|
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. Rivet, 30 Mass.App.Ct.
973 (1991)
Appeals Court of Massachusetts,
No. 90‑P‑877.
Argued
Decided
J. Thomas Kerner,
Elspeth B. Cypher, Asst.
Dist. Atty., for Com.
Before KASS, PORADA and LAURENCE, JJ.
RESCRIPT.
Scott
Rivet was convicted on two counts of motor vehicle homicide while intoxicated, G.L. c. 90, § 24G(a
), two counts of manslaughter, G.L. c. 265, § 13, and
operating under the influence and causing serious bodily [30 Mass.App.Ct. 974] injury, G.L. c. 90, § 24L(1). (FN1)
His appeal claims four errors:
(1) there was no probable cause to arrest; (2) a blood test reflecting his blood alcohol
level should not have been admitted in evidence; (3) certain medical records should not have
been admitted; and (4) the motor vehicle
homicide indictments should have been dismissed because they are duplicative of
the manslaughter charges. We affirm the
convictions based on manslaughter and operating under the influence causing
serious bodily injury, and we vacate the convictions of motor vehicle homicide.
Rivet's
offenses arose from a collision between the pick‑up truck he was driving
and an automobile driven by Jose DosAnjos. Rivet rammed head‑on into DosAnjos's vehicle as the vehicle was making a left turn
from Route 1 onto Route 120 in
Officers
Coyle and Dawes of the North Attleborough police
department each had independently concluded that there was probable cause to
arrest Rivet for driving while intoxicated.
Coyle, who was the first officer to arrive at the scene of the
accident, spoke with Rivet for approximately twenty‑five minutes. Rivet told him that he had drunk one beer at
his grandmother's. Coyle noticed that
Rivet's eyes were glassy. Because Rivet
seemed to be in pain from injuries to his mouth and left leg, Coyle decided not
to subject him to field sobriety tests but did place Rivet under arrest. Officer Dawes arrived sometime after Coyle
and noticed that Rivet's eyes were bloodshot, there was blood coming from his
mouth and nose, there was a heavy odor of alcohol on his breath, and he had
some difficulty speaking, though he was able to complain about the injury to
his mouth. Before reaching the accident
scene, Dawes had spoken with witnesses who saw Rivet's truck traveling between
sixty and seventy miles per hour in a thirty mile per hour zone just before
impact. Officer Dawes was with Rivet and
Officer Doyle for about ten to fifteen minutes before Doyle arrested
Rivet. Based on these observations,
Dawes also concluded that there was probable cause to believe Rivet was
intoxicated.
[1][2] 1. Probable cause. Rivet makes a two‑part argument
against the judge's determination that the officers had probable cause to
arrest: first, that Officer Coyle lacked
sufficient information to justify making the arrest; second, that, even if the additional
information Officer Dawes possessed constituted probable cause, that knowledge
was never shared with Coyle before he arrested Rivet. Neither argument withstands analysis.
[30 Mass.App.Ct.
975] Although probable cause
requires more than mere suspicion of an offense, it demands less evidence than
that to support a conviction. Commonwealth v. Grammo,
8 Mass.App.Ct. 447, 450, 395 N.E.2d 476 (1979). Here, Coyle had knowledge of several factors
pointing to a probability that alcohol was a factor in the collision. See
Commonwealth v. Marley, 396 Mass. 433, 442 n. 11, 486 N.E.2d 715 (1985)
(court noted there was ample evidence to support probable cause in its analysis
of the evidence sufficient to deny a motion for a required finding of not
guilty);
Commonwealth v. Hilton, 398 Mass. 63, 68, 494 N.E.2d 1347
(1986). The odor of alcohol on Rivet's
breath, his admission to have consumed "only one beer," his glassy
eyes, and the extent of the accident itself combined to support an inference of
intoxication. Ibid. Commonwealth v. Grammo,
8 Mass.App.Ct. at 450, 395 N.E.2d 476.
Although
the record does not explicitly tell us that Officers Coyle and Dawes exchanged
information before the arrest, they jointly participated in the accident
investigation. Rivet, relying on Commonwealth v. Gullick,
386 Mass. 278, 283‑284, 435 N.E.2d 348 (1982), suggests that the
government has failed to demonstrate that Coyle and Dawes did, indeed, share
information. That opinion holds,
however, that, because the officers had been engaged in a cooperative effort,
probable cause should be evaluated on the basis of collective information. Id.
