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16-P-1409                                             Appeals Court

                 COMMONWEALTH   vs.   LAWRENCE KNOWLES.


                             No. 16-P-1409.

       Suffolk.         November 3, 2017. - January 10, 2018.

            Present:   Wolohojian, Massing, & Wendlandt, JJ.


Witness, Cross-examination. Practice, Criminal, Cross-
     examination by prosecutor, Admissions and confessions,
     Voluntariness of statement, Waiver. Constitutional Law,
     Admissions and confessions, Voluntariness of statement,
     Waiver of constitutional rights. Waiver. Evidence, Cross-
     examination, Admissions and confessions, Voluntariness of
     statement.



     Complaint received and sworn to in the Central Division of
the Boston Municipal Court Department on January 15, 2014.

    The case was tried before Tracy-Lee Lyons, J.

     A motion to stay execution of sentence, filed in the
Appeals Court on June 24, 2016, was heard by Carhart, J.


     Lauren A. Montana for the defendant.
     Paul B. Linn, Assistant District Attorney (Amanda Read
Cascione, Assistant District Attorney, also present) for the
Commonwealth.
                                                                     2


     MASSING, J.   This appeal requires us to apply the rule

prohibiting cross-examination by innuendo, most recently

enunciated in Commonwealth v. Peck, 86 Mass. App. Ct. 34 (2014)

(Peck), to the cross-examination of three defense witnesses:       an

expert witness, a lay witness, and the defendant himself.

     A jury in the Central Division of the Boston Municipal

Court Department found the defendant guilty of two counts of

unlawful possession of a loaded firearm in violation of G. L.

c. 269, § 10(a), (n).     The primary issues at trial were whether

the defendant knowingly possessed the two firearms found near

his truck and, in this regard, whether his threatening

statements to police officers and subsequent waiver of his

Miranda rights were voluntary.     We conclude that the

prosecutor's cross-examination of the defendant was proper and

that the cross-examination of the defendant's lay witness was

improper but not prejudicial.     We further hold that Peck does

not apply to the cross-examination of expert witnesses and that

the defendant's statements and Miranda waiver were voluntary.1

Accordingly, we affirm.




     1
       After the defendant filed a notice of appeal from the
judgments, he filed in this court a motion to stay execution of
his sentence, which a single justice denied. The defendant also
filed a notice of appeal from that order; our decision here
renders this portion of the appeal moot. See Commonwealth v.
Berrios, 84 Mass. 521, 522 n.2 (2013).
                                                                      3


    Background.   1.     Commonwealth's case.   At 2:45 A.M. on

January 12, 2014, Boston police Officers Mario Santillana and

Jose Acosta were dispatched to the parking lot behind a building

on Centre Street in the Jamaica Plain section of Boston.      The

defendant was seated in the driver's seat of a parked red truck,

alone, crouched down with his hands folded under his arms,

staring straight ahead.    Santillana knocked on the closed window

to get the defendant's attention.     The defendant muttered to

himself, looked up at Santillana, and said, "I don't have to

talk to you"; the defendant then resumed his prior position,

staring ahead and mumbling.     The officers called for an

ambulance to conduct a wellness check and to see if the

defendant needed help.

    The officers opened the doors of the truck in an attempt to

speak with the defendant.     Santillana did not observe any signs

of alcohol or drug use.     The defendant looked Santillana

straight in the eye and said, "I'll shoot you all."     Santillana

asked the defendant to repeat himself.     The defendant responded,

"I have enough for nine of you."     When the defendant refused the

officers' requests to show them his hands or to get out of the

truck, they attempted to pull him out.     He allowed his body to

go limp and nearly fell; the officers pulled him to his feet,

frisked him for weapons, and handcuffed him.     He then "stood up

under his own power" and began to speak clearly to the officers,
                                                                    4


asking them why he was being handcuffed.    They escorted him to

their cruiser, the defendant walking without assistance, and

placed him in the back seat.    When emergency medical personnel

arrived, the officers "waved [them] off . . . because [the

defendant] was now communicating with [the officers] and . . .

[they] were able to go back and forth with him."

