Commonwealth v. Senior

• Decision Date: 08 January 2001
• Citation: 744 NE 2d 614,433 Mass. 453
• Parties: COMMONWEALTH v. ROBERT B. SENIOR.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

433 Mass. 453

744 NE 2d 614

COMMONWEALTH v. ROBERT B. SENIOR.

Supreme Judicial Court of Massachusetts, Plymouth.

January 8, 2001.

March 13, 2001.

Present: GREANEY, IRELAND, SPINA, & SOSMAN, JJ.

Kevin J. Reddington for the defendant.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.

IRELAND, J.

The defendant, Robert B. Senior, was convicted of vehicular homicide and sentenced to from three to five years in prison.¹ We granted his application for direct appellate review. On appeal, the defendant claims the motion judge erred in admitting the results of the defendant's blood alcohol test and that the trial judge erred in allowing the Commonwealth's expert to employ retrograde extrapolation to determine the defendant's blood alcohol content at the time of the collision, in denying his motion in limine, and in permitting the prosecutor to comment on the defendant's post-Miranda silence. He contends that these errors warrant dismissal of the indictment. We disagree and affirm the conviction.

1. Background. On April 5, 1997, the defendant met friends at a restaurant and lounge, where he consumed four to six beers in a two-hour period. At approximately 6:50 P.M., after leaving the restaurant, the defendant drove down Route 44 in excess of the speed limit and crashed into the victim's car, which had apparently stalled on the roadway. The victim was pronounced dead, of multiple injuries sustained in the collision, at a hospital.

Officers Kevin Furtado and Stephen Viella of the Plymouth police department arrived at the scene of the collision, and both spoke with the defendant. Officer Viella testified that the defendant smelled of alcohol, had slurred speech, and was unsteady on his feet. On this basis, he determined that the defendant was intoxicated. Shortly thereafter, Officer Furtado read the defendant the Miranda warnings, which the defendant indicated he understood. Thereafter, in response to Officer Furtado's questions, the defendant admitted that he had "a couple of beers" and did not see the victim's car before he struck it. When the officer asked him where he had been drinking prior to these events, the defendant did not respond. This was the only question he failed to answer and, thereafter, he cooperated with Furtado by retrieving his license and registration and answering other questions relating to the accident. After the defendant performed poorly on three field sobriety tests, Officer Furtado also concluded that the defendant was intoxicated and placed him under arrest. The defendant was taken to the police station.

Later that night, the defendant's attorney² went to the police station and secured the defendant's release. They eventually went to a hospital. Sometime after 11 P.M., hospital personnel performed a blood alcohol test on the defendant, at the attorney's request. The attorney testified at a pretrial hearing that he had this test conducted because he thought it would be a "useful defense tool," if it reflected the defendant's sobriety. The results of the test indicated that the defendant's blood alcohol level was .091.

At trial, the Commonwealth's expert witness, Dr. Guy Vallaro, employing retrograde extrapolation with respect to the results of the blood alcohol content test, estimated that the defendant's blood alcohol level at the time of the collision was between .099 and .148. Additional facts will be presented with respect to each issue.

2. Admission of the defendant's blood test results. The defendant first claims that the Commonwealth improperly acquired and introduced, both before the grand jury and at trial, the results of his blood alcohol test, conducted by hospital personnel for the sole purpose of defending against the charge of vehicular homicide. On this basis, the defendant maintains his motion to dismiss the indictment should have been allowed. He sets forth a number of grounds in support of this contention, all of which depend on the hospital personnel qualifying as agents of the defendant and his attorney. These arguments fail because we conclude that the hospital personnel were neither the defendant's nor the attorney's agents.

The defendant maintains that the hospital personnel became his agents, i.e., members of his defense team, when they drew and tested his blood at his counsel's request, as part of the defense effort to gather potentially exculpatory evidence. However, there was no such agency relationship shown between the defendant and the hospital personnel. Commonwealth v. Rosenberg, 410 Mass. 347, 354 (1991). Nothing in the record indicates that the hospital's employees manifested the requisite consent to act in that capacity. Kirkpatrick v. Boston Mut. Life Ins. Co., 393 Mass. 640, 645 (1985), quoting Restatement (Second) of Agency § 1 (1958) (agency relationship "results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control"). See Commonwealth v. Rosenberg, supra. Moreover, although the defendant and his attorney may have hoped and intended that the hospital's employees would be their agents, the record does not suggest that they ever expressly communicated that expectation to the hospital's employees.³ Thus, the hospital personnel were not acting as the defendant's agents when they conducted the blood alcohol test.

