Commonwealth v. Earl ( 2023 )

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21-P-916 Appeals Court
COMMONWEALTH vs. WILLIAM EARL.
No. 21-P-916.
Suffolk. December 9, 2022. – June 7, 2023.
Present: Rubin, Massing, & D'Angelo, JJ.
Homicide. Assault and Battery by Means of a Dangerous Weapon.
Practice, Criminal, Motion to suppress, Admissions and
confessions, Voluntariness of confession, Harmless error.
Constitutional Law, Admissions and confessions, Harmless
error, Identification. Evidence, Admissions and
confessions, Identification, Authentication, Medical
record. Error, Harmless. Identification.
Indictments found and returned in the Superior Court
Department on February 12, 2014.
Pretrial motions to suppress evidence were heard by Robert
N. Tochka, J., and the cases were tried before Linda E. Giles,
J.
Joanne T. Petito for the defendant.
Paul B. Linn, Assistant District Attorney, for the
Commonwealth.
MASSING, J. A Superior Court jury convicted the defendant,
William Earl, of murder in the second degree of Samuel Constant
2
and of assault by means of a dangerous weapon, a knife, upon
Faniesha Hunter. The jury heard evidence that minutes after the
murder, the defendant confessed that he had just killed someone
for "running his mouth." The defendant argues that his
confession was the product of custodial interrogation because a
special police officer chased, tackled, handcuffed, and pat
frisked the defendant before questioning him, and that the
confession should have been suppressed because he was not given
Miranda warnings. We agree. Because evidence of the
defendant's confession was not harmless beyond a reasonable
doubt, we reverse the judgments. We also address the
defendant's claims with respect to issues that are likely to
recur in any new trial.
Background. The evidence at trial showed that one evening
in January 2014, Hunter returned from work to her apartment in
the Georgetowne Homes complex, located in the Hyde Park section
of Boston. She found Constant, whom she was dating at the time,
in her apartment with the defendant. Hunter did not know the
defendant, and his behavior made her uneasy, so she gestured to
Constant to follow her into one of the bedrooms. The defendant
followed them into the room, where he pulled a knife from the
waistband of his boxer shorts and lunged at Hunter. Constant
intervened and began to struggle with the defendant, wrestling
him back into the living room. While the defendant and Constant
3
fought, Hunter went to the kitchen to look for something to use
as a weapon. She grabbed the first thing she could find, a
kitchen utensil, and used it to hit the defendant. The
defendant swung his knife at her but missed, then stumbled out
the open front door of the apartment, still struggling with
Constant. A Georgetowne Homes maintenance supervisor noticed
two men running; one of them, Constant, fell to the pavement,
face down, and the other ran off. Constant was breathing with
difficulty and bleeding from his mouth and nose. The
maintenance supervisor called 911 and attempted to perform
cardiopulmonary resuscitation. Hunter went outside and found
Constant lying in the parking lot.
Shortly thereafter, the defendant was apprehended nearby by
Vincent Tranfaglia and Jean Thermitus, two uniformed security
guards certified as special Boston police officers and employed
by Longwood Public Safety, a private security company contracted
to patrol Georgetowne Homes and the surrounding area. Thermitus
saw the defendant running down the middle of Crown Point Drive
in heavy traffic, knocking on the windshields of passing
vehicles and attempting to stop them. As yet unaware of the
stabbing, Thermitus activated the lights of his marked vehicle,
parked in the middle of the street, and approached the
defendant, who was bleeding heavily from his ear. Upon seeing
Thermitus, the defendant fled. Thermitus ran after him, tackled
4
him from behind, placed him in handcuffs, and pat frisked him.
Thermitus then asked the defendant, "[W]hat was going on, why he
took off." The defendant responded, "I just killed somebody,"
and added, "If you walk straight ahead you will find something."
When Thermitus asked him "why," the defendant answered,
"[B]ecause he was running his mouth."
Tranfaglia, who had arrived on the scene and helped
Thermitus secure the defendant, requested help from the Boston
police and medical assistance for the defendant. About this
time, the maintenance supervisor approached, yelling and
gesturing for Tranfaglia's attention. Tranfaglia followed the
maintenance supervisor to an area where Constant was lying on
the ground, cradled in Hunter's arms. Constant had been stabbed
in the face, head, shoulder, and chest, and had no pulse. By
the time emergency medical personnel arrived, Constant was dead.
The defendant was transported to the emergency room at
Brigham and Women's Hospital (hospital), where he was treated
for lacerations to his head and neck. Members of the Boston
police homicide unit, who had arrived at the crime scene,
arranged for Hunter to be taken to the hospital for an
identification procedure. As soon as Hunter entered the
emergency unit, she identified the defendant from across the
room. The defendant was arrested and taken from the hospital to
the police station for questioning. In a videotaped (recorded)
5
interview, he claimed not to understand why he was under arrest
and that he had been the victim of an attack.1
The day after the murder the police recovered a "KA-BAR"
brand folding knife near the murder scene. A metal fragment
from the knife was found in one of Constant's fatal stab wounds,
and deoxyribonucleic acid (DNA) analyses of blood found on the
knife's blade and knife's handle were consistent with the DNA
profiles of Constant and the defendant, respectively. The
statistical probability of random matches was infinitesimally
small.
A letter the defendant wrote to Constant's mother from jail
two years after the murder was admitted in evidence. In the
letter, the defendant "apologize[d] about what happened to your
son," claimed that "it was not [his] intention to murder your
son," but that he was being attacked and the only way he could
escape the apartment was "by assaulting your son and stabbing
him twice in his chest area." He added that he used "a kabar
pocket knife."