    The officers searched the area around the defendant's truck

and found a revolver, a semiautomatic pistol (both .22 caliber),

some marijuana, and a number of the defendant's personal items

on the ground.   After finding the first gun, Acosta recited to

the defendant his Miranda rights and asked if he understood

them.    The defendant "nodded his head and he said, '[Y]ep.'"

The defendant explained to the officers that the two guns were a

gift from "[h]is roommate, his girlfriend, Donna," and "that

they were only 22s and he didn't think he needed a permit for

them."

    2.    Defense witnesses.   The defendant and Donna Brashears,

the woman with whom he was living in Norridgewock, Maine, at the

time of his arrest, both testified that he did not own or

possess any handguns.    The defendant also testified that he

suffered constant pain from a number of injuries, including a

broken leg and ankle sustained during military training in Fort

Bragg, North Carolina, and head injuries from multiple

automobile collisions.    He received treatment at the Veterans
                                                                      5


Administration hospital (VA hospital) in Togus, Maine, where

"[a]ll [his doctors] want[] to do is give [him] drugs . . . I'm

a Guinea pig down there."     He testified that he took a number of

prescription medicines -- "[f]rom Tramadol to Meloxicam to

codeine to you name it."    He also self-medicated with marijuana,

for which he "sent and got a card," and "just a couple [of]

shots of whiskey at night."

    The defendant testified that the day before his arrest he

was driving from Maine to Foxwoods Casino, but he "must have got

detoured in Boston or something" and went to an ice show at the

TD Garden instead.     The next thing he remembered was waking up

in a police cruiser.    He insisted that he did not drink and

drive, that he had consumed only one shot of whiskey at "some

little bar" near the TD Garden that day, that he did not take

any codeine or sleeping pills, but that he had smoked some

marijuana.

    Dr. Montgomery Brower, a forensic psychiatrist, offered his

clinical opinion that the defendant "was intoxicated on alcohol,

marijuana, and prescription sedatives at the time of the alleged

incident," and that his impairment "did [affect] his abilities

that are relevant to determining whether or not his statements

were voluntary and free."     Brower also stated that the defendant
                                                                   6


suffered from a "blackout" during police questioning.2     In

forming his opinion, Brower conducted a "typical medical

examination," which included meeting twice with the defendant

and reviewing "records concerning [the defendant's] alleged

offense and also his medical history," including police reports

and medical reports from the VA hospital and Maine Medical

Center.

     We set forth the details of the prosecutor's cross-

examination of the defense witnesses in the discussion, infra.

     Discussion.   1.   Cross-examination by innuendo or

insinuation.   The defendant contends that the prosecutor's

cross-examination of three defense witnesses (Brashears, Brower,

and the defendant) violated the rule against cross-examination

by innuendo, which prohibits impeaching witnesses with

statements they allegedly made to third parties if the witness

denies the statement and the third party is not available to

testify.   Peck, 86 Mass. App. Ct. at 39-40.

     An attorney conducting cross-examination must use caution

when attempting to impeach a witness with facts not in evidence.

To ask such questions, "the examiner should be required to

     2
       The judge gave the jury a "humane practice" instruction,
explaining that before considering any statement made by the
defendant, the jurors must find beyond a reasonable doubt that
the statement was voluntary, and that evidence of the
defendant's intoxication, drug use, and physical and mental
condition is relevant to that determination. See Commonwealth
v. Tavares, 385 Mass. 140, 152 (1982).
                                                                   7


represent that he has a reasonable basis for the suggestion, and

also to be prepared with proof if the witness does not acquiesce

in the suggestion by giving a self-impeaching answer."

Commonwealth v. Delrio, 22 Mass. App. Ct. 712, 721 (1986).

"Without such assurances, the questioning of the witness is

improper, for it would amount to allowing the examiner to smear

the witness by insinuation."   Ibid.   See Commonwealth v.

Fordham, 417 Mass. 10, 20 (1994), quoting from Commonwealth v.

White, 367 Mass. 280, 284 (1975) ("It is error for a prosecutor

'to communicate impressions by innuendo through questions which

are answered in the negative . . . when the questioner has no

evidence to support the innuendo'").

