Commonwealth v. Bigley

• Decision Date: 24 June 2014
• Docket Number: No. 13–P–539.,13–P–539.
• Parties: COMMONWEALTH v. Ronnie R. BIGLEY.
• Court: Appeals Court of Massachusetts

85 Mass.App.Ct. 507

11 N.E.3d 1086

COMMONWEALTH

v.Ronnie R. BIGLEY.

No. 13–P–539.

Appeals Court of Massachusetts,

Plymouth.

Argued April 7, 2014.

Decided June 24, 2014.

Maurice A. Reidy, III, for the defendant.

Stacey L. Gauthier, Assistant District Attorney, for the Commonwealth.

Present: KANTROWITZ, AGNES, & HINES, JJ.

AGNES, J.

The defendant, Ronnie R. Bigley, after a trial by jury, was found guilty of operating a motor vehicle while under the influence of alcohol (OUI) and, following a second, jury-waived trial pursuant to G.L. c. 278, § 11A, was found guilty on the second or subsequent offense portion of the complaint charging that he was a fourth offender in violation of G.L. c. 90, § 24(1)( a )(1). The defendant also was convicted on a count charging him with burning a motor vehicle, in violation of G.L. c. 266, § 5. The principal issue on appeal is the admissibility of statements made by the defendant to Bridgewater police officers and a Bridgewater fire department arson investigator. The defendant maintains that he was so intoxicated and highly emotional that he was incapable of waiving his Miranda rights as a matter of law based on the reasoning in Commonwealth v. Hosey, 368 Mass. 571, 334 N.E.2d 44 (1975) ( Hosey ), and that the judge erred in not suppressing his statements. As we explain below, this argument is based on a misreading of Hosey. Regrettably, the judge did not make subsidiary findings of fact. However, the facts necessary to decide the legal questions involved appear with sufficient clarity to permit review without the need to remand the case for preparation of findings of fact. Accordingly, we affirm.

Background. These facts are drawn from the testimony of Bridgewater police Officers Silvia and Gray, and Bridgewater fire department Deputy Chief Levy, the three witnesses who testified at the hearing on the pretrial motion to suppress.¹ In the early morning hours of September 26, 2010, Officer Silvia and Sergeant Griffiths, veteran officers of the Bridgewater police department, arrived at the intersection of Crapo and Oak Streets, where a motorcycle, lying on its side, was in flames. The officers checked the motorcycle's license plate number and determined that it belonged to the defendant.

About one-quarter mile away on Oak Street, Officer Gray observed a pedestrian who was “unsteady on his feet,” with glassy, bloodshot eyes, who was walking against the traffic and “side to side as if to be losing his balance.” Officer Gray stopped the pedestrian, who seemed “very agitated.” The pedestrian identified himselfas Ronnie Bigley. Officer Gray detected a “strong odor of alcohol” on the defendant's breath. Officer Gray advised the defendant of the Miranda rights almost immediately after stopping him. The defendant said he understood his rights. When asked where he was coming from, he replied, “[T]he Toby Keith concert.” Officer Gray contacted Officer Silvia, who was familiar with the defendant, to confirm the pedestrian's identity. Officer Silvia arrived shortly after Officer Gray encountered the defendant. Officer Gray then verbally gave the defendant the Miranda warnings. The defendant told the officers he understood his rights.

Officer Silvia noted that the defendant was “very emotional.” When questioned, he kept repeating: “I'm fucked, my marriage is over, there goes my kid, I'll be going away for the next three to five years.” However, the defendant gave a coherent account of his activities earlier that evening and morning. He told the police he had been at the Toby Keith concert, and subsequently had gone to the Riviera Café in Bridgewater, which is about one hundred yards from the accident scene. The defendant also told the police he had driven his motorcycle from the concert to the Riviera Café. At this point, the defendant became very agitated. Officer Gray handcuffed the defendant while Officer Silvia frisked him and placed him in the police cruiser. The defendant was then transported to the police station for booking.

At the station, the defendant was again advised of his Miranda rights. Officer Silvia read the Miranda warnings from a printed form. He observed the defendant, who also appeared to read the form and then signed it. When asked if he wished to continue to speak with the police, the defendant responded, “[Y]es.” He declined the invitation to perform field sobriety tests and to take a Breathalyzer test. About one hour after the defendant's arrival at the station, Deputy Chief Levy, an arson specialist who had been to the scene of the motorcycle fire, spoke with the defendant. Levy told the defendant that it was his job to determine the cause of the fire. He told the defendant that he needed information about the ownership of the motorcycle and how it came to be in the location where it was found. Deputy Chief Levy found the defendant to be cooperative, and noted that the defendant did not refuse to answer any of his questions. When the option of filing a stolen vehicle report was explained to him, the defendant stated that he did not want to file such a report.