The defendant was indicted on charges of murder in the
first degree and assault by means of a dangerous weapon. The
murder charge was submitted to the jury on theories of
1 We set forth the circumstances of the defendant's roadside
confession, the hospital identification, and the recorded
interview in greater detail below in connection with the
discussion of the defendant's motions to suppress.
6
deliberate premeditation and extreme atrocity and cruelty. The
defendant's primary defense was that he acted in self-defense.
The jury found the defendant guilty of murder in the second
degree and assault by means of a dangerous weapon.
Discussion. A. Motions to suppress. Prior to trial, the
defendant filed a motion to suppress statements -- his initial
roadside confession and his subsequent recorded interview at the
police station -- and a motion to suppress Hunter's hospital
identification. After a two-day evidentiary hearing, the motion
judge denied the motion to suppress the identification from the
bench; he later issued written findings denying the motion to
suppress statements. On appeal, the defendant argues that both
motions were wrongly decided.
When reviewing a ruling on a motion to suppress, we are
bound by the judge's subsidiary findings of fact, unless they
are clearly erroneous; "[h]owever, where the ultimate findings
and rulings bear on issues of constitutional dimension, they are
open for review. Our appellate function requires that we make
our own independent determination on the correctness of the
judge's application of the constitutional principles to the
facts as found" (quotations and citations omitted).
Commonwealth v. Groome, 435 Mass. 201, 211 (2001). Accord
Commonwealth v. Tremblay, 480 Mass. 645, 651-652 (2018)
(voluntariness of defendant's Miranda waiver and statements
7
during custodial interrogation); Commonwealth v. Johnson, 473
Mass. 594, 602 (2016) (identifications arising from police
procedures); Commonwealth v. Carnes, 457 Mass. 812, 818-819
(2010) (whether defendant was subject to custodial
interrogation). But see Johnson, supra (motion judge's
assessment of suggestiveness of identifications without police
wrongdoing under common-law principles of fairness reviewed for
abuse of discretion). We "review de novo any findings based
entirely on a video recording." Commonwealth v. Yusuf, 488
Mass. 379, 385 (2021).
We address the suppression motions in chronological order
by subject matter: the roadside confession, the hospital
identification, and the recorded interview.
1. The roadside confession. a. Motion judge's findings.
The defendant argues that his incriminating statements to
special police Officer Thermitus should have been suppressed
because Thermitus failed to give him Miranda warnings. We set
forth the facts found by the motion judge, supplemented with
uncontroverted testimony from the suppression hearing that does
"not detract from the judge's ultimate findings." Commonwealth
v. Garner, 490 Mass. 90, 93-96 (2022), quoting Commonwealth v.
Jones-Pannell, 472 Mass. 429, 431 (2015).
As noted above, Thermitus and Tranfaglia were security
guards employed by a private security company and certified as
8
special Boston police officers. They are State actors for
Miranda purposes. See Commonwealth v. Leone, 386 Mass. 329,
334-335 (1982). Thermitus was patrolling the Georgetowne Homes
area in a marked "Longwood" cruiser around 5:45 P.M. on an
"extremely cold" January night when he saw the defendant in the
middle of Crown Point Drive, in heavy traffic, knocking on the
windshields of passing vehicles. Thermitus activated his
cruiser's lights, radioed for assistance, stopped in the middle
of the street, and then approached the defendant on foot. The
defendant was bleeding from his ear. Seeing Thermitus, the
defendant took off his sweatshirt and threw it to the ground,
leaving himself shirtless, took two "aggressive" steps toward
Thermitus, and then turned and ran into a wooded area.
Thermitus ran after him.
Special police Sergeant Tranfaglia arrived at the scene in
response to Thermitus's radio call. Tranfaglia saw Thermitus
yelling at the defendant to stop.2 Thermitus tackled the
defendant to the ground and immediately placed him in handcuffs.
2 Tranfaglia testified that to assist Thermitus, he took out
his pepper spray and yelled multiple times to the defendant,
"I'm going to spray." The judge's findings do not mention this
testimony, which suggested a more coercive atmosphere than the
judge found. Rather than address whether this factual omission,
which detracts from the judge's ultimate finding, see Garner,
490 Mass. at 95-96, is clearly erroneous, we do not consider
this aspect of Tranfaglia's testimony in our analysis.
9
Then, with Tranfaglia's help, Thermitus sat the defendant
against a tree beside the road and pat frisked him; the
defendant was unarmed.
According to Tranfaglia, "the defendant stated that he had
been shot down the street," although neither officer saw any
evidence of gunshot wounds. Tranfaglia stepped away to request
assistance from the Boston police and emergency medical
services. Thermitus remained with the defendant and asked him
"why he ran," to which the defendant replied, "I just killed
somebody, and if you walk straight ahead you will find
something." Thermitus asked the defendant, "[W]hy?" The
defendant responded that "this person was running his mouth, so
I did what I had to do."3 Thermitus remained with the defendant,
who was still handcuffed, until an ambulance arrived and the
Boston police took over.
3 Thermitus testified that the defendant confessed to the
killing before saying that he had been shot, although Thermitus
wrote in his police report that the defendant said he had been
shot first. Tranfaglia testified that after he helped Thermitus
handcuff the defendant, the officers were trying to figure out
"what was going on" when the defendant stated that he had been
shot. At that point Tranfaglia went to call for Boston police
backup and emergency medical assistance. The judge found that
Tranfaglia left Thermitus with the defendant while he went to
radio for help and returned about two minutes later. The
judge's findings imply that the defendant confessed during the
two-minute interval he was left alone with Thermitus.
