Com. v. Mahoney

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; HENNESSEY
Citation400 Mass. 524,510 N.E.2d 759
Decision Date29 July 1987
PartiesCOMMONWEALTH v. Donald J. MAHONEY.

Page 759

510 N.E.2d 759
400 Mass. 524
COMMONWEALTH

v.
Donald J. MAHONEY.
Supreme Judicial Court of Massachusetts,
Worcester.
Argued April 6, 1987.
Decided July 29, 1987.

[400 Mass. 525]

Page 761

Conrad W. Fisher, Worcester, for defendant.

Phillip E. Shea, Asst. Dist. Atty., for the Com.

Before [400 Mass. 524] HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

[400 Mass. 525] HENNESSEY, Chief Justice.

The defendant, Donald J. Mahoney, was convicted of operating a motor vehicle while under the influence[400 Mass. 526] of intoxicating liquor in violation of G.L. c. 90, § 24 (1984 ed.). The defendant appealed, and we transferred the case to this court on our own motion.

Testimony at trial before a jury of six produced the following facts. At approximately 12:46 A.M. on March 17, 1985, Worcester police officer Frank Cummings arrived at the scene of an accident involving two automobiles. After ascertaining that no medical attention was required at the scene, Officer Cummings approached the defendant's automobile and detected the odor of alcohol. Upon questioning the defendant, Officer Cummings had some difficulty understanding the defendant due to the defendant's slurred speech. When the defendant stepped from his automobile, he stumbled and subsequently had difficulty walking to the front of the vehicle. The defendant did not respond when asked to perform two field sobriety tests. Officer Cummings then determined that, in his opinion, the defendant was under the influence of alcohol and placed the defendant under arrest.

The defendant was taken to the police station where the booking procedure was videotaped. At that time, the defendant was coherent and responsive. Later, being advised of his rights under G.L. c. 263, § 5A, the defendant was given a breathalyzer test and a reading of .19 resulted.

1. The defendant first argues that the videotape of the booking procedure was erroneously admitted in evidence and played before the jury in violation of the Fourth, Fifth, and Sixth Amendments to the Constitution of the United States and his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 1 The defendant objected to the admission in evidence of the videotape on the grounds that, at the time he was being booked, he had not been advised that he was being videotaped or that the videotape would be used as evidence against him at trial. [400 Mass. 527] The defendant does acknowledge, however, that during the booking procedure he was asked to look up because he was being taped but that at no time was he informed of the purpose of the taping.

We have stated that videotapes are "on balance, a reliable evidentiary resource." Commonwealth v. Harvey, 397 Mass. 351, 359, 491 N.E.2d 607 (1986). Consequently, videotapes should be admissible as evidence if they are relevant, they provide a fair representation of that which they purport to depict, and they are not otherwise barred by an exclusionary rule. See Commonwealth v. Vitello, 376 Mass. 426, 440, 381 N.E.2d 582 (1978). In this case, the defendant's recitation of alleged constitutional violations does not provide a ground for the exclusion of the videotape from the jury.

No Fourth Amendment violation occurred because no search or seizure was involved in videotaping the defendant. The booking procedure took place in an open area of the police station where any officers or passersby could observe the defendant. See United States v. Dionisio, 410 U.S. 1, 14-15, 93 S.Ct. 764, 771-72, 35 L.Ed.2d 67 (1973); Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). Cf. Commonwealth v. Sergienko, 399 Mass. 291, 293-294, 503 N.E.2d 1282 (1987); Commonwealth v. Hason,

Page 762

387 Mass. 169, 172-173, 439 N.E.2d 251 (1982). The defendant does not argue that the observations by police officers at the booking procedure constituted a search. Consequently, there was no search when these observations were recorded electronically by videotape. See, e.g., United States v. Caceres, 440 U.S. 741, 750-751, 99 S.Ct. 1465, 1470-71, 59 L.Ed.2d 733 (1979), quoting United States v. White, 401 U.S. 745, 751, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971); United States v. McMillon, 350 F.Supp. 593, 596-597 (D.D.C.1972); Annot., 27 A.L.R. 4th 532 (1984).

