Commonwealth v. Willie G. Tasejo.

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-987

COMMONWEALTH

vs.

WILLIE G. TASEJO.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial in the District Court, the defendant,

Willie G. Tasejo, was found guilty of operating a motor vehicle

while under the influence of intoxicating liquor (OUI), in

violation of G. L. c. 90, § 24 (1) (a) (1), and negligent

operation of a motor vehicle, in violation of G. L. c. 90,

§ 24 (2) (a). 1 On appeal, the defendant argues that his motion

to suppress statements and his motions for required findings of

1The complaint also included a charge of unlicensed
operation of a motor vehicle, which was dismissed prior to
trial, and a charge of leaving the scene of an accident
involving property damage, as to which the trial judge entered a
required finding of not guilty at the close of the
Commonwealth's case.
not guilty were erroneously denied and that he received

ineffective assistance of counsel. We affirm.

Discussion. 1. Motion to suppress. 2 This appeal arises

from an automobile accident that occurred in Waltham. Waltham

police officer Philip O'Dowd, the first to respond, arrived at

the scene and saw that a Honda vehicle had rear-ended a pickup

truck. The Honda was smoking and leaking fluids, and the pickup

truck was "destroyed." A witness told O'Dowd that the operator

of the Honda had walked away from the scene. O'Dowd "ran the

plate on the Honda" and obtained the name and phone number of

its owner, the defendant. He telephoned the defendant but was

unable to communicate with him because O'Dowd spoke in English

and the defendant was "apparently not able to understand him."

As both the defendant and Campos spoke Spanish, O'Dowd gave

Campos his phone and asked him to relay O'Dowd's request that

the defendant to return to the accident scene. A short time

later the defendant "came walking up the street." He was

unsteady on his feet and "very jolly . . . laughing, and joking,

and hugging" the owner of the pickup truck. O'Dowd asked the

defendant to sit on a wall near the sidewalk to wait for a

2 "We set forth the facts found by the motion judge,
supplemented with uncontroverted testimony from the suppression
hearing that does 'not detract from the judge's ultimate
findings.'" Commonwealth v. Earl, 102 Mass. App. Ct. 664, 668–
669 (2023), quoting Commonwealth v. Garner, 490 Mass. 90, 93-96
(2022).

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Spanish speaking officer, Cesar Brache, who arrived between five

and ten minutes later.

The defendant argues that statements he then made to Brache

and O'Dowd were inadmissible because he was subject to custodial

interrogation and was not advised of his Miranda rights. "When

reviewing the denial of a motion to suppress, we defer to the

judge's determination of 'the weight and credibility to be given

oral testimony presented at the motion hearing,' and accept the

judge's findings of fact absent clear error, but we perform an

independent review of the judge's legal determinations."

Commonwealth v. Tantillo, 103 Mass. App. Ct. 20, 22 (2023),

quoting Commonwealth v. Wilson, 441 Mass. 390, 393 (2004).

The defendant bears the burden of proving that he was in

custody. See Commonwealth v. Kirwan, 448 Mass. 304, 309 (2007);

Commonwealth v. Earl, 102 Mass. App. Ct. 664, 670 (2023).

"[T]he safeguards prescribed by Miranda become applicable as

soon as a suspect's freedom of action is curtailed to a degree

associated with formal arrest" (quotation and citation omitted).

Kirwan, supra. "An interrogation is custodial if, based on an

objective evaluation of the circumstances, a reasonable person

in the defendant's shoes would have perceived the environment as

coercive" (quotations and citations omitted). Tantillo, 103

Mass. App. Ct. at 23. We agree with the motion judge that the

defendant was not subject to custodial interrogation, and "to

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the extent [his] comings and goings were restricted," such

restrictions were consistent with a roadside stop and did not

require Miranda warnings.

Central to our conclusion is the fact that the defendant

returned to the scene voluntarily. O'Dowd did not command him

to do so. The evidence supports the motion judge's finding that

the request that the defendant come to the accident scene where

his damaged car was located was not an "official summons" or an

"official action of police" -- it was a relayed "as a request

through a civilian by telephone," notwithstanding his

"businesslike" tone. A person is not considered to be in

custody merely because he complies with a request from a police

officer to come in for questioning. See Commonwealth v.

Corriveau, 396 Mass. 319, 327 (1985); Commonwealth v. Slaney,

350 Mass. 400, 406 (1966). There was no evidence that any

police officer acted in a threatening manner, used a threatening

tone, displayed a weapon, or touched the defendant. See

Corriveau, supra at 328. The judge specifically found that

although some of the officers' questions were repeated, it was

because of the language barrier and not "coercive in nature."

We also agree with the motion judge that the police

officers' questioning here, in responding to an automobile

accident, was analogous the questioning that occurs when police

perform a traffic stop. "As a general rule, persons temporarily

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detained during an ordinary traffic stop are not in custody for

purposes of Miranda, even though they may not feel free to

leave." Commonwealth v. Vellucci, 98 Mass. App. Ct. 274, 277

(2020). As when police officers stop a car on suspicion of

drunk driving and detain the driver for brief questioning and to

perform field sobriety tests, the questioning here did not

amount to custodial interrogation requiring Miranda warnings.

