Commonwealth v. Deborah J. Holmes. ( 2024 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-190
COMMONWEALTH
vs.
DEBORAH J. HOLMES.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Deborah Holmes, appeals from her conviction
of operating a motor vehicle while under the influence of
alcohol (OUI), second offense, in violation of G. L. c. 90,
§ 24 (1) (a) (1). She argues that there was insufficient
evidence that she operated a motor vehicle or that, if she did
operate a vehicle, that she did so while intoxicated. Holmes
also contends that a District Court judge erred in denying her
motion to suppress statements she made to a police officer on
the night of the offense. We affirm.
Background. At 12:45 A.M. on November 29, 2015, Stoughton
police officers Barber and Covino were dispatched to investigate
a matter unrelated to this case in a Walgreens parking lot.
When they arrived at the parking lot, the police saw the
defendant lying on the ground next to a parked Nissan sedan with
a Vermont license plate. The officers approached Holmes and
asked if she needed help. Holmes laughed and rolled around on
the ground. The officers directed Holmes to stand up but she
was unable, so the officers lifted her to her feet. Once
upright Holmes was very unsteady on her feet and had to lean
against a vehicle for support. At various points during their
interaction with Holmes, the officers observed that she smelled
strongly of alcohol, spoke with slow and slurred speech, and had
bloodshot eyes.
The officers asked Holmes to remain by the parked Nissan
while they attended to the unrelated matter. Holmes
nevertheless left the Nissan, and at some later point entered a
different automobile that had recently arrived at the parking
lot, with its engine still idling. Holmes attempted to start
the engine of this vehicle, using keys that were in her
possession. When the officers told Holmes that the car was not
hers and directed her to get out, Holmes laughed and responded
that it was her car. Eventually, the officers had to physically
remove Holmes from the vehicle, at which point they arrested her
for disorderly conduct.
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The officers placed Holmes in the backseat of a police
cruiser and informed her of her Miranda rights. Holmes
indicated that she understood these rights. While driving to
the police station, Officer Barber questioned Holmes about
whether she had consumed alcohol that day, how she had travelled
to the Walgreens parking lot, whether she owned the Nissan, and
whether anyone else had been in the vehicle with her. Holmes
denied consuming any alcohol and explained that she alone had
driven the vehicle, a rental car, from the Elks Lodge in
Braintree to the Walgreens in Stoughton. She stated that she
had left the Elks Lodge at midnight. Officer Barber testified
that it was his opinion that the defendant was intoxicated.
Holmes was charged with OUI.1
Holmes filed a pretrial motion to suppress the statements
she made while she was being transported to the police station,
claiming that she did not receive Miranda warnings prior to
making the statements, and that the statements were not made
voluntarily. After an evidentiary hearing, the motion judge
found as fact that Officer Barber advised Holmes of her Miranda
1 Holmes faced two additional charges, for disorderly
conduct in violation of G. L. c. 272, § 53, and malicious
destruction of property in violation of G. L. c. 266, § 127,
neither of which are the subject of this appeal. The
Commonwealth dismissed the malicious destruction of property
count prior to trial, and the jury found Holmes not guilty of
disorderly conduct.
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rights and that Holmes stated that she understood those rights.
The judge denied the motion the same day in a margin
endorsement.
A one-day jury trial took place on February 28, 2017, at
the conclusion of which the jury found Holmes guilty of
operating a motor vehicle while under the influence of
intoxicating liquor. This appeal followed.
Discussion. On appeal, Holmes argues that there was
insufficient evidence presented at trial (1) that she was
operating a motor vehicle, or (2) that any operation occurred
while she was under the influence of alcohol. She also argues
(3) that the motion judge erred in denying her motion to
suppress the statements she made to Officer Barber en route to
the police station. We address each argument in turn.
