Opinion
20-P-615
08-26-2021
COMMONWEALTH v. Jason I. LINDKVIST.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
Following a bench trial in the District Court, the defendant was convicted of operating under the influence of drugs (third offense) and negligent operation of a motor vehicle. On appeal he challenges the denial of both his motion to dismiss and motion to suppress and argues that the admission of expert testimony violated his confrontation rights. We affirm.
1. Motion to dismiss. The defendant first claims that the failure of police to give him a citation at the time and place of the violation requires dismissal of the complaint.
General Laws c. 90C, § 2, the "no-fix" law, requires police officers responding to a traffic violation to "record the occurrence of automobile law violations upon a citation" and "to give a copy of the citation to the violator at the time and place of the violation." The purpose of the statute is to "prevent manipulation or misuse of the citation process" and "to afford prompt and definite notice ... to the putative violator" (quotation and citations omitted). Commonwealth v. O'Leary, 480 Mass. 67, 71 (2018).
There are three exceptions to G. L. c. 90C, § 2 : (1) "where the violator could not have been stopped"; (2) "where additional time was reasonably necessary to determine the nature of the violation or the identity of the violator"; and (3) "where the court finds that a circumstance, not inconsistent with the purpose of this section to create a uniform, simplified and non-criminal method for disposing of automobile law violations, justifies the failure." The Commonwealth argues that the officer's decision to wait to administer the citation was justified under the third exception. "We determine the applicability of [this] exception with reference to the dual purposes of § 2." O'Leary, 480 Mass. at 71.
We agree with the motion judge that "the purpose of the statute has not been frustrated." According to the police report supporting the motion, the defendant was unconscious, was not breathing, and appeared to be overdosing when the police responded to the scene and found him in the driver's seat of a stalled car blocking a public way. Two doses of Narcan were required to revive him. The emergency medical technicians (EMTs) brought the defendant to the hospital directly from the scene of the incident, at which point a police officer informed the defendant that he would be receiving a criminal citation. The record reflects that the officer wrote out a citation and faxed it to the registry of motor vehicles that same day, and that a criminal complaint was filed in the District Court on the following business day. "[A] complaint need not be dismissed where the police have not been slothful or inattentive to the statutory requirements, and the basic objectives of the statute have been met." Commonwealth v. Moulton, 56 Mass. App. Ct. 682, 684 (2002) (no violation of no fix statute where officer formed opinion of criminal violation at scene, interviewed defendant at hospital, told her he would issue citation and did so promptly). Under the circumstances presented here, where the defendant had explicit notice of the violation and the corresponding citation on the day of the incident, the judge properly denied the motion to dismiss. See Commonwealth v. Ray, 95 Mass. App. Ct. 848, 853-854 (2019) (recognizing that dismissal is unwarranted where criminal conduct was apparent and defendant had notice of violation).
The parties agreed to go forward on the motion on the basis of the police report and citation.
The motion judge observed that "the idea that a trooper's going to give a citation to somebody who's overdosing ... doesn't make any sense."
2. Motion to suppress. The defendant next argues that the motion to suppress was wrongly denied because the inventory search of his vehicle was unjustified and conducted improperly. "In reviewing a ruling on a motion to suppress, we accept the judge's findings of fact absent clear error, but review independently the judge's ultimate findings and conclusions of law." Commonwealth v. Ehiabhi, 478 Mass. 154, 164 (2017).
The validity of the inventory search was litigated at the suppression hearing and thus the issue is preserved on appeal. Contrast Commonwealth v. Quint Q., 84 Mass. App. Ct. 507, 513-515 (2013) (issue waived on appeal where Commonwealth had no opportunity to litigate below).
"The lawfulness of an inventory search turns on the threshold propriety of the vehicle's impoundment, and the Commonwealth bears the burden of proving the constitutionality of both." Commonwealth v. Rosario-Santiago, 96 Mass. App. Ct. 166, 175 (2019). The motion judge found that when police encountered the defendant, his vehicle had rolled to a stop in the middle of traffic and he "appeared to the officer to be unconscious, [and] also did not appear to be breathing." The EMTs revived the defendant by administering two doses of Narcan and brought him to the hospital. The defendant's vehicle "was [creating] an obvious hazard in the roadway" and "was obstructing the public travel." Given these facts, it was reasonable for police to conclude that they had "no lawful, practical alternative" but to impound the vehicle. Commonwealth v. Goncalves-Mendez, 484 Mass. 80, 83 (2020).
