Commonwealth v. DiGiambattista , 442 Mass. 423 ( 2004 )

Greaney, J.

(concurring in part and dissenting in part, with whom Spina and Cowin, JJ., join). I agree with the court’s conclusions that it is unnecessary to require corroboration beyond that required in Commonwealth v. Forde, 392 Mass. 453, 458 (1984), to sustain a confession; and that recording of defendants’ statements, at the risk of their exclusion in evidence, should not be mandated. I join with Justice Spina, however, in concluding that the defendant’s motion to suppress was correctly denied and in his observations and conclusions with respect to maintaining, without change, the current totality of the circumstances test. I also agree with his observations and conclusions as to the need for recording of statements to which I add the following. If the latter is to be considered at all by the court, it should be done so only after study by a representative committee (like the study now being conducted in New Jersey, see State v Cook, 179 N.J. 533, 562 [2004]), where all interested parties can be heard and as many issues as possible identified and resolved in advance. Otherwise, the pronouncement of a mandatory rule without guidelines and exceptions could lead to a quagmire of litigation (with defendants seeking to gain advantage at every opportunity) over a multiplicity of issues. Experience with the criminal rules of procedure demonstrates that practices that have been studied and codified in rules and exceptions work the best. The Legislature, of course, may act at any time, and that body is uniquely suited to conduct the type of study necessary to fashion a workable procedure. I hope they will address the matter.

I do not agree with the remedy proposed by the court, more specifically, the form of instructions mandated (on request). I, of course, agree with the general proposition that recording may be desirable. “There is force to a recording requirement particularly if a defendant is being questioned at a police station. The cost of the equipment and its operation is minimal. The machinery is not difficult to use. A recording speaks for itself literally on questions concerning what was said and in what manner. Recording would tend to eliminate certain challenges to the admissibility of defendants’ statements and to make easier the resolution of many challenges that are made. . . . Police officials should be alert to the merits of recording custodial interrogations and be warned that the time may come when recording in places of detention, at least, will be mandatory if a statement obtained during custodial interrogation is to be admissible.” (Citations omitted.) Commonwealth v. Diaz, 422 Mass. 269, 272-273 (1996).

This being said, the proposed instructions are far too intrusive on the Commonwealth’s rights and of a nature that will tend to “dynamite” a jury into concluding that a defendant’s statement should be rejected.¹ The instructions appear to presuppose that many statements given by defendants are being obtained by police misconduct of a degree that renders them involuntary and that recording will expose widespread violations of defendants’ rights. The opposite is the fact. Based on the countless number of statements each year that are held voluntary by judges (after hearing motions to suppress), and by juries (after hearing the evidence and the required instruction on voluntariness when that subject is in issue), the proof of police misconduct overbearing the will of defendants is virtually nonexistent.² In the absence of a firm basis to suspect police misconduct as widely prevalent, there is no reason to require jury instructions that will tilt the playing field unfairly against the Commonwealth. This is especially so with respect to the first mandated instruction which will tell the jury, even in cases where voluntariness is not in issue, that “the State’s highest court has expressed a preference that [custodial and place of detention] interrogations be recorded whenever practicable, and . . . because of the absence of any recording of the interrogation in [this] case . . . [you, the jury] should weigh evidence of the defendant’s alleged statement with great caution and care.” Ante at 447-448. What conscientious juror, having been so sternly warned by a judge, will not automatically give less credence to what the court describes as “one of the most significant pieces of evidence in any criminal trial”? When the defendant does not challenge the statement or confession as involuntary, there is no reason to impose on the Commonwealth an instruction (that will likely be requested in every case) that changes the equilibrium of the trial in such a dramatic way.

The same may be said of the second instruction required in those cases where voluntariness is an issue, advising the jury that the absence of a recording permits, but does not compel, a conclusion that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt. Although the court cites Commonwealth v. Cryer, 426 Mass. 562, 571 (1998), the mandated instruction goes far beyond principles set forth in that decision. There we stated that a judge may, but is not obligated to, offer a jury guidance with respect to their role in the determination of voluntariness of a defendant’s statements, by reciting some of the factors that the jury may consider in reaching their determination whether the Commonwealth has met its burden of proof on the voluntariness issue beyond a reasonable doubt. See id. at 572. We also made clear that a jury must reach their determination as to whether the Commonwealth has met its burden, based on consideration of “all the evidence” surrounding the statement or confession and not on the presence, or absence, of any one particular factor (emphasis added). Id. See Commonwealth v. Novo, ante 262, 267 (2004) (enumerating multiple factors to be considered in evaluating statement’s voluntariness, including promises or other inducements, conduct of defendant, defendant’s age, education, intelligence and emotional stability, and details of interrogation); Commonwealth v. Raymond, 424 Mass. 382, 395 (1997); Commonwealth v. Parker, 412 Mass. 353, 358 n.11 (1992). See also Commonwealth v. Selby, 420 Mass. 656, 663 (1995) (test for voluntariness 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”).

