Opinion
No. 12–P–700.
2013-04-12
COMMONWEALTH v. Daniel P. TOMPKINS.
The defendant claims that the blood evidence is similar to the documentary evidence in Vaughn and Woods. In those cases, however, there was uncontroverted documentary evidence that the respective defendants could not have been the perpetrators of the crimes with which they were charged. See Woods, supra at 5–8; 1 Vaughn, supra. 2 The placement of bloodstains is not the same type of documentary evidence that necessarily controverts the witnesses' testimony and allows us, as an appellate court, to review the evidence de novo. Contrast Woods, supra; Vaughn, supra. Therefore, it was left to the judge, in his role as fact finder, to assess the weight and the credibility of the evidence. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005) (“If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province”). Commonwealth v. Brown, 449 Mass. 747, 765 (2007) (citation omitted), quoting from Commonwealth v. Stroyny, 435 Mass. 635, 646 (2002). The defendant did not challenge the voluntariness of his statement, so we must determine whether the judge had a sua sponte obligation to conduct a voir dire. This, in turn, requires us to consider whether voluntariness was a live issue at trial. We conclude that it was not.
By the Court (GRASSO, TRAINOR & CARHART, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant appeals from his conviction in a jury-waived trial of two counts of vehicular manslaughter arising out of an automobile crash. The crux of the defendant's argument at trial was that he was not the driver of the car when it careened off the road. Accordingly, the defendant argues on appeal that his motion for required findings of not guilty incorrectly was denied because the blood samples taken from the driver's seat area matched another occupant of the car. He also argues that the judge erred by not ruling on the voluntariness of the defendant's statements to police and that his counsel was ineffective for failing to file a motion to suppress those statements. We affirm
Motion for required findings of not guilty. “We review the evidence in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Rabb, 70 Mass.App.Ct. 194, 208–209 (2007). According to the defendant, Jeffrey Blake's testimony that the defendant was the driver was wholly inconsistent with the deoxyribonucleic acid (DNA) analysis showing that Blake's bloodstains were found around the driver's seat. The defendant therefore argues that because the evidence supported two equally logical possibilities on the identity of the driver, the Commonwealth failed to meet its burden of proving beyond a reasonable doubt that the defendant was the perpetrator of the crime. For the reasons that follow, we disagree. To support his argument, the defendant relies on Commonwealth v. Vaughn, 23 Mass.App.Ct. 40 (1986), and Commonwealth v. Woods, 382 Mass. 1 (1980), two cases where an appellate court determined that the jury's conclusions were irrational. In Vaughn, supra at 43, we said:
“Normally we would look to the jury to weigh the identification testimony against the evidence offered to support a defense. To avoid the conviction of a possibly innocent person, however, it is necessary that there be an exception to that general rule. The exception would include cases which involve evidence indicative of innocence in the form of documents, photographs, or other physically-verifiable items, which an appellate court is in a position equal to that of the jury to consider.”
The defendant claims that the blood evidence is similar to the documentary evidence in Vaughn and Woods. In those cases, however, there was uncontroverted documentary evidence that the respective defendants could not have been the perpetrators of the crimes with which they were charged. See Woods, supra at 5–8; Vaughn, supra. The placement of bloodstains is not the same type of documentary evidence that necessarily controverts the witnesses' testimony and allows us, as an appellate court, to review the evidence de novo. Contrast Woods, supra; Vaughn, supra. Therefore, it was left to the judge, in his role as fact finder, to assess the weight and the credibility of the evidence. See Commonwealth v. Lao, 443 Mass. 770, 779 (2005) (“If, from the evidence, conflicting inferences are possible, it is for the jury to determine where the truth lies, for the weight and credibility of the evidence is wholly within their province”).
In Woods, a jury convicted the defendant of rape. Although the victim and the Commonwealth's witnesses could not remember the date of the rape, the uncontroverted records from a house of correction demonstrated that the defendant was at the jail on all of the days that the rape could have occurred. Therefore, the jury did not have a rational basis on which to base their conviction.
In Vaughn, a jury convicted the defendant of robbery. A second robbery occurred at the same location, and the security footage indicated that the same person who robbed the store the first time also robbed it the second. The defendant was necessarily precluded from being that second robber, as he was in pretrial detention at the Charles Street jail. Thus, the verdicts were set aside because the security footage was enough to prevent a rational jury from finding that the defendant robbed the store the first time.
The judge made extensive findings on the record, explaining why he credited some evidence and discredited other evidence. For instance, he gave no weight to the bloodstains because, in a car crash of this magnitude, common sense dictates that blood would be present throughout the car cabin. He also discredited the testimony of the defendant's witnesses regarding the alleged steering-wheel-shaped bruise on Blake's chest. Therefore, the case ultimately was decided on whether the judge chose to give more credibility to Blake or to the defendant. The judge chose to believe Blake's testimony, and we cannot say that his decision was irrational.