As noted by the motion judge, the police department's towing policy gives responding officers the authority to tow vehicles that "constitute[ ] an obvious hazard" or are "obstructing public travel." The Commonwealth introduced copies of the towing policy and the inventory policy as exhibits at the suppression hearing.
Nor does the record support the defendant's claim that the search itself was improper. "Standard procedures reduce the discretion of police to search at will, and so lessen the possibility that police will use inventory procedures as investigative searches." Commonwealth v. Torres, 85 Mass. App. Ct. 51, 53 (2014), quoting Commonwealth v. Garcia, 409 Mass. 675, 681 (1991). Although the officer who conducted the search lacked an independent memory of the incident, testimony of the officer who had been in charge of the scene provided sufficient evidence to prove that the inventory search was properly conducted in accordance with written policy. See Commonwealth v. Baptiste, 65 Mass. App. Ct. 511, 517-518 (2006) (suspicion that contraband might be present does not render otherwise proper inventory search impermissible).
The completed inventory form was not attached to the responding officer's police report, as required by the inventory policy, and was not part of the record before the motion judge. However, this deficiency has no effect on an otherwise proper inventory search. Cf. Torres, 85 Mass. App. Ct. at 54-55 (declining to apply exclusionary rule where police failed to complete form after justifiable inventory search conducted in compliance with inventory policy). The same logic applies to the defendant's argument that erroneous advice from the police that his vehicle was subject to a "hold" requires suppression of evidence discovered in a valid inventory search. See id. at 55 ("after-the-fact procedural deficiencies" do not invalidate search).
3. Expert testimony. Lastly, we are not persuaded that the admission of expert witness testimony here violated the defendant's right to meaningfully cross-examine a Commonwealth witness.
"A trial judge has wide discretion to qualify an expert witness and to decide whether the witness's testimony should be admitted" (citation omitted). Commonwealth v. Javier, 481 Mass. 268, 285 (2019). The defendant was informed six months prior to trial that the Commonwealth intended to call a nonpercipient police witness to testify as to "the effects of [a]nalgesics," "the signs and symptoms of individuals under the influence of [a]nalgesics," and the "multiple signs of impairment" displayed by the defendant as documented in the police report and associated documents. On the day of trial, the Commonwealth proposed that the witness be qualified as a drug recognition expert (DRE) but decided to instead present the witness's medical qualifications as a foundation for his testimony. The witness testified at length about his qualifications, training, and expertise as a registered nurse (with emergency room experience), as an EMT, and as a paramedic. The judge ruled that he was qualified as a medical expert, and specifically qualified "in identifying the indicia and the signs of opiate blockers and Narcan." See Commonwealth v. Wilkerson, 486 Mass. 159, 173 (2020) ("crucial issue" in qualifying witness as expert is witness's "education, training, experience" [citation omitted]).
The Commonwealth submitted the witness's curriculum vitae, detailing the witness's qualifications, on the day of trial.
Even assuming that the defendant did not acquiesce to the judge's decision to go forward with the trial despite the defendant's request for "another date," the defendant has not demonstrated that he was prejudiced by the lack of a continuance. See Commonwealth v. Emerson, 430 Mass. 378, 380-381 (1999), cert. denied, 529 U.S. 1030 (2000) (reversal for discovery violation requires prejudice). Regardless of whether the witness was qualified as a DRE or medical expert, the scope of the witness's testimony tracked what the Commonwealth proposed in its pretrial notice to the defendant. The defendant does not specify how he would have restructured his cross-examination of the expert witness had he known the basis for the witness's expert qualifications prior to trial. Moreover, "[w]here a defendant is able to cross-examine a witness extensively, prejudice is ‘effectively’ removed." Commonwealth v. Rosario, 90 Mass. App. Ct. 570, 575 (2016), quoting Commonwealth v. Molina, 454 Mass. 232, 236-237 (2009). Here, the record reflects that the defendant was afforded ample opportunity to conduct extensive cross-examination.
Judgments affirmed.