Commonwealth v. Morse

468 Mass. 360

10 N.E.3d 1109

COMMONWEALTH

v.Steven J. MORSE.

SJC–11433.

Supreme Judicial Court of Massachusetts, Hampshire.

Submitted Feb. 3, 2014.

Decided June 13, 2014.

Merritt Schnipper for the defendant.

Thomas H. Townsend, Assistant District Attorney, for the Commonwealth.

Linda J. Thompson, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Monica R. Shah, for Massachusetts Association of Criminal Defense Lawyers, amicus curiae, submitted a brief.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

The defendant was piloting a motorboat in the late afternoon of August 17, 2010, when it struck a kayak.¹ Ten year old Augustus Adamopoulos, who was in the kayak fishing with his father, died as a result of the collision; his father sustained serious injuries. The defendant was charged with manslaughter, G.L. c. 265, § 13; serious bodily injury and homicide ² by vessel, G.L. c. 90B, §§ 8A, 8B; and three counts of child endangerment while operating a vessel while under the influence of alcohol or drugs, G.L. c. 90, § 24V.

In an interview with police following the collision, the defendant admitted to having drunk beer before operating the boat, but responded negatively to the question whether he had “consume[d] any other, you know, substances that could've impaired [his] ability to, you know, be aware of what was going on around [him].” Because police later discovered that the defendant had smoked marijuana before the collision, the defendant also was charged, under the witness intimidation statute, G.L. c. 268, § 13B (§ 13B), with misleading a police officer. Evidence of his negative response to the question was admitted against him at trial; the jury were instructed to consider such evidence only in relation to the § 13B misleading charge. A Superior Court jury convicted the defendant of misleading a police officer and misdemeanor homicide by vessel, and acquitted him of the other charges. The defendant appealed, and we granted his application for direct appellate review.

The defendant challenges the validity of both convictions. He argues that his conviction of misleading a police officer should be reversed because the statute, as applied, violates the prohibition in art. 12 of the Massachusetts Declaration of Rights against the compelled furnishing of evidence against oneself. He further argues that the statute violates the common-law rule against the admission of evidence of a defendant's unequivocal denial of a police accusation, and that the statute, as applied to him, is unconstitutionally vague.³ The defendant also contends that his homicide conviction should be reversed because there was insufficient evidence that he was operating while under the influence of alcohol or drugs.

We conclude that there was insufficient evidence that the defendant misled a police officer with the specific intent necessary to prove a violation of § 13B, and therefore reverse that conviction. We affirm the homicide conviction.

1. Background. a. Events of August, 2010. We summarize the facts the jury could have found based on the evidence at trial. The defendant spent part of August 17, 2010, at Norwich Lake in Huntington, where his family owned a cottage. Before arriving at the lake, the defendant had worked at his landscaping business. Upon finishing work at approximately 2:30 or 3 p.m., the defendant and his employee, Brian Friguglietti, drank beer and smoked marijuana at the defendant's shop. The defendant consumed two cans of beer and took one “hit” of marijuana.⁴

The defendant and Friguglietti arrived at the lake in the late afternoon, where they met the defendant's wife and children. The defendant and Friguglietti went on the water in a motorboat and pulled the defendant's children behind the boat in inflatable inner tubes. They returned to shore close to 5 p.m., at which point the defendant consumed “two beers” and took two hits of marijuana. Approximately one hour later, an acquaintance drove by in another boat and asked the defendant to pull him around the lake while he waterskied, since the children accompanying him were too young to operate the vessel. The defendant agreed, and began to pilot the acquaintance's boat, with three children as passengers, pulling the waterskier behind him.

