Commonwealth v. Tantillo

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22-P-414 Appeals Court

COMMONWEALTH vs. THERESA A. TANTILLO.

No. 22-P-414.

Plymouth. April 7, 2023. – July 18, 2023.

Present: Ditkoff, Hand, & D'Angelo, JJ.

Motor Vehicle, Operation. Negligence, Motor vehicle. Evidence,
Result of illegal interrogation, Judicial notice. Doctor,
Prescription. Controlled Substances. Search and Seizure,
Threshold policy inquiry. Threshold Policy Inquiry.
Practice, Criminal, Motion to suppress.

Complaint received and sworn to in the Brockton Division of
the District Court Department on August 27, 2019.

A pretrial motion to suppress evidence was heard by Daniel
E. Dilorati, J., and the case was heard by Jeffrey K. Clifford,
J.

Kristen Friedel for the defendant.
Elizabeth A. Mello Marvel, Assistant District Attorney, for
the Commonwealth.

D'ANGELO, J. After a jury-waived trial, a District Court

judge found the defendant guilty of negligent operation of a
2

motor vehicle, G. L. c. 90, § 24 (2) (a).1 The charge stemmed

from a collision in which the defendant's car hit a pole in a

parking lot at a Cumberland Farms store in East Bridgewater

(Cumberland Farms).

Prior to trial, the defendant filed a motion to suppress

statements she made to the police when she was stopped shortly

after the incident, on the ground that she had been subjected to

custodial interrogation without the benefit of Miranda warnings.

On appeal, she argues that the judge erred in denying her motion

to suppress and by taking judicial notice that all pill bottles

distributed by a pharmacist would have a label affixed on them

showing directions for use and cautionary statements. She also

claims that the evidence was insufficient to support her

conviction.

Concluding that the defendant was not in custody when she

was questioned, that there was sufficient evidence that the

defendant endangered the safety of the public by driving in a

1 The judge allowed a motion for a required finding of not
guilty on a charge of leaving the scene of a motor vehicle
accident after causing property damage, G. L. c. 90,
§ 24 (2) (a), and acquitted the defendant on a charge of
operating a motor vehicle under the influence of drugs, G. L.
c. 90, § 24 (1) (a) (1).
3

negligent manner, and that any error in taking judicial notice

was not prejudicial, we affirm.2

Background. We summarize the trial facts, as the judge

could have found them, in the light most favorable to the

Commonwealth. See Commonwealth v. Latimore, 378 Mass. 671, 676-

677 (1979). On August 9, 2019, East Bridgewater police officers

received a dispatch about an accident in the parking lot of

Cumberland Farms. Some distance from Cumberland Farms, a police

officer stopped a vehicle on the side of the road. The officer

approached the defendant, who was the driver of the vehicle, and

asked her if she hit a pole at Cumberland Farms. The defendant

responded that she had hit the pole and that she was nervous,

lost, and looking for directions. She stated she was on her way

to her son's house. The officer observed that the defendant

seemed disoriented and was speaking slowly and shakily.

When the police officer asked the defendant to get out of

the vehicle, the defendant looked unsteady and held onto the car

door for support. The defendant appeared to have wet spots on

her dress and, responding to the officer's question, explained

that she spilled something on herself before leaving the house.

2 The defendant also argues that the cumulative impact of
the errors created a substantial risk of a miscarriage of
justice. Although a combination of errors may, in certain
circumstances, present a substantial risk of a miscarriage of
justice, see Commonwealth v. Cancel, 394 Mass. 567, 568 (1985),
there is no such risk here for reasons we discuss below.
4

The officer then asked the defendant when she had left her

house, to which the defendant responded "2:30," although the

time of the questioning was approximately 2:05 P.M. The police

officer asked the defendant if she had taken or was on any

medications. The defendant responded that she had taken

Tramadol and Clonazepam that day and that those medications were

prescribed to her.

The defendant then performed several roadside assessments

during which she was unable to follow the officer's instructions

or to keep her balance. Another officer arrived at the scene

and conducted additional assessments. The defendant appeared

very unsteady, shaky, and had a blank look on her face. At that

time there were four officers on the scene. Paramedics arrived

and put the defendant on a stretcher because she was so unsteady

on her feet. They subsequently transported her to the hospital.

