COMMONWEALTH v. PAN (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the District Court, the defendant, Yun-Long Pan, was convicted of operating a motor vehicle while under the influence of alcohol (OUI).² On appeal, he contends that (1) the judge erred in denying his motion to suppress evidence; (2) the judge erred in failing to submit, sua sponte, the issue of voluntariness to the jury; and (3) the Commonwealth did not prove that he operated a motor vehicle on a public way. We affirm.

Background. The jury could have found the following facts.³ On January 22, 2016, at approximately 2:58 a.m., Officer Kevin Gordon of the Boxborough Police Department responded to a call regarding a man screaming in the parking lot of a large apartment complex at 294 Codman Hill Road. While investigating the report, Officer Gordon noticed a car parked “[d]iagonally, in a parking spot, almost up against another car parked next to it.” The “front end was almost touching the car and to its right.” He noticed a male, later identified as the defendant, sleeping in the driver's seat, and “knocked on the window to see if he was okay.” After several knocks, the defendant opened the car door.⁴ Officer Gordon asked him for his license. At this time, he noticed a very strong odor of alcoholic beverage from the vehicle; that the defendant had bloodshot and glassy eyes; and that the defendant's “speech was slurred when he [spoke] to [Officer Gordon].” The defendant asked Officer Gordon if he was there to receive a package.⁵ Next, Officer Gordon “asked him where he was coming from.” The defendant responded that “he had just gotten back from Lowell,” was “at a bar in Lowell,” and “had been drinking that night.” The defendant also told Officer Gordon that “he had just gotten back” from Lowell.⁶ At this point, Officer Gordon asked the defendant to exit the car.

Once out of the car, the defendant was “very unsteady on his feet.” He attempted and failed a battery of field sobriety tests, which included an inability to recite the alphabet. Officer Gordon formed the opinion that the defendant was under the influence of alcohol, and placed him under arrest. Following the arrest, Officer Gordon looked through the car and did not uncover any alcoholic beverages. He transported the defendant to the police station, and administered a breath test. The test reflected a blood alcohol content of .20.

Discussion. 1. Motion to suppress. Before trial, the defendant moved to suppress “any and all evidence resulting from the illegal detention and ordering of the defendant out of his vehicle.” The judge denied the motion.⁷ The defendant contends that Officer Gordon unlawfully seized him by asking for his license and questioning him. We disagree.

In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact unless they are clearly erroneous. See Commonwealth v. Isaiah I., 450 Mass. 818, 821 (2008). We give substantial deference to the judge's ultimate findings and rulings. See Commonwealth v. Eckert, 431 Mass. 591, 593 (2000). However, we independently review the correctness of the judge's application of constitutional principles to the facts as found. See Commonwealth v. Kaupp, 453 Mass. 102, 105 (2009).

Here, on an early January morning, Officer Gordon responded to a disturbance and noticed a car parked at a strange angle, “almost touching the nose of the car next to it, so it was diagonal on the parking spot.” He saw the defendant sleeping in the car, and tapped on the window to check on his well-being. He asked the defendant to roll down the window, but the defendant opened the car door instead. Officer Gordon immediately noticed an odor of alcohol from the car, and engaged the defendant in brief conversation to discern whether there were any public safety concerns. The judge found, and we agree, that Officer Gordon conducted an appropriate threshold inquiry. See Commonwealth v. Fisher, 86 Mass. App. Ct. 48, 51 n.3 (2014) (“it is settled that a police officer may approach a person on the street or sitting in a parked motor vehicle and engage the person in conversation without any justification”). Furthermore, Officer Gordon's actions, including the brief questioning of the defendant, were justified under the community caretaking doctrine. See id. at 51 (“The community caretaking doctrine is applicable principally to a range of police activities involving motor vehicles ․ in which there are objective facts indicating that a person may be in need of medical assistance or some other circumstance exists apart from the investigation of criminal activity that supports police intervention to protect an individual or the public”).⁸ Based on the call for the disturbance, the observation of the irregularly parked car, and the presence of the defendant asleep in the car, Officer Gordon had ample reason to check on the welfare of the defendant. When the defendant did not initially respond to the tapping on the window, Officer Gordon had reason for further concern.

Officer Gordon also did not improperly seize the defendant by asking for his license. See Commonwealth v. Mateo-German, 453 Mass. 838, 843 (2009) (“When performing community caretaking functions involving a disabled vehicle, a police officer is justified in asking for a driver's license and registration․ Such a request is a minimal intrusion on the defendant's rights and does not involve an improper seizure”). Finally, once Officer Gordon observed the odor of alcohol, and the defendant's glassy eyes and slurred speech; learned that he had just been drinking at a bar in Lowell; and saw that the defendant could not locate the keys despite their presence in the ignition, it was reasonable and proportional to issue the exit order. See Fisher, 86 Mass. App. Ct. at 53. Thus, the judge correctly denied the motion to suppress.