    In Peck, 86 Mass. App. Ct. at 35, the prosecutor asked a

defendant accused of automobile insurance fraud "a series of

questions about prior incriminating statements she allegedly

made to a former boyfriend," in which she admitted and described

the fraudulent scheme.   Although the prosecutor possessed a

report of an interview of the boy friend, prepared by a

Massachusetts insurance fraud bureau investigator, the boy

friend was neither present in court nor available to testify.

Id. at 37-38.   Believing that the insurance fraud bureau report

gave the prosecutor a good faith basis, the judge permitted the

prosecutor to cross-examine the defendant with the details of
                                                                       8


her confession, over objection and despite the defendant's

repeated denial of the statements attributed to her.    Ibid.

     We held that "[i]t was error to permit this type of cross-

examination of the defendant, which improperly impeached the

witness by insinuation."   Id. at 35.   "Massachusetts evidence

law prohibits 'an attorney, through cross-examination of a

witness, [from] communicat[ing] an impression by innuendo that

he or she possesses as yet undisclosed information, with no good

faith basis for doing so.'"   Id. at 38, quoting from

Commonwealth v. Johnston, 467 Mass. 674, 699 (2014).    We further

observed that the better practice would have been first to ask

the defendant whether she recalled the conversation with the boy

friend.   Peck, 86 Mass. App. Ct. at 40 n.11.   If she did, "the

prosecutor could have asked at least one additional question

such as whether the defendant made statements about her

involvement . . . in a plan to defraud the insurer."    Ibid.     If

she did not, the prosecutor could have attempted to refresh the

defendant's recollection using the boy friend's statement.

Ibid.3


     3
       See United States v. Harris, 542 F.2d 1283, 1307 (7th Cir.
1976) ("[W]hen an attorney lays a foundation by asking a witness
about prior inconsistent statements, it is reversible error to
fail to produce the person to whom the statement was made if the
witness denies making the statement"), citing United States v.
Bohle, 445 F.2d 54, 73-74 (7th Cir. 1971), overruled on other
grounds by United States v. Lawson, 653 F.2d 299, 303 n.12 (7th
Cir. 1981).
                                                                     9


     Similarly, in Commonwealth v. Christian, 430 Mass. 552

(2000), overruled on other grounds by Commonwealth v. Paulding,

438 Mass. 1 (2002), a prosecutor cross-examined the defendant

with incriminating statements he allegedly had made to a fellow

jail inmate prior to trial.   Christian, supra at 559-561.

Although the Commonwealth was not prepared to call the other

inmate as a witness, during cross-examination of the defendant,

the prosecutor "put before the jury the incriminating statements

by the defendant [to the witness], each one of which the

defendant denied."   Id. at 560-561 (footnote omitted).    Even

assuming that the prosecutor had a good faith basis for

impeaching the defendant with statements he had allegedly made

to the inmate,4 the court held that it was improper for the

prosecutor "to continue to cross-examine the defendant in the

face of his consistent denials," without an assurance that she

would call the inmate to testify.   Id. at 562.   "To do otherwise

would permit the prosecutor to smear the defendant by

extrajudicial statements made by [the inmate] while denying the




     4
       The prosecutor in Christian, supra at 561, did not provide
the judge with any documentary evidence to support the inmate's
version of the defendant's statements. On appeal, the
Commonwealth claimed "that the prosecutor was relying on a
letter that [the inmate] allegedly had written to the prosecutor
before the trial," although the letter was not shown to the
judge, marked for identification, or included in the record.
Ibid.
                                                                        10


defendant the opportunity to impeach [the inmate's]

credibility."       Id. at 563.

       a.     Cross-examination of defendant's lay witness.    The

prosecutor's cross-examination of Brashears mirrored the

questioning held to be improper in Peck.       To challenge

Brashears's testimony that she had never seen the defendant with

a gun during the four years she had lived with him, the

prosecutor asked her about contrary statements that she

allegedly had made to a Maine State trooper, Scott Duff.        Duff

was not on the witness list, was never summonsed to appear, and

was not present in court.

