Commonwealth v. Roberson

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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
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(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.
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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.
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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.
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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.
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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.
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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.