Commonwealth v. Roberson

230 N.E.3d 1045

103 Mass.App.Ct. 772

COMMONWEALTH

v.Holdens J. ROBERSON.

No. 22-P-833

Appeals Court of Massachusetts, Plymouth.

Argued November 2, 2023

Decided March 7, 2024

Motor Vehicle, Operating under the influence. Alcoholic Liquors, Motor vehicle. Evidence, Admissions and confessions, Videotape. Practice, Criminal, Assistance of counsel, Waiver of trial by jury.

Complaint received and sworn to in the Brockton Division of the District Court Department on July 7, 2020.

The case was heard by Daniel J. Hourihan, J.

Owen Murphy, New Bedford, for the defendant.

Arne Hantson, Assistant District Attorney, for the Commonwealth.

Present: Sacks, Brennan, & DAngelo, JJ.

D’ANGELO, J.

₇₇₃At the defendant’s jury-waived trial on the charge of operating a motor vehicle while under the influence of alcohol, the Commonwealth relied in part on a video recording of the defendant’s booking process while at the police station (booking video).¹ The booking video captured police officers continuing to ask the defendant questions after the defendant had invoked his right to counsel. The defendant claims that his trial counsel was ineffective for failing to move to suppress the booking video, and that the Commonwealth presented insufficient evidence regarding the defendant’s intoxication at the time of operation. In addition, the defendant asserts that his waiver of a jury trial was not a knowing one. Discerning no error of law or abuse of discretion in the admission of the evidence, and concluding that the defendant knowingly waived his right to a jury trial and that the evidence of intoxication at the time of operation was sufficient, we affirm.

Background. We summarize the trial facts, as the judge could have found them, viewing the evidence in the light most favorable to the Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-677, 393 N.E.2d 370 (1979). Because the defendant challenges only the sufficiency of the evidence of intoxication at the time of operation, we focus on that element. See G. L. c. 90, § 24 (1) (a) (1).

On July 7, 2020, at around 1 a.m., West Bridgewater police Officer Gerard Julien-Suarez was dispatched to an area near the intersection of Route 24 and Route 106. The officer located a Cadillac at a Shell gasoline station with the engine running, headlights on, and the car in park. The defendant was seated in the driver’s seat and was the only person in the car. The officer informed the defendant that he had received reports of a car being parked in the middle of the highway and wanted to check on the well-being of the driver.

The defendant responded by asking, "Why are you pulling me over?" The officer stated, "I’m not pulling you over, I’m just here to check your well-being." The defendant began to accuse the officer of racial profiling, stating that he had been stopped because he was Black and driving a Cadillac.

During this exchange, the officer detected a moderate odor of alcohol coming from the defendant, that his eyes were bloodshot, ₇₇₄and that the defendant spoke with a "[t]hick-tongued, slurred, loud, argumentative" speech pattern. The defendant continued to be loud and argumentative and refused to answer the officer’s questions while flailing his arms. While the officer was standing next to the defendant’s window, the defendant retrieved his cellular telephone from between his legs and made a telephone call. Officer Julien-Suarez asked the defendant to get out of the car, but the defendant refused and continued to speak on his cell phone. After another request and another refusal, the officer opened the door and the defendant agreed to step out of the car.

Once outside, the defendant continued to be "argumentative, uncooperative, refused to answer any questions," and used profanities while continuing to accuse the officer of racial profiling. The defendant was handcuffed and placed in the back of the police cruiser where he kicked and spit at the plexiglass barrier. A few minutes after the defendant was placed in the cruiser, his wife appeared at the scene. The defendant continued to be uncooperative. Based on all of his observations of the defendant, the police officer formed the opinion that the defendant was drunk. The defendant was then placed under arrest and transported to the police station.

The booking video of the defendant at the police station was admitted in evidence. The defendant continued to be uncooperative and refused to answer questions while at the police station. The booking video showed the defendant being brought into a holding cell, at which time he can be seen and heard demanding, multiple times, to speak to a lawyer. After about fifteen minutes, the defendant was brought back into the booking room and provided his Miranda rights. When asked if he understood his rights, the defendant gave a "thumbs up" hand signal. The police resumed questioning the defendant and asked biographical questions. The police also asked the defendant if he had consumed any alcohol. The defendant again responded with a "thumbs up" signal.

