Com. v. Angivoni

• Citation: 383 Mass. 30,417 N.E.2d 422
• Parties: COMMONWEALTH v. Antonio ANGIVONI.
• Decision Date: 24 February 1981
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 422

417 N.E.2d 422

383 Mass. 30

COMMONWEALTH v. Antonio ANGIVONI.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued Nov. 3, 1980.

Decided Feb. 24, 1981.

Peter W. Agnes, Jr., Asst. Dist. Atty., for the Commonwealth.

Alfred Paul Farese, Everett, for defendant.

Before HENNESSEY, C. J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

LIACOS, Justice.

This is an interlocutory appeal by the Commonwealth pursuant to Mass.R.Crim.P. 15(a)(2), --- Mass. --- (1979) (effective July 1, 1979), from the decision of a District Court judge. The judge allowed the defendant's motion to suppress the results of tests performed on blood samples taken from the defendant. ¹ After an evidentiary hearing, the judge ruled that the defendant did not voluntarily consent to the blood extraction procedure, which, in the absence of such consent, was unlawful. We hold that there was no error.

The judge made the following findings of fact:

"At about 11:30 a. m. on July 5, 1979 Defendant was the driver of a motor vehicle which was involved in a two car accident in Woburn where a passenger of the other vehicle was killed. Defendant was taken by ambulance from the scene to the emergency room of the Winchester Hospital while the occupants of the other vehicle were taken to another hospital. At about 1 p. m. Registry Inspector Giffen who knew of the accident and the fatality, but not the details, arrived at the emergency room with a uniformed police officer to conduct an accident investigation. Upon his arrival Inspector Giffen found Defendant undergoing treatment while on a table in the emergency room. He learned from the doctor that Defendant had a dislocated hip and that immediate surgery was indicated. He also observed that defendant had a facial injury in the area of the mouth as he saw a scar (sic), swelling, and noted that Defendant had difficulty talking. The medical record indicated two missing teeth, two others loose, and a laceration of the lower lip requiring sutures. Inspector Giffen, who was in civilian attire, identified himself to Defendant and proceeded to ask him questions from a standard investigation form. Although it was difficult to hear Defendant because of his swollen mouth, the inspector was able to elicit answers to the following questions: 'where were you going;' 'where were you coming from;' and 'had you been drinking.' After responding 'no' to the third question Defendant was asked if he would let them take blood for an alcohol test and he responded 'yes.' The inspector then asked where the other car came from and Defendant replied 'I don't know, I am incoherent.' At this point Inspector Giffin decided to suspend or terminate the interview. At no time was Defendant told of the fatality, advised that he need not consent to a blood test, or advised that the results of the test could be used against him. The hospital record contains an early entry indicating: 'Exam: Healthy young man alert, rational, cooperative.' It appears from the record that Defendant first received medication at 2:25 p. m. in the form of a pre-operative spinal anesthesia."

The judge then concluded, in part:

"The Commonwealth has failed to meet its burden of proving that defendant knowingly and voluntarily consented to the blood extraction procedure. On the evidence presented at the hearing, consent is a sufficiently close issue that the allocation of the burden is determinative of the issue."

1. The taking of a blood sample constitutes a "search and seizure" within the meaning of the Fourth Amendment. Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 1833, 16 L.Ed.2d 908 (1966). ² Schmerber points out that the taking of a blood sample may be nonconsensual provided there is probable cause and a search warrant, or exigent circumstance justifying the lack of a warrant. Alternatively, consent may be a basis for the taking of a blood sample. "When the Commonwealth relies on consent as the basis for a warrantless search, it must demonstrate 'consent unfettered by coercion, express or implied, ... (which is) something more than mere " acquiescence to a claim of lawful authority" ' (citation omitted). Commonwealth v. Walker, 370 Mass. 548, 555, 350 N.E.2d 678, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976). See Bumper v. North Carolina, 391 U.S. 543, 548-549, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968); Commonwealth v. Antonbenedetto, 366 Mass. 51, 57, 315 N.E.2d 530 (1974). Voluntariness of consent 'is a question of fact to be determined in the circumstances of each case .... ' Commonwealth v. Aguiar, 370 Mass. 490, 496, 350 N.E.2d 436 (1976).'' Commonwealth v. Cantalupo, --- Mass. ---, --- - --- ^a, 402 N.E.2d 1040 (1980), quoting from Commonwealth v. Harmond, --- Mass. ---, --- ^b, 382 N.E.2d 203 (1978).

