Commonwealth v. Sanchez , 476 Mass. 725 ( 2017 )

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SJC-11360
COMMONWEALTH vs. BENJAMIN SANCHEZ.
Hampden. December 9, 2016. - April 5, 2017.
Present: Gants, C.J., Botsford, Lenk, Hines, & Gaziano, JJ. 1
Homicide. Burning a Dwelling House. Abuse
Prevention. Evidence, Expert opinion, Admissions and
confessions, Voluntariness of statement. Witness,
Expert. Constitutional Law, Confrontation of witnesses,
Waiver of constitutional rights, Admissions and
confessions, Voluntariness of statement. Practice,
Criminal, Capital case, Confrontation of witnesses, Waiver,
Admissions and confessions, Voluntariness of statement,
Postconviction relief.
Indictments found and returned in the Superior Court
Department on August 27, 2009.
The cases were tried before Peter A. Velis, J., and a
motion for a new trial, filed on May 20, 2015, was considered
by Mark D. Mason, J.
Elaine Pourinski for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
1
Justice Botsford participated in the deliberation on this
case prior to her retirement.
2
GAZIANO, J. In the early morning hours of July 12, 2009, a
Springfield fire department rescue squad responded to a house
fire and found the body of the defendant's estranged wife on the
living room floor. She was transported to a hospital where it
was determined that she had been strangled and stabbed. At
trial, the Commonwealth relied on circumstantial evidence to
prove that the defendant had entered the house, assaulted the
victim, and set the building on fire. A Superior Court jury
convicted the defendant of murder in the first degree on
theories of deliberate premeditation and extreme atrocity or
cruelty, arson of a dwelling house, and violating a G. L.
c. 209A abuse prevention order.
On appeal, the defendant claims that the evidence
introduced at trial was insufficient to support his convictions
of murder in the first degree and arson. In addition, he raises
the following claims of error: (1) expert witnesses were
allowed to testify about the substance of forensic testing
results obtained by other analysts, in violation of his right to
confrontation under the Sixth Amendment to the United States
Constitution; (2) his custodial statements to police were
obtained without a valid Miranda waiver and were involuntary;
and (3) the motion judge abused his discretion in denying the
defendant's motion for a new trial without an evidentiary
hearing. The defendant also asks that we grant him a new trial
3
or reduce the verdicts pursuant to our authority under G. L.
c. 278, § 33E. We affirm the convictions and decline to reduce
the degree of guilt or to order a new trial.
1. Facts. We recite the facts the jury could have found
in the light most favorable to the Commonwealth,
see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979),
reserving certain facts for our discussion of the issues raised.
The defendant and the victim were married for approximately
fifteen years. They had one son together. The victim also had
three children prior to her marriage to the defendant.
In October, 2008, the defendant and the victim separated,
at least in part because of the defendant's drug use. The
defendant moved from the house they had lived in to a mobile
home park a few miles away. In March, 2009, the victim obtained
an emergency abuse prevention order against the defendant, 2 and
in May, 2009, she filed for divorce At the time of the victim's
death, the defendant and the victim shared physical and legal
custody of Angel. The victim initially had been granted sole
physical custody, but the custody order was modified
approximately one month before her death to provide that Angel
2
Before the defendant and the victim separated, he
repeatedly threatened to kill her if he found out that she was
involved in a relationship with another man. At the time of her
death, the victim indeed was dating another man. The defendant
mentioned to one of the victim's daughters that he was aware of
this relationship.
4
would spend weekdays with his mother and weekends with his
father.
In June, 2009, the defendant asked to meet with the victim
to discuss their relationship. She agreed to meet with the
defendant on July 9, 2009, despite the abuse prevention order,
so long as he brought his brother with him. The defendant
assented to this condition, but he arrived alone at the meeting.
He asked the victim if she were certain that she wanted to
follow through with the divorce. She said that she was. The
defendant also expressed a desire to move to Puerto Rico with
their son. The victim told the defendant that he would have to
make such a request to the court. Upon hearing this, the
defendant became visibly upset, slamming the door as he left.
On Saturday, July 11, 2009, the victim left a family
gathering around 11 P.M. and was dropped off at her house. At
approximately 11:20 P.M., the son called his half-sister, who
lived with the victim but was staying at a friend's house that
night. The defendant took the telephone from his son and asked
the half-sister where she was. When she replied that she was at
her friend's house, the defendant asked her "if [she] left [her]
mother home alone." She answered, "No." This was a deliberate
lie because she did not want the defendant to know that the
victim was alone in the house.
