Commonwealth v. Monroe ( 2015 )

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SJC-11813
COMMONWEALTH vs. CHARLES MONROE.
Worcester. March 5, 2015. - August 19, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Constitutional Law, Admissions and confessions, Voluntariness of
statement, Harmless error. Practice, Criminal, Admissions
and confessions, Voluntariness of statement, Motion to
suppress, Harmless error. Evidence, Admissions and
confessions, Voluntariness of statement. Error, Harmless.
Indictments found and returned in the Superior Court
Department on November 2, 2010.
A pretrial motion to suppress evidence was heard by James
R. Lemire, J., and the cases were tried before David
Ricciardone, J.
The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.
Nancy A. Dolberg, Committee for Public Counsel Services,
for the defendant.
Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.
2
HINES, J. After a jury trial in the Superior Court, the
defendant, Charles Monroe, was convicted of four counts of
assault and battery by means of a dangerous weapon (knife); two
counts of armed robbery; two counts of indecent assault and
battery on a person fourteen years of age or older; two counts
of armed kidnapping with serious bodily injury; and one count
each of kidnapping and assault and battery. 1 The convictions
were based on three incidents that occurred in October, 2010,
during which the defendant, then eighteen years old, accosted
three different teenage victims as they walked to school. The
defendant appealed, arguing that (1) admission of statements he
made to police during a videotaped interview violated his right
to due process, and (2) the trial judge erred in discharging two
deliberating jurors. We transferred the case to this court on
our own motion and now conclude that the motion judge erred in
denying the defendant's motion to suppress statements and that
the statements were admitted at trial erroneously. On the
record before us, we agree that the police engaged in
impermissibly coercive tactics that rendered the defendant's
statements involuntary under the circumstances of the
1
The defendant was acquitted of three counts of aggravated
rape and one count of assault and battery by means of a
dangerous weapon (knife). A nolle prosequi was entered prior to
trial on the charges of armed robbery and breaking and entering
with intent to commit a felony.
3
interrogation. Because the erroneous admission of those
statements at trial was not harmless beyond a reasonable doubt,
we reverse the convictions on that ground 2 and remand for a new
trial.
1. Background. We summarize the facts the jury could have
found, reserving for later discussion the details of the
postarrest interview.
The morning of October 19, 2010, the first victim, E.C., a
seventeen year old female, was walking to her bus stop when she
noticed a man, later identified as the defendant, walking behind
her. The defendant attempted to get her attention, but she did
not turn around. The victim crossed the street, evading the
defendant. The following morning, E.C. encountered the
defendant again on her walk to the bus stop. This time, the
defendant got close to her and began asking questions. The
defendant attempted to "hug" the victim, but she pushed him
away. When the defendant attempted to put his arm around the
victim again, she noticed that he was holding a short silver
knife, which he placed against her neck, telling her, "Don't
scream. Come with me." The defendant led the victim to a tree
on the other side of the street. As the victim struggled to get
2
Given our view of the defendant's argument that his
statements were admitted at trial erroneously, we do not address
his alternative claim that the judge improperly dismissed two
deliberating jurors.
4
away, her backpack fell off her arm; the defendant grabbed the
bag and ran away.
On October 25, 2010, the second victim, L.B., a fifteen
year old female, was walking to school when the defendant
approached her and began walking beside her. L.B. tried to
ignore the defendant, but he grabbed her by the neck and pressed
down on her throat. He put a knife to her throat, lifted her
off the ground, and attempted to move her to a nearby driveway.
The victim was able to get her feet back on the ground, remove
the defendant's hand from her neck, and move away from the
defendant. The victim then ran from the scene. On arriving
home, she realized she had minor cuts to her neck and a deep cut
on her thumb.
On October 27, 2010, the third victim, A.G., a sixteen year
old female, was walking to school when the defendant approached
her and told her she looked familiar. A.G. engaged the
defendant in conversation, and he said that he would walk her to
school. The victim, who was not that familiar with the area,
eventually realized that the two were not walking in the
direction of her school, and when she stated this, the defendant
became angry and aggressive. He told her to walk towards "the
green building," and at some point she noticed he had something
in his hand. The victim followed the defendant into the
building, where he put a knife to her neck.