10
The motion judge found that the defendant was not in
custody when he made the incriminating statements and that
Thermitus's questioning did not amount to interrogation.
b. Custody. "It is well settled that Miranda warnings are
necessary only when a defendant is subject to custodial
interrogation, Commonwealth v. Jung, 420 Mass. 675, 688 (1995),
and that it is the defendant's burden to prove custody,
Commonwealth v. Larkin, 429 Mass. 426, 432 (1999)."
Commonwealth v. Vellucci, 98 Mass. App. Ct. 274, 277 (2020).
"An interview is custodial where 'a reasonable person in
the suspect's shoes would experience the environment in which
the interrogation took place as coercive.'" Commonwealth v.
Cawthron, 479 Mass. 612, 617 (2018), quoting Larkin, 429 Mass.
at 432. "The crucial question is whether, considering all the
circumstances, a reasonable person in the defendant's position
would have believed that he was in custody. Thus, if the
defendant reasonably believed that he was not free to leave, the
interrogation occurred while the defendant was in custody, and
Miranda warnings were required" (citations omitted).
Commonwealth v. Damiano, 422 Mass. 10, 13 (1996).4
4 In the context of whether a police officer had "seized"
the defendant, for which reasonable suspicion of criminal
conduct is required, the Supreme Judicial Court observed that
"because civilians rarely feel 'free to leave' a police
encounter," Commonwealth v. Matta, 483 Mass. 357, 360 (2019),
"the more pertinent question is whether an officer has, through
11
In a myriad of cases assessing custody, "the court
considers several factors: (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."
Groome, 435 Mass. at 211-212. The so-called "Groome factors,"
see Carnes, 457 Mass. at 819, are not exclusive; the court must
consider the totality of the circumstances. See Commonwealth v.
Medina, 485 Mass. 296, 301 (2020). The Groome factors merely
provide a framework for assessing the ultimate question:
"whether the defendant was subjected to 'a formal arrest or
words or conduct, objectively communicated that the officer
would use his or her police power to coerce that person to
stay," id. at 362. "The custody and seizure inquiries, however,
are not identical." Commonwealth v. Evelyn, 485 Mass. 691, 698
(2020). While the Matta decision did not alter the custody
analysis, see Evelyn, supra at 698-699; Commonwealth v. Lugo,
102 Mass. App. Ct. 170, 179 n.10 (2023), both tests focus on
"the objective circumstances of the encounter" and "attempt to
ascertain whether, considering the totality of the
circumstances, an individual has been compelled to interact with
the police." Evelyn, supra. In this case, the defendant has
never claimed that the initial seizure was unjustified.
12
restraint of freedom of movement of the degree associated with a
formal arrest.'" Medina, supra, quoting Thompson v. Keohane,
516 U.S. 99, 112 (1995).
In concluding that the defendant was not in custody, the
motion judge focused on the first three Groome factors. The
judge found, first, that "[t]he questioning took place on a
neutral site near a public road" and not in a "police-dominated
atmosphere." Second, the special police officers did not convey
to the defendant that he was suspected of Constant's murder;
indeed, the officers had not yet learned of the stabbing.
Third, "the questioning was informal and investigatory, and not
aggressive, accusatory, or coercive." In light of these
factors, the judge did not consider the fact that the defendant
was handcuffed to be a sufficient restraint on his freedom to
turn the encounter into the equivalent of a formal arrest. Our
independent review of the facts as found by the motion judge
leads to the opposite conclusion.
We begin, rather than end, by recognizing that restraints
on the defendant's freedom of movement defined his encounter
with the special police officers: in response to the
defendant's erratic conduct in the middle of a busy street, the
officers chased him down, tackled him, handcuffed him, and pat
frisked him before seating him by the side of the road for
questioning. Such conduct would typically be perceived as
13
coercive. Cf. Commonwealth v. Portee, 82 Mass. App. Ct. 829,
833 (2012) (after troopers "sought to subdue [defendant] and
prevent him from fleeing, a reasonable person in the defendant's
circumstances would have understood that the troopers were in
the process of effecting an arrest" for purposes of proving
crime of resisting arrest).
The Groome factors, which derived in part from Commonwealth
v. Bryant, 390 Mass. 729 (1984), were developed because often
"the problem whether interrogation has taken place in custodial
circumstances is a vexing one, susceptible to resolution . . .
only by close scrutiny of the particular questioning session."
Bryant, supra at 736. A nuanced analysis of the Groome factors
is unnecessary, however, for "obvious cases in which a suspect
has been formally arrested or otherwise deprived of his physical
freedom by police agents." Bryant, supra. To illustrate the
point, if a defendant is under arrest, the second and third
Groome factors, which go to the nature of the communications
between the officers and the defendant, are irrelevant: even if
the arresting officer's questions are conversational and not
accusatory, the defendant is no less in custody. Simply put, in
this case it is obvious that a reasonable person in the
defendant's position would not have believed that he was free to
leave.
14
Notwithstanding the Groome factors' questionable utility
here, we address them in the interest of completeness.
i. Place of the interrogation. The fact that questioning
takes place on the street or in a public area often weighs
against a finding of custody. See, e.g., Commonwealth v.
Tejada, 484 Mass. 1, 9, cert. denied, 141 S. Ct. 441 (2020)(fact that "interrogation was in a public parking lot, not in a
police station or other secluded area" weighed against
determination that defendant was in custody); Vanhouton v.