At 11:24 P.M., a security camera at the mobile home park
5
where the defendant lived recorded an image of a sport utility
vehicle (SUV), consistent with the defendant's Hyundai Santa Fe,
being driven away. Six minutes later, at approximately 11:30
P.M., one of the victim's neighbors heard a woman scream. The
scream came from the direction of the corner of the street where
the victim lived. The neighbor then heard a man and a woman
arguing. He looked out his window and saw a man and a woman
standing at the door of the victim's house, arguing. He
recognized the woman as his neighbor. The neighbor described
the man as light-skinned, about five feet, eleven inches tall,
and wearing a light-colored or white T-shirt and dark shorts.
The video surveillance recording showed that the SUV returned to
the mobile home park approximately thirty minutes later, at
12:02 A.M. on July 12, 2009.
Also at approximately midnight on July 12, 2009, one of the
victim's neighbors smelled smoke and discovered that it was
coming from the victim's house. Fire fighters responded at
12:46 A.M. A rescue squad found the victim lying unconscious in
the living room, in front of her bedroom door. Emergency
personnel transported her to the hospital, where she was
pronounced dead. In addition to burns, she had multiple blunt
and sharp force injuries to her head, neck, arms, right knee,
chest, back, and hands. Her death was caused by a combination
of sharp force injuries to her left lung, which caused it to
6
collapse, and inhalation of soot and smoke. Hospital staff
notified police after they discovered bruising and a ligature
mark on the victim's neck.
At 3 A.M. on July 12, 2009, Springfield police officers
went to the defendant's trailer at the mobile home park. He
accompanied them to the police station, where he gave a
statement and provided a buccal swab. The officers noticed that
the defendant had bruises on the back of his right hand and on
his right wrist, and a wound on the webbing between the thumb
and index finger of his left hand.
The fire investigators determined that the fire had been
set intentionally, and began in the victim's bedroom. 3
The defendant provided statements to police on July 12, 17,
and 18, 2009. He said that, after his son went to bed, he drove
his Hyundai Santa Fe SUV to purchase four bags of heroin and
that, after returning home and injecting all four bags, he went
back to purchase two additional bags. Initially, the defendant
said that he had not been inside the victim's house since April.
In a later statement, he said that he and the victim had been
together in the victim's house at approximately 3 or 4 P.M. on
3
This conclusion was based, in part, on the following:
(1) all but one of the smoke detectors and carbon monoxide
detectors had been rendered inoperable at the time of the fire;
(2) the fire originated in the victim's bedroom; and
(3) investigators ruled out cigarettes, candles, or electrical
appliances as causes of the fire.
7
July 10, 2009, the day before her death. 4
In the early morning hours of July 12, 2009, the front,
back, and side doors of the victim's house were locked. Keys to
the house were found behind it, near the front porch of a
neighboring house; they were "brand new" and were found on top
of leaves and sticks.
At trial, the Commonwealth presented deoxyribonucleic acid
(DNA) evidence linking the defendant to the crimes. This
included evidence from a red-brown stain on the neck of a white
T-shirt discovered in the doorway of the victim's bedroom. That
stain contained a mixture of DNA; short tandem repeat 5 (STR)
testing showed that the major DNA profile matched the victim's
profile, and that the defendant was a potential contributor to
the minor profile. There was also another potential contributor
to the mixture. Another DNA sample was obtained from underneath
4
One of the victim's daughters testified at trial that the
defendant was not at the victim's house on July 10, 2009; the
victim's boy friend testified that the victim went to his house
at about 9 A.M. that day, and was there in the afternoon.
5
Short tandem repeat (STR) testing of deoxyribonucleic acid
(DNA) focuses on specific places (loci) on the human chromosome
where known sequences of DNA base pairs repeat themselves. A
DNA analyst measures the number of times these repeat sequences
occur at particular loci (called alleles), and uses that
measurement to compare known standards against unknown forensic
samples. In Y-STR DNA testing, the analyst separates male DNA
from female DNA, and examines loci found exclusively on the male
Y-chromosome. See Commonwealth v. DiCicco, 470 Mass. 720, 724
n.11 (2015); Commonwealth v. Issa, 466 Mass. 1, 4-5 & n.5
(2013).
8
one of the fingernails on the victim's right hand. Y-chromosome
STR (Y-STR) testing showed that a the major profile from that
sample matched the Y-STR DNA profile of the defendant and his
paternal relatives. A third sample from the victim's neck
contained the Y-STR DNA profiles of at least three males; the
defendant and his paternal relatives could not be excluded from
this mixture.
2. Discussion. a. Sufficiency of the evidence. The
defendant argues that the trial judge erred in denying his
motions for required findings of not guilty, because the
evidence was insufficient as a matter of law to support his
convictions of murder in the first degree and arson.
