Opinion
19-P-512
05-27-2021
COMMONWEALTH v. Richard BISHOP.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant appeals from his convictions of operating under the influence of intoxicating liquor ("OUI") as a fifth or subsequent offense and operating under the influence of alcohol while operating after suspension or revocation of license for an alcohol related driving offense ("OUI while OAS for OUI"). On appeal, he contends that the judge erred in (1) failing to comply with the humane practice rule, (2) admitting expert opinion from a lay witness, and (3) allowing the admission of his booking photograph into evidence. He also argues that his conviction for OUI while OAS for OUI was duplicative of his conviction for OAS. We dismiss the indictment for OAS, but otherwise affirm.
The defendant's convictions of operating after suspension or revocation of license ("OAS") and providing a false name to a police officer while operating a motor vehicle were placed on file.
Discussion. 1. Humane practice. The defendant argues that the judge erred in failing to conduct a voir dire with respect to the voluntariness of his roadside statements because the evidence suggested that he made the statements while experiencing the effects of a seizure. Further, the defendant asserts that the instruction given to the jury concerning voluntariness was "incomplete and dangerously misleading."
As a general matter, "the question of voluntariness must be raised by a defendant, and he must offer some proof to support his claim." Commonwealth v. Smith, 426 Mass. 76, 82 (1997). If the defendant does not raise the issue of voluntariness, the judge has a sua sponte obligation to conduct a voir dire only if voluntariness of the statements is a live issue at trial. Commonwealth v. Stroyny, 435 Mass. 635, 646 (2002). Voluntariness is a live issue at trial if substantial evidence of involuntariness is produced. Commonwealth v. Kirwin, 448 Mass. 304, 318 (2007).
We note that the trial judge would not necessarily have been able to anticipate the issue prior to trial. Although there was a pretrial hearing in which the defendant's seizure disorder was mentioned, it was in the context of providing a defense to his driving behavior and not in relation to any statements made.
Here, the defendant did not raise the issue of voluntariness. Nor was it evident in the Commonwealth's case in chief. The Commonwealth presented a firefighter/EMT witness who examined the defendant at the scene and testified that the defendant admitted "[t]hat he had been drinking." When asked how he felt, the defendant stated: "I feel great. Thanks for coming out tonight." When asked if he wanted to go to the hospital, the defendant stated: "Oh no. I don't want to get you guys involved in this situation." Though the witness found the content of the statements to be "strange," he noted the defendant to be "alert and responding ... appropriately."
The Commonwealth also admitted into evidence the witness's report, containing the same statements of the defendant. The defendant explicitly indicated "[n]o objection" to the admission of the report.
Additionally, the Commonwealth presented the testimony of the arresting officer who testified that the defendant initially gave him a driver's license that did not belong to him. After being asked for his "actual license this time," the defendant gave his identification card, saying "I should not be driving." The officer then learned that the defendant's driver's license had been suspended. Although the officer indicated that the defendant appeared to be "under the influence," the circumstances suggested that he was possessed of his faculties enough to make an attempt to shield himself from police scrutiny.
Although the defendant later presented evidence that he had a history of seizures, by that point, the defendant's statements had already been introduced into evidence. Any voir dire on voluntariness became moot. There was no error in failing to conduct a voir dire.
It was the judge who first raised the issue of voluntariness while making preliminary preparations for jury instructions. Specifically, she asked: "[I]s there an issue of the voluntariness of the defendant's statements such that we need a charge on that?" Defense counsel agreed that a charge "would be appropriate" and the judge subsequently gave a humane practice instruction. Although content with the instruction at the time, the defendant now contends that the instruction was incomplete in that it did not direct the jury's attention to the specific factors to consider. He also argues that the instruction was misleading in that it did not direct the jury's attention to the fact that the defendant's statements could be rendered involuntary due to a compromised mental state.
It appears that the judge prepared a draft instruction which was approved by the parties and gave that instruction, as well as a written copy of the instruction, to the jurors. The instruction was as follows:
"Now, you have heard testimony about statements allegedly made by the defendant concerning the offenses that are charged in this case, before you may even consider any such statements as evidence the Commonwealth must prove to you beyond a reasonable doubt that the defendant made the statements he is alleged to have made, and that he made them voluntarily, freely, and rationally.
"As to the second element, you must be persuaded beyond a reasonable doubt that under the totality of the circumstances presented to you, the statements were a product of the defendant's free will and rational intellect. The burden falls on the Commonwealth to prove beyond a reasonable doubt that the defendant's will was not overcome. The Commonwealth must prove that the defendant was not coerced, tricked, or cajoled into making the statements. If the Commonwealth is not satisfied that the defendant made the statements freely, voluntarily, and as a product of his own free will and rational intellect, then you may not consider the statements in any manner whatsoever.
"If the Commonwealth has met its burden, then you may consider the defendant's statements for all purposes, along with all other evidence."
We note that the instruction closely resembles the complete general instruction as it stood just prior to the June 2018 revision, which may not have been available to the judge as the trial took place in early June 2018. Compare 3.560 Model Jury Instructions for Use in the District Court (2009).
The judge instructed that the jury must consider the "totality of the circumstances" in determining whether "the statements were a product of the defendant's free will and rational intellect" and that the Commonwealth needed to show beyond a reasonable doubt that "the defendant made the statements he is alleged to have made ... voluntarily, freely, and rationally." Therefore, the instruction was correct and adequately conveyed to the jury their task. See Commonwealth v. The Ngoc Tran, 471 Mass. 179, 184-185 (2015), citing Commonwealth v. Cryer, 426 Mass. 562, 572 (1998) (judge not required to instruct on specific factors to be considered as long as charge as whole gives sufficient direction to jury). There was no error.
