Opinion
No. 12–P–1305.
2013-09-9
COMMONWEALTH v. Sheree A. SHATTUCK.
By the Court (BERRY, SIKORA & MILKEY, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of being present where heroin is being kept (G.L. c. 94C, § 35). On appeal, the defendant argues that the motion judge erred in suppressing only the defendant's statements made after a police order that she exit the car—which exit order was ruled invalid after the hearing on the defendant's motion to suppress. Specifically, the defendant contends that the car stop was invalid in its entirety and that all evidence—not just the post-exit order statements—should have been subject to suppression. The defendant also claims that the trial judge improperly allowed the Commonwealth to use the suppressed post-exit order statements for impeachment of the defendant at trial. We affirm.
1. The vehicle stop. Following a motion to suppress hearing, the motion judge concluded that the police demonstrated legal justification to stop the defendant's vehicle. However, the motion judge determined that the police lacked basis for issuing an order requiring the defendant to exit the vehicle. Accordingly, the motion judge suppressed all post-exit order statements. As relevant here, one of the suppressed statements made by the defendant was a confession to the effect that she was fully aware that the passenger in her car possessed heroin. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ “ Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
We summarize the judge's findings from the suppression hearing. On November 3, 2010, the Westminster police department received a tip from a former reliable informant regarding suspicious activity on Roper Road. Specifically, the informant stated that a black Dodge with a red door and New Hampshire license plates was repeatedly circling the neighborhood. Detective LeBlanc went to investigate and saw the car that matched the informant's description. He testified that while driving behind the car, he noticed that the child in the backseat was not properly restrained in her car seat. Detective LeBlanc then activated the blue lights on the cruiser.
It is well established that the police have the authority to stop a vehicle when a traffic violation occurs. See Commonwealth v. Williams, 46 Mass.App.Ct. 181, 182 (1999). Here, the visible lack of a proper restraint for the child justified the vehicle stop. Therefore, we conclude the judge properly denied suppression of all evidence flowing from the vehicle stop.
The defendant argues that Detective LeBlanc activated the cruiser lights before observing that the child was not restrained in her car seat. The motion judge found to the contrary and credited Detective LeBlanc's testimony that he saw the car seat violation before stopping the car. “[T]he determination of the weight and credibility of the testimony is the function and responsibility of the [motion] judge who saw the witnesses, and not this court.” Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), quoting from Commonwealth v. Moon, 380 Mass. 751, 756 (1980). See Commonwealth v. Hampton, 457 Mass. 152, 155 (2010).
2. Use of the defendant's suppressed post-exit order statement for impeachment. The defendant argues that her State and Federal constitutional rights were violated by the prosecutor's use of her previously suppressed post-exit order statement as impeachment at trial to rebut the defendant's testimony that she had no knowledge that heroin was in the vehicle.
During the Commonwealth's case-in-chief, Keith Nickerson, the defendant's passenger, testified that he asked the defendant to drive him to purchase heroin, and that after the purchase, he injected himself with heroin. Before the defendant took the stand in the defense case, the trial judge made abundantly clear that if the defendant's testimony was inconsistent with her suppressed post-exit order statement that she knew Nickerson possessed heroin, the prosecutor would be permitted to use the suppressed statement to impeach the defendant. Despite this warning, the defendant testified that, while she knew Nickerson suffered from heroin addiction, she had no knowledge that Nickerson had heroin in his possession in the car. Consequently, the Commonwealth was allowed to elicit testimony from Detective LeBlanc concerning the defendant's post-exit order statement that she was aware that Nickerson possessed the heroin. There was no error. See Harris v.. New York, 401 U.S. 222, 223–226 (1971).
The defendant next contends on appeal that the statement should not have been fodder for impeachment because the statement was not voluntarily given. The defendant submits that the statement was improperly used because of the judge's failure to predetermine the voluntariness of the statement. The defendant must raise the issue of voluntariness and offer proof to support such a claim. Commonwealth v. Smith, 426 Mass. 76, 82 (1997). Appellate courts “consistently have failed to adopt any per se rule that if certain factors are present, voluntariness is a live issue.” Commonwealth v. Pavao, 46 Mass.App.Ct. 271, 274 (1999).
We note that the defendant lodged no objection at trial to this impeachment evidence. As such, our review is limited to the substantial risk of a miscarriage of justice standard. When a previously suppressed statement is offered as impeachment and no objection is made, a judge is not obligated sua sponte to make a determination of voluntariness unless there is evidence undermining such voluntariness. See Commonwealth v. Kirwan, 448 Mass. 304, 318 (2007) (voluntariness was not a live issue where substantial evidence showed that the defendant was not intoxicated when he made statements to the police); Commonwealth v. McCowen, 458 Mass. 461, 471–472 (2010). See also Commonwealth v. Harris, 364 Mass. 236, 239 (1973).
Even were we to assume the correctness of the defendant's position that the judge was required sua sponte to review voluntariness, the trial evidence does not lend basis to the position that the defendant's statement was not voluntary. From all that appears of record, once the defendant stepped out of the car, she began responding to Detective LeBlanc's questions freely. There is no indication that Detective LeBlanc employed any form of trickery or coercion. Nor does it seem that the defendant, unlike her passenger, was under the influence of any narcotics. Compare Commonwealth v. Durand, 457 Mass. 574, 596 (2010) (voluntariness is based on a variety of factors, including “whether promises or other inducements were made to the defendant by the police, as well as the defendant's age, education, and intelligence; experience with the criminal justice system; and [her] physical and mental condition”).
Furthermore, the judge gave contemporaneous and final instructions limiting the jury's consideration of the defendant's statements as prior inconsistent statements meant for credibility determinations only. See Commonwealth v. McGeoghean, 412 Mass. 839, 842 (1992) (judge's limiting instructions “focuse[d] the jury's attention on the proper application of the evidence”).
Judgment affirmed.