1. Sufficiency of the evidence. In deciding whether the
evidence at trial was sufficient to support an OUI conviction,
we ask "whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt." Commonwealth v. Latimore, 378 Mass. 671, 677
(1979), quoting Jackson v. Virginia, 443 U.S. 307, 318-319
(1979). "[T]o establish the defendant's guilt of OUI in
violation of G. L. c. 90, § 24 (1) (a) (1), the Commonwealth was
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required to prove that the defendant (1) operated a motor
vehicle, (2) on a public way, (3) while under the influence of
alcohol." Commonwealth v. Gallagher, 91 Mass. App. Ct. 385, 392
(2017). Here, Holmes challenges both the first and third
elements, claiming that there was insufficient evidence that she
operated a motor vehicle or that if she did, that she did so
while intoxicated.
a. Operation. While there was no direct evidence of
Holmes's operation of a motor vehicle, "direct evidence that the
defendant operated the vehicle is not required." Commonwealth
v. Beltrandi, 89 Mass. App. Ct. 196, 199 (2016). Rather, it is
sufficient to prove operation by circumstantial evidence and
reasonable inferences drawn therefrom. Id. at 199-200. See
Commonwealth v. Hilton, 398 Mass. 63, 67 (1986); Commonwealth v.
Shea, 324 Mass. 710, 714 (1949). A defendant's confession to
operating a vehicle is "powerful evidence of operation,"
Commonwealth v. Lagotic, 102 Mass. App. Ct. 405, 408 (2023), but
such an admission standing alone is insufficient to support an
OUI conviction. Commonwealth v. Leavey, 60 Mass. App. Ct. 249,
251 (2004). Rather, the defendant's admission must be
corroborated by some evidence "that the crime was real and not
imaginary" (citation omitted). Commonwealth v. Villalta-Duarte,
55 Mass App. Ct. 821, 825 (2002). See Commonwealth v. Forde,
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392 Mass. 453, 458 (1984). The standard for sufficient
corroboration is "quite minimal." Lagotic, supra at 409,
quoting Commonwealth v. Green, 92 Mass. App. Ct. 325, 327
(2017).
During her exchange with Officer Barber in the police
cruiser, Holmes admitted that she alone drove the Nissan from
the Elks Lodge in Braintree to the Walgreens parking lot in
Stoughton.2 Holmes contends, however, that there is no
corroborative evidence to support her admission. We disagree.
In arguing that her admission is insufficient evidence of
operation, Holmes relies heavily on Commonwealth v. Leonard, 401
Mass. 470, 471-473 (1988), where the defendant's admission that
he was driving, standing alone, was held to be insufficient to
submit the case to the jury. Leonard is factually inapposite,
however, because unlike in Leonard, here there is no evidence of
anyone else who could have been operating the vehicle. Indeed,
that is the basis on which this court distinguished Leonard in
Lagotic, 102 Mass. App. Ct. at 409. In Lagotic, the evidence
corroborating the defendant's admission of operation consisted
2 We separately address the question of the voluntariness of
Holmes's admission below. In any event, sufficiency under the
Latimore standard "is to be measured upon that which was
admitted in evidence without regard to the propriety of the
admission." Commonwealth v. Farnsworth, 76 Mass. App. Ct. 87,
98 (2010).
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of the defendant's location on the roadside near the crashed and
damaged vehicle, his need of medical assistance, and
importantly, the absence of any evidence that another person was
driving the vehicle. Id.The facts here harken to those in Lagotic. First, the
police found Holmes lying on the ground beside the parked
Nissan, which she stated was her rental car. See Commonwealth
v. Congdon, 68 Mass. App. Ct. 782, 783-784 (2007) (police
officers' observation of defendant walking toward vehicle
corroborative of operation). See also Lagotic, 102 Mass. App.
Ct. at 409; Commonwealth v. Proia, 98 Mass. App. Ct. 125, 128
(2020). There was no other person in or near the car. Second,
Holmes was carrying keys that she attempted to use to start the
engine of another person's car; inferably, those were keys to
the vehicle next to which she was found. See Commonwealth v.
