Commonwealth v. Lezin

91 Mass.App.Ct. 1127

86 N.E.3d 510 (Table)

COMMONWEALTH

v.Pierre D. LEZIN.

15-P-899

Appeals Court of Massachusetts.

Entered: June 13, 2017

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

After a jury trial, the defendant was convicted of operating a motor vehicle while under the influence of intoxicating liquor (OUI), operating a motor vehicle after his license or right to operate had been suspended, and negligently operating a motor vehicle.² He appeals from the judgments, and from the denial of his postverdict motion for required findings of not guilty, arguing that the judge erred in denying (1) his motion to suppress statements and contraband; (2) his motion in limine seeking to exclude evidence of his refusal to perform field sobriety tests,³ and of his performance on a breathalyzer test; (3) his motion for a required finding of not guilty on the OUI and negligent operation charges; and (4) his motion for a required finding of not guilty on the charge of operating with a suspended license. In this last motion, he argued that the jurors improperly were permitted to consider certain Registry of Motor Vehicle (registry) records not entered in evidence. The Commonwealth concedes this last argument is correct; we agree and reverse the judgment. The convictions on the remaining charges are affirmed.

Background. At the hearing on the motion to suppress, Randolph Police Officers Jeffrey Lucas and Stephen Elman were the only witnesses. Lucas testified that, while he was on patrol during the late evening hours of June 3, 2013, he was dispatched to an accident scene at the corner of Scannell Road and Oak Street.⁴ When he arrived, he found a black pickup truck, with no occupant; the truck apparently had crashed into an obstruction (a "jersey barrier"); there was "heavy front end damage and both front airbags deployed."⁵

While Lucas was at the scene, an unidentified party told him that he had heard the crash, and that a neighbor was "chasing" the driver of the abandoned truck, who had fled the scene and was heading towards North Street. Lucas, in his marked police cruiser, went looking for the witness, John Greene, and found him a short distance away at the end of Scannell Road.⁶ Greene described the fleeing occupant as "a tall, skinny black male wearing a green button down shirt and jeans" running with two pieces of luggage. As he was speaking with Greene, Lucas looked across the street to the parking lot of a convenience store (Tedeschi's) about 60 yards away; he saw a male, later identified as the defendant, matching the description he had just been given, "hiding" between two vehicles parked in the lot.

Lucas got back into his cruiser and, without turning on his "blue lights," drove to the parking lot. He parked approximately 20 yards from where he had seen the defendant, then got out of his cruiser and started walking toward the defendant; at that time, the defendant was walking toward him. Lucas spoke with the defendant and noticed that he "was sweating profusely and he was also breathing heavily." In response to Lucas's inquiry, the defendant confirmed that he had just been involved in a car accident.⁷ The defendant told the officer that he had run away from the crash site because he was scared. The officer asked him why he was scared, and the defendant responded that it was because he was drunk. He also stated that he had been watching a basketball game and drank too much. The defendant refused to perform field sobriety tests, and he was placed under arrest for operating under the influence of alcohol; the police obtained his identification from his Massachusetts driver's license after his arrest.⁸

The defendant was transported to the police station by another officer, as Lucas "backtrack[ed]" with a dog to retrieve the two pieces of luggage that the defendant had dropped along his way to the parking lot. The defendant confirmed at the police station that the items that the dog found were, in fact, his luggage. Lucas later discovered that the defendant had a suspended license.⁹

Officer Elman testified at the motion hearing that, after reporting to the accident site, he "stayed back with the car" while Lucas went looking for the operator of the abandoned truck. Elman arranged to have the truck towed and performed an inventory search before it was towed. During the search, he found a prescription pill bottle with the defendant's name printed on it and radioed that information to Lucas. Elman then returned to the police station to administer the breath test to the defendant.

At the police station, the defendant agreed to perform a breath test and signed the "rights sheet," which Elman read to him "word for word off the sheet."¹⁰ Elman both instructed and physically demonstrated how to perform the breath test; the defendant was unable to complete the breath test successfully, as he could provide only one complete test, after multiple attempts, rather than the two required. As a result, Elman entered the breath test "as a refusal."¹¹ Before the breath test, Elman and the defendant spoke and the defendant told him, without any prompting, that "he had been drinking [Elman] believe[d] Hennessey's during a—watching basketball, [a] Miami Heat basketball game on TV."