After the defendant left the area, the officers did an inventory

of her vehicle, and an officer testified that they found "some

prescription bottles in [the defendant's] name: Clonazepa[m],

Tramadol. I think Gabapentin was the other one." No bottles,

nor any pictures of the bottles, were introduced in evidence.

One of the police officers traveled from the scene of the

vehicle stop to Cumberland Farms to determine if there had been

any damage to the parking lot poles. He noted damage to a pole

but was unable to determine whether the damage was fresh.
5

After the close of the Commonwealth's case, the defendant

moved for a required finding of not guilty on all three charges.

The judge allowed the motion as to the charge of leaving the

scene of a motor vehicle accident after causing property damage

and denied the motion as to the other charges. At the close of

the case, the judge found the defendant not guilty of operating

a motor vehicle while under the influence of drugs and guilty of

negligent operation of a motor vehicle.

Discussion. 1. Motion to suppress. 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. Wilson, 441 Mass. 390, 393 (2004).

Certain facts were presented at the suppression hearing

that were not presented at trial. The motion judge found that

East Bridgewater police dispatch received a telephone call that

someone had crashed into a pole outside Cumberland Farms and

that the person appeared impaired. Dispatch then received a

second call that a Toyota Camry, identified by its license plate

number, had hit a pole and that the driver, who was identified

as a blonde woman, had stumbled out of the car. Using the

information from the telephone calls, a police officer located
6

and stopped the defendant's vehicle. The officer asked the

defendant if she was involved in an "accident" at Cumberland

Farms, and she responded, "[M]aybe."

The defendant asserts that she should have been provided

with Miranda warnings because she was in custody at the time the

officer questioned her. An interrogation is custodial if, based

on an objective evaluation of the circumstances, see

Commonwealth v. Larkin, 429 Mass. 426, 432 (1999), "a reasonable

person in the defendant's shoes would have perceived the

environment as coercive." Commonwealth v. Wardsworth, 482 Mass.

454, 481 (2019). In assessing custody,

"the court considers several factors: (1) the place of the
interrogation; (2) whether the officers have conveyed to
the person being questioned any belief or opinion that that
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."

Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). The so-

called "Groome factors," see Commonwealth v. Carnes, 457 Mass.

812, 819 (2010), are not exclusive, and the judge must consider

the totality of the circumstances. See Commonwealth v. Medina,

485 Mass. 296, 301 (2020). The Supreme Judicial Court has

refined this test, holding, "rather than attempting to determine

whether a reasonable person would believe he or she was free to
7

leave, . . . the more 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).

The questioning of the defendant took place on the street,

and this weighs against a finding of custody. See, e.g.,

Commonwealth v. Tejada, 484 Mass. 1, 9, cert. denied, 141 S. Ct.

441 (2020) (fact that "interrogation was in a public parking

lot, not in a police station or other secluded area" weighed

against determination that defendant was in custody); Vanhouton

v. Commonwealth, 424 Mass. 327, 331 n.7, cert. denied, 522 U.S.

834 (1997), quoting Pennsylvania v. Bruder, 488 U.S. 9, 10

(1988) ("traffic stops commonly occur in the 'public view,' in

an atmosphere far 'less police dominated' than that surrounding

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

Additionally, from the defendant's point of view, the officer's

actions of simply stopping her car, for a presumptively

temporary amount of time, did not objectively create a coercive

environment. See Commonwealth v. Ayre, 31 Mass. App. Ct. 17, 20

(1991). The motion judge concluded, and we agree, that the

place of interrogation was not coercive.

The motion judge found that "[t]he questions that [the

officers] asked the defendant were incidental to general on-the-

scene questioning." Brief preliminary questions asked in an
8

effort to confirm or dispel suspicion of criminal activity

typically do not require Miranda warnings. See Commonwealth v.