Commonwealth, 424 Mass. 327, 331 n.7, cert. denied, 522 U.S. 834(1997), quoting Pennsylvania v. Bruder, 488 U.S. 9, 10 (1988)
("traffic stops commonly occur in the 'public view,' in an
atmosphere far 'less "police dominated" than that surrounding
the kinds of interrogation at issue in [Miranda v. Arizona, 384
U.S. 436 (1966)] itself'"); Commonwealth v. Smith, 35 Mass. App.
Ct. 655, 657-658 (1993) (defendant not in custody where police
stopped his car to investigate motor vehicle accident and asked
preliminary "street-side" questions).
But the defendant was not questioned in connection with a
traffic stop, which generally does not rise to the level of
custodial interrogation. See Vellucci, 98 Mass. App. Ct. at 277
("As a general rule, persons temporarily detained during an
ordinary traffic stop are not in custody for purposes of
Miranda, even though they may not feel free to leave"). Nor
15
could the questioning of the defendant be characterized as a
routine "field investigation" as in Smith, 35 Mass. App. Ct. at
658, and the defendant did not initiate the encounter as in
Tejada, 484 Mass. at 8. Here, prior to questioning, two
uniformed officers positioned the defendant against a tree next
to the side of the road on a cold winter night, after one of
them had chased him, tackled him, placed him in handcuffs, and
pat frisked him. "To determine if the location of an
interrogation contributed to a coercive environment, we consider
the circumstances 'from the point of view of the defendant.'"
Cawthron, 479 Mass. at 618, quoting Commonwealth v. Conkey, 430
Mass. 139, 144 (1999), S.C., 443 Mass. 60 (2004). From the
defendant's point of view, the officers' actions objectively
created a coercive and police-dominated environment, even if it
was not in a police station.
ii. Conveying that defendant was a suspect. Questioning
that conveys the message that the defendant is suspected of a
crime lends to a coercive environment and typically supports the
conclusion that the defendant is in custody. See Cawthron, 479
Mass. at 619; Commonwealth v. Jones, 42 Mass. App. Ct. 378, 382
(l997). Brief, preliminary questions asked in an effort to
confirm or dispel suspicion of criminal activity typically do
not. See Commonwealth v. Kirwan, 448 Mass. 304, 311 (2007). An
open-ended preliminary question such as "What happened?" does
16
not convey suspicion of wrongdoing. See Commonwealth v.
Callahan, 401 Mass. 627, 630 (1988).
Here, the judge erroneously focused on the officers'
subjective point of view, emphasizing that they did not yet know
about the murder and that "Thermitus placed handcuffs on the
defendant in order to find out what was going on. The defendant
was not under arrest." "[C]ustody must be determined based on
how a reasonable person in the suspect's situation would
perceive his circumstances, not on the subjective views harbored
by either the interrogating officers or the person being
questioned" (citations omitted). Medina, 485 Mass. at 303.5
After being forcefully detained, the first statement that the
defendant made was that he had been shot. The officers did not
respond by asking neutral questions such as "what happened" or
where he had been shot. Instead, Thermitus asked "why he ran."6
From Thermitus's perspective, the question may have been
5 The judge, who decided the motion to suppress in April
2016, did not have the benefit of the Medina decision.
6 Tranfaglia in fact did testify that he asked the defendant
neutral, preliminary questions before the tenor of the
questioning became more pointed. According to Tranfaglia, after
the defendant said he had been shot, Tranfaglia asked,
"[W]here?," and the defendant said, "[W]ay down the street."
Tranfaglia responded, "You were shot down there? What are you
doing all the way up here?" The defendant then said, "Fuck you,
. . . fuck this, get me EMS," prompting Tranfaglia to go back to
his cruiser and radio for help. However, the motion judge
omitted this part of Tranfaglia's testimony from his findings,
and we do not consider it in our analysis. See note 2, supra.
17
neutral, but from the defendant's perspective, it may have
implied that if he had done nothing wrong, he would have had no
reason to run. A reasonable person in the defendant's position,
having been pursued and tackled by a police officer, then asked
why he had attempted to flee, would likely perceive that the
officer suspected him of criminal activity. That Thermitus did
not believe the defendant to be under arrest, or that he
detained the defendant just so he could "find out what was going
on," is immaterial if his words and actions conveyed something
else. See Groome, 435 Mass. at 212 n.13 ("an officer's
subjective suspicions are relevant to the custody inquiry only
if those suspicions have been communicated to the defendant").
Cf. Damiano, 422 Mass. at 13 ("The question whether the
defendant was in protective custody is not controlling. The
crucial question is whether, considering all the circumstances,
a reasonable person in the defendant's position would have
believed that he was in custody").
iii. Nature of the interrogation. The nature of the
questioning was also consistent with a custodial atmosphere. As
we have already noted, even after the defendant said he had been
shot, Thermitus questioned him about "why he ran." The follow-
up question -– "why" the defendant had "just killed somebody" -–
was even more clearly intended to gather inculpatory evidence.
Even if Thermitus's questioning was "not aggressive, accusatory,
18
or coercive," as the motion judge found, it was hardly a
"friendly chat" with the defendant's "voluntary acquiescence."