       After establishing that Brashears had been with the

defendant at the VA hospital in Togus, Maine, about one month

after his arrest in Massachusetts, the prosecutor asked

Brashears if she remembered that Duff was also there.         She did

not.       The prosecutor then, over objection by defense counsel,5


       5
       At sidebar, defense counsel objected on the basis that the
prosecutor was impermissibly attempting to admit the defendant's
prior bad acts through cross-examination of Brashears. The
judge overruled the objection, reasoning that because Brashears
had said she never saw a gun, the prosecutor "can impeach her."
The next morning, defense counsel moved for a mistrial,
specifically citing Peck and arguing that the prosecutor
impermissibly impeached Brashears and the defendant with
"statements that they had allegedly made without having the
Maine trooper here to actually testify." The judge denied the
motion, reasoning that Peck did not apply because it involved
"undisclosed information." We need not decide whether the
defendant adequately preserved his current claim with respect to
Brashears's testimony because we conclude that the error was
                                                                 11


asked Brashears a series of questions about statements she

allegedly had made to Duff, none of which she recalled.6   The

prosecutor concluded this line of questioning by asking

Brashears whether it was her testimony that "this report of

Trooper Scott Duff . . . is not accurate and a made up report"


harmless even under the prejudicial error standard, which is
more favorable to the defendant than the substantial risk of a
miscarriage of justice standard. See Commonwealth v. Alphas,
430 Mass. 8, 23 (1999).
     6
          Q.: "On that same day, Ms. Brashears, you indicated
     to Trooper Scott Duff that the defendant showed you his
     black pistol and that he was carrying it in his left
     jacket, do you remember that?"

          A.:   "No."

          Q.: "Do you remember telling Trooper Scott Duff on
     February 9th of 2014 that he also had the bullets in his
     right pocket?"

          A.:   "I don't remember that, no."

          Q.: "Do you remember telling Trooper Scott Duff on
     that day that the defendant had bought new guns because his
     father had taken back the possession of his old guns, do
     you remember that?"

          A.:   "No."

          Q.: "In the four years that you've been with the
     defendant, your testimony here today again is that you've
     never seen a gun in his possession ever?"

          A.:   "Correct."

          Q.: "Despite telling the trooper on February 9th 2014
     not only that you saw a gun in his possession . . . but
     also that you knew he had guns prior, you don't remember
     that?"

          A.:   "No."
                                                                     12


and that her conversation with the trooper "never happened."

Brashears agreed with the prosecutor's characterization.

    The cross-examination of Brashears "had the effect of

informing the jury of the contents of out-of-court statements

allegedly made by the [testifying witness] that were not

admissible."   Peck, 86 Mass. App. Ct. at 39-40.    The statements

did not qualify as prior inconsistent statements because the

witness denied having made them, and no competent witness was

available to prove them as extrinsic evidence.     See Mass. G.

Evid. § 613(a)(1)-(2) (2017).   See also Peck, supra at 40.    Once

Brashears denied any recollection of her conversation with Duff,

the prosecutor could have attempted to refresh Brashears's

recollection with Duff's report.   Peck, supra at 40 n.11.    If

that attempt had failed, and if the prosecutor had not been

prepared to call Duff as a witness, she should have abandoned

this line of questioning.

    To the extent this claim of error was preserved, "we must

determine whether 'the error did not influence the jury, or had

but very slight effect.'"   Id. at 40, quoting from Commonwealth

v. Flebotte, 417 Mass. 348, 353 (1994).   We are confident that

the outcome of the trial would have been the same even without

the improper cross-examination of Brashears.     Unlike in Peck and

Christian, the witness (Brashears) was not the defendant, and no

statements allegedly attributed to the defendant were
                                                                      13


erroneously introduced.    The questions here did not directly

involve the facts of the crime with which the defendant was

charged.    Rather, the statements attributed to Brashears

involved the defendant's possession of guns and ammunition in

Maine, either after his arrest in Massachusetts or at some

unspecified point during the four years that he and Brashears

had lived together.    Given the discovery of two firearms near

the defendant's truck at the time of his arrest, and his

statements indicating his knowledge and possession of those

guns, we can say with fair assurance that the discussion of his

ownership of guns at other times in another State had little or

no effect on the jury's verdict.

