interrogation in violation of her Miranda rights, and that her statements were involuntary. Randolph Police Officer Glenn Frazier arrived on the scene of a single-car accident in a convenience store parking lot to find two women standing outside a car that had sustained serious damage after hitting a cement post. He asked various questions to determine how the accident had occurred and who had driven the car. After some initial questions, he separated the two women and questioned them separately. During the course of the questioning the defendant admitted (after initially denying) that she had been the driver of the car.
Whether in the context of an accident investigation or a traffic stop, "Miranda warnings are not required for general on-scene questioning ..., including a question whether the driver has been drinking." Commonwealth v. Samneang Ka, 70 Mass. App. Ct. 137, 140 (2007), citing Commonwealth v. Sauer, 50 Mass. App. Ct. 299, 301 (2000). Questioning is not custodial absent some objective circumstances depriving the defendant's freedom of action in any significant way. See Commonwealth v. Becla, 74 Mass. App. Ct. 142, 145 (2009), citing Berkemer v. McCarty, 468 U.S. 420, 440 (1984). The fact that the two occupants of the car were questioned separately, or that the officer indicated that he did not believe the defendant when she said she was not driving, does not turn an accident investigation into a custodial interrogation. See Becla, supra; Commonwealth v. Seymour, 39 Mass. App. Ct. 672, 679 (1996). The officer did not, "through words or conduct, objectively communicate[ ] that the officer would use his or her police power to coerce that person to stay." Commonwealth v. Matta, 483 Mass. 357, 362 (2019).
For this reason, the officer's conflicting testimony about his subjective beliefs regarding whether the defendant was free to leave "has no bearing on the question whether a suspect was ‘in custody’ at a particular time." Becla, 74 Mass. App. Ct. at 146, quoting Berkemer, 468 U.S. at 442.
--------
Voluntariness. The defendant contends that the motion judge erred in not making subsidiary findings regarding voluntariness, and that the trial judge erred by not suppressing, under the humane practice rule, the defendant's admission that she was the operator. "In reviewing a judge's determination regarding a knowing waiver of Miranda rights and voluntariness, we grant substantial deference to the judge's ultimate conclusions and we will not reject a judge's subsidiary findings if they are warranted by the evidence .... However, we conduct an independent review to ascertain whether the judge properly applied the law" (quotations and citation omitted). Commonwealth v. Hunter, 426 Mass. 715, 721–722 (1998). At trial, "[w]here there is a live issue with regard to the voluntariness of a defendant's confession, Massachusetts follows the so-called ‘humane practice’ rule," and the fact finder independently assesses the voluntariness of the statement. Commonwealth v. Rodriguez, 425 Mass. 361, 368 n.4 (1997). The Commonwealth at all times bears the burden of proving the statements were voluntary beyond a reasonable doubt. Id.
"A defendant's intoxication is one factor that bears on ... voluntariness ... but the fact that a defendant has consumed ... alcohol before [her] arrest does not necessarily mandate a finding that the defendant's confession was involuntary" (quotation and citation omitted). Commonwealth v. St. Peter, 48 Mass. App. Ct. 517, 521–522 (2000). The motion judge found that the Commonwealth had proven voluntariness beyond a reasonable doubt. He made subsidiary findings regarding the defendant's initial denial and her subsequent admission. The defendant was capable of carrying on an extended conversation with the officer. She made statements intended to divert suspicion, and admitted to operation only after being confronted with evidence that the car belonged to a family member and that her story did not hold up. Her denials and subsequent admissions are indicative of a reflective thought and conscious deliberation, to wit, a rational mind. See Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 80-82 (2011). See also Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 346-347 (2011). The motion judge did not err in denying the motion to suppress.