2. We apply the standard of review in this case as it has been recently stated: "(T)here is a presumption against waiver of constitutional rights, and, with regard to the attitude owed by the reviewing court to the trial judge who rules on a motion to suppress, that it is for the judge to resolve questions of credibility; that his subsidiary findings are to be respected if supported by the evidence; that his findings of ultimate fact deriving from the subsidiary findings are open to reexamination by this court, as are his conclusions of law, but, even so, that his conclusion as to waiver is entitled to substantial deference." ³ Commonwealth v. Meehan, --- Mass. ---, --- - --- ^c, 387 N.E.2d 527 (1979), cert. dismissed as improvidently granted, 445 U.S. 39, 100 S.Ct. 1092, 63 L.Ed. 185 (1980), quoting from Commonwealth v. Doyle, --- Mass. ---, --- n.6, ^d 385 N.E.2d 499 (1979). Commonwealth v. Tabor, --- Mass. ---, --- - --- ^e, 384 N.E.2d 190 (1978). Commonwealth v. White, 374 Mass. 132, 137-138, 132 N.E.2d 777 (1977), aff'd 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978).

3. The judge determined that the "Commonwealth has failed to meet its burden of proving that defendant knowingly and voluntarily consented to the blood extraction procedure." ⁴ There is ample support in the record to warrant this determination. See Commonwealth v. Cantalupo, supra, --- MASS. AT ---, 402 N.E.2D 1040,^F and cases cited. As the Commonwealth concedes, each of several factors present in this case have been recognized as suggesting, although not conclusively, the absence of a voluntary consent.

Inspector Giffen failed to inform the defendant of the fatality in the accident, see Commonwealth v. Tatro, 4 Mass.App. 295, 300-304, 346 N.E.2d 724 (1976), or of his right to refuse to consent to the taking of the blood sample, see Commonwealth v. Cantalupo, supra, --- Mass. at --- ^g, 402 N.E.2d 1040, and cases cited. A uniformed police officer was present. Cf. Commonwealth v. Harmond, supra --- Mass. at --- ^h, 382 N.E.2d 203, (presence of several uniformed officers), and cases cited. The defendant's understanding and ability to reason reflectively may have been impaired by intoxication or as a result of his injuries or an emotional trauma attendant to his having just been in an accident. See Commonwealth v. Meehan, supra --- Mass. at --- - --- ⁱ, 387 N.E.2d 527, and cases cited. Cf. Commonwealth v. Cruz, 373 Mass. 676, 689, 369 N.E.2d 996 (1977). It may be inferred that due to the nature of his injuries, the defendant was in some pain. Despite the defendant's apparent willingness to cooperate with Inspector Giffen he responded to the question immediately following his consent to the blood test by stating that he was incoherent. See Commonwealth v. Fielding, 371 Mass. 97, 109-111, 353 N.E.2d 719 (1976). While none of these factors, taken alone, is conclusive on the issue of consent, we cannot say that in the "totality of the circumstances" they could not be determined by the judge to show that the Commonwealth failed to carry its burden that the defendant voluntarily consented. The fact that the defendant was reported to be "alert" and "rational" upon entry to the hospital is not, in light of the defendant's injuries and the imminence of surgery, inconsistent with his later becoming incoherent. These facts, taken together, would suggest that he either thought he could not refuse to consent to...