Commonwealth v. Tremblay

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SJC-12493
COMMONWEALTH vs. RANDALL TREMBLAY.
Suffolk. May 10, 2018. - October 3, 2018.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.
Constitutional Law, Admissions and confessions, Voluntariness of
statement, Waiver of constitutional rights, Search and
seizure. Evidence, Admissions and confessions,
Voluntariness of statement, Intoxication, Scientific test.
Waiver. Intoxication. Search and Seizure, Clothing.
Practice, Criminal, Admissions and confessions,
Voluntariness of statement, Motion to suppress, Waiver,
Property seized at time of arrest.
Indictments found and returned in the Superior Court
Department on March 10, 2015.
A pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J.
Applications for leave to prosecute interlocutory appeals
were allowed by Hines, J., and Cordy, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeals were
consolidated and reported by them to the Appeals Court. After
review by the Appeals Court, the Supreme Judicial Court granted
leave to obtain further appellate review.
Patrick Levin, Committee for Public Counsel Services, for
the defendant.
2
Janis DiLoreto Smith, Assistant District Attorney, for the
Commonwealth.
LENK, J. The defendant stands accused of murder in the
first degree in connection with the beating death of a woman who
had obtained a restraining order against him. The Commonwealth
appeals from an order suppressing both the statements that the
defendant made during custodial interrogations and the forensic
testing results obtained from his bloodstained clothing.
The motion judge heard testimony from police witnesses and
watched an audio-video recording of a second custodial
interrogation, which took place soon after the police realized
that they inadvertently had failed to record the defendant's
first interrogation. The judge concluded that the defendant was
too intoxicated during both interviews to make a knowing,
intelligent, and voluntary Miranda waiver. Consequently, the
judge determined that the Commonwealth had not met its burden of
proving beyond a reasonable doubt that the defendant validly
waived his Miranda rights at the unrecorded first interview.
See Commonwealth v. Hoyt, 461 Mass. 143, 149 (2011).
As to the suppression of the defendant's statements, the
case calls upon us first to examine unsettled aspects of the
standard of review to be applied to the judge's subsidiary
findings, some of which were drawn from documentary evidence.
We decline to adopt the Federal approach, which does not permit
3
a reviewing court to make an independent assessment of pertinent
documentary evidence, and instead requires deference to all
subsidiary fact findings that are not clearly erroneous. See
Anderson v. Bessemer City, N.C., 470 U.S. 564, 574–575 (1985).
We instead reaffirm the long-standing principle that an
appellate court may independently review documentary evidence,
but should accept subsidiary findings based partly or wholly on
oral testimony, unless clearly erroneous. See Commonwealth v.
Hoose, 467 Mass. 395, 399 (2014). In such circumstances, the
case should be decided "upon the entire evidence," see Berry v.
Kyes, 304 Mass. 56, 57-58 (1939), giving "due weight" to the
judge's subsidiary findings when required. See Edwards v.
Cockburn, 264 Mass. 112, 120–121 (1928).
In the recording of the second interrogation, the judge saw
a man then so intoxicated that his level of sobriety one hour or
so earlier -- the pertinent time for assessing the validity of
the Miranda waiver -- could only have been much worse. The
recording of the second interview thus formed part of the
predicate for the judge's conclusion that the defendant had been
too intoxicated at the beginning of the unrecorded first
interview to give a valid waiver. Our de novo review of that
documentary evidence instead reveals that, for the duration of
the recording of the second interview, the defendant appeared to
be lucid, coherent, responsive, and in control of his mental
4
faculties. Thus, the judge's findings regarding the defendant's
condition during the second interview -- and, to the extent that
they are premised on extrapolations from that interview, his
findings concerning the defendant's capacity validly to waive
his Miranda rights during the first interview -- are not
supported by that evidence and cannot stand.
Mindful that the judge also made findings relating to the
defendant's condition that are based on oral testimony, and to
which we must defer, the case on appeal is to be decided on the
"entire evidence." See Berry, 304 Mass. at 57-58. We therefore
must weigh our de novo review of the second interview along with
the judge's assessment of the oral testimony. Doing so presents
unique challenges in these particular circumstances, where the
findings focus largely on a comprehensive documentary record of
the wrong time period. We do not know the extent to which the
recording of the second interview may have had an impact on the
judge's other factual findings and credibility determinations,
or what else the judge might have found if he shared our view of
the recording. Additionally, the judge failed to make factual
findings or credibility determinations regarding certain
material evidence. We are thus not confident that the remaining
findings as to the testamentary evidence that are entitled to
deference allow for meaningful review of the entire evidence in
this case.
