Opinion
18-P-1598
12-11-2019
COMMONWEALTH v. Joseph D. MARTINS.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this appeal from his conviction, after a bench trial, of operating a motor vehicle while under the influence of drugs (in this case, an opiate), G. L. c. 90, § 24 (1) (a ) (1), the defendant raises three arguments. First he contends that his motion to suppress should have been allowed because the Commonwealth did not establish beyond a reasonable doubt that his statement to police was voluntary. Second, he argues that aspects of the expert's testimony should not have been admitted. Third, he argues that the evidence was insufficient to establish that he was impaired by heroin. We affirm.
The defendant pleaded guilty to a charge of operating a motor vehicle negligently so as to endanger, G. L. c. 90, § 24 (2) (a ), and received a continuance without a finding for one year on that conviction.
Voluntariness. The defendant argues that his motion to suppress was erroneously denied because the Commonwealth did not prove beyond a reasonable doubt that his inculpatory statements to police while he lay on a stretcher in an ambulance at the scene were voluntary. Where, as here, the motion judge failed to make findings, the record must show the voluntariness of the defendant's confession with "unmistakable clarity." Commonwealth v. Brady, 380 Mass. 44, 48 (1980), quoting Sims v. Georgia, 385 U.S. 538, 544 (1967).
The defendant's argument that the interrogation was custodial in nature cannot succeed in light of Commonwealth v. LaFleur, 58 Mass. App. Ct. 546, 548-551 (2003) (police questioning of defendant in ambulance while on stretcher not custodial). See Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 346 (2011) (police questioning defendant at hospital where he was receiving treatment not custodial). The questioning took place in the back of an ambulance, in the presence of medical personnel, while the defendant lay on a stretcher in an ambulance awaiting transport to a hospital for further medical treatment.
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The right to due process under the Fifth and Fourteenth Amendments to the United States Constitution requires that admissions be voluntarily made, without coercion, to be admissible. See Commonwealth v. Magee, 423 Mass. 381, 387-388 (1996) ; Brady, 380 Mass. at 48. The Commonwealth has the burden to prove beyond a reasonable doubt that, " ‘in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was [not] overborne,’ but rather that the statement was ‘the result of a free and voluntary act.’ " Commonwealth v. Baye, 462 Mass. 246, 256 (2012), quoting Commonwealth v. Durand, 457 Mass. 574, 595-596 (2010). Relevant factors to consider include the "conduct of the defendant, the defendant's age, education, intelligence and emotional stability, experience with and in the criminal justice system, [and] physical and mental condition" (citation omitted). Commonwealth v. Tremblay, 480 Mass. 645, 661 (2018). Here, the pertinent evidence regarding voluntariness was introduced through Officer Pinho of the New Bedford police department. The officer testified on direct examination that, around 10:00 P.M. on May 17, 2017, he reported to Hadley Street and Acushnet Avenue in response to a report of a man "nodding off in a vehicle." When the officer arrived, the defendant, who was walking on his own power, was being led from the vehicle to the back of an ambulance. The officer followed the defendant into the back of the ambulance where he spoke with him in the presence of emergency medical personnel while the defendant was laying on a stretcher. The officer asked the defendant what had happened and how he had ended up in the state in which he found himself. The defendant responded that, after snorting heroin, he had gotten into his car and started to drive, but he couldn't remember how he had arrived at his current location. He was, however, able to provide his home address to the officer.
On cross-examination, the officer testified that, after telling him that he did not know how he had arrived at his current location, the defendant said that he did not know what was going on, and that he was not sure where he was. But, the officer testified, the defendant was "fully awake and alert as to what was going on" after he received Narcan. Redirect examination elicited the following more detailed description of the defendant's condition:
Q.: "How would you describe the defendant's level of awareness when you arrived on scene and eventually you ended up speaking to him?"
A.: "At first [the defendant] stated that he wasn't aware of what was going on, didn't know where he was, his location, but I guess after the effects of the Narcan kicked in he started to remember his address and his name and he was starting to come to more."
Q.: "And was he generally coherent?"
A: "At first no, but as the interaction progressed he became more aware."
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Q.: "Did most of your conversation occur while he was still a little bit out of it or after he started to come to?"
A.: "He started to come to towards the end of our conversation."
Although it is true, as the Commonwealth points out, that Officer Pinho initially testified without qualification that the defendant was fully awake and alert, he later stated that the defendant's condition evolved over the time of questioning. This testimony, combined with the fact that the record is silent as to whether the defendant made his inculpatory statement before or after he became oriented and alert, leads us to conclude that the record does not show the voluntariness of the defendant's statement with unmistakable clarity. Compare Commonwealth v. Amaral, 482 Mass. 496, 503 (2019) (despite drug consumption, defendant "answered questions appropriately, and his responses indicated that he was rational and in control of his faculties").
In such circumstances, the question is whether the admission at trial of the defendant's statement was harmless beyond a reasonable doubt. See Commonwealth v. Healy, 452 Mass. 510, 513-514 (2008). We conclude it was. Of particular importance in this regard is that the trial judge, who explained his findings and reasoning on the record, did not rely on the statement, nor did the judge find that the defendant had ingested heroin specifically. Instead, the judge's finding that the defendant was under the influence of an unspecified opioid rested on the expert testimony and the medical records regarding Narcan and its effect on opioids.