Bryant, 390 Mass. at 737.
iv. Defendant's freedom to end the encounter. From
beginning to end, the special police officers' interaction with
the defendant communicated to a reasonable person in the
defendant's position that he was not at liberty to end the
interview and leave. After using force to prevent the defendant
from running away, the special police officers did not leave his
side, nor remove the handcuffs, until Boston police detectives
took over and the defendant was transported by ambulance to a
hospital. The defendant was later formally arrested. The
fourth Groome factor, whether the defendant "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," Groome, 435 Mass. at 212, supports a
finding of custody.
v. Totality of the circumstances. Viewed in their
totality, the facts as found by the motion judge depicted a
coercive environment. Moreover, the judge erroneously
discounted the officers' use of handcuffs to restrain the
defendant throughout the encounter. Placing a suspect in
handcuffs is usually considered a physical restraint on freedom
tantamount to arrest. See, e.g., Commonwealth v. Pinney, 97
19
Mass. App. Ct. 392, 396-397 (2020); Commonwealth v. Gordon, 47
Mass. App. Ct. 825, 827 (1999). Conversely, the absence of
handcuffs is usually cited to negate a finding of custody. See,
e.g., Cawthron, 479 Mass. at 618 (defendant not in custody where
questioning occurred "in a public parking lot, during the
daytime, and the defendants were neither handcuffed nor
otherwise physically restrained"); Commonwealth v. Lopes, 455
Mass. 147, 163 (2009) ("defendant was not in custody after his
handcuffs were removed and he was told he was not under
arrest"); Commonwealth v. Burbine, 74 Mass. App. Ct. 148, 152
(2009) (interrogation of defendant not custodial where officers
"did not place him under arrest, handcuff him, or physically
restrain him by placing him in a cruiser or escorting him into
the station").
Although "[i]t is not dispositive that the defendant was
handcuffed," Commonwealth v. Williams, 422 Mass. 111, 118
(1996), cases holding that a handcuffed suspect was not in
custody usually arise where the defendant had been detained to
allow officers to complete a threshold inquiry justified by
reasonable suspicion of criminal activity. Where handcuffing
the suspect is considered a reasonable step to ensure officer
safety or to prevent flight, it does not transform an
investigative stop into an arrest. See, e.g., id. at 117-119;
Vellucci, 98 Mass. App. Ct. at 277, 279; Commonwealth v. Dyette,
20
87 Mass. App. Ct. 548, 556-557 (2015); Commonwealth v. Andrews,
34 Mass. App. Ct. 324, 329-330 (1993). The motion judge found
that the officers were confronted with "a volatile situation
that occurred quickly and unexpectedly"; however the evidence
did not suggest,7 nor did the judge find, that the officers were
in any danger or that the defendant presented a threat to public
safety that might excuse the failure to give Miranda warnings.
See Pinney, 97 Mass. App. Ct. at 397, quoting New York v.
Quarles, 467 U.S. 649, 657 (1984) ("The United States Supreme
Court has stated that, in some circumstances, 'the need for
answers to questions in a situation posing a threat to the
public safety outweighs the need for the prophylactic rule
protecting the Fifth Amendment's privilege against self-
incrimination'").
While our independent analysis of the Groome factors
supports our view that the defendant's detention by the special
police officers was custodial, as discussed supra, it is largely
beside the point: it is obvious that a reasonable person in the
defendant's position would have experienced the interaction as
coercive, would not have believed that he was free to leave, and
would have perceived the restraint on his freedom of movement as
7 Thermitus testified, repeatedly, that he had no concern
for his own safety, and any hint of danger was quickly dispelled
when he pat frisked the defendant.
21
the equivalent of that associated with a formal arrest. Because
we conclude that the defendant was in custody, we turn to the
question whether he was subjected to interrogation.
c. Interrogation. "Miranda warnings are required when a
person is subjected to 'custodial interrogation,' i.e.,
'questioning initiated by law enforcement officers after a
person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.'" Commonwealth v.
Doyle, 12 Mass. App. Ct. 786, 792 (1981), quoting Miranda, 384
U.S. at 444. The defendant was subject to "express questioning"
beyond that "normally attendant to arrest and custody." Rhode
Island v. Innis, 446 U.S. 291, 300-301 (1980). See Commonwealth
v. Kacavich, 28 Mass. App. Ct. 941, 941 (1990). After taking
the defendant into custody, Thermitus asked him "why he ran,"
and when the defendant responded that he had just killed
somebody, Thermitus asked, "Why?"
The motion judge, however, did not consider Thermitus's
questioning to amount to "interrogation" because the judge
viewed the questions as "preliminary in nature and directed to
discovering who the defendant was and what had happened to him."
In so concluding, the judge erroneously relied on Commonwealth
v. Gonsalves, 445 Mass. 1, 9 (2005), cert. denied, 548 U.S. 926(2006) ("Questioning by law enforcement agents to secure a
volatile scene or establish the need for or provide medical care
22
is not colloquially understood as interrogation . . . . Rather,
such questioning is considered part of the government's
peacekeeping or community caretaking function" [emphasis
added]). This language was taken from the court's discussion of
whether statements made to law enforcement agents are to be
considered "testimonial" under Crawford v. Washington, 541 U.S.
36 (2004). The court made it clear that it was not relying on
"definitions of interrogation found throughout the Miranda v.
Arizona, 384 U.S. 44 (1966), case law, but rather on everyday,
common understandings of the term." Gonsalves, supra at 7.8
The Commonwealth's reliance on Kirwan, 448 Mass. at 311(officer's "questioning was generally of a fact-finding nature,
intended to verify or dispel a reasonable suspicion of criminal
activity, for which Miranda warnings are not required"), is also
misplaced. This language was taken from the Kirwan court's
analysis of the Groome factors and concerned whether the
defendant was in custody, not whether he was subjected to
interrogation. See Kirwan, 448 Mass. at 313.9
8 Although at the hearing on the motion to suppress the
Commonwealth relied on the quoted language from Gonsalves to
argue that questions asked in the course of community caretaking
are not interrogation, on appeal the Commonwealth makes no
argument concerning community caretaking. Accordingly, we need
not decide whether community caretaking was involved here or, if
it was, whether that would be relevant to any issue before us.
