NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
22-P-833 Appeals Court
COMMONWEALTH vs. HOLDENS J. ROBERSON.
No. 22-P-833.
Plymouth. November 2, 2023. - March 7, 2024.
Present: Sacks, Brennan, & D'Angelo, JJ.
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 for the defendant.
Arne Hantson, Assistant District Attorney, for the
Commonwealth.
D'ANGELO, J. At 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
2
(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 (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
1 The defendant was found not guilty of disorderly conduct.
3
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, and 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.
4
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.
5
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 drunk in the video. . . . Right at the end of the
video before they 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."
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 (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
(2004), or at least that it "might have accomplished something
6
material for the defense" (citation omitted). Commonwealth v.
Lally, 473 Mass. 693, 703 (2016).
The right to counsel must be "scrupulously honored."
Commonwealth v. Thomas, 469 Mass. 531, 541 (2014), quoting
Michigan v. Mosley, 423 U.S. 96, 103-104 (1975). Once a
defendant invokes the right to counsel, all questioning must
cease. See Edwards v. Arizona, 451 U.S. 477, 484 (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, quoting Edwards, supra at 484-485. 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 (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 (2007), quoting Commonwealth v.
Torres, 442 Mass. 554, 571 (2004).
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 (1996). In the context of alleged violations of
7
Miranda v. Arizona, 384 U.S. 436 (1966), we have held that
routine biographical 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 (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
(1995). The key inquiry is whether questions posed during
booking "are designed to elicit incriminatory admissions," or
have that potential. Id.
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 (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 (1989), quoting Rhode Island v. Innis, 446 U.S.
291, 301 (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.
8
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 drinking
had little to no impact on the judge's finding. We therefore
conclude that trial counsel's failure to file a motion to
suppress did not prejudice the defendant and, therefore, did not
amount to ineffective assistance.
The defendant also argues that because a motion to suppress
statements would have been allowed, the entire booking video
also should have been suppressed as a fruit of the poisonous
tree. Evidence derived from an illegally obtained statement is
presumptively inadmissible. See Commonwealth v. Martin, 444
Mass. 213, 215 (2005). The prosecution can overcome this
presumption, however,
"by showing that either: (1) after the illegally obtained
statement, there was a break in the stream of events that
sufficiently insulated the post-Miranda statement from the
tainted one; or (2) the illegally obtained statement did
not incriminate the defendant, or, as it is more
colloquially put, the cat was not out of the bag."
Commonwealth v. Rosa-Roman, 485 Mass. 617, 629 (2020), quoting
Commonwealth v. Tremblay, 480 Mass. 645, 658 n.9 (2018).
In this case, there is no evidence that anything in the
booking video, other than the defendant's response to the
question about drinking, was derived from or resulted from the
9
violation of the defendant's invocation of his right to an
attorney. The defendant's nonverbal affirmation of his having
been drinking had no impact on his other behavior that is
depicted on the video footage. Additionally, because the
improper question was detectable only in the audio track of the
video footage, the booking video could have been introduced
without sound. This would still have allowed the trial judge to
evaluate the defendant's appearance and balance at the police
station without hearing the officer's question about drinking.
See Commonwealth v. Price, 408 Mass. 668, 669 (1990). There was
no error in the admission of the booking video even though the
defendant's nonverbal affirmation to drinking should have been
suppressed had defense counsel so moved.
2. Sufficiency of the evidence. The defendant argues that
the Commonwealth's evidence of intoxication at the time of
operation was insufficient. He maintains that the judge's
comments at the time of the guilty finding about the defendant's
intoxication at the police station indicate that the judge was
unconvinced of the defendant's intoxication when he was found
sitting in his car with the engine running. It is plain,
however, that the judge's brief remarks were "not intended as a
comprehensive statement of all the facts he found or of all his
legal rulings." Commonwealth v. Carter, 481 Mass. 352, 361
(2019), cert. denied, 140 S. Ct. 910 (2020). Moreover,
10
"[j]udges in jury-waived trials are presumed to know and
correctly apply the law." Commonwealth v. Healy, 452 Mass. 510,
514 (2008), quoting Commonwealth v. Watkins, 63 Mass. App. Ct.
69, 75 (2005). The judge's statements here do not indicate that
he was unconvinced of the defendant's intoxication at the scene.
The Commonwealth provided ample evidence that allowed a
rational trier of fact to find that the defendant's ability to
operate a motor vehicle was impaired by his consumption of
alcohol. See Commonwealth v. Lavendier, 79 Mass. App. Ct. 501,
506-507 (2011) ("slurred speech, belligerent demeanor, strong
odor of alcohol, poor balance, and glassy, bloodshot eyes" were
"ample evidence" of intoxication). See also Commonwealth v.
