Com. v. Tynes

• Decision Date: 06 July 1987
• Citation: 510 N.E.2d 244,400 Mass. 369
• Parties: COMMONWEALTH v. David TYNES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 244

510 N.E.2d 244

400 Mass. 369

COMMONWEALTH v. David TYNES.

Supreme Judicial Court of Massachusetts Middlesex.

Argued March 2, 1987.

Decided July 6, 1987.

Joseph F. Annunziata, Jr., Framingham, for defendant.

Fern L. Nesson, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

The defendant was convicted by a jury of six on one count of operating a motor vehicle while under the influence of intoxicating liquor, his second such offense within a six-year period. See G.L. c. 90, § 24 (1)(a )(1) (1984 ed.). Prior to trial, he moved to suppress testimony concerning incriminating statements he had made on the day of his arrest. That motion was denied.

Testimony was taken at a pretrial hearing on the defendant's motion to suppress. John J. Hagan stated that at all relevant times he was employed as a police officer in the town of Littleton. He resided, however, in Holliston where, on the morning of March 30, 1985, he went jogging, dressed in a sweat suit and not showing any badge or insignia of office as a policeman. Near Phipps Hill, at 11 A.M., Hagan noticed a line of automobiles stopped at an intersection. When the light turned green, one of these vehicles remained stationary, and others were forced to drive around it. The vehicle was in gear, and the engine was running. Hagan observed the defendant at the wheel, apparently unconscious or asleep. After rapping on a window and getting no response, Hagan opened the door on the driver's side and immediately detected an odor of alcohol inside. He shook the defendant, who remained unresponsive. Hagan noted a very strong odor of alcohol on the defendant's breath. He asked a passerby to summon an ambulance.

At this point, the defendant roused himself. Hagan asked if he was all right; the defendant said "yes." Hagan asked whether he was ill or had any history of fainting or epilepsy. The defendant said "no." Hagan asked whether he knew who and where he was. The defendant gave his name and said "he was coming from Framingham and he was going home." The vehicle then started to move. Hagan reached in and "put the vehicle into the parked position." The defendant reached for the keys, but Hagan removed them from the ignition.

Hagan questioned the defendant further. In response to questions, the defendant admitted that he had been drinking on the morning in question, that he had lost consciousness due to drinking and lack of sleep, and that his drinking had "affected his operation to drive." When a Holliston police officer arrived on the scene, Hagan "conveyed [his] observations" to the officer, including his opinion that the defendant had been driving while under the influence of intoxicating liquor.

Hagan never identified himself to the defendant as a police officer, nor did he arrest the defendant or advise him of his rights. He testified that it was his understanding that his jurisdiction as an officer extended only to Littleton and contiguous towns, not including Holliston. He became involved, not as a police officer but as a certified emergency medical technician and as a "concerned citizen." On cross-examination, Hagan conceded that he did not return the automobile keys to the defendant, and he admitted that he would not have given Tynes his keys, if asked; but he said that the defendant was at all times free to leave on foot, if he chose.

The Holliston police officer, Charles Todd, testified that he arrested the defendant and advised him of his rights while driving the defendant in a cruiser to the Holliston police station. The defendant did not testify at the suppression hearing. In light of the uncontested testimony of Hagan and Todd, the judge found that Hagan had acted as a private citizen when querying the defendant; the defendant had not been in custody when Hagan questioned him; and "the Defendant's statements were voluntary, intelligently given."

In this appeal, the defendant argues that (1) suppression of his pretrial statements was compelled by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); ¹ (2) the prosecutor's closing statement was prejudicial because it implied, incorrectly, that drinking and driving (without more) is a crime in Massachusetts; (3) the judge's instructions misstated the Commonwealth's burden of proof as enunciated in Commonwealth v. Connolly, 394 Mass. 169, 474 N.E.2d 1106 (1985); (4) the judge's use in his instructions of this court's statement of the legislative purpose behind G.L. c. 90, § 24 (1984 ed.), was inflammatory; and (5) in the alternative, the standard defined in Connolly should be revised so as to permit conviction under G.L. c. 90, § 24, only on proof that intoxication caused the defendant to operate his vehicle in an "unsafe" manner. We transferred this case from the Appeals Court on our own motion, and we affirm.

