|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Mencoboni,
28 Mass.App.Ct. 504 (1990)
Appeals Court of Massachusetts, Middlesex.
No. 89‑P‑1075.
Argued
Decided
David R. Marks, Asst. Dist. Atty., for the Com.
Fredric L. Ellis, for defendant.
Before BROWN, FINE and JACOBS, JJ.
FINE, Justice.
The
defendant was arrested for operating a motor vehicle while under the influence
of intoxicating liquor. He was taken to
the Hopkinton police station at approximately
On these
undisputed facts, a District Court judge dismissed the complaint against the
defendant. The judge determined that the
denial of a private conference was a material factor in the defendant's failure
to take the breathalyzer test, that the defendant had a right to confer
privately with his attorney at the station, and that his right to counsel,
therefore, was denied. The Commonwealth
appealed. We agree with the Commonwealth
that the case should not have been dismissed.
[1][2][3]
The defendant had no statutory or constitutional right to have the police
administer a breathalyzer test to him. Commonwealth v. Alano,
388 Mass. 871, 448 N.E.2d 1122 (1983).
His only substantive rights with respect to a blood alcohol content test
were those set forth in G.L. c. 263, § 5A, and the
defendant was adequately protected when the police informed him of his right to
secure an independent physical examination and granted him access to the
telephone. Id. at 879, 448 N.E.2d 1122. Compare
Commonwealth v. Andrade, 389 Mass. 874, 877‑882, 453 N.E.2d 415
(1983).
Commonwealth v. Brazelton, 404 Mass. 783,
537 N.E.2d 142 (1989), decided after the motion to dismiss was allowed in this
case, held that an arrested person has no Federal or State constitutional right
to consult with an attorney before deciding whether to submit to a breathalyzer
test. We think no meaningful distinction
can be made between the facts in that case and the [28 Mass.App.Ct. 506] present one. Further, the
defendant's constitutional right to counsel had not attached at the time his
attorney sought to confer with him in the cell.
See Commonwealth v. Jones, 403
Mass. 279, 286, 526 N.E.2d 1288 (1988).
The judge's decision, therefore, cannot stand on its stated ground.
[4][5] The
defendant points out, correctly, that our courts have recognized, as a matter
of fundamental fairness, that police officers may not purposefully interfere
with a defendant's access to a specific attorney who wants to confer with the
defendant and who the police know represents the defendant. See
Commonwealth v. McKenna, 355 Mass. 313, 324‑325, 244 N.E.2d 560
(1969);
Commonwealth v. Mahnke, 368 Mass. 662,
692, 335 N.E.2d 660 (1975); Commonwealth v. Sherman, 389 Mass. 287,
291, 450 N.E.2d 566 (1983); Commonwealth v. DiMuro,
28 Mass.App.Ct. 223, 226 & n. 2, 548 N.E.2d 896
(1990); ABA Standards, The Defense
Function § 4‑3.1(d) (2d ed. 1979).
See also Commonwealth v. Manning,
373 Mass. 438, 367 N.E.2d 635 (1977); Commonwealth v. Lewin,
405 Mass. 566, 586 n. 13, 542 N.E.2d 275 (1989). Appropriate remedies have been fashioned in
cases involving such interference. See,
for example, Commonwealth v. McKenna,
355 Mass. at 325, 244 N.E.2d 560 (suppression of statements made during
custodial interrogation where the defendant was not apprised of his attorney's
efforts to speak with him); Commonwealth v. Mahnke,
368 Mass. at 692, 335 N.E.2d 660.
Absent egregious prosecutorial misconduct or serious prejudice to a
defendant, however, the severe remedy of dismissal has not been invoked. See
Commonwealth v. Cinelli, 389 Mass. 197, 210, 449
N.E.2d 1207, cert. denied, 464 U.S. 860, 104 S.Ct.
186, 78 L.Ed.2d 165 (1983); Commonwealth v. Sherman, 389 Mass. at
295, 450 N.E.2d 566. Cf. Commonwealth v. Manning, 373 Mass. at
443, 367 N.E.2d 635 (dismissal required where Federal agents wilfully interfered with the defendant's constitutional
right to counsel and some prejudice resulted).
[6] In
this instance, the denial of a private conference with counsel had no adverse
consequences for the defendant (FN1) with respect to his relationship with his
attorney or his ability to [28 Mass.App.Ct. 507]
obtain a fair trial. Contrast Commonwealth v. Manning, 373 Mass. at
444, 367 N.E.2d 635. Had he made inculpatory statements while in police custody they would
be suppressed, but apparently he made none.
The Commonwealth may not introduce at trial evidence of his failure to
take the breathalyzer test. G.L. c. 90, § 24(1)(e
). The decision in Commonwealth v. Brazelton, 404 Mass. at
785, 537 N.E.2d 142, prevents us from finding prejudice solely on the basis of
the defendant's inability to present potentially exculpatory breathalyzer test
results at trial.
We
conclude that, in the absence of prejudice or any claim of improper motive on
the part of the Hopkinton police, dismissal of the complaint against the
defendant was not called for. (FN2) We would be remiss, however, if we failed to
comment on the impropriety of the denial of counsel's reasonable request for a
brief private conference with his client before the breathalyzer decision was
made, or at least at some point during the defendant's detention at the police
station. ABA Standards, The Defense
Function § 4‑3.1(c) (2d ed.1979).
In fact, the police station was equipped with a two‑way mirror
through which the defendant could have been observed, at least visually, while
conferring with his attorney. It is hard
to imagine what purpose is served by such inflexibility and reliance on wooden
"policies." On the contrary,
such conduct inevitably causes disrespect among citizens for those who enforce
the law and places the successful prosecution of criminals at unnecessary risk.
Order dismissing complaint reversed.
[28 Mass.App.Ct.