5
Inside the building, the victim performed oral sex on the
defendant; he also touched her breasts and inserted his penis
into her rectum. 3 After about fifteen minutes, the defendant
told the victim to give him another "blow job." The victim
complied, and the defendant eventually ejaculated into her
mouth. The defendant made the victim empty her tote bag in
front of him and took a yellow highlighter that had been in her
bag. The defendant then allowed the victim to leave, and she
resumed walking towards school. After disclosing the attack to
school officials, the victim was brought to the hospital where a
sexual assault exam was performed. The defendant's
deoxyribonucleic acid (DNA) was found on A.G.'s genitals and
face. A.G. identified the defendant as her attacker in a
photographic array. Police recovered a yellow highlighter from
the defendant's pocket later that day.
2. Discussion. The defendant filed a motion to suppress
the statements he made to police officers during a postarrest
interview, claiming that even if the waiver of his Miranda
rights is deemed valid, his statements were nonetheless
involuntary. The judge denied the motion based on his review of
the videotaped interview, the transcript of the interview, and
3
The victim testified that the defendant forced her to
perform these acts at knifepoint. The defendant maintained that
the sexual contact was consensual. The defendant was acquitted
of the rape charges stemming from this incident.
6
the police report prepared after the interview. The defendant's
inculpatory statements and some of his exculpatory statements,
made during the interview, were admitted through the testimony
of the two interviewing detectives and a redacted version of the
videotaped interview that was played for the jury. 4
On appeal, the defendant argues that the motion judge erred
in denying his motion to suppress, claiming that psychological
coercion, together with other factors, 5 rendered his statement
involuntary and that the admission of his involuntary statement
at trial violated his right to due process under the Fourteenth
Amendment to the United States Constitution and art. 12 of the
Massachusetts Declaration of Rights. More specifically, he
4
Although the defendant objected to the portions of the
videotape that showed denials made by the defendant, he did not
object to playing a redacted version of the videotape showing
the defendant's inculpatory statements. The Commonwealth agreed
to certain redactions, but the videotape contained other denials
that were admitted as relevant to credibility or to show
consciousness of guilt. Defense counsel renewed his objection
to having those portions admitted.
5
The Commonwealth points out that the defendant's motion to
suppress did not reference specifically his youth, emotional
instability, lack of food and shelter, lack of access to his
family, and lack of notice of the charges as factors probative
of the involuntariness of the statements and, citing
Commonwealth v. Pina, 406 Mass. 540, 542, cert. denied, 498 U.S.
832 (1990), urges no consideration of these belatedly asserted
factors in our review. We decline to view the issue so narrowly
as the additional factors are properly considered within the
totality of the circumstances test applicable to the defendant's
claim, made in his motion to suppress and on appeal, that his
statements were involuntary.
7
contends that the coercive nature of the detectives' statements
regarding the fate of his infant child compels a finding that
his statement was involuntary.
a. Standard of review. In reviewing the grant or denial
of a motion to suppress, we "review de novo any findings of the
motion judge that were based entirely on the documentary
evidence." Commonwealth v. Thomas, 469 Mass. 531, 539 (2014).
Because the defendant's interview was video recorded, "we are in
the same position as the motion judge to determine what occurred
during the interview." Id. at 535 n.4.
b. The interview. The following summary is based on our
review of the unredacted videotape of the defendant's postarrest
interview and the police report prepared on that same date. 6 The
defendant was arrested at approximately 4 P.M. on Wednesday,
October 27, 2010, in connection with the crimes against the
three victims. Following his arrest, he was transported to the
Worcester police detective bureau. By 4:15 P.M., the defendant
was seated alone in an interview room with his hands cuffed
behind his back.
