Opinion
19-P-349
05-14-2020
COMMONWEALTH v. DON M. SEARS.
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
Following a jury trial in the District Court, the defendant, Don M. Sears, was convicted of operating a motor vehicle under the influence of intoxicating liquor. He appeals, claiming numerous errors, each of which we address in turn.
Background. A jury could have found the following facts. At approximately 10:30 P.M. on June 4, 2016, Weston Police Officer Ryan Porzio was observing traffic when he noticed a pickup truck traveling thirty miles per hour in a forty mile per hour zone. He saw the truck weaving in the lane and proceeded to stop the truck. The defendant appeared "excited" as Porzio approached the truck, and the defendant "stated his support for law enforcement." Porzio noted that the defendant's eyes were glassy and bloodshot, and Porzio smelled an odor of an alcoholic beverage coming from the truck. The defendant was able to produce his driver's license and fumbled through papers, eventually producing his registration. The defendant told Porzio that he had a couple of alcoholic beverages earlier in the day but that he "was okay to drive."
Porzio then asked the defendant to perform several field sobriety tests (FSTs); the defendant said that he had bad knees but that he would not have a problem walking or balancing, and agreed to do the FSTs. Porzio gave the defendant instructions on how to perform the walk and turn test and demonstrated it for him. The defendant took the wrong number of steps, stepped off the line, stopped walking, used his arms for balance, missed putting his heel to his toe, and turned improperly. Porzio then gave the defendant instructions for and demonstrated the one leg stand test. Twice, the defendant raised his foot and immediately put it down. The defendant told Porzio that he had "messed up" and that he could not do the test. Porzio placed the defendant under arrest. While still roadside, the defendant stated that he "could kill [the officers] but he wasn't going to."
While transporting the defendant to the police station, Porzio noticed an odor of an alcoholic beverage that was not present in the police cruiser before the defendant had been placed in it. The defendant was booked at the station by Sergeant Jeremy Girouard, who noticed a strong odor of alcohol coming from the defendant. Girouard also observed that the defendant's face was red or flushed and that the defendant had blood shot eyes. The defendant told Girouard that he "had a couple of beers at the 99 and three beers at Margarita's." When asked to take off his religious necklace, the defendant threatened to "hurt or kill" the officers but said that he would not do so.
Discussion. 1. Voluntariness of the defendant's statements. The defendant claims that the judge erred by failing to conduct a sua sponte voir dire hearing to determine the voluntariness of the defendant's statements to police, and by failing to instruct the jury on the humane practice rule. Because the defendant did not request a voluntariness hearing or object to the absence of a humane practice instruction, we review to determine whether any alleged errors created a substantial risk of a miscarriage of justice. There is no merit to this claim.
Where, as here, the defendant does not raise the issue of the voluntariness of his statements at trial, a judge is obligated to conduct a voir dire hearing sua sponte only where there is evidence of a "substantial claim of involuntariness and where voluntariness is a live issue at the trial." Commonwealth v. Stroyny, 435 Mass. 635, 646 (2002). See Commonwealth v. Brown, 449 Mass. 747, 765 (2007). If, after conducting a voir dire hearing, the judge concludes that the statement is voluntary, the issue of voluntariness must be submitted to the jury. Commonwealth v. Kirwan, 448 Mass. 304, 318 (2007). If a claim of involuntariness "is not a 'live issue' at trial, there is no obligation for the judge either to conduct a voir dire, or to instruct the jury on the humane practice rule." Commonwealth v. Pavao, 46 Mass. App. Ct. 271, 274 (1999).
"[I]ntoxication alone is not sufficient to negate an otherwise voluntary act." Commonwealth v. Cutts, 444 Mass. 821, 832 (2005), quoting Commonwealth v. Doucette, 391 Mass. 443, 448 (1984). And, the defendant concedes that alcohol consumption by itself does not trigger an obligation for the judge to inquire into the voluntariness of his statements. See Commonwealth v. Tejada, 484 Mass. 1, 11 (2020).