5
This being so, it is the better part of wisdom to remand
this case so that the judge can make findings and credibility
determinations regarding all pertinent evidence in light of our
de novo assessment of the recording of the second interview.
Cf. Commonwealth v. Jones-Pannell, 472 Mass. 429, 438 (2015);
Commonwealth v. Isaiah I., 448 Mass. 334, 338 (2007). Depending
on the findings made on remand as to the defendant's condition
and level of sobriety at the pertinent time, and recognizing
that intoxication alone does not preclude a valid waiver,
Commonwealth v. Wolinski, 431 Mass. 228, 231 (2000), a remand
will also afford the opportunity to clarify any such nexus, and
allow the judge as well to determine the voluntariness of the
statements.
The situation is otherwise as to the suppressed forensic
testing results. The police lawfully seized the defendant's
clothing incident to arrest, and thereafter did not need a
separate warrant to test the clothing for the presence of human
blood. See Commonwealth v. Arzola, 470 Mass. 809, 816-817
(2015), cert. denied, 136 S. Ct. 792 (2016). Accordingly, the
order suppressing the results of the forensic testing of the
defendant's clothing must be reversed.
1. Background. a. Findings of fact. The judge held an
evidentiary hearing on the defendant's motion to suppress at
which three officers testified and an audio-video recording of
6
the defendant's second interview was submitted.1 The judge did
not make any explicit adverse credibility findings, but stated
that he credited the officers' testimony "to the extent it [was]
consistent with [his] explicit findings of fact." The judge
found as follows. Shortly after 2 A.M. on November 18, 2014,
Boston police received a 911 call stating that the victim had
died at her apartment. Her body was found, covered with a
blanket, on a "very bloody" couch; her face was bruised and
bloodied. Two of the defendant's friends were in the apartment
when the officers arrived, but the defendant was not present.
One friend appeared to be intoxicated; the other, who did not,
had telephoned 911.
Sergeant Scott Yanovitch of the Boston police department
requested a dispatch to all relevant units; the dispatch went
out around 2:50 A.M. Officer Shawn Roberts heard the dispatch
1 The remaining evidence presented consisted of the
defendant's Miranda waiver form, a restraining order obtained by
the victim against the defendant, a video recording of the wrong
interrogation room, photographs of the crime scene, and a video
recording of the defendant with his friend at a Massachusetts
Bay Transportation Authority (MBTA) station more than four hours
before he was interrogated. At the hearing, the witnesses also
referenced video surveillance from a liquor store more than five
hours before the defendant was interrogated, but that footage
was not played or submitted. The judge did not discuss these
other pieces of evidence in his findings. Although the record
on appeal does not include the video recordings of the defendant
with his friend at the MBTA station and the liquor store, these
materials would not aid our analysis, because they were recorded
four or five hours before the defendant's first interrogation.
7
and recognized the address because he had responded there to
some previous complaints by the victim of domestic violence by
the defendant. Roberts used his mobile data terminal to perform
a search of the prior police reports regarding that address,
found the defendant's name, and checked his criminal record.
Roberts discovered that an active restraining order was in place
requiring the defendant to stay away from the victim's
residence, and that there was an outstanding warrant to arrest
the defendant for failing to register with the Sex Offender
Registry Board. Roberts also examined the defendant's booking
photographs.
Over the next hour or so, Yanovitch saw a man who was later
identified as the defendant "hanging out" near the victim's
apartment. The first time, Yanovitch briefly stepped outside
the victim's apartment to get some fresh air and saw the
defendant walk past him, talking and mumbling to himself. The
second time, when Yanovitch escorted one of the defendant's
friends outside the apartment to smoke a cigarette, the
defendant approached and asked the friend for a cigarette.
Around the same time, Roberts completed his research and
contacted Yanovitch over the police radio to tell him what he
had learned about the defendant. Yanovitch asked Roberts to
come to the scene to determine if the friend that he had
escorted outside to smoke was the person Roberts had researched.
