Com. v. Smith, 92-P-1805

• Decision Date: 01 February 1994
• Docket Number: No. 92-P-1805,92-P-1805
• Citation: 624 N.E.2d 604,35 Mass.App.Ct. 655
• Parties: COMMONWEALTH v. Charles E. SMITH, Fourth.
• Court: Appeals Court of Massachusetts

Page 604

624 N.E.2d 604

35 Mass.App.Ct. 655

COMMONWEALTH v. Charles E. SMITH, Fourth.

No. 92-P-1805.

Appeals Court of Massachusetts Suffolk.

Argued Sept. 17, 1993.

Decided Dec. 23, 1993.

Further Appellate Review Denied Feb. 1, 1994.

Dennis J. Kelly, Boston, for defendant.

Susan Underwood, Asst. Dist. Atty., for Com.

Before PERRETTA, KASS and PORADA, JJ.

KASS, Justice.

At about 1:30 A.M. on March 22, 1991, a light blue-silver Dodge minivan (the "van"), with the defendant Charles E. Smith, Fourth, at the wheel, struck and killed two Boston University undergraduates as they crossed Commonwealth Avenue in Boston. The van braked, but did not stop, and sped off. Police stopped the van shortly past 1:40 A.M., as it turned onto Boylston Street after travelling in a southerly direction on Massachusetts Avenue (i.e., away from the Charles River). They arrested Smith.

A jury returned verdicts finding Smith guilty of two counts (one count for each victim) of operating a motor vehicle negligently, causing death to another (G.L. c. 90, § 24G), and two counts of leaving the scene of an accident without making himself known (G.L. c. 90, § 24[a], as in effect prior to St.1991, c. 460, § 2). ¹ All told, the defense argues eight categories of error on appeal, some of which we can consider under a common topic heading. We affirm the convictions.

1. Admissibility of the defendant's prearrest and postarrest statements. When the police brought the van to a stop, one officer approached the driver's side and opened the door and the other officer went to the passenger side. Before either officer spoke, the driver, the defendant Smith, said, "Why did you stop us? We didn't hit anything." ² Both officers had noticed that the van had considerable front end damage. Officer D'Entremont, the officer who had come to the driver's side, asked Smith what had happened to his car. Smith's response was, "I don't know." During that exchange,D'Entremont smelled alcohol on Smith's breath. D'Entremont asked Smith for his license and registration and to step out of the van and over to the sidewalk. At that point, D'Entremont's partner, Officer MacDonald, read Smith his Miranda rights.

After MacDonald advised Smith of his Miranda rights, D'Entremont asked Smith if he had been drinking. Smith acknowledged a couple of beers at Zanzibar, a Boston night club. D'Entremont requested Smith to perform some field sobriety tests, a heel to toe walking test and a recitation of the alphabet test. In the officer's judgment, although Smith recited the alphabet satisfactorily, he failed the walking test, and D'Entremont thereupon placed Smith under arrest.

In his appeal, Smith urges that he was in custody from the instant the van was stopped and that the inculpatory statements he made before he received the Miranda warning should have been suppressed. The Miranda warnings ³ are required when police officers have begun a custodial interrogation, i.e., when the person questioned has been taken into custody or, as a practical matter, is not free to move away. Commonwealth v. Merritt, 14 Mass.App.Ct. 601, 604, 441 N.E.2d 532 (1982). To be sure, when a police officer makes a motor vehicle pull over, the driver is not free to move away, but it would surely be untoward to require that a police officer approach a stopped vehicle declaiming the Miranda warnings.

As to the first inculpatory statement by Smith, ⁴ the claim of unconstitutional custodial inquisition requires no discussion because Smith spoke before he was spoken to. See Commonwealth v. Trigones, 397 Mass. 633, 643, 492 N.E.2d 1146 (1986); Commonwealth v. Delrio, 22 Mass.App.Ct. 712, 717, 497 N.E.2d 1097 (1986). The second inculpatory statement ⁵ was made in response to a question by D'Entremont but, in the case of motor vehicle accidents, some preliminary questions are permissible to enable the police to orient themselves, and we have not considered that sort of field investigation to establish a custodial environment which triggers the need for Miranda warnings. Commonwealth v. Merritt, 14 Mass.App.Ct. at 604-605, 441 N.E.2d 532. See also Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966); Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977); Commonwealth v. Doyle, 12 Mass.App.Ct. 786, 792-794, 429 N.E.2d 346 (1981); Commonwealth v. McNelley, 28 Mass.App.Ct. 985, 986, 554 N.E.2d 37 (1990); Commonwealth v. Ayre, 31 Mass.App.Ct. 17, 20-21, 574 N.E.2d 415 (1991). In this case the stop of the van was in response to relatively fast breaking developments. Radio broadcasts made by Boston police headquarters about the accident on Commonwealth Avenue had described a blue or silver van as involved. An alert taxicab driver had noted the license plate number of the van and had communicated that to the police, but the correct license number was in the process of confirmation as D'Entremont and MacDonald chased the van around the corner of Massachusetts Avenue and Boylston Street onto Boylston Street. Asking Smith what had happened to his obviously damaged car, especially when he had volunteered that he had not hit anything, was consistent with the duty of the officers to take some prefatory steps before focussing on Smith as a suspect and detaining him. The streetside question put to Smith was not an "incommunicado interrogation ... in a police-dominated atmosphere" of the sort with which the Miranda case was concerned. See Miranda v. Arizona, 384 U.S. at 445, 86 S.Ct. at 1612; Commonwealth v. Bryant, 390 Mass. 729, 736-738, 459 N.E.2d 792 (1984).

