Commonwealth v. Liptak

• Decision Date: 11 August 2011
• Docket Number: No. 09–P–372.,09–P–372.
• Parties: COMMONWEALTHv.Jacob M. LIPTAK.
• Court: Appeals Court of Massachusetts

80 Mass.App.Ct. 76

951 N.E.2d 731

COMMONWEALTH

v.Jacob M. LIPTAK.

No. 09–P–372.

Appeals Court of Massachusetts, Hampshire.

Argued Dec. 8, 2010.Decided Aug. 11, 2011.

Carlene A. Pennell for the defendant.Judith Ellen Pietras, Assistant District Attorney, for the Commonwealth.Present: COHEN, GRAHAM, & WOLOHOJIAN, JJ.GRAHAM, J.

The defendant, Jacob M. Liptak, was convicted by a Superior Court jury of manslaughter by motor vehicle while operating under the influence of alcohol, G.L. c. 265, § 13 1/2. The defendant filed a timely appeal from his conviction, and this court stayed the appellate process pending the resolution of his motion for a new trial and motion for a stay of sentence. After a nonevidentiary hearing, the motion for a new trial was denied by the trial judge. Represented by new counsel, the defendant appeals from his conviction and from the order of the trial judge denying his motion for a new trial.

On appeal the defendant argues error in the denial of his motion to suppress, in the admission in evidence of graphic photographs of the accident scene and the victim's injuries, and in the prosecutor's closing argument. In addition, he asserts that his trial counsel provided ineffective assistance. We affirm the defendant's conviction and the order denying the motion for a new trial.

1. Facts. The facts from the trial are recited in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676–677, 393 N.E.2d 370 (1979). On the evening of December 17, 2005, the defendant and his then girlfriend, Samantha Serre,¹ were driving home from a party when the defendant caused a three-car collision. The defendant's pickup truck was traveling approximately fifty to sixty miles per hour when it crossed the center line of the road and struck the left front corner of the victim's car, then rotated counterclockwise and collided with a second car traveling behind the victim's car. The victim suffered fatal injuries at the scene of the collision.

The left front and driver's side of defendant's truck was severely damaged. Inside the truck, officers found a full beer bottle and an empty beer bottle, as well as a pair of women's shoes on the floor of the passenger side. Officer Corey Robinson of the Northampton police department arrived on the scene and observed Serre, who had suffered only minor injuries, sitting on the ground next to the front passenger side tire of the defendant's vehicle, without shoes.

Deoxyribonucleic acid (DNA) testing conducted by the Massachusetts State Police crime laboratory concluded that reddish-brown stains found above the glove compartment and the passenger door matched the DNA profile of the defendant, but not that of Serre. DNA recovered from the driver's side airbag, which had deployed during the collision, contained a mixture of at least two individuals, and the defendant matched the major DNA profile. According to the Commonwealth's biomechanics expert witness, the driver of a car involved in a frontal offset collision, such as this one, would suffer low extremity trauma to the foot and ankle. Where the driver's side airbag has deployed, the driver of the vehicle would sustain injuries of greater severity than those sustained by an unrestrained passenger, who may not experience a greater likelihood of head or facial injuries.

In addition to these facts, there was evidence of inculpatory statements made by the defendant to the police at the scene and at the hospital. This evidence had been the subject of the defendant's unsuccessful motion to suppress; its substance is recounted below.

2. Motion to suppress. We summarize the underlying facts as found by the motion judge. On the evening of December 17, 2005, at approximately 11:20 p.m., Officer Robinson was dispatched to the scene of a collision involving three motor vehicles. Emergency medical technician (EMT) Jason Budlong arrived and observed the defendant, who was unconscious, partially hanging out of the front passenger side window of his vehicle. The defendant's right leg was severely injured and he was bleeding from a head injury.

After Robinson and Budlong moved the defendant from the vehicle onto a stretcher, the defendant regained consciousness and appeared alert enough to be questioned. In response to Robinson's questions, the defendant stated his name, that he had been driving the vehicle, and that he had consumed “[o]ne or two” drinks. The defendant responded to Robinson without hesitation or apparent difficulty. Both Robinson and Budlong believed the defendant to be alert and oriented as to person, place, and time.

