Commonwealth v. Acelio P. Ventura Dos Santos.

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

24-P-661

COMMONWEALTH

vs.

ACELIO P. VENTURA DOS SANTOS.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a bench trial in the District Court, a judge

found the defendant guilty of operating a motor vehicle while

under the influence of liquor (OUI), G. L. c. 90,

§ 24 (1) (a) (1), and negligent operation of a motor vehicle,

G. L. c. 90, § 24 (2) (a). On appeal, the defendant contends

that (1) the motion judge erred by denying a motion to suppress

the defendant's pre Miranda statements at the crash scene and

(2) the trial judge erred by rejecting motions for required

findings on both charges. We affirm.

Background. "In reviewing a decision on a motion to

suppress, we accept the judge's subsidiary findings of fact

absent clear error but conduct an independent review of [the]
ultimate findings and conclusions of law" (quotation and

citation omitted). Commonwealth v. Ramos, 470 Mass. 740, 742

(2015). We summarize the evidence presented at the hearing on

the motion to suppress.

At approximately 3:20 A.M. on February 7, 2021, an officer

of the Abington police department responded to Hancock Street in

Abington to investigate a report that a car had crashed into a

house. While approaching the scene, the officer saw debris in

the roadway, damage to a fence, and a car on the lawn resting

against a house. He also saw tire tracks running from the

roadway to the sidewalk near the crash scene.

The officer checked on the defendant's well-being and asked

if he was driving and if he was the only person in the car. The

defendant responded that he was "okay" and stated that he was

coming from a party. The officer smelled a strong odor of

alcohol and saw that the defendant was wavering and appearing

unsteady on his feet. The officer described the defendant's

speech as "slurring" and the defendant's eyes as red and

bloodshot. The officer asked the defendant to perform field

sobriety tests, which the defendant refused. The officer formed

the opinion that the defendant was intoxicated, arrested him,

and advised him of his Miranda rights.

Discussion. 1. Motion to suppress. The defendant

contends that, even though the police officer did not convey to

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the defendant that he was not free to leave, he was nevertheless

in custody during the police officer's preliminary inquiry

because the "freakish" nature of the crash would have caused a

reasonable person in the defendant's position to assume that the

police officer had probable cause to arrest him. Because the

defendant did not raise this argument at the hearing on the

motion to suppress, it is waived. Commonwealth v. Dew, 478

Mass. 304, 309 (2017), quoting Mass. R. Crim. P. 13 (a) (2), as

appearing in 442 Mass. 1516 (2004) ("a motion to suppress 'shall

state the grounds on which it is based and shall include in

separately numbered paragraphs all reasons, defenses, or

objections then available, which shall be set forth with

particularity'"). Therefore, we review to examine whether the

alleged error created a substantial risk of a miscarriage of

justice. Id. at 309-310.

"Miranda warnings are only necessary where one is subject

to custodial interrogation" (quotation and citation omitted).

Commonwealth v. Morse, 427 Mass. 117, 122 (1998). "Custodial

interrogation is 'questioning initiated by law enforcement

officers after a person has been taken into custody or otherwise

deprived of . . . freedom of action in any significant way.'"

Id. at 122-123, quoting Commonwealth v. Jung, 420 Mass. 675, 688

(1995). "To determine whether an interrogation was custodial,

we ask whether a reasonable person in the defendant's shoes

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would have perceived the environment as coercive." Commonwealth

v. Wardsworth, 482 Mass. 454, 481 (2019).

"In making this determination, we consider four factors:
'(1) the place of the interrogation; (2) whether the
officers have conveyed to the person being questioned any
belief or opinion that [the] person is a suspect; (3) the
nature of the interrogation, including whether the
interview was aggressive or, instead, informal and
influenced in its contours by the person being interviewed;
and (4) whether, at the time the incriminating statement
was made, the person was free to end the interview by
leaving the locus of the interrogation or by asking the
interrogator to leave, as evidenced by whether the
interview terminated with an arrest.'"

Id., quoting Commonwealth v. Groome, 435 Mass. 201, 211-212

(2001). "The so-called 'Groome factors' . . . are not

exclusive, and the judge must consider the totality of the

circumstances." Commonwealth v. Tantillo, 103 Mass. App. Ct.

20, 23 (2023).