The path of the boat coincided with a patch of glare on the water, which had become more extreme as the sun had begun to set.⁵ Shortly after entering the patch of glare, sometime between 6 and 6:30 p.m., the defendant's boat struck the kayak in which Augustus and his father were fishing. Augustus was thrown from the kayak and submerged underwater for a period of time. When he surfaced, his arm was missing and there was a deep gash in his back. The defendant brought Augustus to shore in the motorboat, where he was loaded into an ambulance. Augustus died as a result of his injuries.⁶

An environmental police officer interviewed the defendant on the lakeshore approximatelyone hour after the collision. When the defendant admitted to drinking two beers at 5 p.m., the officer administered several field sobriety tests, which the defendant completed successfully. Although a portable breathalyzer test detected the presence of alcohol in the defendant's system, the officer did not smell an odor of alcohol, nor did he observe the defendant's eyes to be red or bloodshot or his speech to be slurred. The defendant cooperated with the questioning and his responses were coherent. At the end of the interview, the defendant, who was not under arrest, agreed to return to the State police barracks for further questioning.

At the barracks, the defendant submitted to a breathalyzer test at approximately 9:30 p.m.; the test showed a blood alcohol level of 0.00 per cent. A State police detective and trooper then resumed questioning the defendant about the circumstances of the collision, after providing him with the requisite Miranda warnings. The defendant acknowledged having consumed “a couple of beers earlier in the day” while at his shop, but maintained that he had not consumed alcohol after leaving his shop and was not impaired while piloting the boat. Police then asked whether he had consumed other substances that day:

Trooper: “Did you consume any—are you on any kind of medication?”

Defendant: “Nope.”

Trooper: “Did you consume any other, you know, substances that could've impaired your ability to, you know, be aware of what was going on around you?”

Defendant: “No.”

At the end of the interview, police told the defendant that he was free to leave, and he departed.

On August 23, 2010, State troopers contacted the defendant again after learning new information during the course of their investigation concerning the defendant's marijuana use on the day of the collision, August 17. They arranged to meet the defendant in a parking lot to ask him some follow-up questions. During the meeting, the defendant told the troopers that he had smoked marijuana at his shop on the day in question, and also that he had “hit the bowl twice” after arriving at the lake, approximately one hour before starting to pull the waterskier on the motorboat; during his interview on August 17, he had not mentioned smoking marijuana.

b. Pretrial and trial proceedings. Prior to trial, the defendant moved to preclude admission of evidence that, during his interview with police, he had denied consuming other substances that could have impaired his “ability to ... be aware of what was going on around [him].” In support of the motion, the defendant argued that the presentation of such evidence at trial would violate the common-law rule against admission of a defendant's denial of a police accusation. On the morning of the first day of trial, the defendant also moved to sever the charge for misleading a police officer from the underlying charges arising from the boating collision.

The judge ruled that the evidence was inadmissible to prove the defendant's consciousness of guilt of the underlying charges, but that it could be used to establish that the defendant misled police, in violation of § 13B, a charge the judge declined to sever. During trial, an audio recording of the defendant's August 17, 2010, police interview was played for the jury,⁷ and a State trooper testified that, if police had known on August 17 that the defendant had smoked marijuana before operating the boat, they would have called a drug recognition expert to examine him at the station, and would have sought a warrant to draw his blood and search his vehicle for marijuana.

The defendant also moved before trial to exclude evidence that he had consumed alcohol before the collision, arguing that such evidence would be unduly prejudicial where there was no other evidence of impairment. This motion was denied after the pretrial voir dire testimony of a drug recognition expert. At trial, in support of its theory that the defendant operated the vessel while under the influence, the Commonwealth introduced the aforesaid evidence concerning the defendant's consumption of beer and marijuana on August 17, 2010, and called the drug recognition expert to testify to the effects of both substances on the average person.⁸

The expert explained that the effects of ingesting marijuana include dilation of the pupils, increased blood pressure, and impaired perception of time and distance, and that the effects can persist for several hours following ingestion. The expert also described symptoms attendant to alcohol consumption, as well as the “synergistic effect” of alcohol and marijuana working in tandem, which can slow an individual's reaction time to light stimuli. An individual who ingested both alcohol and marijuana, the expert testified, could experience an unusual degree of pupillary dilation, which would permit a greater amount of light to enter the eyes; this could cause the individual to react by turning away from the light source.

In his final instructions...