    b.     Cross-examination of the defendant.     The defendant, who

testified after Brashears, referred to Trooper Duff during

direct examination.    When defense counsel asked him whether he

"ever had a gun," the defendant replied, "A couple of rifles,

that's it.    I got right rid of those.   That's why Duff was up

there.    I told Duff come and get them."   He denied owning any

pistols.    "[Duff] said, you got pistols down there?    What would

I buy a pistol for?    We do a little deer hunting or moose

hunting if you get a permit.   I don't even really like doing

that.    You can't shoot nothing with a pistol."

    On cross-examination, the prosecutor asked the defendant

about "allegations that [he] showed a pistol" at a restaurant in
                                                                     14


Maine about one month after his Massachusetts arrest, which Duff

had been called to investigate.     The defendant replied,

"Allegations," and recounted his version of the incident and his

conversation about it with Duff.    The prosecutor then asked

whether it was true "that Trooper Duff also knew of another time

that [the defendant] displayed a pistol."     The defendant denied

any knowledge of a second incident, and the prosecutor moved on

to another subject.

    This line of questioning, to which the defendant did not

contemporaneously object, was proper.    Unlike Brashears, the

defendant admitted that he had spoken with Duff.     He was aware

of the foundation for the prosecutor's cross-examination, and he

was able to offer an explanation.    The cross-examination thus

did not have the effect of "smear[ing]" the defendant with

insinuation and innuendo without permitting him a meaningful

opportunity to challenge the extrajudicial statements.

Christian, 430 Mass. at 563.   Delrio, 22 Mass. App. Ct. at 721.

The prosecutor's cross-examination of the defendant did not

violate the principles discussed in Peck.

    c.   Cross-examination of defense expert.     The defendant

contends, for the first time on appeal, that the prosecutor's

cross-examination of Brower, the defendant's expert forensic

psychiatrist, by using the defendant's statements to a treating

physician who was not available to testify, violated the
                                                                   15


principles most recently enunciated in Peck.7   The defendant's

reliance on Peck is misplaced, as the rules governing expert

testimony permit the opposing party substantial leeway to

confront the expert with materials on which the expert relied in

formulating an opinion.

     In Department of Youth Servs. v. A Juvenile, 398 Mass. 516

(1986), the Supreme Judicial Court "expanded the permissible

basis of an expert opinion to include 'facts or data not in

evidence if the facts or data are independently admissible and

are a permissible basis for an expert to consider in formulating

an opinion.'"   Commonwealth v. Barbosa, 457 Mass. 773, 785

(2010), quoting from Department of Youth Servs., supra at 531.

"If the facts or data are admissible and of the sort that

experts in that specialty reasonably rely on in forming their

opinions, then the expert may state that opinion without the

facts or data being admitted in evidence."   Department of Youth

Servs., supra at 532.

     During direct examination, the party offering the expert

opinion must take pains to avoid "informing the jury about the

     7
       The defendant objected twice during the cross-examination
of Brower. The defendant first objected, successfully, to the
admission of a physician's report, which was marked as an
exhibit for identification purposes only. The defendant also
made one general objection, which was overruled, when the
prosecutor first asked Brower if he recalled "reviewing some
information that [the defendant] provided that doctor about the
incident." As we discern no error, whether the issue was
preserved is immaterial.
                                                                   16


facts or data [the expert] considered that were not in evidence

but that would be admissible with the right witness or proper

foundation."   Barbosa, supra.   See, e.g., Commonwealth v. Jaime,

433 Mass. 575, 577-578 (2001).    On cross-examination, however,

the opposing party is free to question the expert about the

substance of the facts or data upon which the expert relied.

Id. at 577.    See Mass. G. Evid. § 703 note, at 244 (2017).     "The

thrust of the rule is to leave inquiry regarding the basis of

expert testimony to cross-examination."    Department of Youth

Servs., supra (citation omitted).

