Commonwealth v. Delossantos ( 2023 )

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SJC-13351
COMMONWEALTH vs. OSCAR DELOSSANTOS.1
Essex. March 8, 2023. – June 13, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt,
& Georges, JJ.
Firearms. Constitutional Law, Admissions and confessions,
Waiver of constitutional rights, Voluntariness of
statement, Search and seizure. Waiver. Evidence,
Admissions and confessions, Voluntariness of statement.
Practice, Criminal, Motion to suppress, Admissions and
confessions, Waiver, Voluntariness of statement, Affidavit.
Search and Seizure, Motor vehicle.
Complaints received and sworn to in the Newburyport
Division of the District Court Department on January 20, 2017,
and June 13, 2017.
A pretrial motion to suppress evidence was heard by Peter
F. Doyle, J.; the cases were tried before Allen G. Swan, J.; and
a motion for a new trial was heard by Doyle, J.
After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.
Matthew Spurlock, Committee for Public Counsel Services,
for the defendant.
1 As is our practice, we use the defendant's name as it
appears on the complaint.
2
Kathryn L. Janssen, Assistant District Attorney, for the
Commonwealth.
CYPHER, J. The defendant, Oscar Delossantos, was charged
with one count of carrying a firearm without a license pursuant
to G. L. c. 269, § 10 (a), one count of carrying a loaded
firearm without a license pursuant to G. L. c. 269, § 10 (n),
and one count of disorderly conduct pursuant to G. L. c. 272,
§ 53. In a pretrial motion, the defendant sought to suppress
"all evidence and statements seized" by police as a result of
"the unlawful search and seizure[]" of the defendant. Following
an evidentiary hearing, the defendant's motion to suppress was
denied, as the judge found that the defendant knowingly,
intelligently, and voluntarily waived his Miranda rights after,
as the judge further found, the defendant was given "the full
compl[e]ment of Miranda warnings (in English and in Spanish)."
At trial, the jury convicted the defendant of carrying a
firearm without a license, and he was sentenced to eighteen
months in a house of correction.2 The defendant filed a motion
to file a late notice of appeal, which was allowed by a single
justice of the Appeals Court. A stay of the appellate
proceedings was subsequently entered as the defendant filed a
2 The judge granted the defendant's motion for a required
finding of not guilty as to the disorderly conduct charge, and
the jury found the defendant not guilty of carrying a loaded
firearm without a license.
3
postconviction motion for a new trial. The motion was denied
following a nonevidentiary hearing, and the defendant filed a
timely appeal. In a consolidated appeal, a panel of the Appeals
Court affirmed the defendant's conviction and the denial of his
motion for a new trial in an unpublished memorandum and order
pursuant to its rule 23.0.3 Commonwealth v. Delossantos, 101
Mass. App. Ct. 1115 (2022). We granted the defendant's petition
for further appellate review.
This case presents the question whether the defendant
waived a claim regarding the adequacy of the Miranda warnings
provided to him in Spanish, where the Commonwealth argues that
the defendant failed to set forth with particularity the grounds
on which he sought to suppress his postarrest statements to
police. Where we conclude that the Commonwealth has failed to
demonstrate beyond a reasonable doubt that the defendant in fact
knowingly, intelligently, and voluntarily waived his Miranda
rights, and that the defendant did not waive the issue, the
defendant's conviction must be vacated.4
3 The defendant filed a motion to reconsider the decision
pursuant to Mass. R. A. P. 27, as appearing in 481 Mass. 1656(2019), which the panel denied.
4 Because we conclude that the defendant did not waive the
Miranda warning issue and that the judge erred in denying the
defendant's motion to suppress his postarrest statements, we
need not reach the arguments raised in the motion for a new
trial, i.e., whether trial counsel was ineffective for allegedly
"failing to hold the Commonwealth to its burden to establish"
4
Background. We summarize the facts as found by the motion
judge, following an evidentiary hearing on the defendant's
motion to suppress, supplemented by undisputed facts from the
hearing. See Commonwealth v. Pinto, 476 Mass. 361, 362 (2017).