Orben, 53 Mass. App. Ct. 700, 702-703 (2002) (conviction of
operating under influence of alcohol affirmed where defendant
displayed issues with balance, bloodshot eyes, slurred speech,
odor of alcohol, and performance on field sobriety tests that
showed inability to follow instructions). Separate and apart
from the booking video, the officer's observations at the scene
of the defendant's appearance, smell, and actions, along with
the officer's opinion that the defendant was drunk, were
sufficient for a rational trier of fact to find that the
defendant was under the influence of alcohol at the time of
operation. See id.
11
3. Admissibility of the booking video. The defendant is
correct that parts of the audio portion of the booking video,
although not objected to, were not admissible. See supra.
Specifically, the defendant's assertion of his various rights,
the defendant's declining to take breath and blood tests, and
hearsay statements attributed to the defendant's wife all should
not have been admitted if an objection was lodged. However, the
judge, in ruling on the admissibility of the entire booking
video, stated:
"Right, I'm not going to consider anything that -- some
out-of-court statements. My focus on the video is . . .
how his condition is at the time of the booking, his
clarity or lack of. His sobriety, basically is what I'm
looking for, and the way he answers questions and things
like that, that are cues to me to his condition at the time
of the incident."
We assume that the judge properly followed his own limitations
on the booking video and correctly applied the law. See Healy,
452 Mass. at 514. There is nothing in the record, including the
judge's statements, to indicate that the judge relied on any
improper evidence from the booking video. Thus, the admission
of that evidence, even if error, created no substantial risk of
a miscarriage of justice.
4. Jury waiver colloquy. The defendant submits that his
jury waiver was not knowing and intelligent because the colloquy
did not allow the judge to find that the defendant himself had
decided to waive his right to a jury trial.
12
The defendant acknowledged to the judge that he had signed
the jury waiver form. The judge then questioned the defendant
regarding his education level, mental health status, and whether
he was under the influence of any drugs or alcohol. The judge
explained to the defendant that he had a right to a jury trial,
could assist in selecting the jurors, that those jurors would
hear all the facts and evidence, and that he as the judge would
explain the law to them. The defendant acknowledged the jurors'
functions. The judge then informed the defendant that the
jurors would have to reach a unanimous verdict of guilty or not
guilty, and the defendant stated that he understood. The judge
explained that by choosing a trial with a judge he was waiving
his right to a jury trial. The defendant stated that he
understood. Finally, the judge asked the defendant if he had
enough time to discuss his decision to waive the right to a jury
with his attorney, and the defendant said that he had and he was
satisfied with his attorney's advice. The judge specifically
found that the defendant's waiver was a knowing and voluntary
one.
A jury waiver colloquy is designed to ensure that any
waiver by the defendant is made "voluntarily and intelligently."
Ciummei v. Commonwealth, 378 Mass. 504, 509 (1979). "So long as
a colloquy occurs the sole focus [on appeal] is whether the
colloquy has provided an evidentiary record upon which the trial
13
judge could find the waiver of a defendant was voluntary and
intelligent." Commonwealth v. Hardy, 427 Mass. 379, 381 (1998),
quoting Commonwealth v. Pavao, 423 Mass. 798, 802 (1996).
There is no support in the record for the defendant's
contention that defense counsel dictated the path for the
defendant to take. Nor did the defendant file a motion for a
new trial before his direct appeal, and thus he did not submit
an affidavit or present any other evidence to support his claim.
See Commonwealth v. Diaz, 448 Mass. 286, 289 (2007). The
defendant signed a written jury waiver form and acknowledged he
did so on the record. Finally, the defendant stated that he
understood he was pursuing a trial with a judge and not a jury,
and that no one threatened him to give up his right to a jury.
The colloquy was adequate for the judge to find that the
defendant's jury waiver was knowing, voluntary, and intelligent.
See Commonwealth v. Backus, 78 Mass. App. Ct. 625, 630 (2011).2
Judgment affirmed.
2 We see no merit in the defendant's remaining argument,
that hearsay evidence of his wife's statements at the gasoline
station was improperly admitted and created a substantial risk
of a miscarriage of justice. Contrary to the defendant's claim,
the arresting officer's testimony did not repeat any statement
supposedly made to the defendant by his wife. To the extent
that any of the wife's hearsay statements were repeated in the
booking video, the judge made clear that he would not consider
them. See supra.