Expert testimony. For the first time on appeal, the defendant argues that a State trooper who testified as an expert (1) impermissibly opined on the ultimate issue whether the defendant was under the influence of heroin, (2) lacked sufficient factual bases for his opinions because he never personally examined the defendant, and (3) invited speculation as to why the defendant was administered Narcan. Because the alleged errors are unpreserved, we review to determine whether there was error and, if so, whether it created a substantial risk of a miscarriage of justice. Commonwealth v. Barbosa, 457 Mass. 773, 792 (2010), cert. denied, 563 U.S. 990 (2011).
Although an expert witness cannot testify as to a defendant's guilt or innocence, there is no rule prohibiting an opinion that touches on an ultimate issue. See Commonwealth v. Canty, 466 Mass. 535, 540 (2013) ; Mass. G. Evid. § 704 (2019) ("An opinion is not objectionable just because it embraces an ultimate issue"). Here, the expert did not opine that the defendant was under the influence of heroin; thus, he did not offer an opinion on the defendant's guilt. Rather, the expert's testimony was confined to a hypothetical scenario in which a person who exhibits certain symptoms regains consciousness after receiving Narcan. Although the expert's testimony touched on an ultimate question, it did not cross the line of opining on the defendant's guilt.
Nor was the expert required to have examined the defendant in order to offer an opinion. An expert can base her opinion on the following factors: "(a) facts observed by the witness or otherwise in the witness's direct personal knowledge; (b) evidence already in the record or that will be presented during the course of the proceedings, which facts may be assumed to be true in questions put to the witness; and (c) facts or data not in evidence if the facts or data are independently admissible in evidence and are a permissible basis for an expert to consider in formulating an opinion." Mass. G. Evid. § 703. Here, the trooper's testimony regarding Narcan and its effects on opioids generally was factually grounded in his professional experience and training. See Mass. G. Evid. § 703(c). It did not need to be further anchored in an examination of the defendant, especially since he did not offer an opinion as to whether the defendant was under the influence of heroin.
Finally, we are unpersuaded by the defendant's argument, relying on Commonwealth v. Shellenberger, 64 Mass. App. Ct. 70, 76-77 (2005), that the expert's testimony invited the trial judge to improperly speculate that the reason why the defendant was administered Narcan was because he had taken heroin. To begin with, the Commonwealth did not seek to introduce evidence -- either through the expert or the medical records -- that the defendant had consumed heroin. Moreover, the judge considered the medical record only for the purpose of establishing that the defendant had received Narcan. To the extent that the defendant asks us to accept that Narcan has approved uses other than to counteract the effects of opioids, not only did he fail to raise this issue below, there is nothing in the evidentiary record to support it now. Indeed, the uncontested evidence at trial was that Narcan works only on opiates.
Sufficiency of the evidence. Taking the evidence, together with its reasonable inferences, in the light most favorable to the Commonwealth, the evidence permitted the trial judge to find the following. On the evening of March 17, 2017, the defendant got in touch with his friend, Matthew Carvalho, to see if he wanted to "hang out." Carvahlo did, and so the defendant picked him up and they drove north on Route 18. After driving a while, the defendant turned onto Acushnet Avenue in New Bedford. At this point, Carvalho noticed that the defendant was tired, hesitated when the traffic signal turned color, steered off toward the right, and "got ... too close to other vehicles parked on the side of the street." Carvahlo was sufficiently concerned about the defendant's condition that he asked him to pull over, which he did near a Bank of America on Acushnet Avenue, stopping on the street itself. The defendant fell asleep and Carvahlo left the car to smoke a cigarette. When he returned a few minutes later, Carvahlo noticed the defendant's breathing "wasn't ... normal," had "slowed down," and was "a heavy, heavy breathing." He was not awake, and could not be roused. Carvahlo called 911. Paramedics arrived and administered Narcan, a drug used to counteract the effects of heroin, which is a synthetic opioid. Narcan works only on opiates, and it acts within one to five minutes to counteract the effects of those drugs. The defendant became awake and alert in response to Narcan. Opiates cause respiratory depression, manifesting as a slow, heavy breathing. They also cause people to become unresponsive. Carvalho's description of the defendant's condition was consistent with that of a person experiencing the effects of opioids. The defendant's response to Narcan was consistent with Narcan's effect on a person who has used opiates, including heroin. Narcan's efficacy and exclusivity at reversing the effects of opioids makes it the most reliable way to diagnose whether a person has taken an opioid.
The evidence, taken in the required light, amply sufficed to meet the Commonwealth's burden to prove beyond a reasonable doubt: (1) operation; (2) public way; and (3) impairment by a narcotic drug. G. L. c. 90, § 24 (l) (a ) (1). The last element, upon which the defendant now focuses, "is established by showing that the use of a narcotic drug resulted in the impairment, to any degree, of an individual's ability to safely perform the activity in question" (quotation and citation omitted). Commonwealth v. Bouley, 93 Mass. App. Ct. 709, 712 (2018). See Commonwealth v. Reynolds, 67 Mass. App. Ct. 215, 219 (2006) (jury may infer impairment by intoxicating substance from "the manner in which the accident occurred, and the defendant's conduct ... immediately after the collision").
Judgment affirmed.