Shortly after 10 P.M. on January 19, 2017, Officer David
Noyes of the Amesbury police department was on routine patrol in
Amesbury when he observed a gray Honda motor vehicle "roll
through" a stop sign and take a quick right turn without using a
directional signal. Noyes observed that the license plate on
the vehicle was secured with only one screw, prompting him to
turn around and follow the vehicle in his police cruiser.5 Noyes
called dispatch with the license plate number for a registry
query. At that time, however, Noyes did not activate the lights
of his cruiser.
Another officer of the Amesbury police department, Officer
Neil Moody, was parked at a local business when the gray Honda
passed him. Moody, having heard Noyes's request for a registry
query on the gray Honda, used the computer in his cruiser to
conduct a registration query of the vehicle, which revealed that
it was registered to a male owner whose license had expired and
that the defendant received accurate and complete Miranda
warnings in Spanish.
5 Noyes was in a "ghost cruiser," i.e., a police cruiser
that did not appear to be marked fully until headlights "hit
it."
5
was nonrenewable. Moody saw that the driver of the vehicle was
a male, prompting him to pursue the vehicle and activate the
blue lights of his cruiser.
As Moody was in pursuit, Noyes followed behind.6 The
vehicle continued about one-tenth of a mile, passing numerous
open parking spots without stopping. The vehicle entered a
parking area of a nearby convenience store and parked in two
spaces, one of which was a handicap space. Both front doors of
the vehicle opened quickly. The driver and the defendant, who
was seated in the front passenger's seat, got out of the vehicle
and continuously looked at the pursuing officers as they quickly
walked in opposite directions away from the vehicle and the
convenience store. Moody then parked behind the vehicle, and
Noyes soon thereafter pulled up next to him.7 Seeing both men
quickly get out of the vehicle, the officers believed they were
on the verge of fleeing the scene.
6 Noyes still had not activated the lights of his cruiser.
He testified on cross-examination that he was not in pursuit of
the vehicle, but merely was trying to follow it, as he had been
given a description by dispatch about the vehicle and was trying
to confirm that information. Noyes estimated that when he
turned around to follow the vehicle, he was 900 feet behind
Moody.
7 Moody and Noyes were not in communication during the
pursuit of the vehicle. Moody did not know Noyes was following
behind him. Once Noyes pulled up next to Moody, who had already
stopped the vehicle, Noyes saw that the vehicle matched the
description provided by dispatch.
6
As a result, both officers got out of their vehicles; Moody
"painted" the defendant with a Taser gun, and Noyes told the
driver to stop.8 Noyes told the driver and the defendant
multiple times to return to the vehicle, which they did after a
lot of "back and forth." On returning to the vehicle, both the
driver and the defendant were ordered to put their hands on the
dashboard. Each, however, took his hands off the dashboard
multiple times. The defendant placed his hands near his waist,
while the driver continued to reach with his right hand towards
the center console and the floor area. Fearing for their
safety, the officers removed the two men from the vehicle. The
defendant was moved to the front of the vehicle and was pat
frisked, but no weapons were found. Officer Scott Peters of the
Amesbury police department arrived on the scene and was told to
check the area of the vehicle that the driver had "lung[ed]
for." Peters then found a loaded handgun within a bag that was
located on the floor of the front passenger's area.
Neither the defendant nor the driver had a license to carry
the firearm. Both men were arrested and were advised of the
Miranda rights in English. Once arrested, the defendant claimed
that he could not speak English. Because none of the officers
8 The term "painted" was described as the officer drawing
the Taser gun, pointing it at the defendant, and activating the
Taser gun's red laser light.
7
at the scene spoke Spanish, an officer who was fluent in
Spanish, Officer Guillermo of the Salisbury police department,
was called to the scene and readvised the defendant of his
Miranda rights in Spanish. The defendant then was questioned by
police about the firearm. While the driver admitted that the
firearm belonged to him, the defendant admitted to trying to
conceal the firearm.
Prior to trial, the defendant filed a motion to suppress
"all evidence and statements seized" by police, including any
postarrest statements made by the defendant during the motor
vehicle stop. During the evidentiary hearing on the motion, the
Commonwealth presented testimony from Noyes, Moody, and Peters.
