Com. v. Ayre, 90-P-239

• Decision Date: 26 September 1991
• Docket Number: No. 90-P-239,90-P-239
• Citation: 31 Mass.App.Ct. 17,574 N.E.2d 415
• Parties: COMMONWEALTH v. Kenneth S. AYRE.
• Court: Appeals Court of Massachusetts

Page 415

574 N.E.2d 415

31 Mass.App.Ct. 17

COMMONWEALTH v. Kenneth S. AYRE.

No. 90-P-239.

Appeals Court of Massachusetts Bristol.

Argued March 7, 1991.

Decided July 5, 1991.

Review Denied Sept. 26, 1991.

Woodrow Brown, Jr., Avon, for defendant.

Cynthia A. Vincent, Asst. Dist. Atty., for the Com.

Before SMITH, FINE and GREENBERG, JJ.

GREENBERG, Justice.

The defendant was convicted by a jury of six in the District Court of operating a motor vehicle while under the influence of intoxicating liquor. G.L. c. 90, § 24. ¹

The defendant alleges error in (1) the admission of statements made by the defendant during the performance of field sobriety tests, (2) the prosecutor's opening argument, (3) police testimony concerning the defendant's conduct during his apprehension, and (4) an officer's reference to the defendant's prior arrest record. ² We affirm the conviction.

We recount the pertinent testimony as it developed at trial. Officer Arthur Tainsey of the Fall River police department testified that in the early morning hours of October 11, 1987, he and several other officers were in their cruisers at a parking lot just across the street from a nightclub in the downtown area. They observed from about 120 feet away a small, dark, "Datsun 280Z-type" vehicle pass by at a high rate of speed. Officer Tainsey and Sergeant Morrisette, traveling in separate cruisers, followed. They saw the vehicle stop at a red light. When the light turned green, the driver "spun his wheels" before making a right turn. The officers activated their blue lights, and the automobile pulled over to the side of the road. According to Officer Tainsey's testimony, there were three people in the car, the defendant, who was driving, and two passengers. ³ When the officers approached the defendant to ask him for his license and registration, they detected the odor of alcohol. They asked him to step outside. On the way to the rear of the vehicle, the defendant was unsteady on his feet. His speech was "running together and it wasn't very coherent." When Officer Tainsey asked the defendant whether he had consumed any alcohol, he responded, "No."

The officers brought the defendant over to the sidewalk and asked him to perform a number of field sobriety tests. First, Officer Tainsey asked him to walk a straight line, heel to toe, for a distance of ten to twelve feet. The defendant was unable to stay on the line, and staggered off to the side. Tainsey next requested that the defendant recite the alphabet. He made it as far as the letter "P," stopped, and could not continue. When the defendant was unable to perform the final test, a balancing and counting exercise, Officer Tainsey formed the opinion that the defendant was under the influence of alcohol and placed him under arrest.

Officer Tainsey described the defendant's demeanor in the booking room at the police station as "very aggressive." He was "swinging his arms" and had to be restrained a couple of times. The booking officer, William Almeda, confirmed that the defendant was unsteady on his feet and had to be assisted to maintain his balance. He also detected a "very strong odor of liquor emanating from [the defendant's] breath." When the officer asked him routine booking questions, the defendant "started to scream and yell" and refused to answer. His speech was slurred.

The defendant called three witnesses who had been with him for very brief periods earlier in the evening and who had not observed the defendant drink anything or did not recall any odor of alcohol. Steve Arruda, a passenger in the defendant's car, testified that the defendant appeared clear-headed during the ten or fifteen minutes he was in the car with the defendant before they were pulled over and that the defendant had had nothing to drink during this time. He acknowledged that the defendant failed to complete the last two field sobriety tests but stated that the defendant performed the first test satisfactorily.

1. The Miranda issue. In Miranda v. Arizona, 384 U.S. 436, 444, 461, 86 S.Ct. 1602, 1612, 1620, 16 L.Ed.2d 694 (1966), the Supreme Court formulated a series of prophylactic rules designed to "secure the privilege against self-incrimination" from overreaching and coercion during custodial interrogation. Custodial interrogation has been defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Commonwealth v. Bryant, 390 Mass. 729, 736, 459 N.E.2d 792 (1984), quoting from Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612. The defendant contends that because his recitation of the alphabet and his number counting during the field sobriety tests were incriminatory and resulted from custodial interrogation, the police were required to administer Miranda warnings before initiating their probe. We disagree.

