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
A criminal complaint issued in the West Roxbury Division of the Boston Municipal Court against the defendant, Frantz G. Thevenin, on charges of operating under the influence of alcohol and leaving the scene of an accident with property damage. See G. L. c. 90, § 24(1)( a )(1) & (2)( a ), respectively. The motion judge allowed the defendant's motion to suppress his prearrest statements after an evidentiary hearing. In this interlocutory appeal, see Mass.R.Crim.P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), the Commonwealth contends that the motion judge erred in finding that the defendant was in custody at the time the prearrest statements were made. We agree and reverse the order allowing the motion.
Motion to suppress.
We recite the motion judge's factual findings supplemented by the uncontroverted evidence at the motion hearing. On October 13, 2012, at approximately 10:00 p.m., Officers Hubbard and Porter, received a radio call regarding a motor vehicle accident in the Hyde Park section of Boston. The officers did not report to the scene but patrolled the surrounding blocks looking for the operator of the motor vehicle who had left the scene on foot. The operator was described as an African-American male wearing blue jeans and a camouflage jacket. At 123 Edgewater Drive, Officer Hubbard saw someone on foot who ducked down behind a parked car on the street. The officers, who were in uniform, parked their marked Boston police department patrol wagon about five yards away and got out of the wagon. Their guns were holstered and they did not activate their blue lights. As Officer Hubbard got closer, he observed that the man, later identified as the defendant, matched the description broadcast on the radio call. Officer Hubbard asked the defendant, who was on the side of the road between the parked car and house, what he was doing and where he was coming from. The defendant pointed toward the scene of the accident, relaying he had been at a friend's house " over there." Officer Hubbard asked the defendant " where exactly are you coming from?" and the defendant stated he left the scene of an accident, and that it was his car " over there" . These statements were made at the outset of the encounter. At some point the defendant also admitted that he was operating the car that had struck the other car and did not have a current registration or plates because he had been in Canada. The defendant eventually was arrested and read his Miranda rights.
We review the ruling on the motion to suppress, accepting the motion judge's findings absent clear error and independently determining the " correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Santiago, 470 Mass. 574, 578-579, 24 N.E.3d 560 (2015). " A finding is clearly erroneous if it is not supported by the evidence, or when the reviewing court, on the entire evidence, is left with the firm conviction that a mistake has been committed." Commonwealth v. Hilton, 450 Mass. 173, 178, 877 N.E.2d 545 (2007), citing Commonwealth v. Tavares, 385 Mass. 140, 145, 156, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982).
" In assessing whether a defendant was in 'custody' for purposes of the Miranda requirements, '[t]he crucial question is whether, considering all the circumstances, a reasonable person in the defendant's position would have believed he was in custody.'" Commonwealth v. Hilton, 443 Mass. 597, 609, 823 N.E.2d 383 (2005), quoting from Commonwealth v. Damiano, 422 Mass. 10, 13, 660 N.E.2d 660 (1996). To perform this assessment we consider: " (1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the nature of the interrogation, i.e., whether the interview was aggressive or, instead, informal; and (4) whether, at the time the incriminating statement or statements were made, the suspect was free to end the interview by leaving the place of the interrogation or by asking the interrogator to leave, or, alternatively, whether the interview terminated with the defendant's arrest." Commonwealth v. Sneed, 440 Mass. 216, 220, 796 N.E.2d 1284 (2003).
The motion judge gave thoughtful consideration to each of these factors. He noted that the interview took place on a public street, and that the questioning by two officers was formal but not aggressive. Central to the judge's analysis was his finding that the defendant knew that the officers did not believe him, because they told him so. Officer Hubbard testified that he believed that the defendant was lying when he stated he was at a friend's house; however, the officer's subjective belief is irrelevant to the custody determination, unless that belief is communicated to the defendant. See Commonwealth v. Morse, 427 Mass. 117, 126-127, 691 N.E.2d 566 (1998); Commonwealth v. Burbine, 74 Mass.App.Ct. 148, 150-152, 904 N.E.2d 787 (2009). There was no testimony that the officers told the defendant they did not believe him. The judge's finding to the contrary was simply mistaken. In the absence of evidence that the officer communicated his disbelief, the record evidence is also insufficient to support the judge's related finding that the officers persuaded or pressured the defendant to change his response.
The defendant contends that the questioning went beyond the routine questioning following a traffic accident, and the judge so found. True, the officers independently searched for the operator of the motor vehicle who had left the scene of the accident. However, the questioning was of a limited and routine nature " in the fact-finding process." See Commonwealth v. Merritt, 14 Mass.App.Ct. 601, 604, 441 N.E.2d 532 (1982), quoting from Miranda v. Arizona, 384 U.S. 436, 477, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant's admission did not convert an investigatory inquiry into a custodial arrest. See Commonwealth v. Lavendier, 79 Mass.App.Ct. 501, 504-505, 947 N.E.2d 93 (2011).
Given the lack of evidence to support the finding that the defendant had an objectively reasonable belief that he was a suspect at the time of his statements, the general nature of the questions, and the adequately supported findings that the officers questioned the defendant in a neutral public area, see Commonwealth v. McNelley, 28 Mass.App.Ct. 985, 986, 554 N.E.2d 37 (1990), in a nonaggressive, though formal manner, see Burbine, supra at 151-152, the motion to suppress should have been denied.
The order allowing the motion to suppress is reversed and a new order is to enter denying the motion.
Sullivan, Maldonado & Massing, JJ.