"In reviewing the denial of a motion for a required finding
of not guilty, [this court] must determine whether the evidence,
including inferences that are not too remote according to the
usual course of events, read in the light most favorable to the
Commonwealth, was sufficient to satisfy a rational trier of fact
of each element of the crime beyond a reasonable doubt"
(citation omitted). Commonwealth v. Zanetti, 454 Mass. 449, 454
(2009). "[T]he evidence and the inferences permitted to be
drawn therefrom must be 'of sufficient force to bring minds of
ordinary intelligence and sagacity to the persuasion of [guilt]
beyond a reasonable doubt'" (citation omitted). Latimore, 378
Mass. at 677.
9
Having carefully reviewed the trial record, we conclude
that the evidence introduced at trial was sufficient to support
the convictions of murder in the first degree on the theories of
deliberate premeditation and extreme atrocity or cruelty and
arson.
We highlight some of the salient facts recited above. The
evidence indicated that the defendant had a motive for the
killing. Four months before the victim's death, the victim
obtained an emergency abuse prevention order against the
defendant after a history of domestic violence. A few days
before the victim's death, the defendant and the victim had a
conversation in which the defendant became visibly "upset" and
slammed a door upon hearing from the victim that she would
proceed with the divorce and would contest his move to Puerto
Rico with their son.
On the night of the stabbing, the defendant asked the
victim's daughter if the victim was alone in her house.
Although the defendant was misinformed that she was not, the
victim indeed was alone in the house at that point, for the
first time since she had obtained the abuse prevention order
four months earlier. Minutes after the conversation informing
the defendant that the victim was at her house, while the son
was asleep in the back room of the defendant's mobile home, an
SUV similar to the defendant's Hyundai Santa Fe left the mobile
10
home park. See Commonwealth v. Phoenix, 409 Mass. 408, 430
(1991). Six minutes later, a neighbor heard the victim scream,
and then saw her standing at her front door arguing with a man.
Early in the morning of July 12, 2009, police found the
defendant with injuries on both hands. His left hand tested
positive for the presence of blood. DNA evidence on a T-shirt
found in the doorway of the victim's bedroom, and on her body,
contained a mixture of DNA, including a major STR DNA profile
that matched the victim's profile and a minor profile from which
the defendant could not be excluded.
The defendant made contradictory statements to police about
his whereabouts on the day prior to, and the day of, the
killing, that were contrary to testimony from the victim's
daughter and the victim's boy friend. See Commonwealth
v. Robles, 423 Mass. 62, 71 (1996) ("False statements to police
may be considered as consciousness of guilt if there is other
evidence tending to prove the falsity of the statements").
Taken together, the evidence also was sufficient to support
a finding of extreme atrocity or cruelty. The victim had blunt
force injuries to both sides of her head, her right eye, both
arms, and her right knee, and a ligature mark on her neck. She
also was stabbed forty-five times, including stab wounds to her
neck and through her left lung. Her arms and legs were burned,
and she inhaled soot and smoke, which contributed to her death,
11
indicating that she was alive after having been repeatedly
stabbed and beaten, and while the fire burned around her.
In light of this, the defendant's argument that the
Commonwealth did not meet its burden of proof because the
evidence was circumstantial in nature, or because there was no
blood or soot in the defendant's vehicle, or on his person or
clothing, on the morning after the fire, is unavailing. Viewed
in the light most favorable to the Commonwealth, the evidence
was sufficient to support the convictions. See Commonwealth
v. Lao, 443 Mass. 770, 779-780 (2005), S.C., 450 Mass. 215
(2007) and 460 Mass. 12 (2011) (circumstantial evidence in
prosecution of murder in first degree was sufficient to warrant
jury's conclusion that defendant killed his estranged wife).
Accordingly, we turn to the defendant's other assertions of
error.
b. Right to confront DNA analyst. At trial, the defendant
repeatedly objected to the testimony of Amy Barber, a DNA unit
supervisor at the State police crime laboratory (crime lab), on
the ground that her testimony violated his right to
confrontation. 6 On appeal, he argues that it was error to permit
6
Three DNA analysts from the State police crime laboratory
testified concerning STR and Y-STR DNA testing: Jennifer
Montgomery testified to STR DNA profiles from the known samples
of the victim and the defendant, and the Y-STR profile from the
known sample of the defendant; Amy Barber testified to the STR
DNA profiles that were obtained from twelve questioned samples
12
Barber to testify about the results of DNA testing performed by
another analyst, Melanie Knasas, and that the Commonwealth
failed to establish that Knasas was unavailable to testify. We
conclude that the testimony did not violate the defendant's
right to confrontation. See Commonwealth v. Greineder, 464
Mass. 580, 603, cert. denied, 134 S. Ct. 166
(2013); Commonwealth v. Barbosa, 457 Mass. 773, 786 (2010),
cert. denied, 563 U.S. 990 (2011).