6
The unredacted videotape was marked as an exhibit at trial
and is the only version of the videotape in the record. We have
not been provided with the list of statements redacted from the
videotape. Because it is clear from the record that the
defendant's inculpatory statements, made after the defendant's
will was overborne, were contained on the redacted version of
the videotape that was played for the jury, we are able to
resolve this appeal without reviewing these materials.
8
At approximately 4:30 P.M., Detectives James O'Rourke and
Donna Brissette entered the room. Detective O'Rourke asked the
defendant to stand and moved the defendant's cuffed hands from
behind his back to in front of him. Detective O'Rourke advised
the defendant that the interview was being videotaped, informed
him of his right to use a telephone, read him his Miranda
rights, and informed him that he was at the detective bureau
concerning a warrant. When the defendant asked about the
substance of the warrant, Detective O'Rourke informed the
defendant that he could not tell the defendant about the
substance of the warrant unless the defendant waived his Miranda
rights and agreed to speak with the officers. The defendant
then signed a waiver of his Miranda rights.
Detective O'Rourke then asked the defendant several
background questions, on topics including his education and
whether he had any children. The defendant said that he was
working toward his general education degree (GED) and that he
has both a son and a daughter. At 4:43 P.M., the detectives
informed the defendant for the first time that he had been
positively identified by three victims of assaults that occurred
on October 20, October 25, and earlier that morning, October 27.
In connection with the assaults, Detective O'Rourke asked the
defendant questions regarding his whereabouts and activities
earlier that morning and on October 25. The detective went on
9
to tell the defendant that he "should be trying to help
[himself] out," and after that point the interview grew
increasingly aggressive. Detective O'Rourke informed the
defendant that he would only have "one opportunity to talk . . .
and tell [the detectives] why this happened."
At this point in the interrogation, Detective Brissette
turned the conversation toward the defendant's daughter, asking
him her age and about the family's involvement with the
Department of Children and Families (DCF). 7 The defendant
responded by stating, "Don't tell me they're going to take my
daughter 'cause -- don't even tell me 'cause I don't want to
hear it. 'Cause my daughter is the most important thing in my
life." The detective continued on the subject of the
defendant's child, suggesting that the defendant was aware of a
scheme by the child's mother to get "money from [w]elfare and
stuff," but that the defendant was "playing dumb" during the DCF
investigation just as he was doing with the questions about his
whereabouts when the victims were attacked.
During the next few minutes of the interrogation, the
defendant told the police that he had emigrated from Africa with
7
The detective referred to the agency by its former name,
the Department of Social Services. The detectives specifically
asked about a case opened about one month before the defendant's
arrest where the defendant's girl friend reported that their
daughter had fallen.
10
his family, that he had emotional problems, that he had not
eaten or showered recently, and that he had slept on the stairs
inside the house where he once had lived with his family. He
also revealed that he was aware the police were looking for him
but that he did not know why, only to be interrupted by the
detective stating, "You damn well know why the cops were looking
for you." It was at this point that the interrogation turned
from questions about the defendant's background back to the
subject of his child. At 4:45 P.M., the detective stated the
following:
"[T]his is the time to talk to us about what happened,
okay? You know what happened. This is your opportunity.
You're probably going to end up going away for a long time.
You're not going to see that two month old baby for a long,
long time, okay? This is the time, maybe this morning you
met this girl, maybe it was consensual or whatever but this
is the time to talk to us about it and what was going on
the last couple of -- last week, with those two other
girls. This is the time to talk to us about it and tell
us about it, okay? Look at me, don't keep looking away
from us."
The defendant then dropped his head into his hands and began to
cry, eliciting from the detective a command to stop "looking
away." The defendant explained that "the only reason why I'm
crying 'cause I don't want to live a day without seeing my
daughter."
