Opinion
15-P-547
03-30-2016
COMMONWEALTH v. RICHARD HORNE.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction, following a jury-waived trial in the District Court, of operating a motor vehicle after his license had been suspended for operating while under the influence of liquor (OUI). We affirm.
1. Miranda violation. At trial, the arresting officer testified that, during the traffic stop, the defendant admitted that his license had been suspended. The defendant now claims that his constitutional rights were violated by the admission of his statement, as it was made during the course of a custodial interrogation conducted before he had received Miranda warnings. Regardless of whether the claim was preserved for appeal, no error occurred in the admission of the statement, as questions posed incident to a routine traffic stop do not constitute custodial interrogation. See Berkemer v. McCarty, 468 U.S. 420, 439-440 (1984); Vanhouton v. Commonwealth, 424 Mass. 327, 331-332, cert. denied, 522 U.S. 834 (1997); Commonwealth v. LaFleur, 58 Mass. App. Ct. 546, 548 (2003).
The defendant asks us to overrule settled Massachusetts law on this point, which we do not have the authority to do. "[F]rom the very earliest decisions we issued and continuing to this day, we have uniformly and unequivocally held we have no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided." Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485 (2003).
2. Ineffective assistance of counsel. The defendant claims his trial counsel was ineffective because he failed to renew his objection to the police officer's testimony as to the contents of his registry search of the defendant's license plate number. This claim is also without merit. First, although the testimony regarding the contents of the registry search was hearsay, see Commonwealth v. Royal, 89 Mass. App. Ct. 168, 170-172 (2016), it was admissible for the limited purpose of explaining the officer's presence and conduct in relation to the defendant, particularly when no other traffic violation had occurred. See Commonwealth v. Cohen, 412 Mass. 375, 393 (1992). Second, following counsel's objection, the judge attempted to direct the witness's testimony, thereby demonstrating that she was aware of the evidentiary concern raised by the defendant. Because the judge was the fact finder in the case, there is no concern that she misused the testimony in reaching her decision. See Commonwealth v. Watkins, 63 Mass. App. Ct. 69, 75 (2005) ("[J]udges in jury-waived trials are presumed to know and correctly apply the law").
Judgment affirmed.
By the Court (Katzmann, Maldonado & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 30, 2016.