Under the Sixth Amendment to the United States Constitution
and art. 12 of the Massachusetts Declaration of Rights, a
criminal defendant has the right to confront the government's
witnesses. See Bullcoming v. New Mexico, 564 U.S. 647, 657
(2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329
(2009). See also Commonwealth v. Nardi, 452 Mass. 379, 388 n.10
(2008) ("the protection provided by art. 12 is coextensive with
the guarantees of the Sixth Amendment" [citation omitted]). In
addition, our common-law rules of evidence "afford a defendant
more protection than the Sixth Amendment." Commonwealth
v. Tassone, 468 Mass. 391, 399 (2014). Under the common law, we
require that a defendant be provided with a "meaningful
opportunity to cross-examine the expert about her opinion and
and their comparison to the STR DNA profiles obtained from the
known standards; and Kathleen Gould obtained the Y-STR DNA
profiles from four questioned samples and compared them to the
defendant's Y-STR DNA profile.
13
the reliability of the facts or data that underlie her
opinion." Id.
Barber's expert testimony did not deprive the defendant of
his rights under the confrontation clause. Knasas worked at the
crime lab. She conducted the initial testing on twelve items
(including from the victim's T-shirt, her right-hand
fingernails, and her neck) to develop STR DNA profiles for later
comparison to known DNA samples. At the time of trial, however,
Knasas no longer was employed at the crime lab, and she was
traveling out of State.
Barber was a DNA unit supervisor responsible for the day-
to-day operations within the crime lab's DNA unit; she
supervised five other chemists and was familiar with all of the
crime lab's protocols and procedures. In addition, Barber was
the technical reviewer assigned to review Knasas's analysis in
this case, to ensure that the proper protocols had been followed
and that Knasas's conclusions were scientifically sound.
Barber did not testify to Knasas's testing results. During
direct examination, the prosecutor prefaced his questioning by
instructing Barber, "Now, I want to ask you specifically, Ms.
Barber -- I don't want to ask you about any conclusions that
have been reached by Ms. Knasas. I'm going to ask you to
testify to your own independent opinions based on the data you
just described. All right?" Within those parameters, Barber
14
testified to a chart that she had prepared describing her
interpretation of the raw data.
Barber did not, as the defendant suggests, "act as a
conduit for" Knasas's test results, opinions, or conclusions.
See Greineder, 464 Mass. at 595. Rather, Barber testified that
she "reviewed the data that came off of the detection software
and was put through the analysis software," formulated her own
opinions after interpreting the raw data produced during the
process, and drew independent conclusions based upon data
produced by the analysis software. Barber also calculated the
population frequency of each DNA profile and testified to her
results. See Commonwealth v. Chappell, 473 Mass. 191, 199-202
(2015) (no confrontation clause violation where testifying
expert independently reviewed raw data and reports produced by
original analyst, made interpretations, and ensured that there
was agreement between her findings and those of original
analyst); Greineder, supra at 595, 601-602 (no confrontation
clause violation where substitute analyst reviewed nontestifying
analyst's work, including six prepared reports, and then
conducted independent evaluation of data); Barbosa, 457 Mass. at
791 (no confrontation clause violation where substitute analyst
conducted full technical review of other analyst's DNA reports
regarding testing that was performed and results of testing).
Moreover, the admission of Barber's testimony did not
15
violate the defendant's common-law right to confrontation.
See Tassone, 468 Mass. at 399. The defendant had a meaningful
opportunity to cross-examine Barber and, in fact, did challenge
Barber's testimony, extracting, on cross-examination, that there
was a third, unknown potential contributor to the DNA mixture on
the white T-shirt. Defense counsel also asked Barber about
other unknown results from other swabs, the crime lab's testing
procedures and protocols, and why DNA testing was not performed
on particular items.
The defendant contends further that the confrontation
clause requires the Commonwealth to prove Knasas's
unavailability before Barber was permitted to testify. This
argument is without merit. We do not require the Commonwealth
to demonstrate that an analyst is unavailable as a prerequisite
to the admission of substitute expert testimony in order to
comport with a defendant's rights under the confrontation
clause. See Commonwealth v. Williams, 475 Mass. 705, 718-719
(2016) (substitute medical examiner allowed to testify to her
independent understanding of cause of death based on autopsy
report and photographs despite availability of medical examiner
who performed autopsy).
c. Right to confront electrical-fire investigator. The
defendant argues that his Sixth Amendment confrontation clause
rights were violated by the testimony of State police Trooper
16
David Percy. Percy, an arson investigator, testified that the
fire was set deliberately. In conducting his investigation,
Percy was assisted by fire fighter and licensed electrician
Benjamin Hall. Percy observed Hall examine electrical
appliances, electrical outlets and wall switches for damage.