When asked about his activities earlier that evening, the defendant stated that following the Toby Keith concert, he stopped at a 7–Eleven store in Easton, and then headed towards a restaurant or a bar named the Riviera Café on Crapo Street in Bridgewater. He said he got there around 11:00 p.m. and left at closing, which is 1:00 a.m. The defendant told Deputy Chief Levy that, at last call, he had a few drinks. He went outside to have a cigarette, and an individual that he identified as his uncle, but whose name he did not know, told him that he should not ride home and pushed him. And the defendant concluded by saying that his uncle left on the motorcycle.

Defense counsel filed a pretrial motion to suppress the defendant's statements, contending that the defendant's intoxication and emotional condition required a ruling that the Commonwealth had failed to sustain its burden of proving a waiver of his Miranda rights. The motion judge, after a hearing, denied the motion, concluding that “Miranda [w]arnings were properly given and waived” and that “[a]ll statements made by the defendant were made voluntarily and are admissible.” ² She made no subsidiary findings of fact to support these rulings.

Discussion. 1. Motion to suppress statements. a. Judge's failure to make subsidiary findings of fact. The judge should have made subsidiary findings to support her ultimate conclusions. “The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court.” Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980). Because only the trial judge can assess credibility, see Commonwealth v. Santo, 375 Mass. 299, 303, 376 N.E.2d 866 (1978), in certain circumstances the absence of subsidiary findings of fact will necessitate a remand of the case for findings to be made or for a new hearing. See Commonwealth v. Isaiah I., 448 Mass. 334, 338, 861 N.E.2d 404 (2007), S.C., 450 Mass. 818, 882 N.E.2d 328 (2008); Commonwealth v. Comolli, 14 Mass.App.Ct. 607, 613–614, 441 N.E.2d 536 (1982); Commonwealth v. Green, 27 Mass.App.Ct. 762, 771, 543 N.E.2d 424 (1989), S.C.,408 Mass. 48, 556 N.E.2d 387 (1990). The present case falls into that category of cases in which there is no evidence of police coercion or intimidation, and no conflicts in the testimony that require the judge to resolve credibility issues. As the Supreme Judicial Court noted in Commonwealth v. Brady, 380 Mass. 44, 410 N.E.2d 695 (1980):

“Although we have stated that it is both prudent and desirable for a judge to make a record of facts found in a voir dire hearing on the admissibility of evidence, we have not held that unmistakable clarity mandates an absolute requirement that such a record be made. Failure to make explicit findings does not in and of itself constitute reversible error. Where, as in the present case, the evidence presented at the voir dire is not conflicting and does not raise any question of custodial coercion, the judge's decision to admit the defendant's statements makes his conclusions as to voluntariness clearly evident from the record. We emphasize, however, that we in no way condone the judge's failure to make findings.”

Id. at 52, 410 N.E.2d 695 (quotations and citations omitted). See Commonwealth v. Parham, 390 Mass. 833, 837, 460 N.E.2d 589 (1984) ( Parham ); Commonwealth v. Foley, 445 Mass. 1001, 1002–1003, 833 N.E.2d 130 (2005), cert. denied, 548 U.S. 927, 126 S.Ct. 2980, 165 L.Ed.2d 990 (2006); Commonwealth v. Hoyt, 461 Mass. 143, 147 n. 5, 958 N.E.2d 834 (2011); Commonwealth v. Deloney, 59 Mass.App.Ct. 47, 60, 794 N.E.2d 613 (2003). Here, “the judge's denial of the defendant's motion implies the resolution of factual issues in favor of the Commonwealth.” Commonwealth v. Lanoue, 392 Mass. 583, 587 n. 2, 467 N.E.2d 159 (1984). See Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967); Commonwealth v. Forrester, 365 Mass. 37, 45–46, 309 N.E.2d 190 (1974). ³

b. Waiver of Miranda rights. Although the police advised the defendant of his Miranda rights soon after they first observed him, they were not required to do so because the encounter was not custodial. “There is no requirement that warnings be given prior to ‘[g]eneral on-the scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process.’ ” Commonwealth v. Merritt, 14 Mass.App.Ct. 601, 604, 441 N.E.2d 532 (1982), quoting from Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See Vanhouton v. Commonwealth, 424 Mass. 327, 331, 676 N.E.2d 460, cert. denied, 522 U.S. 834, 118 S.Ct. 104, 139 L.Ed.2d 59 (1997). Further, the evidence indicates that to a large extent, the defendant spoke without any prompting or questioning by the police, and thus his statements were outside the...