The court has reshaped the “totality of the circumstances” test by directing the jury to focus on one consideration (the presence or absence of an electronic recording) over all others. This is accomplished by telling the jury that the court has expressed a “preference” for recording and that a finding of involuntariness may be premised on the absence of one, thus exalting this single factor over the others. This results in an otherwise balanced test being unfairly skewed in favor of the defendant. A videotape recording may well serve as the best evidence of many of the traditional voluntariness factors, because a video, at least one of average quality, can capture not only promises, inducements, and the recitation of Miranda warnings, but also the conduct of the defendant and details of the defendant’s physical and mental condition. An audiotape recording (the lack of which now triggers a defendant’s entitlement to the instructions), however, even one of exceptional quality, is capable of capturing only spoken words and noises and, thus, cannot fairly be deemed the best evidence of the “totality” of events that transpired during the interrogation. Moreover, the presumption, implicit in the instructions, that the failure to record was a strategic decision on the part of an interrogating officer intent on concealing the true nature of the interrogation, adds an entirely new, and unjustified, factor to the “totality of the circumstances” test.

Finally, the length of overreaching by the court is dramatically exposed by the fact that no State has chosen to require instructions of the type now required. To find some authority for this Draconian remedy, the court has to look to Australia, and that authority is quietly nested in a footnote. Ante at' 447 note 24. By mandating instructions, the court is attempting to compel the Commonwealth to record statements, thus doing indirectly what the court agrees should not be done directly.

I would adhere to the practice outlined in Commonwealth v. Diaz, 422 Mass. 269, 273 (1996):

“[Djefense counsel is entitled to pursue the failure of the police to record a defendant’s statements. Counsel may, for example, inquire of a testifying police officer . . . whether he or she was aware of the availability of recorders to use during the questioning of suspects. Counsel may argue to a jury and to a judge as factfinder that the failure of the police to record electronically statements made in a place of custody should be considered in deciding the voluntariness of any statement, whether the defendant was properly advised of his rights, and whether any statement attributed to the defendant was made.”

As for an instruction, I would simply direct that the jury be told in every case involving custodial interrogation or interrogation at a police station, where the defendant later challenges an unrecorded statement as involuntary, that they may consider the lack of a recording of the defendant’s statement as a factor, along with all other relevant circumstances, in deciding whether the statement was voluntary. This is the same consideration that a judge may consider in passing on a motion to suppress, see Commonwealth v. Burgess, 434 Mass. 307, 314 (2001); Commonwealth v. Larkin, 429 Mass. 426, 438 n.10 (1999), and it is proper to advise the jury of the consideration so that both fact finders are using the same methodology. The instruction would be given as a part of the humane practice instruction. Until a better understanding can be obtained of the over-all problem, requiring anything more is an unnecessary overreaction and, as has been stated, is grossly unfair to the Commonwealth and the rights of the citizens it represents in a prosecution.

1 rThe instructions also suffer from the fact that counsel on appeal have not been heard with regard to them. The briefs on the case (both by the parties and the amici) focus virtually exclusively on the reasonableness of ordering recording. No brief has directly discussed the appropriateness of instructions or their content. The instructions proposed, I suspect, will come as a shock to the Commonwealth, and I expect as well that, had additional briefing been permitted, the Commonwealth would have much to say on the language that should be used in any instructions.

2 That the police engage in certain interrogation techniques that may appear to some to be unfair is really beside the point. As discussed at length by the court, ante at 432-433, the use of trickery, or other techniques employed by police as tactical devices to obtain a suspect’s inculpatory statements, may be argued as a relevant factor for the fact finder’s consideration in reaching a determination on voluntariness. See Commonwealth v. Edwards, 420 Mass. 666, 671-672 (1995); Commonwealth v. Forde, 392 Mass. 453, 455-456 (1984). In the end, however, the resolution of voluntariness turns, as noted by Justice Spina in his separate opinion, on an analysis of the entire circumstances in which a damaging statement has been made. See Commonwealth v. Edwards, supra at 671, and cases cited. “The fact that [a] statement was educed by trickery [is] ‘relevant but not conclusive.’ ” Commonwealth v. Forde, supra at 455, quoting Commonwealth v. Jackson, 377 Mass. 319, 328 n.8 (1979). A different result is reached in cases where officers have falsely represented to a defendant the nature of his constitutional right to testify, see Commonwealth v. Novo, ante 262, 268-269 & n.5 (2004), or used trickery to induce a defendant to relinquish his right to remain silent after that right clearly has been asserted. See Commonwealth v. Harvey, 390 Mass. 203, 206 (1983); Commonwealth v. Brant, 380 Mass. 876, 885-886, cert. denied, 449 U.S. 1004 (1980). None of these circumstances is present here.