Commonwealth v. Derrico

• Decision Date: 16 February 2022
• Docket Number: 20-P-1013
• Citation: 182 N.E.3d 343 (Table),100 Mass.App.Ct. 1124
• Parties: COMMONWEALTH v. Donald J. DERRICO.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1124

182 N.E.3d 343 (Table)

COMMONWEALTH

v.Donald J. DERRICO.

20-P-1013

Appeals Court of Massachusetts.

Entered: February 16, 2022.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

A jury of the District Court found the defendant guilty of operating a motor vehicle while under the influence of intoxicating liquor² and negligent operation of a motor vehicle. See G. L. c. 90, § 24 (1) (a ) (1) ; G. L. c. 90, § 24 (2) (a ). On appeal, the defendant argues (1) that there was insufficient evidence to sustain his conviction for negligent operation, (2) that the judge erred in admitting statements, alleged to be testimonial refusals, made by the defendant while performing field sobriety tests, and (3) that certain comments made by the prosecutor during closing argument caused a substantial risk of a miscarriage of justice. For the reasons that follow, we affirm.

Background. We summarize the relevant facts as the jury could have found them, reserving certain details for later discussion. In the evening of June 27, 2018, at around 9:50 P.M. , Sergeant Daniel Deschamps was on patrol traveling down Route 6, a forty mile per hour, four-lane highway in Eastham populated with businesses and homes. Traffic was moderate. As he drove, he spotted the defendant's dark SUV coming toward him at a high rate of speed. Deschamps used his radar device to determine that the car was driving seventy miles per hour, thirty miles over the posted speed limit. He activated his emergency lights and followed the defendant, eventually catching up with him when the defendant pulled into a local 7-Eleven store.

The defendant parked and stepped out of the vehicle. Sergeant Deschamps approached and asked him to get back in the car. The defendant stared at him blankly. Deschamps instructed him twice more before the defendant "stumbled" into the driver's seat. At this time, Deschamps detected a strong odor of alcohol coming from the car. Nevertheless, he informed the defendant that he was being pulled over for speeding and asked him to produce his license and registration. The defendant appeared to comply, slowly searching through papers in his glove compartment before producing a receipt for an oil change. When Sergeant Deschamps informed him that the receipt was not his registration, he again looked through the papers and, this time, produced his State vehicle inspection report. The defendant likewise struggled to locate and produce his license even though it was in his wallet lying next to him. Deschamps next inquired whether the defendant had had anything to drink. The defendant admitted that he had, but when asked how many drinks he consumed, he replied, "not much." Throughout the course of these interactions, Sergeant Deschamps noticed that the defendant's eyes were "red and watery" and that his speech was "slow and slurred."

The defendant agreed to take some field sobriety tests. Deschamps instructed the defendant to recite the alphabet; the defendant did so but paused after realizing that he had skipped the letter F. On his second attempt, the defendant reached the letter H before beginning to mumble and eventually stopping this test altogether. Sergeant Deschamps then asked him to complete the one-leg stand test,³ a test which contains an instructional phase, where the motorist listens to the officer's directions and views a demonstration, and an execution phase. The defendant improperly began the test during the instructional phase, as Deschamps was still providing the demonstration. The defendant attempted to lift his foot off the ground and quickly threw up his arms in an effort to keep his balance. Deschamps cautioned the defendant not to start the test until he was instructed to do so and began to give the instructions a second time. But the defendant again failed to pay attention to the instructions and attempted the test. Deschamps gave him another reminder not to start. After receiving this reminder, the defendant paused, leaned back against the car as if to maintain his balance, and "stared off to the side," not responding to Deschamps or making eye contact with him. Deschamps asked the defendant if he was okay, and the defendant stared at the ground for several seconds before putting up his arms and stating, "Take me in," "Take me in."⁴ Given the defendant's appearance, speech, behavior, speed, failed sobriety tests, and smell of alcohol, Sergeant Deschamps concluded that he was under the influence of alcohol and took him into custody. The defendant was later charged, and his trial held in October of 2019.

Discussion. 1. Sufficiency of the evidence. After the Commonwealth rested its case at trial, the defendant moved for a required finding of not guilty on the negligent operation charge. The judge denied the motion, allowing the case to proceed to the jury. The defendant now argues that this denial was error because the evidence was insufficient to satisfy the third element of negligent operation: that the defendant operated his vehicle negligently "so that the lives or safety of the public might be endangered." G. L. c. 90, § 24 (2) (a ). We disagree.

