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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Mahoney, 400
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
Conrad W. Fisher, Worcester, for defendant.
Phillip E. Shea, Asst.
Dist. Atty., for the Com.
Before HENNESSEY,
C.J., and WILKINS, LIACOS,
LYNCH and O'CONNOR, JJ.
HENNESSEY, Chief Justice.
The
defendant, Donald J. Mahoney, was convicted of operating a motor vehicle while
under the influence[400 Mass. 526]
of intoxicating liquor in violation of G.L. c.
90, § 24 (1984 ed.). The defendant
appealed, and we transferred the case to this court on our own motion.
Testimony
at trial before a jury of six produced the following facts. At approximately
The
defendant was taken to the police station where the booking procedure was
videotaped. At that time, the defendant
was coherent and responsive. Later,
being advised of his rights under G.L. c. 263, § 5A,
the defendant was given a breathalyzer test and a reading of .19 resulted.
1. The defendant
first argues that the videotape of the booking procedure was erroneously
admitted in evidence and played before the jury in violation of the Fourth,
Fifth, and Sixth Amendments to the Constitution of the United States and his
rights under Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). (FN1)
The defendant objected to the admission in evidence of the videotape on
the grounds that, at the time he was being booked, he had not been advised that
he was being videotaped or that the videotape would be used as evidence against
him at trial. [400 Mass. 527] The defendant does acknowledge, however, that during the booking
procedure he was asked to look up because he was being taped but that at no
time was he informed of the purpose of the taping.
[1] We
have stated that videotapes are "on balance, a reliable evidentiary
resource." Commonwealth v. Harvey, 397 Mass. 351,
359, 491 N.E.2d 607 (1986).
Consequently, videotapes should be admissible as evidence if they are
relevant, they provide a fair representation of that which they purport to
depict, and they are not otherwise barred by an exclusionary rule. See
Commonwealth v. Vitello, 376 Mass. 426, 440, 381
N.E.2d 582 (1978). In this case, the
defendant's recitation of alleged constitutional violations does not provide a
ground for the exclusion of the videotape from the jury.
[2] No
Fourth Amendment violation occurred because no search or seizure was involved
in videotaping the defendant. The
booking procedure took place in an open area of the police station where any
officers or passersby could observe the defendant. See
United States v. Dionisio, 410 U.S. 1, 14‑15,
93 S.Ct. 764, 771‑72, 35 L.Ed.2d 67 (1973); Katz
v. United States, 389 U.S. 347, 351, 88 S.Ct.
507, 511, 19 L.Ed.2d 576 (1967). Cf. Commonwealth v. Sergienko,
399 Mass. 291, 293‑294, 503 N.E.2d 1282 (1987); Commonwealth v. Hason, 387
Mass. 169, 172‑173, 439 N.E.2d 251 (1982). The defendant does not argue that the
observations by police officers at the booking procedure constituted a
search. Consequently, there was no
search when these observations were recorded electronically by videotape. See, e.g.,
United States v. Caceres, 440 U.S. 741, 750‑751,
99 S.Ct. 1465, 1470‑71, 59 L.Ed.2d 733 (1979),
quoting United States v. White, 401
U.S. 745, 751, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453
(1971);
United States v. McMillon, 350 F.Supp. 593, 596‑597 (D.D.C.1972); Annot., 27 A.L.R. 4th 532 (1984).
[3] There
was also no violation of the defendant's Fifth Amendment rights. The defendant's right not to be compelled to
be a witness against himself does not extend to photographic or video
recordings, but is limited only to evidence that is "testimonial" or
"communicative" in nature. See Schmerber v.
California, 384 U.S. 757, 764, 86 S.Ct. 1826,
1832, 16 L.Ed.2d 908 (1966) (The Fifth Amendment "offers no protection
against compulsion to submit to fingerprinting, photographing, or measurements,
to write or speak [400 Mass. 528] for identification, to appear in
court, to stand, to assume a stance, to walk, or to make a particular
gesture"); Commonwealth v. Brennan, 386 Mass. 772,
776, 438 N.E.2d 60 (1982); Blaisdell v.