1. The Miranda question. "In Miranda v. Arizona, 384 U.S. 436, 444, 461, [86 S.Ct. 1602, 1612, 1620-21, 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 was 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' (emphasis supplied). Miranda v. Arizona, supra, at 444 ." (Citation omitted.) Commonwealth v. Mahnke, 368 Mass. 662, 676, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). The judge found that the defendant was not in custody when Hagan asked him questions and, implicitly, that there was no violation of Miranda in this case because its strictures apply only to custodial interrogation by law enforcement officers or their "private proxies." Mahnke, supra 368 Mass. at 677, 335 N.E.2d 660. Hagan performed in neither capacity when he interrogated the defendant. There was no error.

It is undisputed that Hagan wore no badge of office; nor did he give any verbal indication that he was employed anywhere as a police officer. Therefore, we see no reason to suppose that the defendant's will was affected in any way by that force of "compulsion [which is] inherent in custodial surroundings," Miranda v. Arizona, supra 384 U.S. at 458, 86 S.Ct. at 1619; as a consequence, the animating concerns of Miranda are simply not implicated here. See Berkemer v. McCarty, 468 U.S. 420, 442 104 S.Ct. 3138, 3151-52, 82 L.Ed.2d 317 (1984) (where lone police officer detains motorist, asks modest number of questions, and requires performance of field sobriety test[s] at location visible to passersby, motorist is not "in custody" for purposes of Miranda ). See also Commonwealth v. Bryant, 390 Mass. 729, 736-737, 459 N.E.2d 792 (1984).

More than this, the record shows that Hagan did not suppose himself to possess a police officer's authority to arrest or otherwise to detain the defendant. Indeed, this court has recently held that "[w]hen a police officer makes a warrantless arrest outside of his jurisdiction, and not in 'fresh and continued pursuit' of the suspect within the meaning of G.L. c. 41, § 98A, then he acts as a private citizen...." Commonwealth v. Grise, 398 Mass. 247, 250, 496 N.E.2d 162 (1986), quoting Commonwealth v. Gullick, 386 Mass. 278, 282, 435 N.E.2d 348 (1982). "When police officers leave their jurisdiction 'they cease[ ] to be officers....' " Id. Thus, from the standpoint of the law, Hagan acted as he portrayed himself--in the capacity of a private citizen, to whose acts Miranda does not apply.

The defendant argues, however, that we should view Hagan as acting in the role of an adjunct or assistant to the Holliston police and not as an ordinary citizen. Without question, "the police may not accomplish through private proxies what they cannot do directly." Mahnke, supra. Statements may be suppressed for failure to give Miranda warnings where the interrogator "was 'functioning as an instrument of the police' (United States v. Brown, 466 F.2d 493, 495 [10th Cir.1972]; cf. Coolidge v. New Hampshire, 403 U.S. 443, 487 [91 S.Ct. 2022, 2048-49, 29 L.Ed.2d 564 (1971) ] ), or acting as an agent of the police pursuant to a scheme to elicit statements from the defendant by coercion or guile...." Mahnke, supra.

This argument is not persuasive. The mere fact that Hagan helped the local police is insufficient to render him an agent or an instrument of the police. This is so, not only because Hagan's efforts were no different from what would be desired or expected on the part of any private citizen, but also because there is no evidence that the Holliston police even knew about Hagan's opportunity to interrogate the defendant prior to its occurrence. Commonwealth v. Mahnke, supra 368 Mass. at 677-678, 335 N.E.2d 360. The motion to suppress was properly denied.

2. The prosecutor's argument. Over the defendant's objection, the prosecutor was permitted to argue to the jury in his summation that "[i]f you find Mr. Tynes the way he was in the morning could have done all those things [stopping at traffic lights, parking in narrow spaces, braking or steering swiftly to avoid trouble] significantly the same way as if he hadn't had anything to drink, find him not guilty." The defendant argues that the prosecutor was permitted in effect to state incorrectly that "drinking and driving [is] a crime," because the jury could have inferred from the prosecutor's statement that they were free to convict if they found "the defendant was in any way at all affected by the alcohol he had taken."

Our law provides punishment for drivers whose "consumption of alcohol diminished [their] ability to operate a motor vehicle safely" (emphasis in original). Commonwealth v. Connolly, 394 Mass. 169, 173, 474 N.E.2d 1106 (1985). The prosecutor's words did nothing more than focus the jury's...