8
Roberts arrived, confirmed that the friend was not the same
individual, and left.
Back inside the apartment, Yanovitch heard the defendant,
standing on the sidewalk, yelling loudly; he was yelling
statements such as "What's going on in there?"; "I know what
happened"; and "She was my friend." Yanovitch went outside
again. The defendant approached him, asked, "What's going on in
there?" and repeated, "She was my friend." Yanovitch asked the
defendant for his name, and the defendant responded, "What, are
you going to run me?" Yanovitch then asked Roberts to return to
the scene to determine if the defendant was the person he had
researched; by this time it was approximately 3:40 A.M.
When Roberts returned and approached the defendant, Roberts
smelled alcohol. He identified the defendant and placed him
under arrest pursuant to the outstanding warrant. The defendant
stated that he had paperwork showing that the arrest warrant had
been recalled, but the paperwork concerned a different warrant.
Roberts read the defendant the Miranda rights; the defendant did
not indicate whether he understood. Roberts and another officer
then drove the defendant to Boston police headquarters. During
the drive, the defendant repeatedly asked if he would be
released because the warrant was a mistake; he said nothing
about the victim.
9
Sergeant Detective Michael Stratton interviewed the
defendant for approximately one hour, starting at around
4:30 A.M., while Roberts observed. Stratton told the defendant
that they were being recorded, but, for the duration of the
defendant's interview, the officers inadvertently recorded a
different interrogation room. Stratton read the defendant the
Miranda rights from a preprinted form, and the defendant
initialed the form and signed his name.2,3 The defendant then
made statements implicating himself in the victim's death; the
defendant said that he and the victim had gotten into an
argument and that he had hit her in the head twelve to fifteen
times. The defendant said that he "got her good," and, "I think
I killed her."
The defendant also said that, when he woke up the next
morning, the victim's body was cold and he thought she was dead.
He stated that he then left the apartment and found his friend,
2 The defendant's waiver form states that his waiver was
obtained at 5 A.M. The judge credited the time stamp on the
recording that was taken of the wrong interview room, however,
which indicated that the first interview began at 4:30 A.M. We
defer to this finding, which also is consistent with the fact
that the interview lasted for approximately one hour and was
followed by a ten-minute cigarette break before the defendant
was reinterviewed at 5:50 A.M.
3 References to the "unrecorded" waiver denote the fact that
the defendant's waiver process was not captured on an audio-
video recording, and are not meant to suggest that the defendant
failed to sign a waiver form.
10
and they drank beer together before returning to the victim's
apartment. Once there, the defendant mopped puddles of blood
from the floor and took out the trash. He then drank more beer,
finishing the last of the beer as his other friend telephoned
911. Throughout the interview, the defendant also repeatedly
insisted that the warrant was a mistake and asked when he would
be released.
When he learned of the mistake in recording, Stratton asked
the defendant if he would agree to a second interview; the
defendant assented, but wanted a cigarette first. During the
ten-minute cigarette break, the defendant continued to ask when
he would be released.
Stratton interviewed the defendant a second time beginning
at around 5:50 A.M. This interview was audio-video recorded.
The judge found that the defendant was "quite intoxicated"
throughout the interview, and that Stratton knew this but did
not attempt to discern the defendant's level of intoxication.
The judge found that the defendant was "stumbling around and
very unsteady on his feet" when he re-entered the interview
room, and that he "sound[ed] drunk and seem[ed] to have trouble
speaking clearly." The defendant paid "very little attention
while Stratton tried to review the Miranda form with him," and
"reached across the table and started playing with Stratton's
pen and papers." The judge found that, at that point, the
11
defendant still did not realize that he had incriminated
himself, as he was again arguing that the warrant was only a
"straight warrant," a "mistake," and asking if he would be
released. The defendant also made statements such as, "She's
dead because of me," and, "I did whack her." The judge stated
that, "[s]ince it is apparent that [the defendant] was quite
intoxicated throughout the second police interrogation, the
Court infers and therefore finds that he was even more drunk
during the first interview."
