Commonwealth vs . Sean Gaudet
This decision has been referenced in an "Appeals Court of Massachusetts Summary Dispositions" table in the North Eastern Reporter. And pursuant to its rule 1:28, As Amended by 73 Mass.App.Ct. 1001 (2009) are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 N.4, 881 N.E.2d 792 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction of driving under the influence of intoxicating liquor, fifth offense, in violation of G. L. c. 90, § 24(1). On appeal, he argues that it was error for the motion judge to deny his motion to suppress statements. He also asserts that the trial judge erroneously denied his motion for a new trial based on a claim that his trial counsel was ineffective.
In the light most favorable to the Commonwealth, the jury could have found the following facts. At approximately 11:00 p.m. on August 9, 2011, a Methuen police officer observed the defendant driving a Ford Ranger truck erratically and crossing the center double yellow line on Route 113 multiple times. The defendant did not immediately stop after the officer activated his lights, siren, and air horn. The officer eventually pulled over the defendant, who had glassy and bloodshot eyes and whose speech was slurred. He appeared generally dazed and confused and smelled of alcohol. The interior of the truck also smelled of alcohol and an officer found approximately twelve beers in the back seat area, six of which were cold and one was open and had apparently spilled.
Motion to suppress.
The defendant claims the motion judge erred in denying his motion to suppress a statement that he made during the booking process about pulling his truck over because he thought the police car was trying to go by him. The defendant argues that the finding of the motion judge that the statement was voluntary and not responsive to any questioning was clearing erroneous. Second, he argues that Miranda warnings were required, but not given. We disagree.
When reviewing a motion to suppress, this Court accepts " the judge's subsidiary findings of fact absent clear error 'but conduct[s] an independent review of his ultimate findings and conclusions of law.'" Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002).
The motion judge found that " during booking, [the defendant] made a statement (perhaps twice) that the court finds was voluntary and not responsive to any questioning" by any officer in the station. The judge also found that any statement made by the defendant was not the result of interrogation " even though it/they preceded the standard provision of Miranda rights by [Lieutenant] Martin later in the booking process."
The defendant argues that the judge's findings were clearly erroneous based on Lt. Martin's testimony at the suppression hearing. Lt. Martin testified that he did not ask the defendant any questions that would have prompted the disputed statement, nor did he remember any other officer asking such questions. When asked again if it was possible that a question from another officer could have prompted the defendant's statement, Lt. Martin responded, " Anything is possible."
Any reliance by the defendant on Lt. Martin's response to suggest that the disputed statement was in reply to a question is misplaced, as the officer's response amounts to nothing more than speculation. Lt. Martin testified, and the motion judge found, that the defendant volunteered the statement in question. Where the statement was not a product of custodial questioning, there was no error on the part of the motion judge in denying the defendant's motion.
The defendant's claim that Miranda warnings were necessary also fails. Here, although the defendant was in custody at the police station, any questions posed to him were within the scope of the routine booking process. Moreover, the motion judge concluded that the defendant's statement was not in response to any questioning. Miranda warnings are " required not where a suspect is merely in police custody, but rather where a suspect is subjected to custodial interrogation." Commonwealth v. Torres, 424 Mass. 792, 796, 678 N.E.2d 847 (1997). " [S]tatements initiated spontaneously and voluntarily by a defendant are not the product of police questioning." Commonwealth v. Fortunato, 466 Mass. 500, 511, 996 N.E.2d 457 (2013). " Miranda does not protect volunteered statements." Commonwealth v. Gittens, 55 Mass.App.Ct. 148, 150, 769 N.E.2d 777 (2002). Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (" Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today" ). Where, as here, a statement is volunteered, it is not fatal that Miranda warnings were not given beforehand. Gittens, supra.
Motion for a new trial.
The defendant also claims that the trial judge erroneously denied his motion for a new trial based on his claim that he did not receive the effective assistance of counsel. He argues his trial counsel was ineffective because he (1) failed to impeach Lt. Martin adequately, (2) introduced a video that did not accurately depict the road conditions on the night of the arrest, ...