2. Voluntariness of statements. The defendant argues that the judge erred in failing to submit to the jury, sua sponte, the issue of the voluntariness of the defendant's admission “that he had just come home from a bar in Lowell.” As the defendant did not raise the issue of voluntariness at trial, we limit our review to whether any alleged error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). The claim is unavailing.

“Under the Commonwealth's ‘humane practice,’ if the voluntariness of a defendant's statement is a live issue at trial, the judge must instruct the jury that the Commonwealth has the burden of proving beyond a reasonable doubt that the statement was made voluntarily and that the jurors must disregard the statement unless the Commonwealth has met its burden.” Commonwealth v. Cryer, 426 Mass. 562, 571 (1998). In the present case, voluntariness was not a live issue at trial. The defendant did not request a voir dire regarding voluntariness of his statement to Officer Gordon, did not request a jury instruction on voluntariness, and did not object to the jury instructions. See Commonwealth v. Smith, 426 Mass. 76, 82 (1997) (“the question of voluntariness must be raised by a defendant, and he must offer some proof to support his claim”). “[B]ecause no ‘substantial claim of involuntariness’ arose during the trial, the judge did not err in failing to act sua sponte.” Commonwealth v. Cutts, 444 Mass. 821, 833 (2005).

3. Sufficiency. The defendant also claims that the judge should have allowed his motion for a required finding of not guilty because the Commonwealth failed to prove beyond a reasonable doubt the elements of operation and public way. More specifically, he contends that his uncorroborated admission that “[h]e was out at the bar in Lowell and he drove himself home” provided insufficient evidence of guilt. The argument is likewise unavailing. The Commonwealth introduced evidence that the defendant had parked his car at an extreme and irregular angle; that he was in the driver's seat; that the keys were in the ignition; and that he smelled of a strong odor of alcohol, had bloodshot eyes, and slurred his speech. This evidence corroborated his admission that he had just driven home from a bar, along public ways, where he had just consumed alcohol.⁹ See Commonwealth v. Hilton, 398 Mass. 63, 65, 67 (1986) (sufficient circumstantial evidence to warrant finding that defendant operated car while under influence where two police officers found her asleep in front seat of vehicle parked half on street and half on sidewalk). See also Commonwealth v. Belliveau, 76 Mass. App. Ct. 830, 835 (2010) (“it was obvious that the defendant was driving under the influence of alcohol not only on the pier, but also on the public roads leading to the pier,” where “there was no other way to get to the pier by automobile except by the public roads connecting to the pier”). The judge properly denied the motion for a required finding of not guilty.

Conclusion. In short, the defendant's arguments are unpersuasive, and we discern no error requiring reversal.

Judgment affirmed.

FOOTNOTES

2.   The defendant was also charged with negligent operation of a motor vehicle. That charge was dismissed.

3.   The evidence introduced at the motion to suppress hearing substantially paralleled the evidence admitted at trial.

4.   Officer Gordon testified at trial that he asked the defendant to open the door. At the motion to suppress hearing, Officer Gordon testified that he asked the defendant to open the window, and the defendant responded by opening the car door instead.

5.   Officer Gordon testified, without objection, that the defendant “worked for UPS.”

6.   At the motion to suppress hearing, Officer Gordon also testified that he asked the defendant “where his keys were.” The defendant initially could not locate them, but ultimately found them in the ignition.

7.   The judge made findings of fact and rulings of law on the record at the conclusion of the evidentiary hearing on the motion to suppress. His rulings of law were as follows:“[T]he officer was conducting an appropriate threshold inquiry in approaching the vehicle and speaking to the defendant, that after the observations that were made regarding the defendant's physical condition that his eyes were bloodshot and glassy, that a strong odor of alcohol was coming from the vehicle, that for two reasons the officer made an appropriate exit request to the defendant both for issues regarding public safety as well as for conducting a valid -- it was a valid investigatory purpose, and following the exit order which the defendant consented to, the defendant also consented to the field sobriety tests․ The officer was appropriately in the area. The vehicle was in the area, and it was part of the officer's investigation of the complaint, and for those reasons the motion is denied.”

8.   The defendant contends that the judge did not rely on the community caretaking doctrine in his order denying the motion to suppress. Although the judge did reference “public safety” concerns, he did not explicitly reference “community caretaking.” That notwithstanding, “[w]e may affirm the denial of a motion to suppress on any ground supported by the record.” Commonwealth v. Washington, 449 Mass. 476, 483 (2007).

9.   The jury heard evidence that the entrance to the apartment complex was located off Codman Hill Road, a public way, and that the only entrances to the apartment complex was via Codman Hill Road. A satellite photograph of the apartment complex, including the entrances, was also entered in evidence as an exhibit.