The defendant asserts that the Commonwealth improperly used a grand jury subpoena to obtain the hospital record of the blood test results in violation of S.J.C. Rule 3:08, PF 15, 396 Mass. 1217 (1986), which governed grand jury subpoenas to attorneys.⁴ Under this rule, "[s]ubpoenaing an agent carries the risk that confidential information imparted by the attorney to the agent in order to conduct an effective investigation may be disclosed through the agent .... Turning members of the defense team into government witnesses may undermine a client's trust in, and his willingness to communicate with, his attorney." Matter of a Grand Jury Investigation, 407 Mass. 916, 918-919 (1990). In light of our conclusion that the hospital personnel were not agents of the defense team, the Commonwealth did not violate PF 15 by subpoenaing the results of the test.

Additionally, the defendant asserts that, by subpoenaing the test results, the Commonwealth violated "multiple privileges." Because we do not recognize a statutory patient-physician testimonial privilege in Massachusetts,⁵Commonwealth v. Dube, 413 Mass. 570, 572 n.3 (1992), the only conceivably applicable privilege is the attorney-client privilege. The attorney-client privilege extends to all communications made to an attorney "for the purpose of facilitating the rendition of legal services." Purcell v. District Attorney for the Suffolk Dist., 424 Mass. 109, 115 (1997). See Matter of a John Doe Grand Jury Investigation, 408 Mass. 480, 482 (1990). Because the privilege is destroyed when such communications are made in the presence of a non-necessary agent of the attorney or client, Commonwealth v. Rosenberg, 410 Mass. at 354 n.10, its application depends on whether the hospital personnel were acting as the defendant's or his attorney's agents. Because of our conclusion that the hospital employees were not part of the defense team, their records would have been discoverable by the Commonwealth in the same manner as information held by any nonparty witness.

Additionally, the defendant argues that the Commonwealth's actions violated his State and Federal constitutional rights to prepare a defense. The Commonwealth's subpoenaing of the records did not, in any sense, interfere with the preparation of the defendant's case. Moreover, while the cases cited by the defendant recognize a constitutional right to prepare a defense, because they do not relate to the Commonwealth's merely obtaining access to evidence allegedly prepared for the defense, they are inapposite. See Commonwealth v. Penta, 423 Mass. 546, 548-550 (1996) (rejecting claim that prosecutor had improperly threatened potential witness and thereby prevented defendant from securing witness's presence at trial); Commonwealth v. Souza, 397 Mass. 236, 239-243 (1986) (no violation of right to prepare defense, where judge denied continuance pending defendant's appeal from denial of motion for costs of polygraph examination and transcript of prior bench trial); Commonwealth v. Cavanaugh, 371 Mass. 46, 50-57 (1976) (denial of continuance effectively deprived defendant of opportunity to prepare defense). See also Washington v. Texas, 388 U.S. 14, 17-23 (1967) (criminal defendants have constitutional right to compulsory process for obtaining witnesses in their favor). For these reasons, the motion judge did not err in denying the defendant's motion to dismiss the indictment.⁶

3. Admissibility of retrograde extrapolation evidence. The defendant next argues that the admission of the retrograde extrapolation analysis of his blood alcohol level was improper because it failed to meet the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and adopted in part in Commonwealth v. Lanigan, 419 Mass. 15 (1994). We disagree. The Daubert standard departed from the traditional test under Frye v. United States, 283 F. 1013 (D.C. Cir. 1923), which necessitated that "`the community of scientists involved [must] generally accept[] the theory or process' for it to be admitted in evidence." Canavan's Case, 432 Mass. 304, 310 (2000), quoting Commonwealth v. Curnin, 409 Mass. 218, 222 (1991). Under the Daubert-Lanigan standard, although general acceptance is a relevant factor, it is not the "essential ingredient." Commonwealth v. Lanigan, supra at 25. Indeed, "[t]he ultimate test ... is the reliability of the theory or process underlying the expert's testimony." Id. at 24. Consequently, although a foundation may be laid by showing general acceptance of the scientific theory, "a proponent of scientific opinion evidence may [also]...