The defendant argues that the Commonwealth's failure to present
testimony from Hall denied the defendant the right to challenge
the testimony that the fire was not accidental. For reasons
similar to our discussion of the DNA analysis, we conclude that
Percy's testimony did not violate the defendant's rights under
the confrontation clause.
Percy, unlike Hall, was not a licensed electrician. Percy
was, however, able to respond directly to the defendant's
questions about the decision to rule out an accidental fire
based on an electrical source. 7 Percy had personally inspected
the various electrical outlets and electrical appliances in the
victim's house, and had formed his own independent opinion
concerning the origin of the fire. Percy did not repeat Hall's
opinion. See Barbosa, 457 Mass. at 783-784. Having been able
to cross-examine Percy concerning the investigation into causes
7
Percy had completed training courses in basic and advanced
electrical investigation;, and the failures of appliances and
electricity. He had inspected electrical switches and
electrical outlets in the course of investigating approximately
1,000 fires.
17
of the fire, 8 the defendant was not deprived of his right to
confrontation on this issue. See Barbosa, supra at 784.
d. Defendant's statements. The defendant challenges the
validity of his waiver of the Miranda rights, see Miranda
v. Arizona, 384 U.S. 436 (1966), and the voluntariness of the
statements that he gave to Springfield police officers on July
12, 17, and 18, 2009.
The Commonwealth "bears the burden of proving beyond a
reasonable doubt, in the totality of the circumstances, that a
defendant's [Miranda] waiver was voluntary, knowing, and
intelligent." Commonwealth v. Auclair, 444 Mass. 348, 353
(2005). "Absent clear error, we accept a . . . judge's findings
of fact . . . , and a finding of voluntary waiver is given
substantial deference" (citation omitted). Id.
In reviewing a judge's denial of a motion to suppress, we
accept the judge's findings of fact and will not disturb them
absent clear error. See Commonwealth v. Smith, 456 Mass. 476,
478 (2010). We conduct an independent inquiry as to whether the
defendant's statements were made voluntarily and without
coercion. See Commonwealth v. Carnes, 457 Mass. 812, 818-819
8
On appeal, the defendant claimed that his confrontation
clause rights also were violated by the Commonwealth's failure
to call Springfield police Officer Kenneth Jones as a witness at
the hearing on the defendant's motion to suppress. The
defendant is mistaken. Jones testified on the fourth day of the
hearing, and he was subject to cross-examination.
18
(2010). "A statement is voluntary if, in the totality of the
circumstances surrounding the making of the statement, the
defendant's will is not overborne, so that the statement is the
result of a free and voluntary act." Id. at 819. "In looking
at the totality of the circumstances to determine the
voluntariness of a statement, the judge may consider, among
other things, the defendant's age, education, intelligence,
physical and mental stability, and experience with and in the
criminal justice system." Commonwealth v. Andersen, 445 Mass.
195, 203 (2005).
Here, we discern no error in the judge's decision to deny
the defendant's motion to suppress his statements.
i. Statement on July 12. To begin, we consider whether
the defendant was subjected to custodial interrogation
triggering Miranda protections. "[T]he safeguards prescribed
by Miranda become applicable as soon as a suspect's freedom of
action is curtailed to a 'degree associated with a formal
arrest.'" Berkemer v. McCarty, 468 U.S. 420, 440 (1984),
quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per
curiam). See Commonwealth v. Martinez, 458 Mass. 684, 695 n.12
(2011). It is the defendant's burden to establish that he was
subject to custodial interrogation. Commonwealth v. Kirwan, 448
Mass. 304, 309 (2007). "The test is an objective one: would a
reasonable person in the circumstances of the defendant's
19
interrogation have perceived the environment as coercive?" 9 Id.
The judge concluded, and we agree, that the defendant
failed to establish that the interrogation was custodial. The
defendant voluntarily accompanied the officers from his home to
an interview room at the police department. That the interview
occurred at the police station is not, by itself, controlling.
See Commonwealth v. Gil, 393 Mass. 204, 212 (1984). Once in the
interview room, the detectives informed the defendant that he
was not required to be there. He was told a number of times
that he was not under arrest and that he could leave at any
time. At the end of the two-hour interview, the defendant was
not arrested, and was driven home by an officer.
See Commonwealth v. Clemente, 452 Mass. 295, 327-328 (2008),
cert. denied, 555 U.S. 1181 (2009).
9
The factors relevant to determining whether a suspect is
in custody for Miranda purposes include:
"(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). "Rarely
is any single factor conclusive." Commonwealth v. Bryant, 390
Mass. 729, 737 (1984).
