Commonwealth v. Nunez, 16-P-1415

110 N.E.3d 1220 (Table)

COMMONWEALTH

v.Edwin NUNEZ.

16-P-1415

Appeals Court of Massachusetts.

Entered: August 27, 2018

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

By the Court (Rubin, Maldonado & Ditkoff, JJ.¹ ),

The defendant, Edwin Nunez, appeals from jury trial convictions on two counts of manslaughter, G. L. c. 265, § 1, in Superior Court. The defendant challenges only the denial of his motion to suppress various statements made to law enforcement and hospital personnel. Finding no error in the motion judge's conclusion that the challenged statements were made voluntarily by the defendant and that the defendant voluntarily waived his Miranda rights, we affirm.

1. Background.² On the morning of July 23, 2010, the defendant and Sophan Yin left 2 Butman Place in Lowell, where they were staying with the defendant's sometime paramour, Debbie Grossi, to purchase "crack" cocaine at a nearby apartment located at 342 Westford Street. The purchase did not go as planned; they returned to the house separately without the drugs or the eighty dollars Yin had given the defendant to pay for them. The defendant claimed he had been "burnt," or "scammed," by the dealers at the apartment. Both men were angry and upset and discussed getting their money back. During this time the defendant smoked some crack cocaine and consumed one-half of a pint of vodka and several beers.

Around 3:30 P.M. , the defendant, Yin, and Phouvieng Phouthavong left the residence and made the short walk to 342 Westford Street. They followed the defendant to an apartment upstairs. The two women inside the apartment admitted the defendant while Yin and Phouthavong waited outside the door. An argument between the defendant and the women about the money erupted and quickly intensified into a fight. Yin and Phouthavong fled, and witnesses reported two Asian men running out of the apartment,³ followed by screams from a woman covered in blood.

Responding to 911 calls, Lowell police officers and other law enforcement personnel found the two women bleeding heavily from multiple stab wounds to the neck and chest. Both women died before they reached a hospital. Deoxyribonucleic acid evidence mixed with the victims' blood and collected from the apartment and a blood-stained knife recovered nearby matched the defendant.

The defendant returned to 2 Butman Place soon after. He was clearly intoxicated and very distressed, telling Grossi, "I'm going to get blamed for something I didn't do," before grabbing a kitchen knife and stabbing himself repeatedly. Grossi telephoned 911. Responding officers and paramedics found the defendant on the floor, bleeding heavily from stab wounds to the chest and abdomen, and rushed him to a hospital.

Subsequent investigation resulted in the defendant's indictment on two counts of murder in the first degree and two counts of assault and battery by means of a dangerous weapon. Prior to trial, the defendant moved to suppress statements he made to hospital and law enforcement personnel from July 23 through July 26, 2010. After an evidentiary hearing, a Superior Court judge denied the motion. The defendant was convicted of two counts of manslaughter on December 17, 2014, and this appeal followed.⁴

2. Standard of review. "In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ " Commonwealth v. Callender, 81 Mass. App. Ct. 153, 154 (2012), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). "[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Clarke, 461 Mass. 336, 340 (2012), quoting from Commonwealth v. Bostock, 450 Mass. 616, 619 (2008).

3. Discussion. A defendant's statement is admissible only if made voluntarily, "regardless of whether [it is] made to police or civilians." Commonwealth v. Kolenovic, 478 Mass. 189, 198 (2017). The Commonwealth, moreover, must prove voluntariness "beyond a reasonable doubt." Commonwealth v. Knowles, 92 Mass. App. Ct. 617, 628 (2018), quoting from Commonwealth v. Tremblay, 460 Mass. 199, 206 (2011). Although "separate and distinct issues," we apply the same analysis to the voluntariness of a defendant's Miranda waiver as to the voluntariness of statements challenged on due process grounds. Commonwealth v. Woodbine, 461 Mass. 720, 729 (2012), quoting from Commonwealth v. Edwards, 420 Mass. 666, 673 (1995). "[T]he ultimate inquiry is ‘whether, in light of 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.’ " Knowles, supra, quoting from Commonwealth v. Molina, 467 Mass. 65, 75-76 (2014).