This exchange preceded a barrage of references to the
defendant's child and girl friend, with the detectives
repeatedly telling the defendant to "think of [his] daughter,"
11
"think of [his] girl friend," that he would be the reason his
girl friend lost custody of their child, and that he would be
the reason his child would be raised by strangers. At 4:56
P.M., the detectives, alternating between each of them without
any responses from the defendant, stated, "[Y]ou're going to be
the reason your girl loses that baby"; "'Cause you know what,
there's a 51A[8] just like there was the last time, [DCF] is
already involved with you and with your daughter"; and "At least
have that baby grow up with someone they know. The baby might
not see you but at least it will be with the mom."
Additionally, the detectives provided potential reasons as to
why the defendant may have committed the assaults and robberies
during this period, stating for example that "things are a
little tough right now. You got a three month old that means
the world to you and don't know how you're even going to provide
for her." The defendant continued to cry, held his head in his
hands, was generally unresponsive to the detectives' questions,
and stared blankly in front of him. 9
8
A report of suspected child abuse filed with the
Department of Children and Families in accordance with G. L.
c. 119, § 51A, is frequently referred to as a 51A report.
9
The defendant did, however, answer a few questions and
made limited exculpatory statements during this period, stating
"I didn't attack no girl this morning"; "I'm not raping, I
didn't sleep with none of them"; and "I didn't have sex with
none of them."
12
Within minutes of these repeated references to the
possibility that the defendant's girl friend could lose custody
of the child, the defendant made incriminating statements
regarding the three incidents. He first acknowledged that there
was one dollar in E.C.'s backpack the prior week. The defendant
then conceded that he had walked with A.G. earlier that morning
but maintained that they did not have any sexual contact and
that he did not assault her. Detective Brissette later told the
defendant that they had evidence of the defendant's DNA on A.G.
from the assault that morning. After more prodding by the
detectives, the defendant remarked, "I'm going to tell on behalf
of my daughter, because I love my daughter . . . I'm going to
talk -- I'm going to tell you the truth because I love my
daughter." The defendant then admitted that A.G. performed oral
sex on him and that he ejaculated on her exposed buttocks, but
stated that she initiated this contact. He also admitted that
he robbed E.C. and L.B. and that he had a knife when he robbed
L.B., but that he only pulled out the knife once she tried to
fight him.
The detectives asked whether he had committed any other
robberies, and the defendant responded that maybe he committed
13
robberies "a long time ago." 10 The defendant further stated, "I
get emotional problems, 'cause I do have emotional problems. I
need help, that's all I need."
c. Voluntariness. A voluntary statement is one that is
"the product of a 'rational intellect' and a 'free will,' and
not induced by physical or psychological coercion."
Commonwealth v. Tremblay, 460 Mass. 199, 207 (2011), quoting
Commonwealth v. LeBlanc, 433 Mass. 549, 554 (2001). In applying
this principle, "we examine 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."
Commonwealth v. Selby, 420 Mass. 656, 663 (1995), S.C., 426 Mass
168 (1997). "[B]oth the characteristics of the accused and the
details of the interrogation" are encompassed in the analysis of
the totality of circumstances (citation omitted). Commonwealth
v. Tavares, 385 Mass. 140, 146, cert. denied, 457 U.S. 1137
(1982), quoting Commonwealth v. Daniels, 366 Mass. 601, 606
(1975). More specifically, we may consider "promises or other
inducements, conduct of the defendant, the defendant's age,
10
The record reflects that the Commonwealth and the
defendant agreed to redact the portion of the videotaped
interview relating to prior robberies that were not the subject
of this trial, but that this information was not redacted from
the version shown to the jury because of a technical error.
14
education, intelligence and emotional stability, experience with
and in the criminal justice system, physical and mental
condition, . . . and the details of the interrogation, including
the recitation of the Miranda warnings." Commonwealth v.
Mandile, 397 Mass. 410, 413 (1986), S.C., 403 Mass. 93 (1988),
and cases cited. The Commonwealth bears the burden to establish
beyond a reasonable doubt that the defendant's confession was
voluntary in accordance with these principles. Commonwealth v.