The trial judge found the defendant guilty of operating a motor vehicle while under the influence of alcohol. The judge, in announcing his finding, stated,

"And I must say that the video was overwhelming. The video shows - the officer tells me that he smelled alcohol, that the man[’s] speech was slurred, and that he had - that his eyes were glassy. But the video is overwhelming, he looks very drank in the video…. Right at the end of the video before ₇₇₅they put him in his cell, he pirouetted backwards and bopped into the wall when he wasn’t handcuffed to the bar…. And I believe that his ability to operate was impaired by alcohol from what I saw in the video and the officer’s observations."

[1, 2] Discussion. 1. Ineffective assistance of counsel for failing to file a motion to suppress. The defendant alleges that his trial counsel was ineffective for failing to file a motion to suppress the booking video which contained evidence of his nonverbal admission to drinking alcohol after he had invoked his right to counsel. Where an ineffective assistance of counsel claim involves counsel’s failure to file a motion to suppress, "the defendant must demonstrate that the evidence would have been suppressed if properly challenged." Commonwealth v. Cavitt, 460 Mass. 617, 626, 953 N.E.2d 216 (2011). The defendant also must show that there was a reasonable probability that the verdict would have been different without the excludable evidence, see Commonwealth v. Mahar, 442 Mass. 11, 15, 809 N.E.2d 989 (2004), or at least that it "might have accomplished something material for the defense" (citation omitted). Commonwealth v. Lally, 473 Mass. 693, 703, 46 N.E.3d 41 (2016).

[3–7] The right to counsel must be "scrupulously honored." Commonwealth v. Thomas, 469 Mass. 531, 541, 21 N.E.3d 901 (2014), quoting Michigan v. Mosley, 423 U.S. 96, 103-104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Once a defendant invokes the right to counsel, all questioning must cease. See Edwards v. Arizona, 451 U.S. 477, 484, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). Questioning may not resume until an attorney is obtained for the suspect and is present, or the suspect initiates "further communication, exchanges, or conversations with the police." Thomas, supra at 539, 21 N.E.3d 901, quoting Edwards, supra at 484-485, 101 S.Ct. 1880. If a defendant reinitiates communication, the Commonwealth must establish beyond a reasonable doubt that the police did not initiate the discussion that led to the defendant rescinding the invocation of the right to counsel. See Commonwealth v. Hoyt, 461 Mass. 143, 151, 958 N.E.2d 834 (2011). Once invoked, a reviewing court indulges "in every reasonable presumption against" a defendant’s waiver of these constitutional rights. Commonwealth v. Anderson, 448 Mass. 548, 554, 862 N.E.2d 749 (2007), quoting Commonwealth v. Tor res, 442 Mass. 554, 571, 813 N.E.2d 1261 (2004).

[8, 9] Even after the invocation of counsel, "[t]he police may ask routine booking questions, but not about the crime that is under investigation." Commonwealth v. Chadwick, 40 Mass. App. Ct. 425, 427, 664 N.E.2d 874 (1996). In the context of alleged violations of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we have held that routine ₇₇₆biographical questions such as those about name, age, or address, asked during a defendant’s booking, are not interrogation within the meaning of Miranda. See Commonwealth v. Kacavich, 28 Mass. App. Ct. 941, 941-942, 550 N.E.2d 397 (1990). However, "[a]lthough a booking officer proceeding down a litany of routine questions may have no investigatory purpose in asking [certain questions], the content of that person’s response may be incriminating." Commonwealth v. Woods, 419 Mass. 366, 373, 645 N.E.2d 1153 (1995). The key inquiry is whether questions posed during booking "are designed to elicit incriminatory admissions," or have that potential. Id.

[10] Here, the question about drinking, after the defendant had been arrested for operating a motor vehicle while under the influence of alcohol, had direct investigatory relevance, regardless of whether the question is typically asked as part of the routine booking process. See Commonwealth v. Acosta, 416 Mass. 279, 283, 627 N.E.2d 466 (1993). Therefore, it was a question that the officer should have known was "reasonably likely to elicit an incriminating response." Commonwealth v. Rubio, 27 Mass. App. Ct. 506, 512, 540 N.E.2d 189 (1989), quoting Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). And because the defendant had previously and repeatedly requested an attorney, there was fertile ground for a motion to suppress evidence of his nonverbal admission.

We need not determine whether the defendant has demonstrated that such a motion would have been successful, however, because in the context of the strong evidence of intoxication in this case, the defendant's admission of...