Although only blood in the driver's seat area was sent for DNA analysis, the motor vehicle examination chart and the corresponding testimony support the judge's conclusion that blood indeed was found throughout the car.
Voluntariness of defendant's statements. The defendant next claims that the judge erred by failing to make a sufficient ruling on the voluntariness of the defendant's statements to police while in the hospital.
“When a defendant raises the issue of voluntariness, the judge must conduct a voir dire out of the jury's presence to determine whether the statements in question were voluntary. If the defendant does not raise the issue of voluntariness, the judge has a sua sponte obligation to conduct a voir dire only if the voluntariness of the statements is a live issue such that there is evidence of a ‘substantial claim of involuntariness.’ “
Commonwealth v. Brown, 449 Mass. 747, 765 (2007) (citation omitted), quoting from Commonwealth v. Stroyny, 435 Mass. 635, 646 (2002). The defendant did not challenge the voluntariness of his statement, so we must determine whether the judge had a sua sponte obligation to conduct a voir dire. This, in turn, requires us to consider whether voluntariness was a live issue at trial. We conclude that it was not.
The defendant claims that the Commonwealth's evidence of his medical records, specifically those indicating serious head trauma, created a substantial issue of involuntariness. If a substantial issue of involuntariness is raised, the judge's determination of the voluntariness of the statements must be noted on the record with unmistakable clarity. See id. at 765–766. This, however, does not require making an express finding that the statement was voluntary beyond a reasonable doubt. Cf. Commonwealth v. Brady, 380 Mass. 44, 52 (1980). We think that, in the circumstances here, the judge's extensive findings on the defendant's medical records, which were supported by the evidence, allay any fears that the judge improperly may have received involuntary statements as the fact finder. Before discussing the statements in his findings, the judge noted that he carefully had considered the medical records and was satisfied that, by the time of the police interview, the defendant had been “oriented times three to person, place, and time” for several days. The judge also credited the testimony of Trooper Darling, who indicated that the defendant seemed “fine” and had no trouble talking with him. From this, it is evident that the judge's implicit finding of voluntariness was supported by the record. Accordingly, it was not error to consider the defendant's statements as evidence.
Because this trial was jury waived, the judge needed to make only a single determination on this issue. See Commonwealth v. Griffin, 345 Mass. 283, 286 (1963).
Even if it were error, the defendant would be unable to show that he was prejudiced by the statements. The defendant claims prejudice because the judge used the statements to discredit the defendant's testimony. Although the judge indeed did rely on them in choosing to believe Blake's testimony instead of the defendant's, the statements were not the only item that gave the judge pause about the defendant's testimony. The judge pointed to other evidence as well. For instance, the defendant was the driver all day before the accident; the defendant allowed Blake, a complete stranger whose only driving credential was his long-expired learner's permit, to drive his car; the testimony about the steering-wheel-shaped bruise on Blake's chest was highly contradictory; and the babysitters were not expecting Buffum to return that night.
Ineffective assistance of counsel. “[T]o prevail on an ineffective assistance of counsel claim on the ground of failing to file a motion to suppress, the defendant has to demonstrate a likelihood that the motion to suppress would have been successful.” Commonwealth v. Comita, 441 Mass. 86, 91 (2004). Because we have concluded that the judge implicitly found the statements voluntary, the defendant cannot meet this burden on appeal. Counsel was not ineffective.
Also, the judge explicitly addressed each of these issues in his order denying the defendant's motion for a stay of execution of sentence. The judge found:
“Regarding the voluntariness of the defendant's statement to the police, my review of the medical record, as reflected in my findings, documented my examination of this ... issue and the considerable evidence that established the statements to be voluntary. Based on all the evidence, I found, beyond a reasonable doubt, ... the defendant's statements after the accident to be voluntary.
“Likewise, the argument that defense counsel was ineffective for failing to seek to suppress his statements is also insufficient. Putting aside the tactical reasons for wanting the defendant's statements to the police before the jury, the evidence is strong that such a motion would be unsuccessful. As pointed out by the Commonwealth, there was no affidavit filed by trial counsel in support of this issue. Counsel's decision was not ‘manifestly unreasonable.’ Commonwealth v. Martin, 427 Mass. 816, 822 (1998). As noted in Commonwealth v. Diaz, 448 Mass. 286, 289 (2007), such a motion ‘should normally be raised through a motion for a new trial, where an appropriate factual record could be developed ... [and the appellate courts] normally do not entertain ineffective assistance claims on direct appeal.’ “
Judgments affirmed.