Baye, 462 Mass. 246, 256 (2012). After considering all of the
factors essential to our review of the totality of the
circumstances surrounding the interrogation, especially the use
of psychologically coercive tactics related to the defendant's
child, we conclude that the Commonwealth has failed to meet that
burden.
i. Coercion relating to the defendant's child. The police
interrogation of the defendant, rife with threats to the
defendant's ability to maintain contact with his infant
daughter, properly may be characterized as psychologically
coercive. See Commonwealth v. DiGiambattista, 442 Mass. 423,
435-436 (2004) ("Coercion may be readily applied by way of
implied threats and promises, just as it is by express threats
and promises"). Here, as evidenced by the videotaped interview,
the detectives threatened the defendant with the loss of contact
with his child by repeatedly and falsely claiming that if he did
15
not tell them what happened, the child could be taken away and
raised by strangers. Although we have stated that a particular
tactic generally will not render a confession involuntary, see
Selby, 420 Mass. at 664, the particular conduct at issue here,
threats concerning a person's loved one, may impinge on the
voluntariness of a defendant's confession. Lynumn v. Illinois,
372 U.S. 528, 534 (1963) (defendant's statement involuntary when
induced by threats that financial aid to infant children would
be discontinued and children taken from her if she failed to
confess). See Commonwealth v. Scott, 430 Mass. 351, 355 (1999),
citing Commonwealth v. Berg, 37 Mass. App. Ct. 200, 206 (1994)
("Concern for a loved one may, in certain circumstances, render
a confession involuntary"). See also Commonwealth v. Hunt, 12
Mass. App. Ct. 841, 844-845 (1981) ("concern for one's family
may be as significant in inducing an involuntary confession as a
concern for oneself"). The issue boils down to whether the
Commonwealth has met its burden to prove beyond a reasonable
doubt that the police tactics were not "so manipulative . . .
that they deprived [the defendant] of his ability to make an
unconstrained, autonomous decision to confess." Baye, 462 Mass.
at 256, quoting United States v. Walton, 10 F.3d 1024, 1030 (3d
Cir. 1993).
The temporal relationship between the defendant's
inculpatory statements and the detectives' psychologically
16
coercive tactics is clear and close and it supports our
conclusion that the defendant's will was overborne and that his
statements were involuntary. Contrast Commonwealth v. Durand,
457 Mass. 574, 596-597 (2010). The chronology is telling. The
defendant made his first incriminatory statement at 5:05 P.M. 11
after the litany of threats described above, and more
specifically three minutes after the detectives repeated their
suggestion that the defendant's child would be protected from an
adverse custody determination if he confessed. Before he
implicated himself in response to the threats regarding his
child, the defendant was not told that the police lacked the
power to remove the child from his girl friend's custody or that
his confession would have no bearing on whether the child's
custody status could be changed. 12 The convergence of the
defendant's apparent devotion to his child as reflected in his
statements and conduct during the videotaped interview, the
defendant's ignorance of the authority of the police to effect a
change in his child's custody, and the prominence of the
psychologically coercive tactics during the interrogation
11
The defendant acknowledged that there was one dollar in
E.C.'s backpack, indicating for the first time that he was with
E.C. and knowledgeable of the contents of her backpack.
12
See generally G. L. c. 119, § 24 (procedures for removal
of child from parents' custody).
17
persuades us that the defendant lost the ability to "make an
unconstrained, autonomous decision to confess," Baye, 462 Mass.
at 256, quoting Walton, 10 F.3d at 1030, and thus, his will was
overborne. That breaking point occurred at approximately 4:57
P.M., when the defendant reacted to Detective O'Rourke's
statement, "At least have that baby grow up with someone they
know" by stating, "Please don't take my daughter"; hanging his
head; and crying. 13 His inculpatory statements followed.