After the second interview, Stratton arrested the defendant
for murder. Stratton also seized all the defendant's clothing
after he noticed apparent bloodstains on the defendant's shoes
and socks. The officers had not obtained a warrant to seize or
test the clothing. Every piece of clothing the defendant had
been wearing tested positive for the presence of human blood.
b. Prior proceedings. The defendant was indicted on
charges of murder in the first degree, G. L. c. 265, § 1, and
violation of an abuse prevention order, G. L. c. 209A, § 7. He
moved to suppress all statements he had made to police and all
evidence seized from him. The judge allowed the motion to
suppress in part. He ordered suppressed all statements the
defendant made once he had been transported to the police
station, but found that suppression was not required for
statements made before the defendant had been transported to the
12
police station. The judge found that the Commonwealth had not
met its burden of demonstrating beyond a reasonable doubt that
the defendant had validly waived his Miranda rights. The judge
also ordered that the results of forensic testing of the
defendant's clothing be suppressed, because no warrant had been
obtained to test the clothes; he denied the motion to suppress
the clothing itself, on the ground that the seizure was
permissible under the exigent circumstances exception to the
warrant requirement.
A single justice of this court allowed the Commonwealth's
petition for interlocutory review of the partial allowance of
the motion to suppress. The defendant's motion for leave to
file a cross appeal of the partial denial of the motion to
suppress also was allowed, and the appeals were consolidated and
reported to the Appeals Court. The Appeals Court reversed the
judge's partial allowance, Commonwealth v. Tremblay, 92 Mass.
App. Ct. 295, 313 (2017), and this court then allowed the
defendant's application for further appellate review.
2. Discussion. a. Standard of review. "In general, in
reviewing a ruling on a motion to suppress, we accept the
judge's subsidiary findings of fact absent clear error but
conduct an independent review of his ultimate findings and
conclusions of law" (quotation, citation, and alterations
omitted). Commonwealth v. Clarke, 461 Mass. 336, 340 (2012).
13
Massachusetts appellate courts have traditionally declined to
defer to subsidiary findings based wholly on documentary
evidence, however. See, e.g., Berry, 304 Mass. at 57-58.
Because the judge's subsidiary findings rested on both
testimonial and documentary evidence, we must first settle the
open question whether our long-standing practice of
independently reviewing documentary evidence survives in light
of more recent legal developments.
i. Origins. Traditionally, "[g]reat weight is justly
given to the conclusions on questions of fact of the justice who
hears the case." Chase v. Hubbard, 153 Mass. 91, 92 (1891).
This is because the judge "has [had] an opportunity to observe
the conduct of the witnesses, their fairness and intelligence,
and can judge better than the full court possibly can of the
degree of credibility to be given to their testimony." Id. If
a judge's subsidiary findings are drawn from documentary
evidence, however, we have reasoned that "the reason of the rule
largely disappears." Id. Thus, for over a century,
Massachusetts appellate courts have distinguished between
findings drawn from testimonial evidence and those drawn from
documentary evidence. See Olivieri v. Atkinson, 168 Mass. 28,
30 (1897); Chase, supra.
Initially, this court held that, where the record consists
entirely of documentary evidence, it is "proper to re-examine
14
the evidence, and determine if on the whole the judgment was
right." Olivieri, 168 Mass. at 30. Later, this rule was
expanded, such that, within a given case, subsidiary findings
based on documentary evidence were not entitled to deference,
but subsidiary findings "based wholly or partly upon oral
testimony are not to be set aside unless plainly wrong." Berry,
304 Mass. at 57–58. Even then, however, the case "is to be
decided upon the entire evidence," giving "due weight" to the
judge's subsidiary findings based on testimonial evidence.
Edwards, 264 Mass. at 120–121.
ii. Rule 52 (a) of the Massachusetts Rules of Civil
Procedure. The standard of review for subsidiary findings based
on documentary evidence originated in civil cases, but such
cases were later relied on in the criminal context as well.