There was also no violation of the defendant's Fifth Amendment rights. The defendant's right not to be compelled to be a witness against himself does not extend to photographic or video recordings, but is limited only to evidence that is "testimonial" or "communicative" in nature. See Schmerber v. California, 384 U.S. 757, 764, 86 S.Ct. 1826, 1832, 16 L.Ed.2d 908 (1966) (The Fifth Amendment "offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak [400 Mass. 528] for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture"); Commonwealth v. Brennan, 386 Mass. 772, 776, 438 N.E.2d 60 (1982); Blaisdell v. Commonwealth, 372 Mass. 753, 758-759, 364 N.E.2d 191 (1977). See also Thompson v. People, 181 Colo. 194, 202-203, 510 P.2d 311 (1973); People v. Fenelon, 14 Ill.App.3d 622, 626, 303 N.E.2d 38 (1973); State v. Strickland, 276 N.C. 253, 260-261, 173 S.E.2d 129 (1970); Delgado v. State, 691 S.W.2d 722, 723-724 (Tex.App.1985). Nor are we confronted with an objection to the introduction of "testimonial" evidence because the videotape included an audio recording of the defendant's responses to police questioning during the booking procedure. In Commonwealth v. Brennan, supra at 778, 438 N.E.2d 60, we stated that " 'testimonial' evidence, for the purpose of Fifth Amendment analysis, is evidence which reveals the subject's knowledge or thoughts concerning some fact." That case involved the performance of field sobriety tests administered for the purpose of determining whether a driver of a motor vehicle is under the influence of intoxicating liquor. We concluded that the performance of the tests did not violate the defendant's rights under the Fifth Amendment because the tests only forced the defendant "to exhibit his physical coordination, or lack thereof, for observation by a police officer." Id. at 779, 438 N.E.2d 60. No testimonial or communicative evidence was involved. Like Brennan, this case does not involve police attempts to reveal any "knowledge or thoughts" of the subject. The defendant's answers to the questions recorded by the videotape concerned only the defendant's name, address, age or other information necessary to the booking procedure. The videotape provided the jury with an opportunity to determine whether, from the defendant's bearing and manner of speaking, he was intoxicated. Consequently, like the field sobriety tests in Brennan, the responses to the police questions recorded by the videotape serve only to exhibit the defendant's "physical coordination." The defendant was not compelled to reveal thoughts or...

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27 practice notes
  • Com. v. Gordon
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 10, 1996
    ...speaking which were relevant on the question of their intoxication or sobriety at the time of the assaults. See Commonwealth v. Mahoney, 400 Mass. 524, 528, 510 N.E.2d 759 (8) Did testimony of party to nonprosecution agreement deprive defendants of fair trial? The defendants challenge the j......
  • Charles v. Leo, No. 17-P-1238
    • United States
    • Appeals Court of Massachusetts
    • October 31, 2019
    ...We review the judge's limitations on opening statements and her evidentiary rulings for abuse of discretion. See Commonwealth v. Mahoney, 400 Mass. 524, 530, 510 N.E.2d 759 (1987) ; Crown v. Kobrick Offshore Fund, Ltd., 85 Mass. App. Ct. 214, 219, 8 N.E.3d 281 (2014).First, the defendants i......
  • Com. v. Lavalley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 15, 1991
    ...of that which they purport to depict, and they are not otherwise barred by an exclusionary rule." Commonwealth v. Mahoney, 400 Mass. 524, 527, 510 N.E.2d 759 (1987), quoting Commonwealth v. Harvey, 397 Mass. 351, 359, 491 N.E.2d 607 (1986). We have not, however, yet resolved "the ......
  • Brown v. State, No. 2273 September Term 2005.
    • United States
    • Court of Special Appeals of Maryland
    • November 1, 2006
    ...infer, therefrom that she was under the influence of intoxicating liquor when she was operating the van"); Commonwealth v. Mahoney, 400 Mass. 524, 532, 510 N.E.2d 759 (Mass. 1987) (holding that the statute, which speaks in terms of a "presumption" that a defendant was under t......
  • Request a trial to view additional results
27 cases
  • Com. v. Gordon
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 10, 1996
    ...speaking which were relevant on the question of their intoxication or sobriety at the time of the assaults. See Commonwealth v. Mahoney, 400 Mass. 524, 528, 510 N.E.2d 759 (8) Did testimony of party to nonprosecution agreement deprive defendants of fair trial? The defendants challenge the j......
  • Charles v. Leo, No. 17-P-1238
    • United States
    • Appeals Court of Massachusetts
    • October 31, 2019
    ...We review the judge's limitations on opening statements and her evidentiary rulings for abuse of discretion. See Commonwealth v. Mahoney, 400 Mass. 524, 530, 510 N.E.2d 759 (1987) ; Crown v. Kobrick Offshore Fund, Ltd., 85 Mass. App. Ct. 214, 219, 8 N.E.3d 281 (2014).First, the defendants i......
  • Com. v. Lavalley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 15, 1991
    ...of that which they purport to depict, and they are not otherwise barred by an exclusionary rule." Commonwealth v. Mahoney, 400 Mass. 524, 527, 510 N.E.2d 759 (1987), quoting Commonwealth v. Harvey, 397 Mass. 351, 359, 491 N.E.2d 607 (1986). We have not, however, yet resolved "the ......
  • Brown v. State, No. 2273 September Term 2005.
    • United States
    • Court of Special Appeals of Maryland
    • November 1, 2006
    ...infer, therefrom that she was under the influence of intoxicating liquor when she was operating the van"); Commonwealth v. Mahoney, 400 Mass. 524, 532, 510 N.E.2d 759 (Mass. 1987) (holding that the statute, which speaks in terms of a "presumption" that a defendant was under t......
  • Request a trial to view additional results

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