Smith's admitting to the "couple of beers at Zanzibar's" occurred after MacDonald had delivered the Miranda warnings to Smith for the first time. The sobriety tests and arrest followed, and at that point MacDonald restated the Miranda warnings. On the way to the police station in a police cruiser, Smith volunteered three times that he had not run any red lights. At the police station Smith was informed of his Miranda rights for a third time. Smith's grounds for suppression of the statements is that after the half-pass and half-fail results of the sobriety tests, the police no longer had probable cause to arrest him and he should not have been in custody. That argument lacks even the plausibility of sophistry. There were abundant reasons for the police to have taken Smith into custody: the vehicle he was driving matched the description of a van involved in a hit and run accident; the license plate number matched the number of the van which fled from the scene of the accident; the damage to the front of the van was consistent with its having struck something--like bodies; and Smith, in addition to conceding some drinking, had failed the walking sobriety test.

The inculpatory statements made after Smith had received the Miranda warnings--the statement (in response to a question) that he had been drinking and the statements (without the stimulus of a question) that he had not run red lights--were determined by the motion judge to have been the product of a knowing and voluntary waiver of the right to remain silent. For that conclusion there was sufficient basis in the record. There is no testimony suggesting that the police had cajoled Smith into conversation. Smith stoutly claims not to have been seriously under the influence of alcohol at any time during the night and, therefore, cannot claim that intoxication deprived him of the ability to have waived his right to remain silent knowingly and voluntarily. It was not necessary to repeat the Miranda warnings, so recently given, as Smith stepped into the police cruiser. See generally Commonwealth v. Silva, 388 Mass. 495, 500-501, 447 N.E.2d 646 (1983).

2. Admission of breathalyzer test results. The motor vehicle homicide indictments charged Smith with having been under the influence of intoxicating liquor. G.L. c. 90, § 24G(a). A lesser offense included in that indictment was operating a motor vehicle in a reckless or negligent manner so that the lives or safety of the public might be endangered and causing death thereby, i.e., without the factor of intoxication. G.L. c. 90 § 24G(b). Implicit in the jury's verdict that the defendant was guilty, not as charged but of the lesser offense, is a finding that the defendant was not under the influence of intoxicating liquor. One may fairly ask, therefore, whether the issues Smith raises on appeal about breathalyzer test evidence or retroactive extrapolation (see part 3 of this opinion) are moot in light of the verdict. Consumption of alcohol without intoxication, however, may be evidence of negligence, Commonwealth v. Woods, 414 Mass. 343, 350, 607 N.E.2d 1024 (1993), and the blood alcohol content (BAC) test material could have had a bearing on the jury's findings of negligence. The better course is to consider the defendant's arguments relating to alcohol.

As to the breathalyzer or BAC test, the defense argument is that the government failed to establish that the breathalyzer machine had been tested conformably with a "periodic testing program." See 501 Code Mass.Regs. §§ 2.00-2.57 (1987). Before breathalyzer test results may be admitted in evidence, the Commonwealth must "establish (1) the existence of, and (2) compliance with, the requirements of the 'periodic testing program.' " Commonwealth v. Barbeau, 411 Mass. 782, 786, 585 N.E.2d 1392 (1992). Such a program is distinct from the parallel program of semi-annual recertification of breath testing devices by the office of alcohol testing (OAT) ⁶ required under G.L. c. 90, § 24K, and 501 Code Mass.Regs. §§ 2.40 and 2.41 (1992). In Morris v. Commonwealth, 412 Mass. 861, 863, 593 N.E.2d 241 (1992), the court observed that the Secretary of Public Safety, in reaction to the Barbeau case, had established guidelines for a periodic testing program. Those guidelines imposed upon the police responsibility for testing breath analysis machines and provided that ...