The defendant focuses his argument on the possibility that he was in emotional distress or suffering from a mental illness in support of his claim that his statements to the police were involuntary. He relies on his statement that he could kill the officers, but he was not going to, and Girouard's testimony that the defendant "had some issues relative to perhaps [his] mental health." The defendant's behavior and demeanor during his arrest were not out of the ordinary for an intoxicated person; he was compliant with both police officers, and there was no evidence of a mental illness. Without more, the evidence fell short of the affirmative, credible evidence of involuntariness which is required to trigger a sua sponte voir dire hearing. See, e.g., Pavao, 46 Mass. App. Ct. at 275.
There is also no merit to the lack of a humane practice instruction, as the voluntariness of the defendant's statements was not a live issue at trial. He suggests that such an instruction was required because his trial attorney referred to the defendant's mental health in his opening statement and closing argument. The use of the words "mental health" in this context was not the credible or substantial evidence of the defendant's insanity or voluntariness needed to require such an instruction. See, e.g., Commonwealth v. Benoit, 410 Mass. 506, 515 (1991). Moreover, the jury were instructed that opening statements and closing arguments are not evidence. There was no error.
2. Admissibility of the defendant's statements. For the first time on appeal, the defendant claims that it was error to admit his statements to police that he could hurt or kill them, because he had not been given his Miranda warnings; the statements were not relevant, or admissible, as consciousness of guilt or as prior bad act evidence; and the statements' probative value was exceeded by the risk of prejudice. The defendant suggests that he preserved this issue for review; the Commonwealth disagrees.
The defendant failed to raise the Miranda issue and specifically asked that Porzio not testify to the fact that he provided the defendant with these warnings. The defendant did not file a written pretrial motion seeking to exclude these statements. Accordingly, the issue was not properly before the court under Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516 (2004), and the record is insufficient to properly review this claim. See Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 374 (2010).
His remaining argument fares no better. Evidence is relevant and admissible if it has some tendency to "make a consequential fact more or less probable than it would be without that evidence." Commonwealth v. Moore, 480 Mass. 799, 808 (2018), citing Mass. G. Evid. § 401 (2018). These statements were relevant to the defendant's state of intoxication. And, they were not more prejudicial than probative as the jury could have inferred that this belligerence was also indicative of the defendant's level of intoxication. See Commonwealth v. Sudderth, 37 Mass. App. Ct. 317, 321 (1994).
Notwithstanding the defendant's contention to the contrary, the Commonwealth did not offer these statements as consciousness of guilt or as prior bad act evidence.
3. Sufficiency of the evidence. We review claims of insufficient evidence to determine "whether, after viewing the evidence in the light most favorable to the [Commonwealth], any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979). The Commonwealth must prove three elements beyond a reasonable doubt: "(1) the defendant was in physical operation of the vehicle; (2) on a public way or place to which the public has a right of access; and (3) had a blood alcohol content percentage of .08 or greater, or was impaired by the influence of intoxicating liquor." Commonwealth v. Zeininger, 459 Mass. 775, 778 (2011). See G. L. c. 90, § 24 (1) (a) (1). The third element is the only one at issue here.
While the Commonwealth must prove that the defendant was under the influence of alcohol, it "need not prove that the defendant was drunk, only that alcohol diminished [his] ability to operate a motor vehicle safely." Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 382 (2017), citing Commonwealth v. Stathopoulos, 401 Mass. 453, 458 (1988). "The Commonwealth need not prove that the defendant actually drove in an unsafe or erratic manner, but it must prove a diminished capacity to operate safely." Commonwealth v. Rarick, 87 Mass. App. Ct. 349, 352 (2015), quoting Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). Here, the defendant admitted to drinking at least five alcoholic beverages, failed two FSTs, had bloodshot and glassy eyes and a red face, drove ten miles per hour under the speed limit, was observed weaving on the roadway, and smelled of alcohol both in the police cruiser and in the booking area of the police station. Taking this evidence in the light most favorable to the Commonwealth, the evidence sufficed.
Judgment affirmed.
By the Court (Rubin, Blake & Wendlandt, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 14, 2020.