Noyes testified that Guillermo advised the defendant of his
rights in Spanish, and that the defendant appeared to understand
those rights once given in Spanish. Moody testified that he
knew Miranda warnings were read to the defendant at the scene of
his arrest. Peters testified that he provided Miranda warnings
to the defendant, but not in Spanish because he did not speak
Spanish. The Commonwealth did not call as a witness Guillermo,
the officer who, according to the testimony, had given the
defendant Miranda warnings in Spanish. Nonetheless, the motion
judge found that the defendant was given "the full compl[e]ment
of Miranda warnings (in English and in Spanish)" and had
8
knowingly, intelligently, and voluntarily waived those rights.
The defendant's motion then was denied.
Discussion. 1. Waiver of issue. The Commonwealth argues
that although the defendant "conceivably raised" the issue
whether Miranda warnings were given at all, the issues whether
Miranda warnings were required to be given in Spanish and
whether they in fact were given in Spanish were not raised
properly in the defendant's motion to suppress. "Pursuant to
Mass. R. Crim. P. 13 (a) (2), as appearing in 442 Mass. 1516(2004) [(rule 13 [a] [2])], a motion to suppress 'shall state
the grounds on which it is based and shall include in separately
numbered paragraphs all reasons, defenses, or objections then
available, which shall be set forth with particularity'"
(emphasis added). Commonwealth v. Dew, 478 Mass. 304, 309
(2017). The Commonwealth argues that where the defendant has
failed to do so, the issues whether Miranda warnings were
required to be given in Spanish, and whether they in fact were
given in Spanish, are waived. We disagree.
The defendant's motion to suppress, albeit in somewhat
brief fashion, sought to suppress "any statements" made to
police because the defendant "did not waive voluntarily any of
[his] rights under the [United States] Constitution or the
Massachusetts Declaration of Rights." In his affidavit, the
defendant more specifically stated that he "did not knowingly
9
and voluntarily waive any of [his] constitutional rights"
following his arrest, and that "[a]ny statements attributed to
[him] in the police report were not accurate and not truly
voluntary" (emphases added). In the memorandum of law filed in
support of his motion, the defendant further argued that he did
not receive Miranda warnings, as "[n]otably absent from the
[a]rrest [r]eport [was] whether any 'Miranda' warnings were
administered in Spanish to the [defendant] before questioning
ensued."
According to the findings of the motion judge, the
defendant spoke English up until his arrest. The motion judge
found that once arrested, the defendant "claimed" that he could
not speak English. The Commonwealth was aware that the
defendant had challenges with speaking English, as the
prosecutor had elicited testimony from one of the officers,
Noyes, on direct examination that Guillermo specifically was
called to the scene to provide the defendant with Miranda
warnings in Spanish. In fact, on direct examination, the
prosecutor specifically asked Noyes if the defendant appeared to
understand the Miranda warnings once they were given to him in
Spanish by Guillermo, to which Noyes responded, "Yes."
A defendant's waiver of his or her Miranda rights must be
made knowingly, intelligently, and voluntarily. Commonwealth v.
Hoyt, 461 Mass. 143, 153 (2011). The Commonwealth is aware that
10
it bears "the 'particularly heavy burden' of proving beyond a
reasonable doubt that the defendant's Miranda waiver was [in
fact] valid." Commonwealth v. Tremblay, 480 Mass. 645, 655
(2018), quoting Hoyt, supra at 152. In doing so, the
Commonwealth always must demonstrate not only what warnings were
provided to the defendant, but also that the defendant
understood such warnings. See Commonwealth v. The Ngoc Tran,
471 Mass. 179, 186 n.6 (2015). See also Commonwealth v. Garcia,
379 Mass. 422, 429 (1980) ("A confession can be voluntary in the
legal sense only if the suspect actually understands the import
of each Miranda warning"). Where the Commonwealth bears a
particularly heavy burden in demonstrating a valid waiver of
Miranda protections, and where the Commonwealth was aware of the
defendant's challenges with the English language, the
Commonwealth was on full notice that the defendant's challenge
to the over-all sufficiency of his Miranda warnings necessarily
would include a challenge to the Commonwealth's proof that
adequate Miranda warnings actually were provided in Spanish.
See Commonwealth v. Vasquez, 482 Mass. 850, 864 (2019), quoting
Commonwealth v. Vuthy Seng, 436 Mass. 537, 544, cert. denied,
537 U.S. 942 (2002) (Miranda warnings must be provided in
"language which [a defendant] can comprehend and on which [a
defendant] can knowingly act").
