Opinion
16-P-583
06-05-2017
COMMONWEALTH v. Bryan DAY.
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), in violation of G. L. c. 90, § 24(1)(a )(1). On appeal, the defendant argues (1) the motion judge erroneously denied his motion to suppress, (2) testimony on the ultimate issue of guilt created a substantial risk of a miscarriage of justice, and (3) admission of the defendant's statements made while performing field sobriety tests constituted prejudicial error. We affirm.
The trial judge also found the defendant responsible for driving without his headlights activated, in violation of G. L. c. 90, § 7, a civil infraction.
Discussion. a. Motion to suppress. The defendant argues the motion judge should have allowed the motion to suppress his statements and actions during a roadside stop. He reasons that Sergeant Gladu's conduct in opening the defendant's vehicle's door and removing the keys from the vehicle's ignition amounted to a disproportionate seizure or an arrest unsupported by probable cause. We disagree.
When reviewing a motion to suppress, "we adopt the motion judge's factual findings absent clear error." Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008). Although we give the facts found by the motion judge deference, "[w]e independently determine whether the judge correctly applied constitutional principles to the facts as found." Ibid.
The defendant does not assert any of the motion judge's findings are clearly erroneous.
When an officer has reasonable suspicion that a motorist is operating under the influence of alcohol, the officer may briefly detain the suspect and ask him to participate in field sobriety tests. See Commonwealth v. Blais, 428 Mass. 294, 295, 297-298 (1998). Additionally, "a police officer may take ‘reasonably prudent protective measure[s]’ short of an arrest—including removal of a defendant's keys from the ignition—in order to prevent serious injury to the officer and bystanders." Commonwealth v. Limone, 460 Mass. 834, 840 (2011), quoting from Commonwealth v. Moses, 408 Mass. 136, 141 (1990).
Here, following an evidentiary hearing, the motion judge found that just prior to, and during his initial stop of the defendant, Sergeant Gladu observed the following of the defendant: (1) he was driving at night without headlights, (2) he struck a curb and almost struck a light pole while pulling over, (3) when asked for his license and registration, he first handed Sergeant Gladu two military IDs and a credit card, (4) he then handed Sergeant Gladu an envelope that did not contain his registration, (5) he was slow to react, blinked slowly, and appeared groggy or tired, (6) his speech was slurred, and (7) an odor of alcohol was coming from the vehicle. Based on these observations, Sergeant Gladu had the requisite reasonable suspicion to detain the defendant and ask him to participate in field sobriety tests. See Blais, supra.
The defendant acknowledges that Sergeant Gladu opened the vehicle's door after the defendant had agreed to participate in field sobriety tests, and appeared to be having trouble unlocking and opening the door himself. Thus, his claim that Sergeant Gladu's opening of the door suggested to the defendant that he must perform the field sobriety tests because he could not do "anything other than what [Sergeant Gladu] ordered," Commonwealth v. Tompert, 27 Mass. App. Ct. 804, 806 (1989), is contradicted by the undisputed sequence and nature of events.
Sergeant Gladu's subsequent removal of the keys from the vehicle's ignition was also proper and did not expand the investigatory stop into a disproportionate seizure. See Limone, supra. The motion judge was free to credit Sergeant Gladu's testimony about his experiences and concerns with suspects suddenly driving away during roadside stops. See Moses, supra. The minimal intrusion involved in removing the keys and placing them on the vehicle's roof was a proportionate response to that reasonable fear. See ibid. Similarly, the removal of the keys did not constitute a constructive arrest. Ibid. Accordingly, the motion judge correctly applied the relevant constitutional principles and properly denied the defendant's motion to suppress.
b. Opinion testimony. Sergeant Gladu's testimony, "[I]t's a recipe for disaster if I let [the defendant] go. So I arrested him for drunk driving," was an expression of opinion on the ultimate issue of guilt in violation of Commonwealth v. Canty, 466 Mass. 535, 544 (2013). Because this error was not preserved, we review for a substantial risk of a miscarriage of justice. See Commonwealth v. Grady, 474 Mass. 715, 721-722 (2016).
