Opinion
13-P-1273
03-09-2015
COMMONWEATLH v. JAMES SANTRY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such 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 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial in the Boston Municipal Court, the defendant, James Santry, appeals from his conviction of operating under the influence of alcohol, third offense. He argues that the motion judges erred in denying both his motion to dismiss based on the destruction of exculpatory evidence and his motion to suppress inculpatory statements. He also claims error in the allowance of the Commonwealth's motion in limine which resulted in the admission of his history of default as consciousness of guilt evidence. He also contends that the judge failed to safeguard his right to counsel and right to represent himself. We affirm.
1. Motion to dismiss based on destruction of evidence. On August 7, 2004, the defendant was arrested by a Massachusetts Bay Transportation Authority (MBTA) police officer for operating under the influence of alcohol. Following his arrest, he was booked at an MBTA police station. The booking area of the police station was under recorded videotape surveillance. An MBTA police policy permits the disposal of booking videotapes within thirty to sixty days of an arrest if no one requests the videotape. The Commonwealth did not request the MBTA booking videotape within that timeframe and it was destroyed. Although not his obligation, neither the defendant, who elected to represent himself, nor his later-appointed standby counsel, requested the booking videotape prior to its destruction.
The record does not indicate whether the current MBTA videotape retention policy has lengthened the duration of the preservation of such evidence. In any event, a practice whereby videotape evidence is preserved upon arrest, perhaps set into motion by notification from the Commonwealth, might eliminate the issue in the future.
Initially the defendant represented himself as it was determined he was not indigent. Subsequently his status was re-examined, and he qualified for court-appointed counsel.
The defendant sought dismissal of the complaint as the Commonwealth has a duty to preserve potentially exculpatory evidence, which in this case it did not. Commonwealth v. Sasville, 35 Mass. App. Ct. 15, 19 (1993). Here, the Commonwealth acknowledges that duty and concedes the videotape was material but contends dismissal of the complaint was not warranted. "Ordinarily, in the absence of wilful misconduct on the part of the authorities, charges will not be dismissed unless there has been 'irremediable harm' preventing the possibility of a fair trial." Commonwealth v. Holman, 27 Mass. App. Ct. 830, 831 (1989), quoting from Commonwealth v. Lam Hue To, 391 Mass. 301, 314 (1984). In considering a remedy when evidence is destroyed, "[w]hat must be weighed . . . is the culpability of the government, the materiality of the evidence, and the potential for prejudice." Holman, supra.
Notwithstanding the Commonwealth's failure to take steps to preserve the videotape, it was destroyed pursuant to the MBTA police policy and not by wilful misconduct on the part of the Commonwealth. We thus reject the defendant's contention that the appropriate remedy is dismissal of the charge. The defendant was given an opportunity to fully explore the issue of the destroyed videotape at trial, which he did. See id. at 832. The defendant cross-examined both the arresting and the booking police officers at length about the videotape and the MBTA policy, and made reference to the videotape in both his opening statement and closing argument. He also entered into a pretrial stipulation, which was presented to the jury, explaining the MBTA policy and the destruction of the videotape. There was no error in the judge's denial of the motion to dismiss on this basis.
2. Suppression of statements. The defendant contends his motion to suppress should have been granted because statements he made to the arresting officer should have been suppressed as he was the subject of custodial interrogation. Questions asked during a traffic stop do not rise to the level of custodial interrogation if they are reasonably related to the object of the initial stop. Commonwealth v. LaFleur, 58 Mass. App. Ct, 546, 548 (2003). Commonwealth v. Becla, 74 Mass. App. Ct. 142, 145-147 (2009). After observing the defendant drive in the wrong lane toward oncoming traffic, he was stopped by the arresting officer. When the defendant failed to produce his license and registration, the officer asked him to step out of his car. The officer noticed that the defendant was unsteady on his feet and asked him if he had been drinking. The defendant replied that he had "had a few beers" and "I'm a D.A." The judge did not err in finding that such on the scene investigatory questions do not rise to the level of custodial interrogation. See Commonwealth v. Burbine, 74 Mass. App. Ct. 148, 151-152 (2009). There was no error in the denial of the motion to suppress.