See Vanhouton v. Commonwealth, 424 Mass. 327, 331-332 (1997);

Commonwealth v. Becla, 74 Mass. App. Ct. 142, 145-146 (2009).

Cf. Berkemer v. McCarty, 468 U.S. 420, 437-439 (1984)

("atmosphere surrounding an ordinary traffic stop is

substantially less 'police dominated' than that surrounding the

kinds of interrogation at issue in Miranda itself). To the

extent O'Dowd required the defendant to sit on a wall to await

the arrival of Brache, any detention was "minimal."

Commonwealth v. Cawthron, 479 Mass. 612, 624 (2018).

To assess custody, courts consider the four factors set

forth in Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001).

These factors are not exclusive, and we address them bearing in

mind "the obligation of a court to consider all of the

circumstances that shed light on the custody analysis."

Commonwealth v. Medina, 485 Mass. 296, 301 (2020). Our review

of the Groome factors confirms that the defendant was not in

custody.

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As to "the place of the interrogation," Groome, 435 Mass.

at 211-212, the questioning took place on a public street in the

middle of the day, weighing against a finding a custody. See

Cawthron, 479 Mass. at 618; Commonwealth v. Tejada, 484 Mass. 1,

9 (2020).

With respect to whether the officers conveyed their belief

that the defendant was a suspect, see Groome, 435 Mass. at 212,

even if the officers believed that the defendant had operated

under the influence and left the scene of the accident, they did

not tell him so. The defendant argues that officers conveyed

their suspicion to him because he overheard O'Dowd saying to

Brache that he believed the defendant had been involved in the

accident. The defendant asks us to infer both that he heard the

officers' conversation from eight to twelve feet away and that

he "may have understood" it even though he did not speak

English. Nothing in the record, however, supports the claim

that the defendant heard or understood the officers'

conversation, or, more importantly, that they intended for him

to hear it. See Becla, 74 Mass. App. Ct. at 147 n.3 ("where the

officer's subjective intent to arrest the defendant is not

communicated in any way to him . . . that intent alone will not

suffice to trigger the need for Miranda warnings").

As to "the nature of the interrogation," Groome, 435 Mass.

at 212, the officers' tone and manner were not "aggressive,"

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"persistent," or "harsh." Commonwealth v. Coleman, 49 Mass.

App. Ct. 150, 155 (2000). The defendant was not handcuffed or

otherwise physically restrained. The presence of two, or

possibly three, police officers and a parked police cruiser with

flashing lights responding to a traffic accident did not create

the type of police-dominated environment contemplated in

Miranda. See Cawthron, 479 Mass. at 617, quoting Miranda v.

Arizona, 384 U.S. 436, 457 (1966) ("Miranda warnings protect

suspects from police-dominated environments that were 'created

for no purpose other than to subjugate the individual to the

will of his examiner'"). The record supports the judge's

finding that officers asked "open-ended preliminary

question[s]," such as whether the defendant was okay and what

happened, "that [did] not convey suspicion of wrongdoing." See

Kirwan, 448 Mass. at 311; Tantillo, 103 Mass. App. Ct. at 24.

In fact, the defendant was described as "laughing" and acting

"jolly" during the questioning, providing further evidence that

he did not feel "either mentally or physically intimidated."

Commonwealth v. Bryant, 390 Mass. 729, 739 (1984). 3

3 For the first time on appeal, citing cases such as United
States v. Smith, 794 F.3d 681, 687-688 (7th Cir. 2015)
(defendant's status "as a young black male confronted in a high-
crime, high-poverty, minority-dominated urban area [of
Milwaukee, Wisconsin] where police-citizen relations are
strained" not irrelevant in determining whether encounter with
police constituted seizure), and United States v. Washington,
490 F.3d 765, 768 (9th Cir. 2007) ("[r]ecent relations between

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The fact that "the interview terminated with an arrest,"

Groome, 435 Mass. at 212, is the only factor weighing in favor

of a finding of custody. However, "it does not follow that an

arrest after an incriminating statement has been obtained, by

itself, labels as custodial the interrogation that precedes the

incriminating statement." Bryant, 390 Mass. at 742 n.15. See

Cawthron, 479 Mass. at 624 (where environment was not coercive

and other Groome factors weighed against custody, fact that

defendant was not free to leave insufficient to establish

custodial interrogation). Considering the totality of the

circumstances, the defendant did not carry his burden of showing

that he was in custody.