     The prosecutor's cross-examination of Brower adhered to

these guidelines.    The prosecutor established that one of the

documents Brower had reviewed in forming his opinion was an

evaluation prepared by Dr. Peter McCullen at the VA hospital a

few weeks after the defendant's arrest.   The prosecutor asked

Brower, whose opinion was based in part on the assumption that

the defendant was intoxicated at the time of his arrest, about

statements in McCullen's report attributed to the defendant to

the effect that he had been drinking alcohol very infrequently

during the prior year.8   The prosecutor also inquired about


     8
       On direct examination, the defendant explained why he had
minimized his drinking when he spoke with the doctor at the VA
hospital: "You got to tell them guys that. . . . That's all
they want to do. They make you an alcoholic or make you
depressant. They can't say, yeah kid we messed up your back
. . . and your leg."
                                                                   17


statements the defendant had made to McCullen demonstrating the

defendant's memory of details of the day of his arrest,

including that he was stopped by the "Roxbury police" with a

pistol that he had borrowed from a friend, that one of the guns

was a .22 and the other had an eight-inch barrel, and that the

fact that he had crossed State lines with firearms is what

caused the problem.   Reminding Brower of his opinion that the

defendant was so impaired on January 12 that he could not make

voluntary statements, the prosecutor asked, "[W]hy would the

defendant have a clear recollection of what happened on January

12th" three weeks later?

    These questions were proper.    Indeed, a judge is generally

"not permitted to exclude questions on cross-examination

'designed to elicit the underpinnings of the expert's opinion.'"

Barbosa, 457 Mass. at 786, quoting from Department of Youth

Servs., supra.   Such cross-examination may be curtailed in

criminal cases only in limited circumstances.   "In determining

whether to allow an expert to testify to the facts underlying an

opinion, the court must inquire whether . . . the testimony

should be excluded because its probative value is substantially

outweighed by the danger of unfair prejudice.'"   Commonwealth v.

Anestal, 463 Mass. 655, 669 (2012), quoting from United States

v. Gillis, 773 F.2d 549, 554 (4th Cir. 1985).   See Mass. G.

Evid. § 703 note, at 244 (2017).   The probative value of such
                                                                    18


questioning is at its zenith where, as here, "the purpose of

cross-examination is 'to shake the foundation of the defense

experts' opinions rather than to focus on the defendant's prior

criminality.'"   Commonwealth v. Colleran, 452 Mass. 417, 425

(2008), quoting from Commonwealth v. Killelea, 370 Mass. 638,

650 (1976).   See Anestal, supra at 670.   We discern no error.

     2.   Voluntariness of defendant's statements and Miranda

waiver.   The defendant claims that his statements to the police

officers during the course of his apprehension and arrest were

inadmissible because his pre-Miranda statements, and the waiver

of his Miranda rights, were not voluntary.    We discern no error

in the trial judge's determining beyond a reasonable doubt that

the defendant's statements were voluntary and permitting the

jury to consider them.9


     9
       The defendant filed a motion to suppress prior to trial,
challenging both the propriety of the removal of the defendant
from the truck and the voluntariness of his statements and
waiver. After a two-day evidentiary hearing, at which the
arresting officers testified, the motion judge denied the
motion, and the Supreme Judicial Court denied the defendant's
application for leave to pursue an interlocutory appeal. The
defendant retained Brower, his forensic psychiatrist expert, a
few months before trial. A renewed motion to suppress, based on
the defendant's proffer of Brower's opinion, was denied by a
second judge without an evidentiary hearing. On appeal, the
defendant does not challenge any of these pretrial
determinations.

     On the first day of trial, before a third judge (the trial
judge), a voir dire was held regarding the voluntariness of the
defendant's pre-Miranda statements, during which only one
arresting officer, Santillana, testified. Defense counsel
                                                                    19


    a.    Voluntariness.   "Where a defendant makes statements to

the police while 'not in custody, we focus solely on the

question whether his statements were voluntary.'"    Commonwealth

v. Molina, 467 Mass. 65, 75 (2014), quoting from Commonwealth v.