Petersen, 67 Mass. App. Ct. 49, 52 (2006) (defendant carrying
car keys corroborative of operation). Furthermore, "there was
an 'absence of evidence tending to suggest that someone other
than the defendant was operating' the vehicle." Lagotic, supra
at 409, quoting Commonwealth v. Cromwell, 56 Mass. App. Ct. 436,
439 (2002). This circumstantial evidence is sufficient to meet
the low threshold of "minimal" corroboration (citation omitted).
Villalta-Duarte, 55 Mass App. Ct. at 825-826. Taken together
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with Holmes's admission that she had driven from Braintree to
Stoughton, such evidence is sufficient proof of operation.
b. Impairment. Holmes also argues that there was
insufficient evidence that she operated a motor vehicle while
under the influence of alcohol. "[T]he phrase 'under the
influence' refers to impairment, to any degree, of an
individual's ability to safely perform the activity in
question." Commonwealth v. Veronneau, 90 Mass. App. Ct. 477,
479 (2016). "Thus, 'in a prosecution for [OUI], the
Commonwealth must prove beyond a reasonable doubt that the
defendant's consumption of alcohol diminished the defendant's
ability to operate a motor vehicle safely.'" Id., quoting
Commonwealth v. Connolly, 394 Mass. 169, 173 (1985). Impairment
may be proven by circumstantial evidence. See Commonwealth v.
Flanagan, 76 Mass. App. Ct. 456, 464 (2010); Commonwealth v.
Sudderth, 37 Mass. App. Ct. 317, 321 (1994).
In this case, the issue is whether Holmes drove to the
Walgreens parking lot while she was intoxicated. We conclude
that the evidence amply supports such an inference.
Importantly, Officers Barber and Covino arrived at the Walgreens
parking lot and found Holmes lying on the ground next to her
rental car at approximately 12:45 A.M. Holmes indicated to the
officers that she left the Elks Lodge in Braintree at midnight,
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a mere forty-five minutes prior to the officers discovering her
in the parking lot.
The above facts support a reasonable inference that Holmes
was intoxicated while she was driving, because when the officers
encountered Holmes in the parking lot at 12:45 A.M. there was
abundant evidence that she was intoxicated: her breath smelled
strongly of alcohol, her speech was slurred, her eyes were
bloodshot, she was unable to maintain her balance without
assistance, and she behaved erratically and even bizarrely. See
Gallagher, 91 Mass. App. Ct. at 390-391 (bloodshot, glassy eyes,
odor of alcohol, slurred speech, and defendant's admission to
consuming alcohol immediately prior to driving sufficient
evidence of impairment); Commonwealth v. Rarick, 87 Mass. App.
Ct. 349, 354 (2015) (odor of alcohol, red and glassy eyes, among
other indicia). Furthermore, Officer Barber testified that, in
his opinion, the defendant was intoxicated in the Walgreens
parking lot. A jury could employ its common knowledge to
reasonably infer that the defendant's intoxicated condition did
not arise in the short period after Holmes arrived at the
Walgreens parking lot, but instead preceded her arrival.
2. Voluntariness of statements made to the police. Next,
Holmes argues that the motion judge erred in failing to suppress
Holmes's statements to Officer Barber en route to the police
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station. She contends that she neither waived her Miranda
rights nor made the statements voluntarily. We are not
persuaded.
"In reviewing a judge's determination regarding a knowing
waiver of Miranda rights and voluntariness, we grant substantial
deference to the judge's ultimate conclusions and we will not
reject a judge's subsidiary findings if they are warranted by
the evidence" (quotation and citation omitted). Commonwealth v.
Hunter, 426 Mass. 715, 721 (1998). "However, we conduct an
independent review to ascertain whether the judge properly
applied the law" (quotation and citation omitted). Id. at 721-
722. Credibility determinations "are the province of the motion
judge who had the opportunity to observe the witnesses."
Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011).
Here, the motion judge found that Officer Barber's
testimony at the hearing on the motion to suppress was "credible
in all material respects." The judge found that Officer Barber
advised Holmes of her Miranda rights, and asked if she
understood those rights. Holmes then responded that she
understood her rights and proceeded to make subsequent
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statements, including an admission that she drove from Braintree
to Stoughton around midnight.3
"Although the voluntariness of a Miranda waiver and the
voluntariness of a particular statement made during custodial
interrogation 'are separate and distinct issues,' the 'test' for
both is 'essentially the same.'" Commonwealth v. Newson, 471
Mass. 222, 229 (2015), quoting Commonwealth v. Edwards, 420
Mass. 666, 670 (1995). That test is whether "in light of the
totality of the circumstances surrounding the making of the
statement[s], the will of the defendant was overborne to the
extent that the statement was not the result of a free and
voluntary act." Newson, supra at 229-230, quoting Tremblay, 460
Mass. at 207. "Under this totality of the circumstances test,
[the court] consider[s] all of the relevant circumstances
surrounding the interrogation and the individual characteristics
and conduct of the defendant." Newson, supra at 230, quoting
Tremblay, 460 Mass. at 207. Factors considered include
"promises or other inducements, conduct of the defendant,
the defendant's age, education, intelligence and emotional
stability, experience with and in the criminal justice
system, physical and mental condition, the initiator of the
discussion of a deal or leniency (whether the defendant or
the police), and the details of the interrogation,
including the recitation of Miranda warnings."
3 Importantly, Holmes does not challenge the substance of
any of the motion judge's factual findings.
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Newson, supra at 230, quoting Tremblay, 460 Mass. at 207.
In this case, the circumstances surrounding Holmes's
statements bear no indicia of coercion, intimidation, or other
improper inducement by police. Holmes argues, however, that her
statements were nevertheless nonvoluntary because she exhibited
numerous signs of intoxication. However, "[w]hile intoxication
bears heavily on a determination whether a Miranda waiver was
voluntary . . . intoxication alone is insufficient to invalidate
a waiver." Commonwealth v. Walters, 485 Mass. 271, 279 (2020).
Despite her intoxication, Holmes was able to answer Officer
Barber's questions coherently, and her actions and answers
demonstrated that she understood her rights under the
circumstances. See Commonwealth v. Ward, 426 Mass. 290, 294-296
(1997) (no waiver where, although intoxicated, defendant was
coherent and able to understand his circumstances and
surroundings). As evidence of Holmes's voluntary and rational
thought, the Commonwealth points to Holmes's efforts to
exculpate herself by denying that she consumed any alcohol on
the evening in question.
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Under the circumstances, we perceive no error in the
judge's conclusion that Holmes validly waived her Miranda rights
and provided voluntary responses to Officer Barber's questions.
The judgment is affirmed.4
So ordered.
By the Court (Meade,
Englander & Hodgens, JJ.5),
Clerk
Entered: August 30, 2024.
4 Holmes also argues that her statements to Officer Barber
in the police cruiser were not voluntary under the humane
practice doctrine. When voluntariness is an issue, long
standing "humane practice" in Massachusetts generally requires a
voir dire before the judge, and a ruling by the judge to
determine that a confession is voluntary, before it may be
submitted to the jury. See Commonwealth v. Dyke, 394 Mass. 32,
35 (1985). Here, as the Commonwealth notes in its appellate
brief, the judge was not required to conduct a voir dire under
the humane practice rule because the issue of voluntariness had
already been decided in connection with Holmes's motion to
suppress. See Commonwealth v. Earl, 102 Mass. App. Ct. 664, 682
n.15 (2023), citing Commonwealth v. Bryant, 390 Mass. 729, 745
(1984).
5 The panelists are listed in order of seniority.
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