After the motion hearing, the judge found that the defendant's statements to Lucas in the Tedeschi parking lot were made in response to the officer's threshold inquiry and she denied the motion to suppress them. She also found that the defendant's statements made during the breath test were volunteered and not given as a result of Elman's questions.

At trial, the defendant testified that, prior to the accident, he did not know that his license was suspended. He stated that, prior to the accident, he had a taste of Cognac from a small cup while at a friend's house to watch a basketball game; he had never before had a drink of alcohol.¹² The defendant left his friend's house immediately after "tast[ing]" the alcohol, driving the truck, which belonged to a friend.

The defendant further explained that, while he was in the Tedeschi parking lot, Lucas "gestured" to him and told the defendant to "raise [his] hands" as he put his hand on his gun, and this scared the defendant. Lucas then walked to the defendant and patted his pockets. According to the defendant, he admitted to the officer that he had been in an accident, but never told the officer that he crashed his truck because he was drunk. He testified that he understood Elman's instructions for performing the breath test, but the way the officer spoke to him made him nervous. The defendant thought that Elman misunderstood what he said about the amount of alcohol he had consumed—he had "a quart of glass"—and explained why the officer smelled alcohol coming from the defendant.¹³

Discussion. 1. Motion to suppress. The defendant argues first that the judge erred in denying his motion to suppress because (1) Lucas lacked reasonable suspicion to justify the investigatory stop of the defendant in the Tedeschi parking lot, as there was no evidence that he had committed, was committing or was about to commit a crime, and, also, that the informant information was unreliable; (2) the defendant was improperly subjected to custodial interrogation (while in the Tedeschi parking lot, as well as during administration of the breath test) without first being given Miranda warnings; and (3) Elman performed an unlawful investigatory, rather than inventory, search of the truck.¹⁴

a. Initial stop of defendant. The judge denied the motion to suppress "the initial statement" in the parking lot because Lucas's stop of the defendant in the parking lot was a threshold inquiry justified by reasonable suspicion. Although we accept the motion judge's subsidiary findings of fact absent clear error, we conduct an independent review of the ultimate findings and conclusions of law. Commonwealth v. Hensley, 454 Mass. 721, 730 (2009).

" ‘Not every encounter between a law enforcement official and a member of the public constitutes an intrusion of constitutional dimensions that requires justification.’ Commonwealth v. Gomes, 453 Mass. 506, 510 (2009). ‘The particular character of such an encounter will determine’ what level of justification, if any, is required. Commonwealth v. Lyles, 453 Mass. 811, 814 (2009). Thus, police officers may approach individuals on the street to ask them about their business without implicating the balance between State power and individual freedom. See Florida v. Bostick, 501 U.S. 429, 434 (1991), quoting Florida v. Royer, 460 U.S. 491, 497 (1983)... (‘law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or another public place’); Commonwealth v. Lyles, supra at 815, and cases cited. Such interactions, field interrogation observations, ... properly are deemed consensual encounters because the individual approached remains free to terminate the conversation at will. See id. at 814-815. That is, they are constitutionally insignificant, and a police officer may initiate such an encounter without any information indicating that the individual has been or is presently engaged in criminal activity." Commonwealth v. Narcisse, 457 Mass. 1, 5-6 (2010).

Here, even if we determined that, during Lucas's conversation with the defendant in the parking lot, the encounter became a stop, it "was justified by a reasonable suspicion, based on reasonable inferences from specific and articulable facts" that the defendant was the driver of the abandoned truck that had struck the jersey barrier on Scannell Road and then run away. Commonwealth v. Lopes, 455 Mass. 147, 155 (2009). "In assessing the reasonableness of an officer's acts our function is not to probe each fact and inference underlying his suspicion individually, but rather collectively, ‘as a whole.’ " Commonwealth v. Nickerson, 79 Mass. App. Ct. 642, 645-646 (2011), quoting from Commonwealth v. Thibeau, 384 Mass. 762, 764 (1981).

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