After Budlong loaded the defendant in an ambulance, the defendant stated, “I'm never going to drink again.” In response to Budlong's questions, he again affirmed that he had been drinking that night and that he had been the driver of the vehicle. The defendant also apologized to Serre, also present in the ambulance, and would pause in his conversation with her to answer Budlong's questions. Although Budlong noticed a strong odor of alcohol from the defendant's breath and determined that the defendant could not clearly recall the circumstances of the collision, the defendant did not appear to have difficulty responding to Budlong, nor did he exhibit signs of a concussion.

The defendant was transported to Bay State Medical Center, where, at approximately 12:30 a.m., he was administered morphine and, at about 1:00 a.m., oxycodone, for pain. Hospital personnel then conducted an assessment and determined that the defendant was alert and oriented as to person, place, and time. The hospital records indicate that his serum blood-alcohol level was 218, equivalent to a whole blood alcohol level of 0.19 parts per million. It was later determined that the defendant had suffered fractures of his right tibia and fibula, a concussion, and lacerations to his head and face.

Officer Robinson arrived at the hospital at approximately 2:30 a.m. to interview the defendant. The defendant's face appeared swollen and he was wearing a neck collar. Robinson also noted that the defendant's eyes were bloodshot. The defendant accurately stated his date of birth and social security number and responded to Robinson's questions without hesitation. Robinson gave the defendant his warnings, see Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and informed him that he was not going to be arrested that night. The defendant indicated that he understood his Miranda rights. In response to Robinson's questions, the defendant affirmed that he had been driving the vehicle home from a party and that he had consumed two beers over the course of the evening. The defendant's mother, who worked as a nurse at another hospital, was present during the interview and asked Robinson if the defendant should get a lawyer, to which Robinson replied that he was unable to give any legal advice.

The defendant claims that his statements made to EMT Budlong and Officer Robinson should have been suppressed because they were made involuntarily. Reviewing the denial of the defendant's motion to suppress, we accept the judge's resolution of conflicting testimony and his findings absent clear error and give substantial deference to his conclusions. Commonwealth v. Fernette, 398 Mass. 658, 662–663, 500 N.E.2d 1290 (1986). Commonwealth v. Rodriguez, 425 Mass. 361, 364, 682 N.E.2d 591 (1997). However, we “make an independent determination of the correctness of the judge's application of constitutional principals to the facts as found.” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting from Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

To make a determination of voluntariness, we consider whether, under “the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.” Commonwealth v. Selby, 420 Mass. 656, 662–663, 651 N.E.2d 843 (1995). Under this standard, relevant circumstances include, inter alia, the “conduct of the defendant, the defendant's age, education, intelligence and emotional stability, ... physical and mental condition, ... and the details of the interrogation, including the recitation of Miranda warnings.” Commonwealth v. Mandile, 397 Mass. 410, 413, 492 N.E.2d 74 (1986).

The first of the contested statements was made by the defendant in the immediate aftermath of the collision, and other contested statements were made several hours later at the hospital. At the accident scene, the defendant had suffered a concussion, which rendered him unconscious for a short period of time, and a broken leg, resulting in substantial pain, and he was anxious and apologetic in his conversations with Serre. He had also consumed alcohol prior to the collision and was later given pain medication at the hospital. The defendant argues that the effects of the combination of injury, alcohol, emotional distress, and prescription medication rendered his statements, both at the accident scene and in the hospital, involuntary.

Although a defendant's intoxication bears on whether his statements are voluntary, see Commonwealth v. Taylor, 398 Mass. 725, 728–729, 500 N.E.2d 799 (1986); Commonwealth v. Prater, 420 Mass. 569, 579, 651 N.E.2d 833 (1995), it does not necessarily mandate a finding of involuntariness. Commonwealth v. St. Peter, 48 Mass.App.Ct. 517, 521–522, 722 N.E.2d 1002 (2000), quoting from Commonwealth v. Smith, 426 Mass. 76, 82, 686 N.E.2d 983 (1997). See Commonwealth v. Ward, 426 Mass. 290, 294, 688 N.E.2d 227 (1997). The motion judge found, and the findings are supported by the record from the motion hearing, that the evidence of the defendant's intoxication notwithstanding, the defendant was alert, coherent, and understood the questions posed to him. Two experienced emergency personnel concluded that the defendant...