Durand, 457 Mass. 574, 595 (2010).   In assessing voluntariness,

"[t]he ultimate inquiry is 'whether, in light of the totality of

the circumstances surrounding the making of the statement, the

will of the defendant was overborne to the extent that the

statement was not the result of a free and voluntary act.'"

Molina, supra at 75-76, quoting from Durand, supra at 595-596.

"[T]he Commonwealth . . . bears the burden of proving beyond a

reasonable doubt that the [defendant's] statement was made

voluntarily."   Commonwealth v. Tremblay, 460 Mass. 199, 206

(2011).   On appellate review, we accept the trial judge's

findings of fact absent clear error and defer to her credibility

determinations, but we independently determine "the correctness

of the judge's application of constitutional principles to the

facts as found."   Id. at 205.

    The typical indicia of involuntariness, such as police

intimidation, promises, or trickery, or the defendant's


initially asked to present Brower's testimony during voir dire,
but then withdrew this request when the judge stated that she
would allow Brower to testify at trial and would give the jury a
"humane practice" instruction. Accordingly, the judge's
decision to admit the defendant's statements was based solely on
Santillana's voir dire testimony, and our review is similarly
limited.
                                                                    20


vulnerability based on age, education, or intelligence, are not

present here.   See Molina, 467 Mass. at 76; Commonwealth v.

Gonzalez, 59 Mass. App. Ct. 622, 627 (2003).   The only

indication of involuntariness was the defendant's somnolent

state and initial incoherence when the officers first approached

him, whether induced by drugs, alcohol, or fatigue.     However,

"[a]n otherwise voluntary act is not necessarily rendered

involuntary simply because an individual has been drinking or

using drugs."   Commonwealth v. Shipps, 399 Mass. 820, 826

(1987).   See Commonwealth v. Tremblay, 92 Mass. App. Ct. 295,

304 nn.10-11 (2017), and cases cited.

    While the defendant was hunched over and mumbling when the

officers first approached, Santillana testified that when the

defendant said, "I'll shoot you all," he spoke "in a very clear

voice" and "made sure and looked right at [Santillana] . . .

when he said those words."   Santillana did not observe any signs

of alcohol or drug use.   Moreover, once removed from the truck,

the defendant showed no signs whatsoever of disorientation.        See

Commonwealth v. Pina, 430 Mass. 66, 71 (1999) (police

observations of defendant's conduct prior to and after making

statement relevant to voluntariness).   The trial judge did not

err in determining that the defendant was not so incapacitated

or intoxicated "at the time he uttered the spontaneous,

inculpatory statement as to preclude a finding that the
                                                                  21


statement was 'the product of a rational intellect and a free

will.'"   Commonwealth v. Lanoue, 392 Mass. 583, 586 (1984),

quoting from Blackburn v. Alabama, 361 U.S. 199, 208 (1960).

    b.    Miranda waiver.    "Our conclusion on the issue of

voluntariness does not resolve all issues raised in this case

concerning the admissibility of the defendant's statements."

Molina, 467 Mass. at 77.     See Gonzalez, 59 Mass. App. Ct. at 627

("Although these issues are separate, each is determined on the

basis of the totality of the surrounding circumstances").

Nonetheless, the validity of the defendant's Miranda waiver need

not detain us long.    The voir dire testimony showed that, by the

time the officers discovered the first firearm near the

defendant's truck and read him the Miranda warnings, no signs of

incapacity remained.   "He was . . . talking directly to us,

. . . making eye contact when he was asked questions directly[,]

. . . speaking very candidly, very very lucid, very clear.

Wasn't slurred . . . didn't appear to be drowsy or under the

influence of anything."     With deference to the trial judge's

credibility determinations, we have no difficulty concluding

that the Commonwealth proved beyond a reasonable doubt that the

defendant made a knowing, intelligent, and voluntary waiver.

Molina, supra at 78.
                                                                     22


     Conclusion.    The judgments are affirmed.    The appeal from

the order denying the motion to stay execution of the sentence

is dismissed as moot.10

                                     So ordered.




     10
          See note 1, supra.