Kirwan, 448 Mass. 304, 311-312 (2007). An open-ended

preliminary question such as "What happened?" does not convey

suspicion of wrongdoing. See Commonwealth v. Callahan, 401

Mass. 627, 630 (1988). "[C]ustody must be determined based on

how a reasonable person in the suspect's situation would

perceive his circumstances, not on the subjective views harbored

by either the interrogating officers or the person being

questioned" (quotations and citations omitted). Medina, 485

Mass. at 303.

Here, the officers investigating the defendant were aware

that the car that was stopped had hit a pole at Cumberland

Farms. However, as most minor traffic collisions are not

crimes, and it was unclear that the pole had suffered any

damage, it had not been ascertained that any crime had occurred

at the time the officer began the questioning of the defendant.

The first question the officer asked was "if [the defendant] was

at . . . an accident at Cumberland Farms," to which the

defendant replied, "[M]aybe." Another officer then arrived on

the scene and asked the defendant "if she had hit something at

Cumberland Farms," to which the defendant replied, "[Y]es."

These were brief, preliminary questions asked in an effort to

confirm or dispel suspicion of criminal activity for which
9

Miranda warnings are not required. See Kirwan, 448 Mass. at

311.

The motion judge found that the questioning was

investigatory rather than accusatory. This ruling was correct.

The nature of the questioning was not coercive, and the

questioning never became aggressive. The questioning was

investigative in nature, and the officers never conveyed to the

defendant that they believed she had committed a crime. See

Commonwealth v. Lavendier, 79 Mass. App. Ct. 501, 505 (2011).

The initial nature of the questioning was not consistent with

interrogation. The defendant did not admit that she had been

involved in hitting the pole when she answered "maybe." It was

only after the defendant responded affirmatively to the

officer's question about whether she was involved in an

"accident" that police knew that she was the driver who had hit

the pole. However, there was still no definite indication that

any crime had been committed because the police, at that point,

had no information about whether the pole had suffered any

damage, and they only suspected that the driver may have been

impaired because of the information that she had stumbled out of

the car.

With regard to the final factor, whether the defendant was

free to end the interrogation, the officers never, "through

words or conduct, objectively communicated that the officer
10

would use his or her police power to coerce [the defendant] to

stay." Matta, 483 Mass. at 362. Contrast Commonwealth v.

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

persisted in denials he would be arrested, handcuffed, and

removed in presence of aunt, but if he confessed, he would be

summoned to court). The officers contacted paramedics to bring

the defendant to a hospital for medical evaluation. The

defendant was not formally arrested until after she was brought

to the hospital, which was well after the questioning had ended.

Weighing all of the relevant facts, and cognizant that no

one factor is dispositive, see Commonwealth v. Magee, 423 Mass.

381, 386 (1996), we conclude that the defendant was not in

custody when the police questioned her. The motion judge

properly denied the motion to suppress the defendant's

statements.

2. Sufficiency of the evidence. The defendant contends

that the evidence at trial was insufficient to prove beyond a

reasonable doubt that she operated her motor vehicle

negligently, because the lives or safety of the public were not

endangered when she struck the pole in the empty parking lot.

We disagree.

"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
11

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 Latimore, 378 Mass. at

677. "The inferences that support a conviction 'need only be

reasonable and possible; [they] need not be necessary or

inescapable.'" Commonwealth v. Waller, 90 Mass. App. Ct. 295,

303 (2016), quoting Commonwealth v. Woods, 466 Mass. 707, 713,

cert. denied, 573 U.S. 937 (2014).

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" (citation omitted).

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

the third element is at issue here.3

There is no dispute that the defendant was operating the
3

vehicle. Nor does the defendant challenge that she was driving
on a public way in the parking lot of Cumberland Farms or the
street on which her car was stopped. See G. L. c. 90,
§ 24 (2) (a) (public way is "any way or . . . place to which the
public has a right of access, or any place to which members of
the public have access as invitees or licensees"). To determine
whether a way is public, "we look to see if the 'physical
circumstances of the way are such that members of the public may
reasonably conclude that it is open for travel'" (citation
omitted). Commonwealth v. Belliveau, 76 Mass. App. Ct. 830,
832-833 (2010).
12

General Laws c. 90, § 24 (2) (a), "only requires proof that

the lives or safety of the public might be endangered, not that

they were endangered." Daley, 66 Mass. App. Ct. at 256. "The

question is whether the defendant's driving had the potential to

cause danger to the public, not whether it actually did."