9 Similar language from Commonwealth v. Borodine, 371 Mass.
1, 4 (1976), cert. denied, 429 U.S. 1049 (1977) ("The questions
23
The questioning here was much like that found to be
interrogation in Gordon, 47 Mass. App. Ct. at 826, where the
arresting officer was "attempting, he testified, to calm [the
defendant] down, and asked what she was doing in the area at
that early hour (5:15 A.M.)." "The fact that [Thermitus's]
question was introductory does not automatically cause it to be
classified as merely 'preliminary' and not interrogatory for
Miranda purposes." Id. at 828 (distinguishing cases in which
preliminary questioning did not amount to custodial
interrogation). See Damiano, 422 Mass. at 13 ("The fact that
the trooper's initial questioning was not hostile and was
undertaken simply to find out what the defendant knew about what
had happened does not excuse the failure to give Miranda
warnings").
The defendant was subject to custodial interrogation.
Because he was not given Miranda warnings, his motion to
suppress his statements to Thermitus should have been allowed.10
d. Harmless error analysis. The question remains whether
the improper admission of the defendant's statements was
were preliminary, directed to discovering who the defendant was
and what he knew about the circumstances"), likewise concerned
the issue whether the questioning was custodial, see id. at 4-5.
10Because we conclude that the defendant's roadside
confession should have been suppressed on this ground, we need
not address the defendant's separate contention that it was not
voluntary.
24
harmless beyond a reasonable doubt. See Chapman v. California,
386 U.S. 18, 24 (1967); Commonwealth v. Santos, 463 Mass. 273,
287-289 (2012). Other than the defendant's confession, the
Commonwealth presented no evidence of motive, and the
inferential evidence of the defendant's intent to kill Constant
was not overwhelming. Indeed, according to Hunter's version of
the events, the defendant's actions, which began with an attempt
to stab her, were inexplicable. The defendant claimed that he
acted in self-defense, as he maintained in his letter to
Constant's mother, and the jurors were also instructed on
voluntary and involuntary manslaughter. The evidence that the
defendant admitted, shortly after the crime, that he had "just
killed somebody" because that person was "running his mouth" was
the strongest evidence offered at trial to provide a motive for
the defendant's actions, to disprove his self-defense claim, and
to prove malice. The prejudicial impact of this evidence was
"too strong to be considered harmless." Commonwealth v. Howard,
469 Mass. 721, 737 (2014), S.C., 479 Mass. 52 (2018). See
Commonwealth v. Harris, 371 Mass. 462, 473 (1976) (referring to
"the almost conclusive effect of any defendant's confession on a
jury"). Accordingly, the defendant's convictions must be
reversed.11
11As the defendant was impliedly acquitted of murder in the
first degree, any retrial of the murder indictment must be
25
2. Hospital identification. The defendant claims that
Hunter's identification of him in the hospital should have been
excluded because the procedure was unreliable and unnecessarily
suggestive. At the suppression hearing, Boston police
Detectives Francis McLaughlin and Robert Kenney, whose testimony
the motion judge "found to be truthful in all respects,"
testified that the identification proceeded as follows.
McLaughlin accompanied Hunter, in the back seat of a police
cruiser, as she was transported to the hospital. He explained
that there was a person at the hospital who might or might not
have been involved in the stabbing of Constant -- the police did
not know -- and that it was important to determine if this
person was or was not involved. Before bringing Hunter into the
emergency room, McLaughlin asked the police officers standing
near the defendant to move away; he intended to walk Hunter
around the perimeter of the emergency room, past the partitioned
areas where the patients were being treated, to see if she
recognized anyone. However, as soon as McLaughlin and Hunter
rounded the corner from the hallway to the treatment area,
Hunter saw the defendant across the room and said, "That's him,
that's him. He's the one." At the time, the defendant had just
treated as a trial for murder in the second degree. See
Commonwealth v. Figueroa, 468 Mass. 204, 228 (2014);
Commonwealth v. Harrington, 379 Mass. 446, 455 (1980).
26
received treatment for head wounds, and his face was illuminated
by a surgical light.
The motion judge found that the police did "an exemplary
job of trying to make sure the identification procedure was done
fairly and orderly," that it was conducted promptly after the
incident, and that the lighting did not make the procedure
"unduly suggestive." We agree.
"Although one-on-one showup identification procedures are
generally disfavored as inherently suggestive, they only raise
due process concerns if it is determined that the procedure was
unnecessarily or impermissibly suggestive" (quotation and
citation omitted). Commonwealth v. Moore, 480 Mass. 799, 811-
812 (2018). Moreover, showup identifications are appropriate
"if there is 'good reason' to secure prompt identification of a
suspect." Id. at 812, quoting Commonwealth v. Dew, 478 Mass.
304, 306 (2017). See Commonwealth v. Austin, 421 Mass. 357,
361-362 (1995); Commonwealth v. Travis, 100 Mass. App. Ct. 607,
613 (2022). The burden is on the defendant to prove not only
that the identification procedure being challenged "was
suggestive, but [also] that it was 'unnecessarily suggestive.'"
Johnson, 473 Mass. at 597, quoting Commonwealth v. Crayton, 470
Mass. 228, 235 (2014).