Under both Federal and State constitutional analysis, persons temporarily detained pursuant to routine traffic stops are not in custody for purposes of Miranda. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984). Pennsylvania v. Bruder, 488 U.S. 9, 11, 109 S.Ct. 205, 207, 102 L.Ed.2d 172 (1988). Commonwealth v. McNelley, 28 Mass.App.Ct. 985, 986, 554 N.E.2d 37 (1990). The Berkemer case, supra, sets out the logic behind the rule: the detention of a motorist pursuant to a routine traffic stop is presumptively temporary, as well as public. Berkemer v. McCarty, 468 U.S. at 435-442, 104 S.Ct. at 3147-3152. ⁴ Commonwealth v. McNelley, 28 Mass.App.Ct. at 986, 554 N.E.2d 37.

The circumstances in this case substantially parallel those of the roadside questioning in Berkemer v. McCarty, supra 468 U.S. at 435-442, 104 S.Ct. at 3147-3152. The stop on the road was of brief duration, ⁵ see id. at 441, 104 S.Ct. at 3151; Commonwealth v. Merritt, 14 Mass.App.Ct. 601, 605-606, 441 N.E.2d 532 (1982), and it took place in the public view. Berkemer v. McCarty, supra 468 U.S. at 442, 104 S.Ct. at 3151-3152. Commonwealth v. McNelley, supra 28 Mass.App.Ct. at 986, 987, 554 N.E.2d 37 (where the inquiry took place at 3:10 A.M. on a public street, no Miranda warnings were required). There were no other significant factors to suggest a coercive environment. Indeed, the defendant had two passengers (or at least one; see note 3, supra ), presumably sympathetic witnesses. The fact that the defendant was not free to leave (at least until the performance of the field sobriety tests) did not render the interrogation custodial. Id. at 986, 554 N.E.2d 37. See Commonwealth v. Podlaski, 377 Mass. 339, 343, 385 N.E.2d 1379 (1979). Because the defendant's freedom of action was not curtailed to the degree associated with formal arrest, Berkemer v. McCarty, 468 U.S. at 440, 104 S.Ct. at 3150, ⁶ we conclude that the encounter was not custodial. The defendant was not entitled to Miranda warnings prior to his performance of the field sobriety tests. ⁷

In this case, we need not resolve the propriety of the officer's requiring the defendant to recite the alphabet, count numbers, and respond to questions regarding alcohol consumption because we have determined that the defendant was not subjected to a custodial interrogation. However, we do not discount the possibility that in future cases circumstances may arise which trigger the protections afforded by the Fifth Amendment of the United States Constitution. See Pennsylvania v. Bruder, 488 U.S. at 11 n. 3, 109 S.Ct. at 207 n. 3. ⁸

2. Comments on the defendant's silence. The defendant contends that certain statements contained in the prosecutor's opening argument and in the testimony of Officers Tainsey and Almeda represented prohibited comment on the defendant's right to remain silent and that the cumulative effect of the errors requires reversal and a new trial.

a. The prosecutor's opening. Included in the prosecutor's opening was the following: "You're going to hear testimony from one other police officer who was present in the [booking] room.... He's going to describe the defendant's demeanor.... He's going to tell you exactly what he did in that booking room and describe his conduct, how he resisted the officers, wouldn't cooperate one bit in the booking process." At the conclusion of the argument, defense counsel moved for a mistrial or, alternatively, a curative instruction. He maintained that because the defendant was in custody at the booking room, had received the Miranda warnings, and was under no obligation to say anything, the prosecutor should not have alluded to the defendant's lack of "cooperation." We agree with the judge that the comment was "improper," but "not fatal."

As a general rule, counsel is "free to state in his opening anything that he expects to be able to prove by evidence." Commonwealth v. Breese, 381 Mass. 13, 15, 406 N.E.2d 1292 (1980). The Commonwealth presented evidence of obstreperous behavior by the defendant during his booking such that he had to be restrained. He was described as "wild," "very aggressive," and as "swinging his arms." In these circumstances, the jury would not have interpreted the prosecutor's remark that the defendant "wouldn't cooperate one bit in the booking process" as suggesting that the defendant refused to answer questions during the booking; rather, it was much more likely understood by them as a comment on the defendant's general demeanor. See generally Commonwealth v. Cunneen, 389 Mass. 216, 223-224, 449 N.E.2d 658 (1983) (remark was "a vague and fleeting comment, not likely to influence, or even to seize the attention of the jury"). Commonwealth v. Sherick, 23 Mass.App.Ct. 338, 344-346, 502 N.E.2d 156 S.C., 401 Mass. 302 (1987). In these circumstances, the judge did not err in denying the defendant's motion for a mistrial, and his subsequent request for a curative instruction. Compare Commonwealth v. Crichlow, 30 Mass.App.Ct. 901, 902-903, 565 N.E.2d 816 (1991).

b. Testimony of...