20
The defendant also challenges the voluntariness of his
statement on July 12. He maintains that any statements were not
the product of rational thought, because he was under the
influence of heroin and alcohol, had not taken his medications
for mental illness, and suffers from a learning disability. The
judge found these arguments to be without merit. We conclude
that this finding was not clearly erroneous.
Here, "[t]he atmosphere surrounding the officer's questions
was neither coercive nor intimidating." Commonwealth
v. Burbine, 74 Mass. App. Ct. 148, 151-152 (2009). The judge
found that the officers' comments, at this point at the
beginning of their investigation, were "investigatory rather
than accusatory." Kirwan, 448 Mass. at 311. The officers spoke
to the defendant in English, his second language, in an
interview room. The detectives did not have difficulty
understanding the defendant, and he did not appear to have
difficulty understanding them. The detectives simplified the
manner of their questioning in order to accommodate the
defendant's learning disability. They did not challenge the
defendant's answers to questions. The defendant was cooperative
and answered questions readily. The detectives neither
threatened the defendant nor made any promises in order to
induce him to speak. The defendant was alert and did not appear
to be under the influence of drugs or alcohol. He remained calm
21
until the detectives notified him of the victim's death. After
the interview, one of the detectives read a typed statement to
the defendant because he had indicated that he was not able to
read or write, and the defendant then signed it. 10
We note that, during the July 12 interview, a detective
falsely informed the defendant that the victim had been pregnant
when she died. The judge did not accept the detective's
explanation that he passed along this upsetting information to
the defendant because he "must have been told by somebody that
she may have been [pregnant]." The judge found that "[t]his
news did upset the defendant, but even if it were intended to
elicit incriminating statements regarding [the victim's] death,
such a tactic was unsuccessful. . . . [I]t did not have any
impact on the defendant's statement." The judge's findings
regarding the impact of the detective's false statement are not
clearly erroneous.
ii. Statement on July 17. The defendant contends also
that, because he was under the influence of alcohol and heroin,
and had not taken his medications for his mental illness at the
10
We note that the judge incorrectly stated in his findings
of fact that the defendant had requested a correction to this
statement before signing it, and referenced that as further
indication that, when he made the statement, the defendant had
been alert, unimpaired by drugs or alcohol, and able to
understand the detectives' spoken English. This error is of no
moment, however, as our review of the course of conduct of the
interview persuades us that the defendant was alert, unimpaired
by alcohol or drugs, and able to understand the detectives.
22
time of his arrest, his Miranda waiver and subsequent statements
were not voluntary, and his recorded statement on July 17 should
have been suppressed. In light of the totality of the
circumstances, we conclude that the judge properly determined
that the defendant knowingly and voluntarily waived his Miranda
rights, and voluntarily provided the statement to police.
After he was arrested on July 17, the defendant was
transported to the police station and brought to an interview
room. The detectives asked the defendant if he wanted a
Spanish-speaking officer to translate. The defendant accepted
this offer, and a Spanish-speaking detective joined them. This
detective spoke to the defendant in Spanish. The defendant
agreed to speak English during the interview, and to have
portions of the interview interpreted as needed. During the
interview, the Spanish-speaking detective clarified a few terms,
but the vast majority of the interview was conducted in English,
without apparent difficulties.
The detectives began the recorded interview by advising the
defendant of his Miranda rights, his telephone rights, and his
right to a prompt arraignment. The detective read each right to
the defendant, who indicated his understanding of each right
orally and by initialing each line on the form. In response to
line eight on the form, "[h]aving these rights in mind do you
wish to talk to me now?" the defendant wrote his initials and
23
said, "I don't have a problem." When the detective asked the
defendant if he wanted to use a telephone, the defendant
replied, "In a little while," and the detective told the
defendant to let him know when the defendant wanted to use it.
While, as the judge noted, it would have been better
practice to inquire into the defendant's need for medication,
once the defendant alluded to his medications for mental
illness, the judge found that "the defendant was coherent, [and]
able to understand the questions put to him . . . , and that the
defendant's responses to the questions were generally
appropriate and evidenced his comprehension of the questions." 11
The judge found that defendant's demeanor indicated that he was
not impaired by alcohol, heroin, or the lack of medication.
About ten minutes into the interrogation, the defendant
handed a detective a criminal defense attorney's business card
and said, "Call him." The detective considered the defendant's
act and remark as an invocation of his right to counsel and,
accordingly, ended the interview. The detective informed the
defendant that he would be booked and processed, and that he
would be able to make a telephone call.
After the defendant invoked his right to counsel, however,
11
The defendant denied any involvement in the victim's
death. See Commonwealth v. Fournier, 372 Mass. 346, 348–349
(1977) (fact that statement is exculpatory may be taken into
account in determining whether it is voluntary).