Here, the police had good reason to conduct the hospital
identification promptly, during the investigation of a violent
27
crime, to determine whether to arrest or release the defendant.
The defendant does not argue otherwise. Rather, he focuses on
two factors that he characterizes as "especially suggestive
circumstances": the fact that his head was illuminated by a
surgical light, and "Hunter's knowledge that she hit the
assailant in the head with a metal object."
As to the lighting, which was the result of medical rather
than a police procedure, we discern no abuse of discretion in
the judge's determination that it did not create "highly or
especially suggestive circumstances" that would render the
identification unreliable. Johnson, 473 Mass. at 598, 602.
Even when suspects are illuminated as the result of police
procedure during a showup, this circumstance does not make an
identification impermissibly suggestive. See, e.g.,
Commonwealth v. Meas, 467 Mass. 434, 442, cert. denied, 574 U.S.
858 (2014); Commonwealth v. Phillips, 452 Mass. 617, 628-629
(2008). The defendant's suggestion that Hunter positively
identified the defendant based on the wound to his head is mere
speculation. Moreover, the appearance of a suspect based on his
recent involvement in the crime under investigation is part of
the inherent suggestiveness of a showup procedure, not a special
element of unfairness. See Commonwealth v. Chotain, 31 Mass.
App. Ct. 336, 341-342 (1991) (hospital identification reliable
notwithstanding officers' statement to witness "that the man he
28
would see had a gash on his head in the same place that [the
witness] had struck the intruder").12
3. Recorded interview. The defendant argues that his
recorded interview at the police station following his arrest
should have been suppressed because the Commonwealth failed to
show, beyond a reasonable doubt, that his waiver of his Miranda
rights, and the statements themselves, were voluntary. See
Tremblay, 480 Mass. at 655-656, 661-662 ("Due process requires a
separate inquiry into the voluntariness of [a defendant's
statement] apart from the validity of the Miranda waiver"
[citation omitted]). Because the motion judge's ruling on the
defendant's motion to suppress the recorded interview was based
entirely on his review of the recording and not drawn from any
live testimony, our review is de novo, without deference to the
motion judge's findings of fact. See Yusuf, 488 Mass. at 385;
Tremblay, supra at 646-647, 656-657.
The recorded interview begins with the defendant walking
into the interview room, taking a seat, standing up when
directed to a different chair, remaining standing as an officer
removes his handcuffs, and then sitting again, all without
assistance. The defendant listened and responded appropriately
12Because Hunter's unequivocal out-of-court identification
of the defendant was admissible, she was properly permitted to
identify him in court. See Dew, 478 Mass. at 315.
29
as McLaughlin asked for identifying information and then went
through the defendant's Miranda rights one by one; the defendant
followed along on a written Miranda waiver form, initialed each
as it was read to him, and then signed the form. The tone of
the interview was cordial and conversational throughout. After
waiving his Miranda rights, the defendant said, "I won't answer
any questions until I gain a full understanding of what's going
on." McLaughlin explained that a man had been stabbed in Hyde
Park and that the defendant was under arrest as a result of the
police investigation. The defendant responded, "I still have no
idea why I'm here," and during the interview he maintained not
only that he did not understand what was going on, but also that
he had been the victim of an attack. At one point, he asserted,
"You guys don't have the crucial evidence to put me away."
Toward the end of the interview, the defendant said, "I had
nothing to do with anything, I don't understand why I'm in the
police station, where's the guy who could have attacked me?"
Kenney answered, "It could be the guy that's dead," to which the
defendant responded, "Somebody did a good job then." Soon
thereafter the defendant said he was done answering questions,
and the detectives promptly ended the interview.
Although "[t]he voluntariness of the waiver on the basis of
Miranda and the voluntariness of the statements on due process
grounds are separate and distinct issues," Commonwealth v.
30
Edwards, 420 Mass. 666, 673 (1995), the defendant's argument
does not distinguish between the two. He argues that his
"incoherent" responses to questions, his statements that he did
not know what was going on, and his voluntary consumption of
substances13 rendered his waiver and statements involuntary. In
any event, both issues are "determined in light of the totality
of the circumstances and they share many of the same relevant
factors." Id. These include the defendant's conduct, his "age,
education, intelligence and emotional stability, . . . his
physical and mental condition, . . . and the details of the
interrogation, including the conduct of the police."
Commonwealth v. St. Peter, 48 Mass. App. Ct. 517, 519 (2000).
See Commonwealth v. Welch, 487 Mass. 425, 438 (2021). "The
Commonwealth bears the burden of proving beyond a reasonable
doubt, in the totality of the circumstances, that a defendant's
waiver was voluntary, knowing, and intelligent, and that his
statements were voluntary." Commonwealth v. Auclair, 444 Mass.
348, 353 (2005).
Having conducted an independent review of the recorded
interview, we agree with the motion judge that the defendant's
waiver and statements were voluntary beyond a reasonable doubt.
13During the interview, the defendant asserted that could
not answer the detectives' questions about his earlier
activities because he had been "trippin' balls all day" on
marijuana and crystal methamphetamine.
31
The defendant is a high school graduate and had completed one
year of college. Although he at times appeared lethargic, his
responses were coherent, consistent, and even calculated. His
repeated assertion that he did not understand what he was doing
in the police station was not a statement about his orientation
with respect to place, time, or situation, but rather had to do
with the quantum of evidence the police had against him. His
comments regarding smoking marijuana tainted with crystal
methamphetamine pertained to his alleged lack of memory of the
events that took place earlier that day, not his inability to
engage in a conversation.14 "[T]he mere influence of drugs or
alcohol on the defendant will not transform otherwise voluntary
statements into involuntary ones." Welch, 487 Mass. at 439.