11
The Commonwealth knew that the defendant's ability to speak
English was an issue, as evidenced by its direct examination of
Noyes, and thus it had a full opportunity to present whatever
facts it deemed relevant at the motion to suppress hearing. See
Commonwealth v. Santosuosso, 23 Mass. App. Ct. 310, 314 (1986).
We conclude that the defendant placed the Commonwealth on
sufficient notice of the issue whether proper Miranda warnings
were provided in Spanish following the defendant's arrest.
Despite our holding that the defendant satisfied the
particularity requirement of rule 13 (a) (2), we take this
opportunity to review this court's previous holding in
Commonwealth v. Mubdi, 456 Mass. 385, 389-391 (2010). In Mubdi,
we held that if the Commonwealth seeks to challenge the
particularity of a defendant's motion to suppress and fails to
file either a motion for a more particularized affidavit or,
alternatively, a motion to deny, without a hearing, the
defendant's motion to suppress for failure to provide fair
notice under rule 13 (a) (2), then the Commonwealth waives any
objection to the particularity requirement of rule 13 (a) (2).
Id. at 390-391.
Rule 13 (a) (2) serves two practical purposes. Mubdi, 456
Mass. at 389-390. It "alerts the judge and the Commonwealth to
the suppression theories at issue, and allows the Commonwealth
to limit its evidence to these theories." Dew, 478 Mass. at
12
309, quoting Commonwealth v. Silva, 440 Mass. 772, 781 (2004).
Sufficient detail in the defendant's motion to suppress and
accompanying affidavit allows the prosecution to receive fair
notice "of the particular search or seizure that the defendant
is challenging, so that the prosecution may determine which
witnesses it should call and what evidence it should offer to
meet its burden of proving" the constitutionality of the
relevant search or seizure. Mubdi, supra at 389. The degree of
detail that ultimately is required by rule 13 (a) (2), however,
is evaluated with the rule's two practical purposes in mind.
Id. at 390.
The practice of placing the burden on the Commonwealth to
challenge the defendant's failure to satisfy the particularity
requirement of rule 13 (a) (2), in order to avoid waiver of the
issue, aligns with neither the rule's two practical purposes,
nor the rule's explicit language, which unambiguously places the
burden for particularity in a motion to suppress on a defendant.
See Mass. R. Crim. P. 13 (a) (2) ("A pretrial motion shall state
the grounds on which it is based . . . with particularity. . . .
Grounds not stated which reasonably could have been known at the
time a motion is filed shall be deemed to have been waived").
The purpose of the rule is to provide notice to the judge
and the Commonwealth of what is at issue in the defendant's
motion to suppress, so that the Commonwealth is not forced to
13
intuit and predict the multitude of challenges that a defendant
could make to a search or seizure. See Commonwealth v. Rogers,
444 Mass. 234, 250 n.3 (2005) (Greaney, J., dissenting)
(defendant must state grounds for suppression with particularity
so Commonwealth need not unnecessarily extend length of
suppression hearing by presenting evidence on issues not raised
by defendant). Therefore, we overturn our previous decision in
Mubdi, and no longer require that the Commonwealth file either a
motion for a more particularized motion to suppress or
affidavit, or alternatively a motion to deny the defendant's
motion to suppress without a hearing, in order to preserve a
challenge to the particularity of a defendant's motion to
suppress. We caution defense counsel across the Commonwealth
that the burden of compliance with the particularity requirement
of rule 13 (a) (2) falls on the defendant alone, as it had been
prior to this court's decision in Mubdi. Compare Commonwealth
v. Lodge, 431 Mass. 461, 473-474 & n.12 (2000) (where defendant
did not raise in motion to suppress, or accompanying affidavit,
issue whether search for weapon was outside curtilage of
apartment, such issue was waived), with Commonwealth v. Douglas,
472 Mass. 439, 444 n.5 (2015) (Commonwealth's contention that
motions to suppress should have been dismissed for failure to
comply with particularity requirement of rule 13 [a] [2] was
waived because of Commonwealth's failure to file motion before
14
suppression hearing for denial of suppression motions or for
more particularized motions from defendant). Overbroad and bare
assertions in a motion to suppress will not satisfy the
particularity requirement of rule 13 (a) (2), and absent a
showing of cause, grounds that reasonably could have been known
at the time the motion to suppress was filed and are not stated
with particularity by the defendant will be waived irrespective
of the Commonwealth's failure to file a motion for a more
particularized motion or affidavit. See Mass. R. Crim. P.
