Commw. v. Dayes, P-1289
| Decision Date | 08 March 2000 |
| Docket Number | P-1289 |
| Citation | 49 Mass. App. Ct. 419,730 N.E.2d 321 |
| Parties | (Mass.App.Ct. 2000) COMMONWEALTH, v. PATRIENA C. DAYES. No.: 98- Argued: |
| Court | Appeals Court of Massachusetts |
[Copyrighted Material Omitted]
Ronald H. Cody for the defendant.
Joseph A. Pieropan, Assistant District Attorney, for the Commonwealth.
The defendant was convicted of possession of cocaine with intent to distribute and possession of cocaine with intent to distribute within 1,000 feet of school property. On appeal, she claims the motion judge erred in denying her motion to suppress her statements at the scene of her arrest and at booking and the trial judge erred in admitting an out-of-court statement of a missing witness as a spontaneous utterance and expert testimony from a police officer describing the modus operandi of an out-of-town street dealer in drugs in Pittsfield. We affirm.
1. Motion to suppress. The defendant argues that her motion to suppress should have been allowed because her waiver of Miranda rights and statements made at the scene of the arrest and subsequently at booking were not voluntary. The defendant also claims that her statement at booking regarding her employment status should be suppressed because she was not readvised of her Miranda rights prior to being asked about her employment status. The motion judge denied the motion without making any findings. The omission of findings is not fatal, however, where the reasons for the ultimate conclusions are clearly evident from the record. Commonwealth v. Lanoue, 392 Mass. 583, 586 n.2 (1984). Such is the case here. The only witnesses at the suppression hearing were the two police officers who made the arrest and the defendant. At the conclusion of the suppression hearing, the judge stated, The judge's statement and his subsequent denial of the motion, thus, imply resolution of all factual issues in favor of the Commonwealth. Ibid.
The determination of the voluntariness of the defendant's waiver of her Miranda warnings and her statements to the police lay in the judge's assessment of the witnesses' credibility. Although the defendant testified that, in the hour and a half preceding her arrest, while she was cooking her dinner, she had consumed two shots of cognac, Southern Comfort mixed with cola, two sixteen-ounce bottles of beer, and a shot of rum and smoked one and a half marijuana "blunts," the judge could well find this testimony incredible in light of the officers' testimony that when the defendant spoke to the officers she was sober and coherent and did not smell of marijuana or alcohol. Further, both officers testified there was no evidence of alcohol consumption or use of marijuana in the apartment. In addition, the judge had an opportunity to observe a videotape of the defendant immediately after her arrest and to evaluate her demeanor at that time.1 The judge could also take into account the officers' testimony that it was the defendant who had initially requested to speak to the police. There was thus ample evidence to justify the judge's conclusion that the defendant had validly waived her Miranda rights and her statements were voluntary.
It is also clear from the evidence adduced at the hearing that the defendant was given her Miranda rights at the scene of the arrest. Both officers testified to this fact and the defendant herself testified that her rights were read to her. It is also undisputed that the defendant was not readvised of her rights until after the booking procedure was complete. In Pennsylvania v. Muniz, 496 U.S. 582 (1990), the Supreme Court held that the police may not ask questions during booking that elicit incriminating admissions without giving timely Miranda warnings. Id. at 602 n.14. Based on Muniz, we stated that, in drug cases in which the defendants are asked about their employment status during booking, it would be preferable, unless Miranda warnings are repeated prior to booking, to "scrub" questions about employment status from the booking ritual. Commonwealth v. Guerrero, 32 Mass. App. Ct. 263, 267-268 (1992). Subsequent to Guerrero, the Supreme Judicial Court ruled that under Federal law, "where an arrestee's employment status may prove incriminatory, the police must give Miranda warnings before asking questions about employment." Commonwealth v. Woods, 419 Mass. 366, 372 (1995). However, in both Muniz and Woods no Miranda warnings were given at all before the question calling for a potential incriminatory response was asked. Here, Miranda warnings were given to the defendant at the time of her arrest. Immediately thereafter, she was transported to the police station and booked. We have repeatedly held that an accused need not continually be reminded of his or her Miranda rights once he or she has intelligently waived them. Commonwealth v. Mello, 420 Mass. 375, 386 (1995). In this case, where no significant lapse of time occurred between the defendant's being given Miranda rights at the scene of her arrest and her booking procedure, we decide there was...
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