24
the detective told the defendant, "I am disappointed because I
thought you'd step up and take [your son] out of this." This
comment was highly inappropriate, as the detective did not
scrupulously honor the defendant's right to speak through
counsel. Once Miranda warnings have been given, if a defendant
states that he or she wants an attorney, the interrogation must
cease until an attorney is present. See Commonwealth v. Brant,
380 Mass. 876, 882, cert. denied, 449 U.S. 1004 (1980).
Interrogation refers "not only to express questioning, but also
to any words or actions on the part of the police (other than
those normally attendant to arrest and custody) that the police
should know are reasonably likely to elicit an incriminating
response from the suspect" (footnote omitted). Rhode Island
v. Innis, 446 U.S. 291, 300-301 (1980). See Commonwealth
v. Mejia, 461 Mass. 384, 390 (2012). The detective's comment,
which was designed to induce the defendant to make incriminating
statements in an effort to protect his son, constituted the
functional equivalent of interrogation after the defendant had
invoked his right to counsel and to silence.
The judge found that the defendant "did not . . . take the
bait, and he remained silent." After carefully weighing the
circumstances, the judge determined that the effect of the
officer's comment had dissipated by the time the defendant
recanted his invocation of his Miranda rights on the following
25
day, and we do not disturb this finding. See Commonwealth
v. Bradshaw, 385 Mass. 244, 258-259 (1982) (taint of police
misconduct had dissipated, and defendant's subsequent statement
was not fruit of poisonous tree where defendant was provided
Miranda warnings at least twice before he made statement,
interrogation began approximately two hours after police
misconduct, and there was no insistent questioning or brutality
on part of police).
iii. Statement on July 18. The defendant argues that the
police questioning on July 18 was improper because he had
invoked his right to counsel on the previous day, and also that
his statements were involuntary because he was experiencing
heroin withdrawal, was without his medication for his mental
illness, and was disadvantaged by a learning disability. Based
on these factors, the defendant argues that his statements were
"not a product of rational thought." The judge rejected these
arguments. We discern no error in the judge's assessment.
Once a defendant invokes his or her right to counsel, the
defendant may not be questioned until counsel has been made
available, unless the defendant himself or herself initiates
further communication with police. See Commonwealth v. Judge,
420 Mass. 433, 450 (1995). Here, the judge concluded that the
defendant "subsequently decided independently" to speak with
police without an attorney, and initiated his further contact
26
with police following his invocation of his right to counsel on
July 17. See id. at 450-451. See also Edwards v. Arizona, 451
U.S. 477, 484-485 (1981).
On July 18, Springfield police Officer Kenneth Jones was
walking by the defendant's cell at 9 A.M., during a routine cell
check, when the defendant indicated to Jones that he wanted to
speak to the detectives. Jones did not initiate the
conversation. The detectives asked the defendant if he wished
to speak without a lawyer present, and the defendant indicated
that he did.
In response to the defendant's request, the detectives
brought the defendant to an interview room in the detective
bureau. The interview was recorded. The detectives spoke to
the defendant in English after he indicated that he understood
English. They had no difficulty communicating with the
defendant over the course of an interview lasting two hours and
twenty minutes. The officers reviewed what had occurred on the
previous day and earlier that morning. They again read each
line of the Miranda rights form to the defendant, he initialed
each line indicating his understanding, and he indicated that he
would speak without an attorney present.
In light of all the circumstances, we conclude that there
was no violation of the defendant's Miranda rights at the July
18 interview, because he himself initiated contact with the
27
police, a significant period of time had elapsed between his
invocation of the right to counsel on July 17 and his election
to speak without a lawyer present on July 18, and, before he
spoke, he was provided, and again waived, his Miranda rights.
See Commonwealth v. Rankins, 429 Mass. 470, 472-473 (1999).