13 (a) (2).
2. Defendant's waiver of Miranda warnings. Where the
defendant did not waive the issue whether Miranda warnings were
properly given in Spanish, we next assess whether the
Commonwealth proved beyond a reasonable doubt that the defendant
waived his Miranda rights knowingly, intelligently, and
voluntarily. "In reviewing a judge's determination regarding a
valid waiver of Miranda rights and voluntariness, we 'accept[]
the judge's subsidiary findings of fact absent clear error,
give[] substantial deference to the judge's ultimate findings
and conclusions of law, but independently review[] the
correctness of the judge's application of constitutional
principles to the facts found.'" Commonwealth v. Vao Sok, 435
Mass. 743, 751 (2002), quoting Commonwealth v. Mello, 420 Mass.
375, 381 n.8 (1995).
15
"In Miranda[ v. Arizona, 384 U.S. 436 (1966)], the United
States Supreme Court held that the prosecution may not use
statements, whether exculpatory or inculpatory, stemming from
custodial interrogation of the defendant unless it demonstrates
the use of procedural safeguards effective to secure the
privilege against self-incrimination" (quotation and citation
omitted). Vasquez, 482 Mass. at 861-862. "These procedural
safeguards mandate that an accused must be warned that he or she
'has a right to remain silent, that any statement he [or she]
does make may be used as evidence against him [or her], and that
he [or she] has a right to the presence of an attorney, either
retained or appointed.'" Id. at 862, quoting Vuthy Seng, 436
Mass. at 543.
As discussed supra, the Commonwealth bears the particularly
heavy burden of proving beyond a reasonable doubt that the
defendant knowingly, intelligently, and voluntarily waived his
Miranda rights. See Tremblay, 480 Mass. at 655. "In deciding
whether a defendant's waiver of the rights described in the
Miranda warning is valid, 'a court must examine the totality of
the circumstances, including the characteristics of the accused
and the details of the interrogation.'" Hoyt, 461 Mass. at 153,
quoting Commonwealth v. Silva, 388 Mass. 495, 501 (1983). "The
question [of waiver] is not one of form, but rather whether the
defendant in fact knowingly and voluntarily waived the rights
16
delineated in the Miranda case." Hoyt, supra, quoting North
Carolina v. Butler, 441 U.S. 369, 373 (1979).
Here, the Commonwealth has failed to prove beyond a
reasonable doubt that the defendant's waiver of his Miranda
rights was valid because it failed to call Guillermo, the
officer who actually provided Miranda warnings in Spanish to the
defendant. Unless Miranda warnings are provided in a language
that the defendant actually can comprehend, the defendant cannot
make a knowing, intelligent, and voluntary waiver of his Miranda
rights. See Vuthy Seng, 436 Mass. at 544. Because none of the
officers initially present at the scene of the defendant's
arrest could speak Spanish, the officers were forced to call
Guillermo to the scene. While the non-Spanish-speaking officers
testified that they heard Guillermo provide the defendant with
Miranda warnings in what appeared to be Spanish, and that the
defendant appeared to understand Guillermo's warnings, none of
this testimony resolved the question; because of their inability
to speak Spanish, none of these witnesses properly could testify
to the content of the Miranda warnings given. Cf. Commonwealth
v. Perez, 411 Mass. 249, 256 (1991) (where officer who did not
understand Spanish testified that Spanish-speaking officer had
properly administered to defendant Miranda rights in Spanish,
any argument against such practice was of "no consequence" where
17
ample additional evidence independently corroborated defendant's
receipt and understanding of Miranda rights in Spanish).
A translation of Miranda warnings need not be "word for
word," Vasquez, 482 Mass. at 864, and a defendant has an
opportunity to discredit the translation of Miranda warnings, or
alternatively to discredit the interpreter who provided such
warnings, in order to demonstrate the lack of a knowing,
intelligent, and voluntary waiver of his or her Miranda rights.
