Commonwealth v. Deborah J. Holmes.

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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