We also note that the defendant's position at trial was not so much that his statements should be discounted because they were involuntary and therefore unreliable. Rather, the defendant relied on the unusual nature of his statements to support his defense that his erratic driving was caused by a seizure episode rather than alcohol intoxication.
2. Expert testimony. The defendant contends that the trial judge erred in denying his request to strike the testimony of a firefighter/EMT witness who gave expert testimony, despite his admitted lack of expertise. The qualification of a witness to give expert testimony is within a trial judge's broad discretion. See Commonwealth v. Javier, 481 Mass. 268, 285-286 (2019). Moreover, a judge may implicitly qualify an expert without voir dire. See Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 714 (2018), citing Commonwealth v. Ruiz, 442 Mass. 826, 834 (2004) (judge implicitly qualified EMT as expert, allowing him to testify to opinion regarding defendant's overdose).
Here, the witness testified that he was employed as a firefighter and had done "EMT basic training" which included "300 or so hours of medical training," which allowed him to assess and treat people with traumatic injuries, cardiac conditions and other types of disorders. He was specifically trained to recognize if a person appears to be experiencing different medical emergencies including respiratory problems, cardiac issues, and seizures. During the course of his employment as a firefighter attending to medical emergencies, the witness had observed individuals having seizures. He described in general terms what a seizure is and how he saw it manifest in individuals. He testified that, when interacting with the defendant at the scene, he detected no sign of the defendant having had a seizure.
On cross-examination, the defendant declined to answer certain questions, indicating that he was not a doctor or a neurologist. On redirect, the prosecutor sought to reframe the scope of the witness's expertise, eliciting testimony that the witness was not "an expert in seizures" and that he was testifying based on his experience. The defendant then moved to strike, on the basis that the witness's testimony was "without foundation and not relevant." The judge denied the motion, noting that the witness had earlier relayed his medical training and experience, the basis upon which he testified.
The judge's implicit determination that the witness was qualified to testify as he had was well within her discretion. See Commonwealth v. Scesny, 472 Mass. 185, 194-195 (2015) (in admitting expert testimony, judge must determine whether witness has sufficient skill, knowledge, and experience in field to aid jury). That the witness was not a "seizure expert" did not preclude him from testifying based on his experience as to the appearance of one having a seizure. Cf. Commonwealth v. Ruiz, 442 Mass. 826, 833 (2004) (EMT had sufficient training and experience to testify that individual was "suffocating and her lung may have been collapsing").
The defendant argues in the alternative that, if the witness was permitted to testify as an expert, then an expert witness instruction should have been given. See 3.640 Model Jury Instructions for Use in the District Court (Expert Witness). Notwithstanding that no such instruction was requested, it was unnecessary in the circumstances. The purpose of the expert witness instruction is primarily to counteract the possibility that designation of the witness as an "expert" might cause the jury to conclude that they may not disbelieve the witness's testimony. See Commonwealth v. Richardson, 423 Mass. 180, 184-185 (1996). Here, the witness was not designated as an expert before the jury, nor did anyone refer to the witness as an expert; indeed, the witness himself disclaimed the label. There was no error. See id. (where police officer witness properly gave expert testimony but was not labelled as expert before jury, there was little danger of jury ascribing additional significance to testimony).
3. Booking photograph. The defendant argues that he was prejudiced by the erroneous admission of his booking photograph into evidence. He contends that the photo was not relevant and that any relevance was far outweighed by the risk of prejudice. "Evidence is relevant if it has a rational tendency to prove a material issue." Commonwealth v. Dunn, 407 Mass. 798, 807 (1990). "Whether evidence is relevant in any particular instance, and whether the probative value of relevant evidence is outweighed by its prejudicial effect, are questions within the sound discretion of the judge." Id. We review for abuse of that discretion. Commonwealth v. Spencer, 465 Mass. 32, 48 (2013).
The Commonwealth offered the booking photograph, taken within the hour of arrest, on the issue of the defendant's alcohol intoxication and impairment. The defendant's appearance and demeanor are relevant considerations in assessing level of intoxication. See Commonwealth v. Canty, 466 Mass. 535, 542 (2013). Here, witnesses described the defendant as having eyes that were "glazed over," "watery," "bloodshot, glassy" and that he was going "through periods of being overly happy and then being extremely angry." The booking photograph, taken close in time to arrest, likewise showed the defendant's appearance and demeanor at the time and was therefore probative of a material issue in the case; it also served to corroborate the testimony of the witnesses. See Commonwealth v. Ehiabhi, 478 Mass. 154, 164 (2017) (close-up photo at booking revealed glassy eyes and intoxicated appearance, consistent with officer's initial impression).
Although the defendant argues that his expression in the photograph (characterized by him as one of "surprise,") may have led the jury to infer that the defendant did not take the situation he was in seriously, the judge was within her discretion in determining that the risk of this prejudice, even if it qualified as unfair, did not outweigh the probative value of the evidence. See Commonwealth v. Crayton, 470 Mass. 228, 249 (2014).
We note that, while the defendant's objection to the booking photo was preserved through a motion in limine, and thus no objection at trial was necessary, the defendant here affirmatively stated that he had "no objection" as the booking photo was being introduced at trial.
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4. The duplicative conviction. The defendant argues, and the Commonwealth concedes, that the conviction of OAS, which was placed on file, is duplicative of the conviction of OUI while OAS for OUI. We agree and therefore dismiss the indictment for OAS. See Commonwealth v. Phuon, 486 Mass. 35, 40 (2020).
On the indictment charging operating after suspension or revocation of license, the verdict is set aside, and the indictment is dismissed.
On the indictment charging providing a false name to a police officer, the verdict shall stand.
The remaining judgments are affirmed.