The defendant asks us to revive an abrogated formulation of

factor two in the limited circumstance wherein a reasonable

person would know that they are suspected of a crime. The

defendant's argument is based on a formulation in Commonwealth

v. Bryant, 390 Mass. 729, 737 (1984), since abrogated by the

Supreme Judicial Court. Compare id. (articulating factor two as

"whether the investigation has begun to focus on the suspect,

including whether there is probable cause to arrest the

suspect") with Morse, 427 Mass. at 123-124 ("the subjective

beliefs held by law enforcement officers are irrelevant in the

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determination whether a person being questioned is in custody

for purposes of the receipt of Miranda warnings, except to the

extent that those beliefs influence the objective conditions

surrounding an interrogation"). We decline the defendant's

request to revive the formulation of factor two rejected in

Morse, supra. Applying the four Groome factors to the

circumstances here, we conclude that the defendant was not

subjected to custodial interrogation.

a. Place of interrogation. The questioning of the

defendant took place in a yard abutting a public road, and the

defendant was neither handcuffed nor physically restrained. See

Commonwealth v. Cawthron, 479 Mass. 612, 618 (2018) (environment

not coercive where police questioned defendants in public

parking lot and defendants were not physically restrained). The

motion judge concluded, and we agree, that the place of

interrogation was not coercive.

b. Whether the officer conveyed to the defendant that he

was a suspect. The officer's initial questions were intended to

check on the defendant's well-being. None of his questions,

including his inquiry into whether the defendant had consumed

intoxicating liquor that night, progressed to the pointed

questioning typical of a custodial interrogation. See Cawthron,

479 Mass. at 619-620 (although detective suspected that

defendant had purchased drugs, his question "What did you just

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buy?" did not convey suggestion of suspicion and would not cause

reasonable person to feel their freedom to leave was curtailed);

Commonwealth v. Downs, 31 Mass. App. Ct. 467, 471 (1991) (driver

not in custody where officer suspected him of being impaired and

asked where he had come from and how many drinks he had

consumed). Here, the officer's questions focused on finding out

what happened and did not convey to the defendant that he was

suspected of negligent or impaired driving. Contrast

Commonwealth v. Rodrigues, 104 Mass. App. Ct. 410, 414-415 & n.8

(2024) (officer conveyed suspicion by asking defendant pointed

questions such as, "[W]hy are you running up towards this

gentleman and saying that you're going to kick in his door?").

Because "[t]he record is devoid of any facts that take this case

outside a routine . . . investigation for suspected drunk

driving," the second factor weighs in favor of a noncustodial

interrogation. Commonwealth v. Cameron, 44 Mass. App. Ct. 912,

914 (1998).

c. The nature of the interrogation. "Brief preliminary

questions asked in an effort to confirm or dispel suspicion of

criminal activity," like those asked by the officer at the crash

scene here, "typically do not require Miranda warnings."

Tantillo, 103 Mass. App. Ct. at 24. Nothing in the record

supports that the questioning was aggressive or confrontational

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in tone, and the officer's questions focused on ascertaining the

defendant's well-being.

d. Whether the defendant was free to leave at the time the

incriminating statement was made. The "pertinent question is

whether an officer has, through words or conduct, objectively

communicated that the officer would use his or her police power

to coerce that person to stay." Commonwealth v. Matta, 483

Mass. 357, 362 (2019). Even though the interaction here ended

in the defendant's arrest, the officer did not communicate his

intent to coerce the defendant to remain at the scene or that he

planned to arrest or charge the defendant. See Commonwealth v.

Becla, 74 Mass. App. Ct. 142, 146 (2009), quoting Berkemer v.

McCarty, 468 U.S. 420, 442 (1984) (police officer's

"unarticulated plan has no bearing on the question whether a

suspect was 'in custody' at a particular time; the only relevant

inquiry is how a reasonable [person] in the suspect's position

would have understood [the] situation"). Contrast Commonwealth

v. Coleman, 49 Mass. App. Ct. 150, 152 (2000) (defendant told if

he persisted in denying crime he would be arrested, handcuffed,

and removed, but if he confessed, he would be summoned to

court).

Because the totality of the circumstances weighs in favor

of a noncustodial interrogation during the officer's questioning

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of the defendant, we discern no error in denying the defendant's

motion to suppress.

2. Sufficiency of the evidence. The defendant contends

that the trial judge erred in denying his motions for required

findings of not guilty of both charges because the

Commonwealth's evidence was insufficient to sustain a conviction

of either charge.

"In determining the validity of a claim challenging the

sufficiency of the Commonwealth's evidence at trial, 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. Powell, 459 Mass. 572, 578-579 (2011), cert.

denied, 565 U.S. 1262 (2012), quoting Commonwealth v. Latimore,

378 Mass. 671, 677 (1979).

a. Operating under the influence. "[T]o establish the

defendant's guilt of OUI . . . the Commonwealth was 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, the defendant challenges only the third element, asserting

that the video footage of the defendant's booking process at the

police station created reasonable doubt that the defendant was

under the influence of alcohol.

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Before analyzing the effect of the booking video footage,

we first determine, viewing the evidence in the light most

favorable to the Commonwealth, whether the Commonwealth

presented sufficient evidence at trial to support a finding that

the defendant was under the influence. The responding officer

saw the defendant unsteady on his feet at the scene of a crash

with red, glassy, bloodshot eyes. The defendant smelled of

alcohol and slurred his speech. The homeowner corroborated the

responding officer's observations, testifying that the defendant

"reeked of liquor" and slurred his words at the scene.