"[T]he defendant was not demonstrating confusion" during the
interview, Commonwealth v. Rivera, 482 Mass. 259, 267 (2019),
and it does not appear that his waiver or statements "are
attributable in large measure to [his] debilitated condition,"
Commonwealth v. Bell, 473 Mass. 131, 141 (2015), cert. denied,
579 U.S. 906 (2016), quoting Commonwealth v. Allen, 395 Mass.
448, 455 (1985). To the contrary, his comportment and behavior
14We note that the recorded interview took place
approximately five hours after the defendant was first
apprehended, and any use of substances must have occurred prior
to that time.
32
"indicate a rational understanding of the situation and a
voluntary decision to speak to police." Bell, supra at 142.15
B. Authentication of letter from jail. The defendant
contends that the trial judge erred in admitting, without
sufficient authentication, the handwritten letter received by
Constant's mother. To admit the letter in evidence, the judge
had to make a preliminary determination that the jury could find
it more likely than not that the defendant was the author. See
Commonwealth v. Purdy, 459 Mass. 442, 447 (2011); Commonwealth
v. Johnson, 102 Mass. App. Ct. 195, 200-201 (2023); Mass. G.
Evid. §§ 104(b), 901(a) (2022). "In the context of written
letters, where a witness has received a letter and cannot
identify the writer's handwriting or signature, evidence that
the writer identified himself as a particular individual is not
sufficient to authenticate the letter." Purdy, supra at 449.
However, "where other confirming circumstances are present, a
letter can be authenticated and properly admitted in evidence"
(citation omitted). Id. Authentication of an item may be
15 As the motion judge, acting on the defendant's motion to
suppress, reviewed the recorded interview and ruled on the
defendant's claim that his Miranda waiver and statements were
involuntary, there was no need, as the defendant contends, for
the trial judge to conduct a second voir dire on the same issue
prior to admitting the recorded interview in evidence. See
Bryant, 390 Mass. at 745. In addition, the trial judge gave a
"humane practice" instruction contemporaneously with the
admission of the interview and again in the final charge.
33
proved by the contents of the item itself. See id. at 447-448,
quoting Mass. G. Evid. § 901(b)(1), (4) (2011) ("Evidence may be
authenticated by direct or circumstantial evidence, including
its '[a]ppearance, contents, substance, internal patterns, or
other distinctive characteristics'"). See also Welch, 487 Mass.
at 441 (confirming circumstances included content of text
messages, "replete with details of the defendant's and the
victim's lives, including the tensions within their
relationship, aspects of their living arrangements, and the
suspension of the defendant's driver's license from his
[operating while under the influence of alcohol] charge");
Commonwealth v. Siny Van Tran, 460 Mass. 535, 547 (2011)
(airline documents authenticated by their use of "several
distinctive internal codes"); Commonwealth v. Gilman, 89 Mass.
App. Ct. 752, 759 (2016) (electronic communications
authenticated by evidence that "the conversations were replete
with personal references, including pet names the defendant and
victim used for each other, and references to events in which
the two alone participated").
Abundant confirming circumstances were present here. The
letter was mailed from the Nashua Street jail, where the
defendant was being detained prior to trial, and his name was
handwritten in the return address corner of the envelope. The
letter contained details that only someone familiar with the
34
facts of the murder would know. The author referred to Constant
and Hunter by name and stated that the assault originated in
Hunter's bedroom, that Hunter hit him on the back of the head
with a spatula, and that he used "a kabar pocket knife." The
judge did not abuse her discretion in finding sufficient
confirming circumstances that would allow the jury to determine,
by a preponderance of the evidence, that the defendant wrote the
letter.16
C. Defendant's medical records. The defendant also argues
that the trial judge abused her discretion in excluding medical
records regarding his two-week admission to Carney Hospital, six
months before the murder, for what the records describe as a
"psychotic break associated with significant aggression." The
records of that admission also state that the defendant
experienced "auditory hallucinations and paranoia" and that his
history was "complicated by marijuana usage." At the final
pretrial conference, the defendant argued that the evidence
could be relevant to his ability to form the requisite intent
for deliberate premeditation and extreme atrocity and cruelty.
The judge granted the Commonwealth's motion "to preclude
testimony about any alleged mental health diagnosis of
16When the letter was admitted, the judge instructed the
jury that it was for them to decide whether the letter came from
the defendant.
35
defendant," reasoning that the records in question were not
relevant because the defendant had not made any showing or
proffered any evidence that he was suffering from the same
mental condition at the time of the crime.17
The records were excluded in the context of a trial for
murder in the first degree. Any new trial will be on a charge
of murder in the second degree. See note 11, supra. As the
evidence of the defendant's prior mental illness may have
different relevance at any new trial, and as it was excluded
based on the deficiencies of the defendant's particular showing
at the time of the first trial, we decline to address whether
the trial judge abused her discretion in excluding the records.
Before any new trial, the defendant is free to renew his attempt
to introduce relevant, admissible evidence of his mental health
status prior to the murder.
Judgments reversed.
Verdicts set aside.
17As the Commonwealth correctly notes in its brief, the
defendant had previously waived the defenses of lack of criminal
responsibility and diminished capacity in open court, and at the
final pretrial conference he made no reference to calling a
mental health expert at trial; the judge's ruling, therefore,
related only to medical records.