The defendant's personal characteristics, considered as
part of the totality of the circumstances of the videotaped
interview, also are relevant to our conclusion that his will was
overborne by the police tactics involving his child. During the
interrogation, the defendant alerted the police to and
demonstrated a disturbed emotional or physical state, a factor
relevant to voluntariness. LeBlanc, 433 Mass. at 555;
Commonwealth v. Magee, 423 Mass. 381, 388 (1996). In Magee,
supra at 383, the defendant was "exhausted, emotionally
distraught, and disheveled, and her responses to questions were
13
Although the defendant made limited exculpatory
statements during the period between 4:54 and 4:57 P.M., he was
generally nonresponsive until he made his first incriminating
statement. The exculpatory statements made by the defendant do
not render his statements voluntary where the defendant's will
was overborne by the detectives' repeated threat to have his
child removed from her mother's care unless the defendant
confessed to the charges. Cf. Commonwealth v. Vazquez, 387
Mass. 96, 100 (1982) (exculpatory statements tend to show
defendant capable of rational thought).
18
interrupted by periods of sobbing and shaking." In that case,
we held that the defendant's debilitated physical and emotional
state, together with psychological coercion in the form of a
promise by police that she would receive the medical treatment
she requested in return for her statement to police, rendered
her statement involuntary. Id. at 388. Like the defendant in
Magee, the defendant in this case was in an emotionally
disturbed state at the time of his interview. He informed the
police of his condition but nonetheless was subjected to the
psychological coercion described above. Here, the defendant was
generally unresponsive to police questioning until the police
made threats regarding the custody of his child. After that
occurred, the defendant cried and invoked his love for his child
before providing inculpatory statements to the police. As in
Magee, although the defendant's emotional and physical condition
is not determinative, his condition is a substantial factor in
our consideration of whether his will was overborne by the
police tactics. Id. at 388.
We consider as well the defendant's age and educational
background in our analysis of the voluntariness of the
defendant's statements. See Commonwealth v. Meehan, 377 Mass.
552, 567 (1979) (defendant's youth and poor educational
background may support finding of involuntariness). Here, the
defendant had recently turned eighteen years of age and was in
19
the process of obtaining his GED at the time of his arrest. He
had emigrated from Africa to the United States just six years
prior. While these factors alone are insufficient to warrant
suppression of the defendant's statements, the defendant's young
age and poor educational background support the conclusion that
his statements were involuntary. See id.
Last, the hostile tone of the interview also supports our
conclusion that the defendant's will was overborne during the
course of the interview. See Commonwealth v. Johnson, 463 Mass.
95, 103 (2012). In Johnson, supra, we recognized that the
environment of an interview may be considered oppressive if the
defendant is handcuffed. Here, the defendant's handcuffs were
not removed. Moreover, the tone of the interview was hostile
where the two detectives volleyed statements between them, often
times leaving no opportunity for the defendant to respond.
Taken together, these factors persuasively demonstrate that
the defendant's will was overborne and that, as a consequence,
statements made thereafter were involuntary. The use of those
statements against the defendant at trial was constitutional
error.
ii. Other tactics. We comment briefly on the detectives'
use of other interrogation techniques which, although not
dispositive, contributed to the defendant's loss of his "ability
to make an unconstrained, autonomous decision to confess."
20
Baye, 462 Mass. at 256, quoting Walton, 10 F.3d at 1030. First,
"minimization" during interrogation of a crime of which a
defendant is accused, combined with other factors, can render a
confession involuntary because minimization carries with it an
implied promise that the requested confession will result in
lenient treatment. DiGiambattista, 442 Mass. at 439. Prior to
the defendant making any inculpatory statements, the detectives
offered the defendant reasons for why he may have committed the
alleged robberies, such as needing money to buy food for himself
and his infant daughter, and minimized the rape allegation by
pointing out that both the defendant and the alleged victim were
old enough to engage in consensual sexual activity.
Second, "[t]he use of false information by police during an
interrogation is deceptive and is a relevant factor indicating a
possibility that the defendant's statements were made
involuntarily." Selby, 420 Mass. at 664. Here, Detective
Brissette informed the defendant that they had evidence of his
DNA on the victim who had allegedly been assaulted that morning.
It is evident from the record that the detectives could not have
yet known to whom any DNA recovered from that victim belonged.