See Commonwealth v. Ardon, 428 Mass. 496, 500 (1998). The
Commonwealth's shortcomings in deciding not to call Guillermo,
and instead choosing to rely only on the testimony of other
officers with no ability to speak Spanish, render the evidence
insufficient for us to conclude beyond a reasonable doubt that
complete and accurate Miranda warnings were provided to the
defendant in Spanish, and that the defendant knowingly,
intelligently, and voluntarily waived those rights.9 Cf. Perez,
411 Mass. at 255-256 (Commonwealth demonstrated valid Miranda
waiver beyond reasonable doubt where judge could verify complete
and accurate Miranda warnings were provided in Spanish because
9 Guillermo testified at trial that he had been speaking
Spanish for thirty-five years and did not struggle with
translating the Miranda warnings to Spanish. This does not
alter our conclusion, however, because when reviewing the denial
of the defendant's motion to suppress, we review only the
evidence presented to the motion judge, not evidence adduced at
trial. See Commonwealth v. Rivera, 441 Mass. 358, 367 (2004).
18
defendant was given cards on which such warnings were printed,
defendant indicated understanding of what he read on cards, and
judge independently could verify that warnings on cards were
complete and accurate Miranda warnings in Spanish). Therefore,
the admission of the defendant's incriminating postarrest
statements was erroneous.
Where the Commonwealth introduced the defendant's
statements at trial, in violation of his constitutional rights,
we must examine whether the erroneous admission was harmless
beyond a reasonable doubt. See Commonwealth v. Dagraca, 447
Mass. 546, 552 (2006). Such review "requires us to consider,
among other factors:
'[1] the importance of the evidence in the prosecution's
case; [2] the relationship between the evidence and the
premise of the defense; [3] who introduced the issue at
trial; [4] the frequency of the reference; [5] whether the
erroneously admitted evidence was merely cumulative of
properly admitted evidence; [6] the availability or effect
of curative instructions; and [7] the weight or quantum of
evidence of guilt.'"
Commonwealth v. Seino, 479 Mass. 463, 467-468 (2018), quoting
Dagraca, supra at 553.
"In short, we analyze the case to see whether the error
might have had an effect on the jury or contributed to the
verdicts, and whether the Commonwealth's evidence was '"merely
cumulative" of evidence properly before the jury,' Commonwealth
v. Sinnott, [399 Mass. 863, 872 n.8 (1987),] or was overwhelming
19
without the erroneously admitted evidence." Dagraca, 447 Mass.
at 553, citing Perez, 411 Mass. at 260.
Among the elements required to sustain a conviction under
G. L. c. 269, § 10 (a), the Commonwealth was required to prove
that the defendant knowingly possessed the firearm. See
Commonwealth v. DeJesus, 489 Mass. 292, 298 (2022). See also
Commonwealth v. White, 452 Mass. 133, 136 (2008). According to
the trial testimony, the defendant, following his arrest at the
scene, admitted to officers that he did not possess a license to
carry the firearm and, more importantly, that he was trying to
hide the firearm. In its closing, the Commonwealth emphasized
the importance of the defendant's incriminating statements
because of the defendant's "interesting turn of phrase," i.e.,
that he was trying to "hide" the firearm. The Commonwealth
argued in closing that the defendant's intent to hide the
firearm was important evidence of his knowledge and possession
of the firearm. Where the defendant's statements were not
cumulative of other evidence presented, and the evidence of the
defendant's knowing possession of the firearm was not
overwhelming without the admission of the defendant's
incriminating statements, the erroneous admission of the
defendant's statements was not harmless beyond a reasonable
doubt. See Commonwealth v. Monroe, 472 Mass. 461, 473-474
(2015) (admission of defendant's involuntary statements not
20
harmless beyond reasonable doubt where defendant's admission to
possessing knife limited defense counsel's strategy, boosted
victims' credibility, and served as prominent part of
Commonwealth's case that defendant assaulted three teenage
victims at knifepoint).
Conclusion. Accordingly, because the admission of the
defendant's postarrest statements was error, the judgment is
vacated and the verdict is set aside.
So ordered.