at 283, 435 N.E.2d 348. See Commonwealth v. Marlborough, 21 Mass.App.Ct. 944, 945, 486 N.E.2d 1144 (1985). Probable cause to arrest is determined upon
an objective view of the facts. Commonwealth v. Miller, 366 Mass. 387,
389‑390, 318 N.E.2d 909 (1974). In Commonwealth v. Wooden, 13 Mass.App.Ct. 417, 421‑422, 433 N.E.2d 1234 (1982), we
held that it was not fatal to establishing probable cause that neither officer
traded information because both had worked in concert within arm's length of
each other. From such circumstances one
may impute one officer's knowledge to another.
See also 2 LaFave, Search and Seizure §
3.5(c), at 17‑19 (2d ed. 1987).
The holding in Wooden applies
to the circumstances of Rivet's arrest.
For at least fifteen minutes prior to the arrest, Dawes was within easy
reach of Coyle and Rivet.
[3] 2. Blood test. Rivet not only consented to a blood test but
requested that one be taken. (FN3) He concedes that a hospital employee took the
sample but argues for the first time on appeal that the government failed to
prove that the person who drew his blood was "a physician, registered nurse or certified medical technician,"
as required by G.L. c. 90,§ 24(1)(e ), as amended through St.1980, c. 383,
§ 1. At trial, Rivet's counsel made a
generalized objection about whether protocols for blood testing prescribed by
501 Code Mass.Regs. § 2.29 (1987) had been fully
observed and about the chain of custody of the blood sample. There was no objection based on the status of
the person who drew the blood and, thus, the point is lost for review. See
Commonwealth v. Lett, 393 Mass. 141, 144, 470
N.E.2d 110 (1984); [30 Mass.App.Ct.
976] Commonwealth v. Atkinson, 15 Mass.App.Ct.
200, 205, 443 N.E.2d 1371 (1983); Commonwealth v. Moore, 20 Mass.App.Ct. 1, 6, 477 N.E.2d 1033 (1985). (FN4)
[4] 3. Medical records. Over Rivet's objection, the trial judge
admitted Jose DosAnjos's hospital records obtained
from a Rhode Island hospital. What that
evidence tended to prove was that DosAnjos had
suffered serious injury in the accident;
there was other evidence on that score.
Rivet argues that the Commonwealth did not show that Rhode Island has a
requirement for its hospitals analogous to the demands of G.L.
c. 233, § 79. Although a copy of the
pertinent Rhode Island statute was not at hand, the judge found that Rhode
Island has a comparable hospital records exception to the hearsay rule. The judge's finding was correct. Rhode Island Gen.Laws
§ 23‑17‑10 (1989) and its accompanying regulation (R23‑17‑HOSP,
§ 25.3) impose requirements similar to G.L. c. 111, §
70, a prerequisite to admissibility under G.L. 233, §
79. See Commonwealth v. Johnson, 371 Mass. 862, 870‑871, 359 N.E.2d
1286 (1977).
4. Duplicative indictments. The Commonwealth concedes that the motor
vehicle homicide and manslaughter convictions are duplicative. See
Commonwealth v. Davidson, 27 Mass.App.Ct. 846,
850, 545 N.E.2d 55 (1989). Therefore,
the motor vehicle homicide convictions shall be vacated and the accompanying
indictments for motor vehicle homicide shall be dismissed. The remaining judgments are affirmed.
So ordered.
(FN1.) Convictions of operating a motor
vehicle under the influence of alcohol, operating to endanger, G.L. c. 90, §§ 24(1)(a
)(1), and 24 (2)(a ), were set aside
by the trial judge as lesser included offenses of the conviction under G.L. c. 90, § 24L(1).
See Commonwealth v. Atencio, 12 Mass.App.Ct. 747,
752, 429 N.E.2d 37 (1981).
(FN2.)
We have supplemented the motion judge's findings slightly with undisputed
material from the hearing transcript.
(FN3.)
The results showed a blood alcohol level of .187 to .192 per cent.
(FN4.)
Had Rivet made a specific objection at trial, the individual who took the blood
sample could have been better identified.
Officer Coyle testified at the motion hearing that a lab technician took
the blood sample. Rivet's Consent for
Blood Alcohol Test form was witnessed by a hospital phlebotomist.