508]
BROWN, Justice (dissenting).
I think
that where, as here, there was deliberate misconduct on the part of law
enforcement officers, we should implement a prophylactic rule by which the
complaint against the defendant is dismissed.
See Commonwealth v. Manning,
373 Mass. 438, 443‑445, 367 N.E.2d 635 (1977). "It cannot be asserted too often that
the [government] must 'take care to behave itself' " (citation omitted).
Commonwealth v. Felton, 16 Mass.App.Ct.
63, 66, 448 N.E.2d 1304 (1983).
As the
majority opinion points out, the cases of the Supreme Judicial Court have
established that a defendant has no statutory or constitutional right to have
the police administer a breathalyzer test to him. Nevertheless, it is still the general policy
in this Commonwealth to encourage
persons arrested for drunk driving to take the test. G.L. c. 90, §
24(1)(f ). It is worth noting that it appears that the
defendant in this case did not actually refuse to take the test. The defendant's attorney testified that, when
asked whether he would take the test, the defendant replied that he would
"do what my attorney tells me to do." When the attorney indicated that he needed
to speak with the defendant privately before he could let the booking officer
know of the decision, the officer indicated that a private conference was not
possible, that the response given would be deemed to be a refusal, and that the
officer at that point signed the refusal form.
Similarly, the booking officer testified that the defendant stated that
he could not make a decision to take the test until he was given an opportunity
to consult privately with his attorney.
The officer indicated that a conference "would not be possible and
that his not taking the test would be considered a refusal." The officer also testified that the attorney
protested that "it was not a refusal." I do not think there is any question that
the booking officer did not make much of an attempt to get a breathalyzer test
in this case. The least I can say is he
gave up too easily; at most, he may have
effectively prevented the defendant from taking the test. (FN1)
Compare[28 Mass.App.Ct. 509]
Commonwealth v. Alano, 388 Mass. 871, 872,
448 N.E.2d 1122 (1983) (defendant consented to test; all three breathalyzer machines at station
were in disrepair; shift commander
denied arresting officers' request to transport defendant to working machine).
There is,
of course, no indication that the defendant in this case was attempting a
stalling maneuver, perhaps delaying a test until he felt he could pass it. The attorney arrived at the station within
half an hour after the defendant was arrested, and the maximum delay
attributable to the requested private conference (if the two‑way mirror
was not used) would have been twenty minutes or so. (FN2)
Even if we were to accept the lame excuse the police offered for their
initial refusal to allow the attorney to confer with the defendant, nothing has
been presented, nor can anything be put forth, that would justify or excuse the
second denial of access. See Commonwealth v. Mahnke,
368 Mass. 662, 692, 335 N.E.2d 660 (1975) ("police may not thwart counsel
who seeks to confer with a client").
I firmly believe that any unjustified intentional interference with the
attorney‑client relationship in this day and age calls for severe and
prompt measures by the judicial system, particularly in situations, such as the
present, where it is safe to assume no administrative disciplinary action was
taken against the officers involved
in this outrageous and needless power play.
We cannot
constantly warn and then continually excuse (e.g., by finding no apparent
prejudice) such a blatant infringement of the right to counsel. Cf. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 467, 86 L.Ed. 680
(1942) ("[t]he right to have the assistance[28 Mass.App.Ct. 510] of counsel is too
fundamental and absolute to allow courts to indulge in nice calculations as to
the amount of prejudice arising from its denial"). I share the frustration of the motion judge,
who noted in his memorandum and order allowing the motion to dismiss that he
was allowing the motion because he was "unable to fashion a more
appropriate remedy," and I am sceptical that the
majority's comment on the "impropriety" of the police conduct in this
case will serve to curb similar future abuses.
I think the time has come to put teeth in our bite. (FN3)
I accordingly would uphold the trial judge's allowance of the
defendant's motion to dismiss.
(FN1.) Although the defendant's driver's
license was suspended by the Registry of Motor Vehicles, it was reinstated, notwithstanding
G.L. c. 90, § 24(1)(f ), a month after his arrest.
(FN2.)
As a sanction for the improper police conduct, however, it would be within the
trial judge's discretion to allow the defendant, should he choose to do so, to
introduce evidence at trial as to the circumstances attending his failure to
take the test to explain the absence of potentially exculpatory evidence. Compare
Commonwealth v. Cameron, 25 Mass.App.Ct. 538,
549, 520 N.E.2d 1326 (1988); Commonwealth v. Holman, 27 Mass.App.Ct. 830, 832, 544 N.E.2d 598 (1989). The trial judge may also exercise his
discretion to prevent the Commonwealth from offering testimony about
observations of the defendant's demeanor while in custody at the police
station.
(FN1.)
It may not even be possible for attorneys to avoid the situation presented in
this case by addressing the issue of whether to take a breathalyzer test in the
first phone call they receive from an arrested client. See
Commonwealth v. Brazelton, 404 Mass. 783, 784,
537 N.E.2d 142 (1989) (officials can require that defendant decide whether to
take test before being allowed access to telephone).
(FN2.)
If Commonwealth v. Brazelton,
404 Mass. 783, 537 N.E.2d 142 (1989), is grounded in the fear that drunk
drivers could take advantage of a right to consult an attorney before deciding
whether to take a breathalyzer test, using any such right to delay the test
until the results were stale and of more questionable accuracy, id. at 785, 537 N.E.2d 142, surely that
"formidable practical problem[ ]" can be left to the jury, who can
take any delay into account in weighing the value of a test. See
Commonwealth v. Marley, 396 Mass. 433, 438, 486 N.E.2d 715 (1985).
(FN3.)
Cf.
Levings v. Forbes & Wallace, Inc., 8 Mass.App.Ct. 498, 505, 396 N.E.2d 149 (1979).