Opinion
10-P-1731
12-13-2011
COMMONWEALTH v. EDITH A. MOOERS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 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.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Edith Mooers, was convicted by a District Court jury of operating a vehicle under the influence of alcohol, in violation of G. L. c. 90, § 24. On appeal, the defendant contends that (1) the judge improperly allowed in evidence an inculpatory statement she made to the police that previously was ordered suppressed; (2) the judge improperly limited her cross-examination of a key Commonwealth witness; (3) the prosecution failed to provide her with potentially exculpatory evidence; (4) the judge erroneously denied her request for a jury instructions regarding police witness credibility; and (5) the judge's actions, at trial and sentencing, prejudiced the defendant.
The defendant was also found responsible for certain civil infractions that are not at issue in this appeal.
For substantially the reasons set forth in the brief filed by the Commonwealth at pages twelve through thirty-five, we affirm.
1. Background. At approximately 1:00 A. M. on August 15, 2009, Somerville auxiliary volunteer police officer Timothy Van Nostrand observed the defendant driving her car on Woodland Road in Melrose, and swerving in the marked lanes. He called 911, then followed the defendant and observed her drive onto the curb, and into the grass on the side of the road. The defendant continued driving for approximately a mile and a half onto West Wyoming Avenue where she was stopped by Trooper Christopher Maher who had responded to a dispatch issued after the police received Van Nostrand's call.
After noting that the defendant's eyes were red, glassy and bloodshot, and that she had a strong odor of alcohol coming from her body, Maher asked the defendant if she had anything to drink and the defendant replied that she had 'probably too much' to drink. That statement was later the subject of a motion to suppress filed by the defendant. After an evidentiary hearing, a motion judge allowed the motion to suppress the statement, reasoning that Maher's question was intended to produce incriminatory evidence at a time the defendant was not free to leave, therefore, the defendant should have been provided Miranda warnings prior to questioning.
At trial the defendant took the stand and admitted that she consumed alcohol on the night she was arrested, but claimed that she 'felt fine' and was not affected by alcohol when she entered her vehicle. On cross-examination, the prosecutor, over objection, was permitted by the judge to impeach the defendant with the statement that had been suppressed by the motion judge.
2. Statement previously suppressed. The defendant argues that the judge violated her Sate and Federal constitutional right to a fair trial. See Commonwealth v. Durand, 457 Mass. 574 (2010); Commonwealth v. Lavin, 42 Mass. App. Ct. 711 (1997). We disagree. The defendant's voluntary prior inconsistent statement was used properly to impeach her on cross-examination. See Commonwealth v. Harris, 364 Mass. 236, 238-240 (1973) (shield provided by Miranda cannot be used as license to commit perjury). Commonwealth v. Durand, relied upon by the defendant, is inapposite. There, the court reversed the defendant's conviction because a statement by the defendant that had previously been suppressed was used for impeachment purposes. See Durand, supra at 590- 591. In that case, however, the statement that had been suppressed was deemed to have been made involuntarily, a critical distinction from the facts of the present case, where the statement was made voluntarily. Id. at 591.
3. Limitation on cross-examination of Van Nostrand. We find no error by the judge in precluding the defendant from cross-examining Van Nostrand about his Facebook.com profile, in which he listed 'bitch slapping' as one of his activities. Although a defendant has a right to question a witness on the issue of bias and prejudice, a trial judge may limit such examination concerning alleged bias if the questioning pertains to a collateral matter or is too speculative. See Commonwealth v. Weichel, 403 Mass. 103, 105-106 (1988) (judge properly excluded proffered evidence that had little, if any, legitimate value); and Commonwealth v. Bui, 419 Mass. 392, 400-402 (1995) (no abuse of discretion where judge concluded that evidence was insufficiently probative to justify its admission); Commonwealth v. Avalos, 454 Mass. 1, 7 (2009).
4. Request for sanctions. The defendant argues that the judge erred in denying her request for sanctions against the Commonwealth for failing to produce the entire record of the 911 call made by Van Nostrand to the State police on the evening of her arrest, thereby depriving her of potentially exculpatory evidence. The defendant was provided with the thirty-seven second recording of the call Van Nostrand made to the State police dispatcher. The dispatcher then transferred the call to another barracks, and the defendant sought to obtain a copy of the second conversation which, the Commonwealth contended, was not recorded.
The record is unclear as to whether the conversation sought by the defendant was recorded, and if so, what happened to the recording. The defendant apparently accepted the Commonwealth's assertion that such a recording was not in existence, but sought sanctions apparently because a copy of the conversation was not made and preserved. There was no error. The defendant failed to demonstrate that the Commonwealth acted in bad faith or recklessly, resulting in the loss or destruction of evidence. See, generally, Commonwealth v. Williams, 455 Mass. 706 (2010).
5. Request for jury instruction. The two witnesses who testified at trial against the defendant were law enforcement figures and the defendant sought an instruction to the jury that the testimony of a police officer is not entitled to any greater weight simply due to the police officer's status. The judge declined to give the instruction, choosing instead to recite the model jury instructions for the credibility of witnesses. The judge was not required to give the specific instructions requested by defendant, see Commonwealth v. A Juvenile, 21 Mass. App. Ct. 121, 124-125 (1985). Additionally, the instructions as a whole adequately covered the realm of witness credibility. See Commonwealth v. Anderson, 396 Mass. 306, 316 (1985).
6. Judicial bias claim. The defendant alleges that, during the trial, the judge fostered an atmosphere of bias and prejudice against the defendant by being condescending and dismissive in his treatment of defense counsel. No objection was lodged by defense counsel to such action alleged, and the defendant has failed to demonstrate that the actions of the judge, if improper, resulted in a substantial risk of a miscarriage of justice. See Commonwealth v. Mello, 420 Mass. 375, 392-393 (1995) (where no objections lodged at trial, standard of review is whether judge's comments created a substantial risk of a miscarriage of justice).
The defendant also contends that the judge was abusive towards defense counsel at side bar, when defense counsel made an offer of proof regarding her request to cross-examine Van Nostrand about his 'bitch slapping' activities listed on his Facebook.com profile. However, the incidents referred to by the defendant occurred at side bar, out of the presence of the jury, and, thus, could not have prejudiced the jury against the defendant.
Additionally, we note that the judge's instructions to the jury cured any potential harm relative to apparent prejudice against defense counsel. The judge instructed the jury to disregard 'anything I have said or done during the trial, such as rulings on motions or objections [or] any of my comments to the attorneys' during the trial and to 'disregard' any opinion they believed he may have had.
Finally, the defendant argues that the judge engaged in improper behavior at sentencing, evidenced by the fact that the judge exceeded the recommendations made by both the Commonwealth and defense counsel. The judge was under no obligation to accept the parties recommendations and has 'considerable latitude within the framework of the applicable statute' to fashion an appropriate sentence. Commonwealth v. Goodwin, 414 Mass. 88, 92 (1993). Here, the sentence imposed was well within the range of punishment allowed by statute. There was no error.
The judge later allowed the defendant's motion to revise and revoke the sentence imposed.
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Judgment affirmed.
By the Court (Graham, Rubin & Wolohojian, JJ.),