We review these statements together with Sergeant Gladu's later testimony, "There were way too many indicators to let him drive from that scene and live with myself knowing that I just let him consciously drive a car away from there.... He wasn't driving away from there, not with anybody I know on the road. I arrested him."
"An error creates a substantial risk of a miscarriage of justice unless we are persuaded that it did not ‘materially influence[ ]’ the guilty verdict.... In making that determination, we consider the strength of the Commonwealth's case against the defendant (without consideration of any evidence erroneously admitted), the nature of the error, whether the error is ‘sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error’...." Commonwealth v. Smith, 460 Mass. 385, 396 (2011), quoting from Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).
As in Canty, supra at 545, the evidence here was sufficiently strong to render implausible an inference that the jury might have reached a different result. With respect to the issue of intoxication, Sergeant Gladu testified to numerous indicators of the defendant's intoxicated state. This included his (1) driving at night without headlights, (2) hitting a curb and almost hitting a light pole, (3) difficulty in producing his license and registration, (4) general appearance including bloodshot eyes, slow blinking, slurred speech, (5) strong odor of alcohol, (6) inability to unlock and open door, (7) swaying and unsteadiness on his feet, and (8) poor performance on all four field sobriety tests, even after attempting each test twice. Given the strength of this evidence, as well as the judge's charge to the jury that they were the "sole and exclusive judges of the facts," there was no substantial risk of a miscarriage of justice. Commonwealth v. Wood, 90 Mass. App. Ct. 271, 286 (2016).
The defendant stipulated to the elements of operation on a public way.
c. Testimonial evidence. Sergeant Gladu testified to statements made by the defendant during his second attempts at two field sobriety tests. The defendant argues that his statements, "Oh sorry about that" and "Sorry, I [can't] do it, man," were constructive refusals and therefore erroneously admitted. We disagree.
Sergeant Gladu testified that during the defendant's second attempt at reciting the alphabet, he recited the letters A through R correctly, but followed with the letter F. He then "stopped himself and he said, ‘Oh sorry about that.’ " During his second attempt at the "nine-step walk and turn" test, the defendant walked four steps and "fell to the right so severely—his right hand [was] in the roadway." After Sergeant Gladu caught him, the defendant stated, "Sorry, I [can't] do it, man."
A defendant's refusal to submit to field sobriety testing is inadmissible. See Blais, 428 Mass. at 298-299 ; Commonwealth v. Curley, 78 Mass. App. Ct. 163, 166-167 (2010). However, in Commonwealth v. Brown, 83 Mass. App. Ct. 772 (2013), we distinguished inadmissible refusals from admissible acknowledgments of a difficulty or inability to perform. We held that "[o]nce the defendant agrees to take the test and attempts it, his expressions of difficulty or inability to perform or to complete it, such as ‘I can't do this,’ ‘I give up’ or ‘I've had too much to drink,’ are not the products of compulsion and thus are admissible." Id. at 778, citing Commonwealth v. Sands, 424 Mass. 184, 189 (1997).
The defendant acknowledges that the relevant facts here are analogous to those in Brown, supra, but asks that we overturn our decision in Brown. We decline to do so. A review of our decision in Brown shows thoughtful consideration and reliance on sound legal principles, including the Supreme Judicial Court's holding in Sands, supra.
The defendant's argument that the decision in Brown is a notable departure from our jurisprudence on refusals is incorrect. In support of his claim, the defendant mistakenly relies on authority in which a defendant's testimonial statements were made prior to an attempt at a particular test and in a manner in which a jury "would have been warranted in inferring that the defendant thought he could not do the test because he had too much to drink," thus making them constructive refusals. Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 61 (1998). However, both the defendant in Brown, supra, and here made their respective testimonial statements after agreeing to, and while performing a particular test, merely acknowledging to the officers their noticeably poor performances. Such statements do not articulate the "Catch-22" dilemma inherent in refusals. Cf. Grenier, supra. See Commonwealth v. Ranieri, 65 Mass. App. Ct. 366, 369-372 (2006) (in hearing defendant's outright refusal to perform test made before his actual attempt to perform it, the jury could have drawn an inference that the defendant's initial refusal showed he knew he would fail the test due to intoxication, thus making the statement compelled).
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Judgment affirmed.