Commonwealth, 372 Mass. 753, 758‑759, 364 N.E.2d 191 (1977). See also
Thompson v. People, 181 Colo. 194, 202‑203, 510 P.2d 311 (1973);
People v. Fenelon, 14 Ill.App.3d 622, 626,
303 N.E.2d 38 (1973); State v. Strickland, 276 N.C. 253, 260‑261,
173 S.E.2d 129 (1970); Delgado v. State, 691 S.W.2d 722, 723‑724
(Tex.App.1985). Nor are we confronted
with an objection to the introduction of "testimonial" evidence
because the videotape included an audio recording of the defendant's responses
to police questioning during the booking procedure. In
Commonwealth v. Brennan, supra at 778, 438 N.E.2d 60, we stated that "
'testimonial' evidence, for the purpose of Fifth Amendment analysis, is
evidence which reveals the subject's knowledge or thoughts concerning some
fact." That case involved the
performance of field sobriety tests administered for the purpose of determining
whether a driver of a motor vehicle is under the influence of intoxicating
liquor. We concluded that the
performance of the tests did not violate the defendant's rights under the Fifth
Amendment because the tests only forced the defendant "to exhibit his
physical coordination, or lack thereof, for observation by a police
officer." Id. at 779, 438 N.E.2d 60. No testimonial or communicative evidence was
involved. Like Brennan, this case does not involve police attempts to reveal any
"knowledge or thoughts" of the subject. The defendant's answers to the questions
recorded by the videotape concerned only the defendant's name, address, age or
other information necessary to the booking procedure. The videotape provided the jury with an
opportunity to determine whether, from the defendant's bearing and manner of
speaking, he was intoxicated.
Consequently, like the field sobriety tests in Brennan, the responses to the police questions recorded by the
videotape serve only to exhibit the defendant's "physical
coordination." The defendant was
not compelled to reveal thoughts or knowledge concerning some fact.
[4][5] The
defendant's arguments that his Sixth Amendment rights were violated must also
fail. Our cases make clear that the
Sixth Amendment right to counsel does not apply at the time [400 Mass. 529] of an
arrest.
Commonwealth v. Mandeville, 386 Mass. 393, 401, 436 N.E.2d 912
(1982).
Commonwealth v. Smallwood, 379 Mass. 878, 883‑885, 401 N.E.2d
802 (1980). See Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct.
1877, 1881, 32 L.Ed.2d 411 (1972). Nor
does the defendant succeed in his claim that the police questioning during the
booking procedure violated his rights under
Miranda v. Arizona, supra. Although
no Miranda warnings had been given to the defendant at the time of the booking
procedure, the questions by the police and answers by the defendant recorded on
the videotape were not the kind of "custodial interrogation" with
which the United States Supreme Court was concerned in that case. "[T]he term 'interrogation' under Miranda refers not only to express
questioning, but also to any words or actions on the part of the police
(other than those normally attendant to
arrest and custody ) that the police should know are reasonably likely to
elicit an incriminating response from the suspect" (footnote omitted,
emphasis added). Rhode Island v. Innis,
446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d
297 (1980). Thus, the judge did not err
in allowing the introduction of the videotape despite the fact that the
defendant had not been given Miranda warnings.
See Palmer v. State, 604 P.2d
1106, 1109 (Alaska 1979).
[6][7]
Finally, the defendant argues that the videotape was not properly authenticated
because the Commonwealth did not present evidence to show that there were
properly promulgated rules and regulations concerning the videotape procedure
or that the operator of the videotape equipment was competent or experienced in
the use of the equipment. See People v. Strozier,
116 Misc.2d 103, 455 N.Y.S.2d 217 (N.Y.Justice
Ct.1982). We disagree. The record makes clear that the videotape was
properly authenticated by the arresting officer who viewed the videotape prior
to trial and who testified as to the procedure used in the videotaping process
and to the contents of the videotape.
The testimony of Officer Cummings was sufficient to authenticate the
videotape and render it admissible as evidence.
See Commonwealth v. Drayton,
386 Mass. 39, 48‑49, 434 N.E.2d 997 (1982); Commonwealth v. LaCorte, 373 Mass. 700, 703‑704, 369 N.E.2d 1006
(1977);
Commonwealth v. Lamoureux, 348 Mass. 390,
393‑394, 204 N.E.2d 115 (1965).