See, e.g., Commonwealth v. Novo, 442 Mass. 262, 266 (2004)
(citing civil cases such as Berry, 304 Mass. at 57-58, for
standard of review); Commonwealth v. Wiseman, 356 Mass. 251,
256–257 (1969), cert. denied, 398 U.S. 960 (1970) (same). Civil
cases like Berry, supra, however, appear to conflict with
Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996),
which was adopted in 1974. See, e.g., Robertson v. Gaston Snow
& Ely Bartlett, 404 Mass. 515, 525, cert. denied, 493 U.S. 894
(1989) (recognizing, but not resolving, conflict between
traditional standard of review for findings based on documentary
15
evidence and rule 52 [a]); Rapp v. Barry, 398 Mass. 1004, 1005
n.3 (1986) (same). We take this opportunity to resolve this
apparent conflict, affecting the standard of review in both
civil and criminal cases.
Rule 52 (a) provides, in relevant part, "[f]indings of fact
shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge of
the credibility of the witnesses." It does not exempt findings
drawn from documentary evidence.4
The Massachusetts Rules of Civil Procedure were "patterned
on the Federal Rules of Civil Procedure." Van Christo Advert.,
Inc. v. M/A-COM/LCS, 426 Mass. 410, 414 (1998). For this
reason, "[i]n construing our rules, we follow the construction
given to the Federal rules absent compelling reasons to the
contrary or significant differences in content" (citation and
quotation omitted). Id. At the time that Mass. R. Civ. P.
52 (a) was adopted, its language was identical to the cognate
Rule 52 (a) of the Federal Rules of Civil Procedure. See Chance
4 Nonetheless, in the four decades since the adoption of
rule 52 (a), Massachusetts courts have continued the practice of
reviewing de novo subsidiary findings based wholly on
documentary evidence. See, e.g., Commonwealth v. Hoose, 467
Mass. 395, 399 (2014); Meschi v. Iverson, 60 Mass. App. Ct. 678,
681 n.7 (2004); Guempel v. Great Am. Ins. Co., 11 Mass. App. Ct.
845, 848 (1981).
16
v. United States, 415 F.2d 330, 331 (5th Cir. 1969) (discussing
prior wording of Fed. R. Civ. P. 52[a]).
Since 1985, Federal courts have not independently reviewed
documentary evidence, and instead have applied the "clearly
erroneous" standard to all lower court findings.5 See Anderson,
470 U.S. at 574–575. See also Maine v. Taylor, 477 U.S. 131,
145 (1986) (applying Anderson, supra, to all findings of fact by
Federal District Courts in criminal cases, other than ultimate
findings of guilt). The United States Supreme Court did not
provide this clarification, however, until more than ten years
after Massachusetts adopted rule 52 (a). Until then, in
applying Fed. R. Civ. P. 52, Federal courts were split as to
whether findings based purely on documentary evidence were
entitled to deference. See Advisory Committee Notes (1985) to
Fed. R. Civ. P. 52(a) (collecting cases).
5 The United States Supreme Court held that the clearly
erroneous standard should apply to all lower court findings, not
just those involving credibility determinations, because trial
judges have expertise in fact finding, and "[d]uplication of the
trial judge's efforts in the court of appeals would very likely
contribute only negligibly to the accuracy of fact determination
at a huge cost in diversion of judicial resources." Anderson v.
Bessemer City, N.C., 470 U.S. 564, 574–575 (1985).
Additionally, "the parties to a case on appeal have already been
forced to concentrate their energies and resources on persuading
the trial judge that their account of the facts is the correct
one." Id. at 575. "[T]rial on the merits should be the main
event . . . rather than a tryout on the road" (quotations and
citation omitted). Id.
17
Furthermore, one month after the Supreme Court's decision
in Anderson, 470 U.S. at 574–575, the Federal rule was amended
to reflect the clarification that the "clearly erroneous
standard" applied even when findings were based on wholly
documentary evidence. See Fed. R. Civ. P. 52(a) (amended April
29, 1985, effective August 1, 1985). Thus, Rule 52(a)(6) of the
Federal Rules of Civil Procedure now states, "Findings of fact,
whether based on oral or other evidence, must not be set aside
unless clearly erroneous, and the reviewing court must give due
regard to the trial court's opportunity to judge the witnesses'
credibility" (emphasis added). Rule 52 (a) of the Massachusetts
Rules of Civil Procedure, by contrast, remains unchanged. Since
the meaning of Fed. R. Civ. P. 52(a) with regard to documentary
evidence was not clarified until after Massachusetts adopted
rule 52 (a), and there is currently a "significant difference[]
in content" between our rule and the Federal rule, we expressly
decline to depart from the long-standing practice in
Massachusetts of independently reviewing documentary evidence in
favor of the Federal approach (citation omitted). See Van
Christo Advert., Inc., 426 Mass. at 414.