In combination with the psychological coercion, the minimization
and false statement support our conclusion that the defendant's
inculpatory statements were involuntary.
21
d. Effect of the constitutional error. Having concluded
that it was constitutional error for the defendant's involuntary
statements to be used against him at trial, we must now
determine whether to set aside his convictions. See Durand, 457
Mass. at 592, quoting Mincey v. Arizona, 437 U.S. 385, 398
(1978) ("any criminal trial use against a defendant of his
involuntary statement is a denial of due process of law"
[emphases in original]). The defendant argues that his
convictions must be vacated because the admission of his
statements was a structural error. We have not yet determined
whether the structural error standard should apply or whether,
with the defendant having filed a motion to suppress on
constitutional grounds, the harmless error standard should
apply, and we do not do so here. See Durand, supra (reserving
for another day whether structural error applies). See also
Commonwealth v. Hoyt, 461 Mass. 143, 154 (2011), quoting
Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998) ("The denial
of a motion to suppress evidence on constitutional grounds . . .
is reviewable without further objection at trial"). Under the
harmless error standard, "we consider 'the importance of the
evidence in the prosecution's case; the relationship between the
evidence and the premise of the defense; who introduced the
issue at trial; the frequency of the reference; whether the
erroneously admitted evidence was merely cumulative of properly
22
admitted evidence; the availability or effect of curative
instructions; and the weight or quantum of evidence of guilt.'"
Thomas, 469 Mass. at 552a, quoting Commonwealth v. Santos, 463
Mass. 273, 287 (2012). Because we conclude that the
introduction of the defendant's involuntary statements was not
harmless beyond a reasonable doubt, we need not resolve the
question.
The defendant's incriminating statements contained on the
videotape were pivotal to the Commonwealth's case. Although the
Commonwealth presented the testimony of the three victims and
other evidence tying the defendant to the incidents, such as DNA
evidence and his clothing, the extent of criminal liability from
the incidents depended on credibility. Because the defendant
did not testify, the video recording provided the jury with his
description of the encounters. During the involuntary portion
of the interview, the defendant admitted that he robbed E.C. and
L.B., that he pulled out a knife on L.B., and that he had sexual
contact with A.G. Therefore, the prosecution was able to use
the nontestifying defendant's involuntary statements to support
the victims' credibility. The prosecutor also referenced the
defendant's videotaped statements in his closing argument,
23
telling the jury that the defendant admitted to having a knife
on him during all three incidents. 14
Moreover, the defense strategy was limited by the
introduction of the involuntary statements. Defense counsel
conceded to the acts that the defendant admitted performing
during his videotaped interview, specifically robbing the first
victim, using a knife while intending to rob the second victim,
and having consensual sex with the third victim. Defense
counsel argued that the Commonwealth failed to prove the
remaining charges. 15
The error in admitting the defendant's involuntary
statements was further compounded by the erroneous introduction
of a statement in the videotape that the defendant had
previously committed robberies not related to the charged
offenses. Thus, the jury heard evidence of bad acts that were
not properly admitted. Although the judge provided instructions
14
In the interview, Detective Brissette asked, "where's the
knife that you``ve been carrying for a few days?"; the defendant
responded, "I lost it," and described a silver and brown pocket
knife.
15
Specifically, defense counsel argued that the
Commonwealth failed to prove assault and battery with a
dangerous weapon and kidnapping against the first victim;
kidnapping of the second victim; and rape, indecent assault and
battery, and kidnapping against the third victim. Of these
charges, the defendant was convicted of assault and battery with
a dangerous weapon and kidnapping against the first victim,
kidnapping of the second victim, and indecent assault and
battery against the third victim.
24
on this point, the prejudice caused by introduction of the
videotaped statements was further compounded by this error and
we conclude that the admission of the videotaped statement was
not harmless beyond a reasonable doubt. Santos, 463 Mass. at
289.
3. Conclusion. The judgments are reversed and the
verdicts set aside. The case is remanded to the Superior Court
where the defendant is to receive a new trial in accordance with
this opinion.
So ordered.