Furthermore, the officer found an empty beer bottle in the

defendant's car. The totality of the Commonwealth's evidence

permits a rational inference that the defendant was under the

influence of alcohol when he crashed. See Commonwealth v.

Flanagan, 76 Mass. App. Ct. 456, 464 (2010) (circumstantial

evidence sufficient to convict defendant of OUI).

Because the basis of the defendant's challenge lies in the

booking video footage introduced by the defendant after the

Commonwealth rested its case, we determine whether that evidence

caused the Commonwealth's proof to deteriorate. See

Commonwealth v. O'Laughlin, 446 Mass. 188, 198 (2006).

Deterioration occurs when the defendant's evidence shows that

the Commonwealth's evidence was "incredible or conclusively

incorrect" (citation omitted). Commonwealth v. Nhut Huynh, 452

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Mass. 481, 485 (2008). But the booking video footage, recorded

sometime after the defendant interacted with the responding

officer and the homeowner at the scene, did not contradict the

Commonwealth's case. Given the delay between the incident and

the video recording, it carried less probative weight than the

contemporaneous witness testimony. See Commonwealth v. Marley,

396 Mass. 433, 438 (1985) ("delays between an accident or time

of arrest and the testing for blood alcohol content generally

[go] to the weight of the evidence"). Therefore, the defendant

failed to demonstrate that the Commonwealth's case was

"incredible or conclusively incorrect" (citation omitted). Nhut

Huynh, supra. The defendant urges that we weigh the evidence

differently from the trier of fact, which we do not do.

Commonwealth v. Perez, 27 Mass. App. Ct. 550, 552 (1989). We

discern no error in the judge's finding as it pertains to the

OUI charge.

b. Negligent operation of a motor vehicle. "To prove the

defendant guilty of negligent operation of a motor vehicle, the

Commonwealth must show 'that the defendant (1) operated a motor

vehicle, (2) upon a public way, and (3) (recklessly or)

negligently so that the lives or safety of the public might be

endangered.'" Tantillo, 103 Mass. App. Ct. at 26, quoting

Commonwealth v. Daley, 66 Mass. App. Ct. 254, 255 (2006).

Because the defendant challenges only the third element, we

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analyze only the sufficiency of the evidence as it pertains to

negligence.

"Negligence . . . is the failure of a responsible person,

either by omission or by action, to exercise that degree of

care, vigilance and forethought which . . . the person of

ordinary caution and prudence ought to exercise under the

particular circumstances." Commonwealth v. Howe, 103 Mass. App.

Ct. 354, 358 (2023), quoting McGovern v. State Ethics Comm'n, 96

Mass. App. Ct. 221, 232 n.25 (2019). "Proof of [the defendant's

negligent] operation of a motor vehicle may 'rest entirely on

circumstantial evidence.'" Commonwealth v. Petersen, 67 Mass.

App. Ct. 49, 52 (2006), quoting Commonwealth v. Cromwell, 56

Mass. App. Ct. 436, 438 (2002).

Here, the Commonwealth introduced extensive circumstantial

evidence that the defendant drove in such a way that he ended up

crashed into a house on Hancock Street. The police officer

testified that, upon arrival at the scene, he saw tire tracks

across the double yellow lines of the snow-covered street

leading to the adjacent sidewalk and front lawn. The officer

also saw damage to a fence adjacent to the roadway and, next to

that fence, an object that appeared to be the bumper for the

defendant's car. At the residence, the officer saw the

defendant's car pushed "six inches to a foot" into a house

twenty yards away from the road. Around the point of impact,

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the officer smelled gas and saw that the foundation of the

residence was "cracked" and "all pushed in." The homeowner

testified that the impact of the crash shook the house and woke

him up, describing the sound like a "tornado or a train." He

saw the "right side" wall of his home "knocked in," and the

foundation and ceiling cracked, where the car had crashed into

the house. The car "busted the water pipes," spewing water

everywhere. Such "extensive damage . . . demonstrates that the

collision occurred with considerable force." Howe, 103 Mass.

App. Ct. at 358. Combined with the officer's testimony that the

tire tracks made by the defendant's vehicle crossed the double

yellow line, the damage "permitted an inference that the

defendant was not driving with the care he ought to have been

exercising" in the snowy conditions. Id. at 359. We discern no

error in the judge's finding as it pertains to negligent

operation. See Commonwealth v. Ferreira, 70 Mass. App. Ct. 32,

35 (2007) ("[negligent operation] statute only requires proof

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that the defendant's conduct might have endangered the safety of

the public, not that it in fact did").

Judgments affirmed.

By the Court (Massing,
Hershfang & Tan, JJ.1),

Clerk

Entered: June 12, 2025.

1 The panelists are listed in order of seniority.

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