Any concerns of the defendant concerning rules and regulations of [400 Mass. 530] videotaping procedures and the competence of the operator were
properly the subject of cross‑examination and affected the weight, not
the admissibility, of the videotape.
[8] 2. The
defendant next claims that the judge erred in limiting the scope of defense
counsel's opening statement. The
Commonwealth indicated in its opening statement that it would introduce the
videotape of the defendant recorded during the booking procedure. When defense counsel commented that jurors
should pay particular attention to certain actions of the defendant while
viewing the videotape, the Commonwealth objected and the judge cautioned
defense counsel that he was bordering on argument. When counsel returned to commenting on the
videotape and what the jurors would not see, the Commonwealth again objected
and the judge instructed counsel to focus only on evidence that he intended to
offer. The judge further instructed
counsel not to comment on the videotape.
We conclude that there was no error.
"The
proper function of an opening is to outline in a general way the nature of the
case which the counsel expects to be able to prove or support by
evidence." Commonwealth v. Fazio,
375 Mass. 451, 454, 378 N.E.2d 648 (1978), quoting Posell v. Herscovitz,
237 Mass. 513, 514, 130 N.E. 69 (1921), and cases cited. Commonwealth v. St. Germain, 381 Mass. 256, 271, 408 N.E.2d 1358
(1980). See K.B.
Smith, Criminal Practice & Procedure § 1839 (2d ed. 1983). Furthermore, an opening statement "may
be limited by a trial judge, acting within his discretion, to particularized
evidence which the defendant expects to adduce." Commonwealth v. Murray, 22 Mass.App.Ct. 984, 985, 496 N.E.2d 179 (1986).
Commonwealth v. Medeiros, 15 Mass.App.Ct.
913, 443 N.E.2d 900 (1983). See Commonwealth v. Clark, 292 Mass. 409,
410, 198 N.E. 641 (1935); Commonwealth v. McJunkin,
11 Mass.App.Ct. 609, 614‑617, 418 N.E.2d 1259
(1981). The judge appropriately limited
defense counsel to evidence that he intended to offer. Nor was the defendant prejudiced by the
restriction. Counsel was able to direct
the jury's attention to the same issues that he wanted them to consider by
focusing on the proposed testimony of the defendant. Defense counsel also had a full opportunity
to raise these issues during closing arguments.
[9] 3. The
defendant also alleges error by the judge in restricting his cross‑examination
of the arresting officer. The judge
sustained[400 Mass. 531]
an objection by the Commonwealth when defense counsel asked Officer
Cummings whether he was aware of other instances in which videotapes of the
booking procedure had been used in a
trial where the charge was driving under the influence of intoxicating
liquor. The defendant argues on appeal
that this cross‑examination was proper because it would have placed the
jury in a better position to assess the value and weight to be given to the
videotape. Again, the judge did not
abuse his discretion in limiting the scope of cross‑examination.
Commonwealth v. Maltais, 387 Mass. 79, 90,
438 N.E.2d 847 (1982). Commonwealth v. Ahearn, 370 Mass. 283,
286‑287, 346 N.E.2d 907 (1976), and cases cited. Commonwealth v. Smith, 329
Mass. 477, 479, 109 N.E.2d 120 (1952).
While cross‑examination concerning the absence of a videotape of
the defendant where the police routinely videotape all defendants charged with
driving under the influence of intoxicating liquor may be relevant to impeach
the testimony of an arresting officer, see 1 R.E.
Erwin, Defense of Drunk Driving Cases § 9.02[2] (3d ed. 1986); L. Taylor, Drunk Driving Defense§ 4.5.2 (2d
ed. 1986), defense counsel's question was not relevant in this instance to the
question of the defendant's intoxication.
There was no error.
[10] 4. On
direct examination, the defendant testified that at the time of the incident he
was taking an antidepressant medication called Nardil. The defendant argues that the judge erred in
allowing the Commonwealth to ask the defendant on cross‑examination, and
over the objection of the defendant, whether he was aware that he was not to
drink alcohol while taking Nardil. The defendant responded that he was not aware
of any limitation. On appeal, he
maintains that the question was improper because it contained prejudicial
information which was not based on the evidence. There was no showing that the prosecutor
acted in bad faith in asking this question, "implying the truth of a
proposition he knew to be false." Commonwealth v. Fitzgerald, 376 Mass.