Statements that are the product of "a defendant's debilitated condition, such as ... drug abuse or withdrawal symptoms, [or] intoxication ... are not the product of a rational intellect or free will and are involuntary." Commonwealth v. Bell, 473 Mass. 131, 141 (2015), quoting from Commonwealth v. Allen, 395 Mass. 448, 455 (1985). Thus, "special care must be taken to assess the voluntariness of a defendant's statement where there is evidence that he was under the influence of alcohol or drugs." Commonwealth v. Brown, 462 Mass. 620, 627 (2012). An otherwise voluntary act, however, "is not necessarily rendered involuntary simply because an individual has been drinking or using drugs," Knowles, 92 Mass. App. Ct. at 628, quoting from Commonwealth v. Shipps, 399 Mass. 820, 826 (1987), nor is a statement made under "even profound distress" necessarily considered involuntary. Commonwealth v. Stroyny, 435 Mass. 635, 646 (2002).

Rather, such statements are admissible where a defendant proves alert, coherent, and capable of rational thought and conversation despite pain, injury, emotional distress, or the influence of alcohol or drugs. See, e.g., Commonwealth v. Wills, 398 Mass. 768, 776 (1986) (defendant's statements voluntary despite stab wounds to abdomen and arm where "his condition was described as stable, calm, and alert"); Brown, 462 Mass. at 627 (defendant's statements properly not suppressed where, although he "was sluggish from the influence of drugs, there [was] nothing to suggest that he was acting irrationally or was out of control"); Knowles, 92 Mass. App. Ct. at 620 (defendant's statement voluntary despite evidence he "was intoxicated on alcohol, marijuana, and prescription sedatives").

In Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 77 (2011), the defendant was involved in a high-speed collision, killing another driver. The defendant was found unconscious and partially hanging out of his vehicle's front passenger side window. Id. at 78. He suffered fractures to his right tibia and fibula, a concussion, and lacerations to his head and face. Id. at 79. The defendant told emergency responders, "I'm never going to drink again," admitted he had been the driver, and mentioned drinking that night. Ibid. He appeared intoxicated and recorded a blood alcohol level of .19 at the hospital, where morphine and oxycodone were administered. Ibid. The defendant thereafter waived his Miranda rights and made other incriminating statements. See ibid. He later moved to suppress his statements, arguing "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." Id. at 80. The motion was denied. Id. at 77.

In affirming, we emphasized that the defendant was alert and oriented, and responded coherently to questioning. Id. at 81. In spite of his "traumatic and painful injuries," the defendant "spoke cogently, answered questions promptly, and was able to carry on a conversation." Ibid. That the defendant "retained the presence of mind" to minimize his culpability by stating he had only "[o]ne or two beers" was also significant. Ibid. Ultimately, we determined that, "[d]espite the defendant's anxiety, physical trauma, and consumption of alcohol and pain medication," there was "no error in the motion judge's conclusion that the statements were voluntarily made." Id. at 81-82. Liptak is instructive here.

a. Statement number one. The first challenged statement in this case was made at approximately 4:00 P.M. on July 23, 2010, when officers initially encountered the defendant at 2 Butman Place. When asked what happened and who stabbed him, the defendant answered, "I'm depressed. I stabbed myself." Although he was injured and later determined to be intoxicated by alcohol and some amount of cocaine, officers testified that the defendant was conscious, responded appropriately, and was not visibly intoxicated or under the influence of drugs. The judge could credit this testimony, see Commonwealth v. Beland, 436 Mass. 273, 281 (2002), and nothing in the record requires a conclusion to the contrary. See, e.g., Wills, 398 Mass. at 776 ; Liptak, 80 Mass. App. Ct. at 80. See also Knowles, 92 Mass. App. Ct. at 628 (crediting police officer's observations as to defendant's lucid condition, despite evidence of drug and alcohol intoxication, in finding statements voluntary).

b. Statement number two. After arriving at the hospital at approximately 4:20 P.M. , the defendant was asked by the attending physician how he was injured. The defendant replied that "he was jumped, he ran away, and then stabbed himself." At that time, he was "somewhat groggy" and suffering from the stab wounds and a collapsed lung. The defendant, however, was awake and conversing, and registered sufficient cognitive awareness. His collapsed lung was unlikely to cause additional disorientation or dizziness, especially given that his vital signs were normal. Moreover, although a toxicology report indicated a blood alcohol level of .17, there was no trace of...