3. Evidence of default as consciousness of guilt. The defendant argues that the trial judge abused his discretion in allowing the Commonwealth's motion in limine to permit it to introduce evidence of the defendant's seven-year default. A defendant's failure to appear for trial may be admitted as evidence of consciousness of guilt where the Commonwealth can show that the defendant knew of the scheduled court date. See Commonwealth v. Goldoff, 24 Mass. App. Ct. 458, 466 (1989). Compare Commonwealth v. Hightower, 400 Mass. 267, 269 (1987). A voir dire of the arresting officer was conducted prior to trial regarding his attempts to locate the defendant as further evidence of the defendant's intentional absence from the proceedings; the judge also examined the certified docket entries. The judge did not abuse his discretion by allowing the defendant's seven-year default to be admitted as consciousness of guilt; the foundation for the evidence is set forth amply in the record.
The evidence included the testimony of the police officer that when the case was scheduled for a second call to discuss a possible disposition, the defendant failed to reappear for the second call. The evidence also included the police officer's multiple efforts to locate the defendant, including going to the defendant's long-time girl friend's home looking for the defendant.
The defendant nevertheless argues it was error to admit evidence of his seven-year default because it constituted subsequent bad act evidence. He asserts the evidence was inadmissible as the Commonwealth failed to provide two weeks' notice of its intent to introduce subsequent bad act evidence, as previously agreed upon in the pretrial conference report. Even if the consciousness of guilt evidence (the default) can be correctly characterized as subsequent bad act evidence, under the circumstances of this case, the evidence was still admissible. While pretrial conference agreements are binding on the parties and have the effect of a court order, Mass.R.Crim.P. 11(a)(2)(A), as appearing in 442 Mass. 1509 (2004), a defendant has the obligation to show that he was prejudiced by any purported violation of such agreement. Commonwealth v. Viriyahiranpaiboon, 412 Mass. 224, 228-229 (1992). Here, the evidence of default resulted from the defendant's own actions. He also had intimate knowledge of the circumstances of the seven-year default and offered evidence at trial to explain, in part, his absence from the proceedings. See generally Commonwealth v. Donovan, 395 Mass. 20, 24 (1985), and cases cited.
4. Self-representation. The defendant claims his waiver of his right to counsel was not made knowingly and intelligently and that the judge abused his discretion in failing to place reasonable limits on standby counsel. A defendant has the right to proceed pro se; however, the right is not wholly unqualified. A valid waiver of counsel must include an unequivocal request to proceed without counsel, the request should be asserted prior to trial, and the judge must be satisfied that the defendant is exercising that right "knowingly and intelligently, and not for an ulterior purpose." Commonwealth v. Mott, 2 Mass. App. Ct. 47, 51 (1974). Here, the trial judge conducted a detailed and complete colloquy of the defendant. The defendant signed a written waiver. The defendant also accepted and utilized the assistance of standby counsel. He meaningfully participated in all aspects of the trial including jury selection, opening statements, cross-examination of the Commonwealth's witnesses, direct examination of his own witnesses, and closing arguments. This conduct serves to corroborate the judge's finding that the defendant's waiver of counsel was knowing and voluntary. There was no error.
Prior to the trial, the case was called and the judge in the first session conducted a partial colloquy with the defendant. The case was then sent to a different judge for trial.
The judge asked the defendant why he wanted to represent himself and informed him of the rights he was giving up by proceeding pro se and the penalties he faced. The defendant gave a detailed explanation of his desire to proceed pro se and confirmed that he understood his rights and accepted the assistance of standby counsel. The defendant also indicated that he had represented himself in previous proceedings.
The defendant's claims as to standby counsel are likewise without merit. Here, standby counsel conferred with the defendant when he wished and only stepped in occasionally to make legal arguments. See Commonwealth v. Molino, 411 Mass. 149, 154 (1991) (limitations placed on standby counsel are within broad discretion of trial judge).
Judgment affirmed.
By the Court (Katzmann, Sullivan & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: March 9, 2015.