With respect to the trial proceedings, the same analysis applies to the trial judge's evaluation of the voluntary nature of the defendant's admissions under the humane practice rule. We presume that the trial judge correctly instructed himself on the law and considered all of the relevant evidence in making his determination of the voluntariness of the statements. See Commonwealth v. Sepheus, 468 Mass. 160, 170 (2014) ; Commonwealth v. Ortiz, 431 Mass. 134, 141 (2000).
Sufficiency. The primary contested issue at trial was whether the defendant operated the car. The defendant maintains that the evidence is insufficient to support a finding that she was the operator, particularly once her statements are excluded.
When reviewing the sufficiency of the evidence, we look to all the evidence, regardless of challenges to its admissibility. See Sepheus, 468 Mass. at 164 ; Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87, 98 (2010). The evidence was as follows. The passenger said the defendant had been driving and that she had just met the defendant. The defendant initially denied being the operator, but after the officer checked the registration, she stated that the car belonged to a family member. When asked why she would permit a relative stranger to drive her father-in-law's car, the defendant admitted that she had been driving, telling the officer that her license had been suspended. She submitted to two field sobriety tests. See Commonwealth v. O'Connor, 420 Mass. 630, 632 (1995) ("finder of fact could infer operation from the facts and circumstances surrounding the accident and from the defendant's cooperation with the field sobriety tests"). Any conflicts in the evidence as to operation were for the trial judge as fact finder to resolve. Viewed as a whole, and in the light most favorable to the Commonwealth, the evidence was sufficient to prove operation beyond a reasonable doubt. Cf. Commonwealth v. Palacios, 90 Mass. App. Ct. 722, 729 (2016).
Second offense. Commendably, the Commonwealth has brought to our attention a serious irregularity in the disposition of the second offense portion of the OUI count; that is, there was no written or oral waiver of the defendant's right to jury trial. The record indicates that after the judge announced his finding of guilty on so much of the OUI count as charged, the trial prosecutor explained that the defendant had the right to a jury trial on the second offense portion of the charge. Instead, contrary to the requirements of G. L. c. 278, § 11A, the judge proceeded to sentencing with the agreement of defense counsel, and imposed sentence without an adjudication of guilt by trial or plea. "[I]t was error for the judge not to hold a trial or a change of plea colloquy on the second offense portion of the OUI charge, after defense counsel purported to stipulate that the current charge was a second offense. See G. L. c. 278, § 11A." Commonwealth v. Petersen, 67 Mass. App. Ct. 49, 55 (2006), citing Commonwealth v. Chaplin, 50 Mass. App. Ct. 365, 367 (2000).
On appeal, counsel for the defendant has affirmatively disclaimed any right to reversal on the second offense portion of the OUI conviction. She therefore asserts that the second trial is not in issue, and that double jeopardy bars a second retrial. There is no double jeopardy because jeopardy never attached. Commonwealth v. Love, 452 Mass. 498, 503 (2000). The fact that the Commonwealth did not further object to the sentencing without trial or plea does not preclude us from reviewing the error. See Commonwealth v. Poirier, 458 Mass. 1014, 1015 (2010). Lastly, and perhaps most importantly, "defense counsel cannot waive the defendant's rights on his behalf. The purpose of the [plea] colloquy here, as in the case of a colloquy concerning the waiver of a jury trial, is to ensure that defense counsel has done his duty in discussing the plea choice with the defendant and that the defendant has participated in and comprehends the decision. ‘If the actions of defense counsel were to be relied on to protect the defendant there would be no need for a colloquy at all.’ " Commonwealth v. Correa, 43 Mass. App. Ct. 714, 717 n.5 (1997), quoting Commonwealth v. Pavao, 423 Mass. 798, 804 (1996). The same principles apply to waiver by appellate counsel, who is likewise prohibited from waiving the defendant's right to trial without an adequate plea colloquy and waiver.
Accordingly, the second offense portion of the conviction of OUI is vacated, the sentence is vacated, and the matter is remanded for further proceedings or trial. In all other respects, the OUI conviction is affirmed.
So ordered.
affirmed in part; vacated in part and remanded