2. Corroboration of confession. The defendant admitted to

O'Dowd and Brache that he crashed into the pickup truck after

falling asleep behind the wheel. While his admission

constituted evidence of operation, "a criminal defendant may not

police and the African–American community in Portland [Oregon]
are also pertinent to [seizure] analysis"), the defendant argues
that the officers' conduct was objectively more coercive because
the defendant was "a Hispanic individual who only speaks
Spanish." The claim is waived, and even assuming that race or
ethnicity informs the custody issue -- but see Commonwealth v.
Evelyn, 485 Mass. 691, 702-703 (noting that experiences of
persons of color and their attitudes about law enforcement
differ and declining to decide whether race of defendant
"properly informs the seizure inquiry") -- the record is
inadequate for us to assess the nature of police relations with
Waltham's Hispanic community. See Commonwealth v. Santos, 95
Mass. App. Ct. 791, 795-798 (2019) (declining to reach arguments
concerning motion to suppress raised for first time on appeal).

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be convicted solely on the basis of an uncorroborated

confession." Commonwealth v. Leavey, 60 Mass. App. Ct. 249, 251

(2004). The corroboration required, however, is minimal. "All

that is required is merely that there be some evidence, besides

the confession, that the criminal act was committed by someone,

that is that the crime was real and not imaginary" (quotations

and citations omitted). Commonwealth v. Lagotic, 102 Mass. App.

Ct. 405, 409 (2023).

The Commonwealth presented ample evidence to corroborate

the defendant's admission that he operated the Honda before the

accident. A Honda had crashed into a pickup truck, but the

Honda's driver was not there. Shortly thereafter, O'Dowd

telephoned the defendant and he "came walking back to the scene"

exhibiting signs of drunkenness. He repeatedly hugged the

driver of the pickup truck and was cooperative with the

officers. See Commonwealth v. Congdon, 68 Mass. App. Ct. 782,

783-784 (2007) (evidence of defendant acting in manner "entirely

consistent with her having been the operator" supplied proof

beyond a reasonable doubt that she was). "Finally, there was an

absence of evidence tending to suggest that someone other than

the defendant was operating the vehicle" (quotation and citation

omitted). Lagotic, 102 Mass. App. Ct. at 409.

3. Ineffective assistance of counsel. The defendant

asserts, based solely on the trial record, that trial counsel

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provided ineffective assistance. We "strongly disfavor raising

claims of ineffective assistance on direct appeal," Commonwealth

v. Zinser, 446 Mass. 807, 811 (2006), although we may grant

relief "when the factual basis of the claim appears indisputably

on the trial record." Id., quoting Commonwealth v. Adamides, 37

Mass. App. Ct. 339, 344 (1994). To succeed on a claim of

ineffective assistance, the defendant must show "serious

incompetency of counsel (behavior falling measurably below that

which might be expected from an ordinary fallible lawyer) and

prejudice that, in this context, means a 'reasonable

probability' that 'but for counsel's unprofessional errors, the

result of the proceeding would have been different.'"

Commonwealth v. Mahar, 442 Mass. 11, 15 (2004), quoting

Strickland v. Washington, 466 U.S. 668, 694 (1984).

The defendant claims that trial counsel was incompetent in

two ways. First, counsel failed to move for a mistrial after

Brache improperly testified that, in his opinion, the defendant

had operated a motor vehicle "in an impaired manner" from

drinking alcohol, and the judge, sua sponte, struck the

testimony and told the jury not to consider it. Second, he

faults counsel for failing to object to the judge's instruction

in the final charge that the jury could consider "any opinion"

they had heard, without excluding Brache's struck testimony.

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Counsel's failure to ask for a mistrial after Brache's

misstep did not amount to serious incompetency. The trial judge

struck Brache's improper opinion testimony and forcefully

instructed the jury to disregard it. "[W]e presume that the

jury follow the judge's instructions, including instructions to

disregard testimony" (quotation and citation omitted),

Commonwealth v. Dufresne, 489 Mass. 195, 208 (2022), and the

error was not so egregious as to rebut that presumption. See

Commonwealth v. Canty, 466 Mass. 535, 545 (2013) (police

officer's improper testimony that defendant's ability to drive

was diminished not prejudicial). "A request for a mistrial

probably would have been futile, and counsel reasonably could

decide to be content with the judge's forceful instruction."

Commonwealth v. Morales, 440 Mass. 536, 550 (2003).

For similar reasons, the record does not indisputably

establish that counsel's failure to object to the final jury

instruction on opinion testimony was "manifestly unreasonable"

or prejudicial. Counsel may have reasonably determined that any

curative instruction would have detrimentally drawn the jury's

attention to Brache's improper opinion testimony, even if the

instruction was merely to remind the jurors not to consider

testimony that the judge had struck. In any event, we discern

no reasonable probability the absence of such an instruction

made any difference. The instruction emphasized that even

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though the jury could "consider" any opinion, it was up to them

whether to accept or reject it. Moreover, "in view of the whole

case, the prejudice flowing from this opinion would be

relatively modest given what must have been obvious to the jury,

i.e., that the arresting [officer] believed the defendant's

ability to operate [his] car was impaired by alcohol

consumption." Commonwealth v. Gallagher, 91 Mass. App. Ct. 385,

389–390 (2017).

Judgments affirmed.

By the Court (Massing,
Walsh & Brennan, JJ. 4),

Clerk

Entered: March 24, 2025.

4 The panelists are listed in order of seniority.

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