Commonwealth v. Sousa, 88 Mass. App. Ct. 47, 51 (2015). One may

operate a vehicle "in such a way that would endanger the public

although no other person is on the street." Commonwealth v.

Constantino, 443 Mass. 521, 526-527 (2005).

Here, the defendant admitted that she was in an "accident"

at Cumberland Farms by striking a pole. She was disoriented and

was speaking slowly and shakily. Additionally, the defendant

was unsteady on her feet, held onto the car door for support,

and had consumed medication that day.4 The evidence was

sufficient to prove that the defendant's ability to control the

vehicle was significantly impaired, and as a result, the lives

and safety of the public might have been endangered. See, e.g.,

Commonwealth v. Kaplan, 97 Mass. App. Ct. 540, 543 (2020);

Commonwealth v. Ross, 92 Mass. App. Ct. 377, 380 (2017);

Commonwealth v. Duffy, 62 Mass. App. Ct. 921, 923 (2004).

4 The fact that the judge ultimately did not convict the
defendant of operating under the influence of drugs does not
preclude the consideration of such evidence in considering the
negligent operation charge. See Commonwealth v. Robicheau, 421
Mass. 176, 184 (1995); Commonwealth v. Ross, 92 Mass. App. Ct.
377, 380 (2017).
13

3. Judicial notice. Prior to presenting any evidence, the

Commonwealth moved in limine, over the defendant's objection,

that the trial judge take judicial notice "of certain

prescription packaging requirements" for pharmacists filling

prescriptions. Specifically, the Commonwealth requested that

the judge take judicial notice that G. L. c. 94C, § 21, requires

that a pharmacist affix to the container in which a controlled

substance is packaged "a label showing . . . directions for use

and cautionary statements, if any."5 The Commonwealth's motion

did not request that the judge take judicial notice of the

portion of the statute requiring that a pharmacist filling a

prescription "affix[] to the container a label showing . . . the

name of the patient . . . [and] the name of the controlled

substance." G. L. c. 94C, § 21. Thus, we do not consider

whether judicial notice of that portion of the statute would

have been appropriate.

The defendant argues that the judge's taking judicial

notice of the statutory requirement about "cautionary

statements" was prejudicial error because it would have led the

judge as fact finder to infer impermissibly that ingestion of

5 The Commonwealth's motion also requested that the judge
take judicial notice that G. L. c. 94C, § 21, requires that
pharmacists provide to patients certain information about abuse
of narcotic drugs. The judge denied that part of the motion,
and so we do not consider that issue.
14

those drugs would have affected the defendant's driving, without

any expert testimony about the effects of the drugs.6 We are not

persuaded.

"Motions in limine concerning the introduction or exclusion

of purportedly relevant evidence are properly made and

considered before and during trial, in advance of the evidence

being offered." Commonwealth v. Spencer, 465 Mass. 32, 42

(2013). See Mass. G. Evid. § 103(f) (2023). "The purpose of a

motion in limine is to prevent irrelevant, inadmissible or

prejudicial matters from being admitted in evidence . . . and in

granting such a motion, a judge has discretion similar to that

which he has when deciding whether to admit or exclude evidence"

(citation omitted). Commonwealth v. Hood, 389 Mass. 581, 594

(1983).

"[A]ll relevant evidence is admissible unless barred by an

exclusionary rule." Commonwealth v. Vitello, 376 Mass. 426, 440

(1978). See Mass. G. Evid. § 402 (2023). "The relevance

threshold for the admission of evidence is low" (citation

omitted). Commonwealth v. Gerhardt, 477 Mass. 775, 782 (2017).