We review the denial of a motion for a required finding of not guilty in the light most favorable to the Commonwealth to determine whether "[a]ny rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (citation omitted). Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979). General Laws c. 90, § 24 (2) (a ), requires the Commonwealth to prove only that the defendant's operation may have endangered the lives or safety of the public; it need not prove actual endangerment. Commonwealth v. Daley, 66 Mass. App. Ct. 254, 256 (2006). The occurrence of a collision or even erratic driving by the defendant is therefore not required.⁵ See Commonwealth v. Teixeira, 95 Mass. App. Ct. 367, 370-371 (2019). However, "[e]xcessive speed," standing alone, does not "mandate a finding" of potential endangerment, though it may be sufficient in combination with other evidence. Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 922 (2004). Among the other evidence we consider is the time, place, and conditions in which the defendant was traveling, see id. at 922-923, as well as his behavior when interacting with the police, including his inability to follow the directions of an officer, see Commonwealth v. Tsonis, 96 Mass. App. Ct. 214, 220 (2019).

Here, the Commonwealth presented evidence that the defendant was driving while intoxicated, thirty miles over⁶ the speed limit,⁷ in a populated area during its busy season, in moderate traffic, and late at night as well as that he appeared dazed and struggled to comply with police orders.⁸ Viewed in the light most favorable to the Commonwealth, this evidence was more than sufficient to allow a rational trier of fact to find, beyond a reasonable doubt, that the defendant's driving could have posed a risk to others. See Latimore, 378 Mass. at 676-677 ; Daley, 66 Mass. App. Ct. at 256.

2. The defendant's statements during the field sobriety test. The defendant next argues that the admission of his statement, "Take me in," violated his rights under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights against self-incrimination as well as his right to due process.⁹

Prior to trial, defense counsel filed a motion in limine to exclude the statements, "Take me in," and, "I'm done," made by the defendant during the field sobriety tests, arguing that they were protected testimonial refusals. After hearing arguments from both sides, the trial judge excluded the statement, "I'm done," but allowed the statement, "Take me in." Defense counsel properly objected.

Because the judge's "ultimate findings and rulings bear on issues of constitutional dimension, they are open for review,"¹⁰ and we must "make our own independent determination on the correctness of the judge's application of constitutional principles to the facts as found" (quotation and citation omitted). Commonwealth v. Grenier, 45 Mass. App. Ct. 58, 61 (1998). See Commonwealth v. Brown, 83 Mass. App. Ct. 772, 774-779 (2013). If we conclude that the judge committed error, we must ascertain whether it was harmless beyond a reasonable doubt. See Commonwealth v. Tyree, 455 Mass. 676, 700-701 (2010) ; Grenier, supra at 62.

Article 12 of the Massachusetts Declaration of Rights¹¹ precludes the use of "evidence that is (1) the product of governmental compulsion and (2) testimonial." Brown, 83 Mass. App. Ct. at 775. Our cases have held that a defendant's refusal to perform a police sobriety test is both testimonial, because it reveals the defendant's "consciousness of guilt," and compelled, because the defendant is forced to choose "between two alternatives, both of which are capable of producing evidence against him." Opinion of the Justices, 412 Mass. 1201, 1202 n.1 & 1211 (1992). See Brown, supra at 777, quoting Commonwealth v. Lopes, 459 Mass. 165, 170 (2011) ("admissibility of such a refusal would place a defendant in a coercive ‘Catch-22’ situation"). A driver faces an impossible "Catch-22" -- they can either "take the test and perhaps produce potentially incriminating real evidence" or "refuse and have adverse testimonial evidence used against [them] at trial."¹² Brown, supra at 775, quoting Opinion of the Justices, 412 Mass. at 1211. This is the case "[e]ven if the defendant agrees to perform field sobriety tests and attempts one or more of the tests administered by the officer" before refusing to proceed further. Brown, supra at 779. Where a defendant consents to take a test, however, and makes unsolicited comments while endeavoring to perform it, such comments are admissible as they are not "the products of compulsion." Id. See Commonwealth v. Sands, 424 Mass. 184, 189 (1997) (no "Catch-22" situation where defendant "merely had to say, ‘No’ to withhold consent to taking [a] breathalyzer test, but instead, he blurted-out that he was intoxicated...