402, 414, 381 N.E.2d 123 (178). See Commonwealth v. Barnett, 371 Mass. 87,
96, 354 N.E.2d 879 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct.
760, 50 L.Ed.2d 765 (1977); Commonwealth v. White, 367 Mass. 280, 284‑285,
325 N.E.2d 575 (1975); Commonwealth v. Marsh, 354 Mass. 713,
720, 242 N.E.2d 545 (1968); Commonwealth v. Granito,
326 Mass. 494, 498 95 N.E.2d 539[400 Mass. 532] (1950). We have stated that "the cross‑examiner
should have a reason for asking any such questions and should be prepared to
disclose that reason to the judge." Commonwealth v. White, supra at 284, 325
N.E.2d 575. The defendant had testified
that he was taking Nardil, an antidepressant
medication. The Commonwealth was
warranted in asking whether the defendant had been warned that he should not
consume alcohol, a commonly known depressant, while taking the medication. Consequently, there was no error.
[11] 5.
Finally, the defendant maintains that the Commonwealth improperly stated during
closing argument that a reading of .19 by a breathalyzer was almost twice as
much or even nine points above the limit of .10 at which the jury could draw
the inference that the defendant was intoxicated. Even assuming that the statement by the
prosecutor was erroneous, there was no prejudice. The defendant objected, and the judge stated
that he would instruct the jury on this issue.
The totality of the charge cured any possible prejudice to the defendant
which may have occurred during the Commonwealth's closing argument.
[12] The
defendant also claims that the judge improperly instructed the jury when he
stated: "Above .10 the jury is
entitled to draw the inference that he was under the influence of alcohol‑‑.10
or above. The machine is calibrated to
say at this point the person was under the influence of alcohol." While G.L. c. 90,
§ 24(1)(e), speaks in terms of a "presumption" that a defendant was
under the influence of intoxicating liquor if the percentage, by weight, of
alcohol in the defendant's blood was .10 or greater, we have interpreted the
statute as creating a "permissible inference" which the jury may
employ in determining whether a defendant was intoxicated. Commonwealth v. Moreira, 385 Mass. 792, 434 N.E.2d 196 (1982). While the judge's statement that "the
person was under the influence of
alcohol" if the breathalyzer reading was .10 or above misstated the law,
our reading of the judge's charge to the jury, taken as a whole, indicated that
the jury were properly instructed.
(FN2) "A jury charge [400 Mass. 533] must be considered as a whole, not by bits and pieces."
Commonwealth v. McInerney, 373 Mass. 136,
149, 365 N.E.2d 815 (1977), quoting
Commonwealth v. Gibson, 368 Mass. 518, 527‑528, 333 N.E.2d 400
(1975). Furthermore, defense counsel
brought the error to the judge's attention at the side bar but, after a
discussion with the judge, did not seek a corrective instruction. Consequently, we find no error in the judge's
instructions to the jury.
Judgment affirmed.
(FN1.) The defendant's brief also refers to
the Declaration of Rights of the Massachusetts Constitution and to the
Fourteenth Amendment to the Constitution of the United States. Because the defendant's arguments focus on
the provisions discussed within the text, we do not address the merits of any
possible arguments on his behalf under these additional provisions. See Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975).
(FN2.)
In addition to stating that "[a]bove .10 the
jury is entitled to draw the inference that he was under the influence of
alcohol," the judge also instructed the jury that the breathalyzer reading
was "something that you should consider along with all the rest of the
evidence in making your decision. It
isn't something, of course, that you have to follow; but you must‑‑you should consider
this along with all the other evidence in making your decision being just as
fair as you can to both parties and decide whether or not the defendant was
under the influence of alcohol."
In light of these statements, we conclude that the jury were properly
instructed that a breathalyzer reading of .19 entitled them to draw the
inference that the defendant was intoxicated but did not require that they make
such a finding.