Evidence is generally relevant where "(a) it has any tendency to

6 The defendant does not argue that the judge erred in
allowing the Commonwealth's other motions in limine for the
judge to take judicial notice that G. L. c. 94C, § 31, defines
Tramadol as a narcotic and Clonazepam as a depressant. Thus we
do not consider those issues.
15

make a fact more or less probable than it would be without the

evidence and (b) the fact is of consequence in determining the

action." Mass. G. Evid. § 401 (2023). "[I]t is not necessary

that the evidence be conclusive of the issue. . . . It is

sufficient if the evidence constitutes a link in the chain of

proof." Commonwealth v. Lopez, 91 Mass. App. Ct. 572, 576

(2017), quoting Mass. G. Evid. § 401 note. "Irrelevant evidence

is not admissible." Commonwealth v. Hampton, 91 Mass. App. Ct.

852, 854 (2017). See Mass. G. Evid. § 402. A trial judge has

broad discretion in making evidentiary rulings, which we will

not disturb absent an abuse of discretion or error of law. See

David v. Kelly, 100 Mass. App. Ct. 443, 447 & n.7 (2021). To

establish that a judge abused his or her discretion, a defendant

must show that there was "a clear error of judgment in weighing

the factors relevant to the decision . . . such that the

decision falls outside the range of reasonable alternatives"

(quotation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185

n.27 (2014). Trial judges must take judicial notice of all

General Laws of the Commonwealth. See, e.g., Commonwealth v.

Bones, 93 Mass. App. Ct. 681, 685 (2018) ("Courts are required

to take judicial notice of the General Laws of the Commonwealth,

statutes, and other public acts of the Legislature"). See also

Mass. G. Evid. § 202 (2023). General Laws c. 94C, § 21, states

in relevant part:
16

"The pharmacist filling a written, electronic or oral
prescription for a controlled substance shall package the
controlled substance in a container, affixing to the
container a label showing . . . the name of the patient,
. . . the name of the controlled substance, directions for
use and cautionary statements, if any, contained in such
prescription or required by law" (emphasis added).

Although it was proper for the judge to take judicial notice of

the statute, it was improper to take notice "that all bottles

distributed by a pharmacist would have a label on them"7

(emphasis added).

The mere fact that the statute requires a pharmacist to

include a label on prescription bottles does not mean the

bottles in this case had labels on them. Labels may be removed

or fall off, and sometimes people combine medications in a

single bottle for convenience. See Commonwealth v. Kirk, 39

Mass. App. Ct. 225, 229 (1995) ("judicial notice . . . cannot be

taken of material factual issues that can only be decided by the

fact finder on competent evidence"). The statute requires

labels to include "directions for use and cautionary statements,

if any, contained in such prescription or required by law"

(emphasis added). G. L. c. 94C, § 21. However, there was no

7 The Commonwealth also requested that the judge take
judicial notice of the requirement in the same statute that
pharmacists dispense a pamphlet for all narcotics distributions
that includes information regarding abuse of that drug.
However, the judge denied that request, explaining that
"[w]hether it's a requirement or not, doesn't mean it happened.
So, I'm a little bit troubled by that. I don't know that that
pharmacist gave her directions. I don't know that."
17

evidence of what type of label, if any, was on the bottles found

in the defendant's car or what the cautionary instructions, if

any, were and how that would be relevant to the defendant's

knowledge. Therefore, although it was permissible for the judge

to take judicial notice of the statute prior to trial (during

the motion in limine), once the evidence had closed, the

judicially noticed information had no relevance without any

connection to any bottles in the car.

Defense counsel would have been entitled to have the judge

strike from the evidence the judicial notice of the portion of

G. L. c. 94C, § 21, about the requirement that prescription

labels contain directions for use and cautionary instructions.

However, because the defendant was acquitted on the charge of

operating a motor vehicle under the influence of drugs, if the

judge did consider the information, such consideration had no

meaningful effect on the negligent operation charge. See

Commonwealth v. Peruzzi, 15 Mass. App. Ct. 437, 445 (1983),

quoting Kotteakos v. United States, 328 U.S. 750, 764-765 (1946)

("after pondering all that happened without stripping the

erroneous action from the whole, . . . the judgment was not

substantially swayed by the error"). See also Duffy, 62 Mass.

App. Ct. at 923 ("even if the court were to assume that the

admission of the evidence . . . was error, it was obviously not
18

unduly prejudicial given the defendant's acquittal on the charge

to which it most directly related").

Judgment affirmed.