Police may not badger a defendant into waiving his or her
previously asserted Miranda rights. See Michigan v. Harvey, 494
U.S. 344, 350 (1990). The detective's statement on the previous
day concerning "tak[ing] [the defendant's son] out of this" did
not, however, constitute postinvocation badgering, where
approximately eighteen hours separated the defendant's
invocation of his right to counsel and the defendant's
initiation of further dialogue with the police. See Rankins,
429 Mass. at 473.
The judge properly found the defendant's July 18 statement
to be voluntary. The defendant did not request an interpreter,
as he had the previous day, and the detectives were able to
communicate with the defendant without difficulty. The
defendant was alert and did not appear to be experiencing
withdrawal symptoms. He did not clearly tell the detectives
that he took medication for a mental illness. The defendant
answered the officers' questions and often provided more
information than what was requested. He recounted his
activities the day of and the day preceding the murder. He
28
never sought an end to the interview and never requested a
lawyer, a request he clearly knew how to make given that he had
asked for a lawyer the previous day. Although the defendant
told police that he was "high" twenty-four hours a day, and that
he had a daily heroin habit, the evidence does not show that the
defendant was impaired due to withdrawal from heroin. 12
A detective typed a written statement for the defendant,
printed it, and another detective read it out loud. The
defendant did not agree with the statement. He insisted that
the detectives delete words referring to the victim's death from
the paragraph describing the purpose of the detectives'
interrogation, insisting that he had had nothing to do with her
death. Once that change was made, and the defendant was read
the revised version, he signed the statement.
We accordingly conclude that the defendant reinitiated
contact with the police, knowingly and voluntarily waived his
Miranda rights for a second time, and voluntarily gave a second
statement.
e. Evidentiary hearing on motion for postconviction
12
The judge found that "for the first few minutes of the
. . . interview, the defendant's legs were shaking, his hands
were fidgeting, and . . . he repeatedly requested cigarettes.
Once he smoked the first cigarette and was told that he would
have to wait for the second . . . cigarette, the defendant
calmed down considerably for approximately [thirty] minutes,
during which time he focused on answering the detectives'
questions. The defendant did not seem confused or disoriented."
29
relief. The defendant filed a motion for a new trial based on a
claim of ineffective assistance of counsel, which was denied
without an evidentiary hearing. 13 The defendant contends that,
because his motion for a new trial raised a constitutional claim
of ineffective assistance, and was supported by affidavits, it
was error to deny the motion without an evidentiary hearing. In
his motion for a new trial, the defendant claimed that he heard
voices during the trial, and that he was deprived of the
effective assistance of counsel due to counsel's failure to
bring his mental state to the court's attention. The defendant
submitted his own affidavit and the affidavits of his two
sisters as evidence. An affidavit by trial counsel contradicted
the defendant's claims. 14
We typically review the grant or denial of a motion for a
new trial under the abuse of discretion or other error of law
standard. See Commonwealth v. Lykus, 451 Mass. 310, 325–326
(2008). However, where the motion judge is not the trial judge,
13
The trial judge had retired.
14
In his affidavit, the defendant's trial counsel
represented, inter alia, that the defendant had been deemed
competent by a doctor before trial, and that counsel had agreed
with that evaluation at the time; that the defendant did not
appear to have difficulty understanding the trial proceedings;
and that counsel was "very sensitive" to the defendant's
struggles with mental illness and asked the defendant "several
times every day during the trial whether he was okay and whether
he understood what was going on," and the defendant always
replied in the affirmative.
30
and no evidence is taken, we are able to assess the trial record
and conduct a de novo review. See Commonwealth v. Grace, 397
Mass. 303, 307 (1986).
"A judge is required to conduct an evidentiary hearing on a
motion for a new trial only if a substantial issue is raised by
the motion or affidavits." Commonwealth v. Torres, 469 Mass.
398, 402 (2014). See Commonwealth v. Wallis, 440 Mass. 589, 596
(2003); Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass.
1501 (2001). In deciding whether to hold an evidentiary
hearing, "a judge considers the seriousness of the issues raised
and the adequacy of the defendant's showing on those
issues." Torres, supra at 402-403. During this inquiry, a
judge may consider the affiant's self-interest or bias.
See Commonwealth v. Leng, 463 Mass. 779, 787 (2012) (motion
judge did not abuse her discretion when she refused to credit
defendant's uncontroverted affidavit).
In his written decision, the motion judge weighed the
competing affidavits and found, "Because I credit trial
counsel's affidavit [that he monitored the defendant's mental
state in light of the defendant's potential incompetence], I do
not credit the countervailing representations set forth in the
other affidavits." The motion judge denied the motion for new
trial without a hearing.
Based on the defendant's failure to raise a substantial
31
issue by affidavit, we conclude that the motion judge's denial
of the defendant's motion for postconviction relief without a
hearing did not constitute an abuse of discretion.
See Commonwealth v. Tucceri, 412 Mass. 401, 409, 414 (1992).
f. Review under G. L. c. 278, § 33E. The defendant argues
also that there were mitigating facts in this case that warrant
exercise of our authority under G. L. c. 278, § 33E, to reduce
the degree of guilt to manslaughter or, in the alternative,
murder in the second degree. We have carefully reviewed the
entire record pursuant to our duty under G. L. c. 278, § 33E,
and discern no reason to order a new trial or to reduce the
conviction to a lesser degree of guilt. See Lao, 443 Mass. at
781.
Judgments affirmed.
Order denying motion for a
new trial affirmed.