Opinion
No. 13–P–1434.
10-06-2014
COMMONWEALTH v. Grant D. WARD.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
On appeal from a conviction of operating under the influence of intoxicating liquor, the defendant contends that the motion judge erred in denying his motion to suppress statements made to Brookline police Lieutenant Derek Hayes at booking in which he acknowledged having “about four drinks,” approximately three hours earlier. The defendant contends that his admissions to Lieutenant Hayes should have been suppressed because previous admissions to an arresting officer, Sergeant Disario, were obtained in violation of his Miranda rights. We affirm.
The defendant does not argue that his written waiver of Miranda rights during booking was improper because the rights were not conveyed properly. Rather, his sole argument is that his waiver was not intelligent and voluntary because his previous admission was obtained in violation of Miranda and without a sufficient break in the stream of events.
Preliminarily, we note the unusual posture in which the defendant's motion to suppress came before the motion judge. The parties agreed that they would present no witnesses and would rely on the videotape of the defendant's booking. The prosecutor agreed with defense counsel's assertion that the Commonwealth did not intend to rely at trial on the defendant's admission to Sergeant Disario and stipulated to its being “suppressed.” The parties also agreed that the focus of the judge's attention should be whether the defendant's later written waiver of Miranda was sufficiently removed from the statements to Sergeant Disario. The Commonwealth's present contention, that the defendant's admission to Sergeant Disario that he had consumed four or five Pabst Blue Ribbon beers was not custodial interrogation (because it occurred prior to the defendant's being arrested and placed in the cruiser), was not before the motion judge. See Commonwealth v. Ka, 70 Mass.App.Ct. 137, 139–140 (2007) (no custodial interrogation where, after observing defendant smelled of alcohol, had glassy, bloodshot eyes and was unsteady on feet, officer asked if she had consumed any alcoholic beverages). We decline to entertain on appeal an argument that contravenes the Commonwealth's stipulation as to the issue that was before the motion judge for resolution. See Commonwealth v. Buswell, 83 Mass.App.Ct. 1, 13 (2012).
The Commonwealth has included the police report in its supplemental record appendix. Although the police report was apparently before the judge during the hearing, it was not introduced in evidence. Nor does the judge's decision indicate that she relied on the report in reaching her decision.
Even accepting that the Commonwealth's stipulation to suppression was grounded in a concession that the defendant's statement to Sergeant Disario was the product of a custodial interrogation without the benefit of Miranda warnings, the defendant fares no better. The videotape of the defendant's booking was introduced by the Commonwealth at the motion hearing and accepted by the judge. On the record before us, we fail to discern how the judge erred in concluding that the defendant's admissions to Lieutenant Hayes were the product of an intelligent and voluntary waiver of Miranda rights sufficiently insulated by a break in the stream of events from the admission to Disario approximately forty-five minutes earlier. See Commonwealth v. Prater, 420 Mass. 569, 580–581 (1995) ; Commonwealth v. Harris, 75 Mass.App.Ct. 696, 699–701 (2009).
We reject the Commonwealth's argument that the defendant's admission to Hayes falls within the booking exception. In the context of the defendant's arrest for operating under the influence of intoxicating liquor, Hayes's questioning regarding the defendant's recent consumption of alcohol is designed to elicit an incriminating response. See Commonwealth v. Woods, 419 Mass. 366, 372–373 (1995) ; Commonwealth v. Torres, 424 Mass. 792, 796–797 (1997).
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Moreover, even were the defendant's admission to Lieutenant Hayes tainted by the earlier admission to Sergeant Disario, the erroneous introduction of the defendant's admissions to Hayes would be harmless beyond a reasonable doubt. See Commonwealth v. King, 461 Mass. 354, 357 (2012). Evidence that the defendant's capacity to operate the motor vehicle was impaired by alcohol was strong and included the odor of alcohol observed on the defendant's breath by the arresting and booking officers, his slurred speech and glassy eyes, his operation without headlights at 1:30 A. M., his unchallenged admission to Officer Derek Wennerstrand that he could not explain why he was unable to locate the button for the headlights, and a number of failed field sobriety tests. More significantly, the defendant's admission was entirely cumulative of testimony offered by his own witness, Brian Pena. Pena testified that he observed the defendant consume about four Pabst Blue Ribbon beers. Pena also testified that while he was on the dance floor the defendant was at the bar, and Pena could not say what the defendant was doing while Pena was on the dance floor.
Judgment affirmed.