We now affirm the principle that an appellate court may
independently review documentary evidence, and that lower court
18
findings drawn from such evidence are not entitled to deference.6
See Clarke, 461 Mass. at 340-341. By contrast, findings drawn
partly or wholly from testimonial evidence are accorded
deference, and are not set aside unless clearly erroneous.7 Id.
Accord Hoose, 467 Mass. at 399-400; Mass. R. Civ. P. 52 (a).
The case "is to be decided upon the entire evidence," however,
giving "due weight" to the judge's findings that are entitled to
deference. Edwards, 264 Mass. at 120–121.
While there is no direct counterpart in the Massachusetts
Rules of Criminal Procedure to Mass. R. Civ. P. 52 (a), we also
defer to subsidiary factual findings in criminal cases unless
they are clearly erroneous. See, e.g., Commonwealth v. Leahy,
445 Mass. 481, 485 (2005). Thus, our pronouncement that the
clearly erroneous standard set forth in Mass. R. Civ. P. 52 (a)
6 This principle was articulated differently in Commonwealth
v. Novo, 442 Mass. 262, 266 (2004), which explained that we
independently review evidence that is "reduced to a tangible
form." The discussion in that case was referring to documentary
evidence, such as "transcripts of deposition testimony" or
"photographs." See id. The case did not extend the rule
regarding findings based on documentary evidence to include all
forms of physical evidence.
7 "A finding is 'clearly erroneous' when although there is
evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.'" See Building Inspector of
Lancaster v. Sanderson, 372 Mass. 157, 160 (1977), quoting
United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948).
19
does not apply to subsidiary findings based on documentary
evidence extends to the criminal context as well.
We emphasize, however, that this does not give appellate
courts carte blanche with respect to fact finding. "[A]s our
long-standing jurisprudence makes plain, in no event is it
proper for an appellate court to engage in what amounts to
independent fact finding in order to reach a conclusion of law
that is contrary to that of a motion judge who has seen and
heard the witnesses, and made determinations regarding the
weight and credibility of their testimony." Jones-Pannell, 472
Mass. at 438, citing Clarke, 461 Mass. at 340–341, and cases
cited.
b. Suppression of statements. In order for a defendant's
statements to be admissible at trial, the Commonwealth bears the
"particularly heavy burden" of proving beyond a reasonable doubt
that the defendant's Miranda waiver was valid. See Hoyt, 461
Mass. at 152, citing Commonwealth v. Day, 387 Mass. 915, 920
(1983). A waiver is valid when it is made "voluntarily,
knowingly, and intelligently." Hoyt, supra at 153. This
determination is based on the "totality of the circumstances,
including the characteristics of the accused and the details of
the interrogation." Id. "[T]he judge may consider, among other
things, the defendant's age, education, intelligence, physical
and mental stability, and experience with and in the criminal
20
justice system," Commonwealth v. Anderson, 445 Mass. 195, 203
(2005), as well as his "outward behavior,"8 Commonwealth v.
Sarourt Nom, 426 Mass. 152, 159 (1997).
The Commonwealth does not appear to have presented evidence
concerning most of the aforementioned factors, such as age,
education, or intelligence, nor did the judge address them. The
evidence primarily concerned the defendant's outward behavior
and demeanor, particularly with regard to his intoxication. The
judge, in turn, concentrated his findings and conclusions on the
defendant's level of intoxication, without establishing the
nexus between the defendant's intoxication and his ability
validly to waive his rights. Expressly relying on the audio-
video recording, the judge concluded that the defendant was
"quite intoxicated" during the second interview, and inferred
that the defendant therefore must have been even more
intoxicated during the first interview.
i. The recording. As the recording is documentary
evidence, the judge's findings drawn from it are not entitled to
deference and we may review such evidence de novo. See, e.g.,
Commonwealth v. Monroe, 472 Mass. 461, 464 (2015) (recorded
interrogation constitutes documentary evidence); Clarke, 461
8 The fact that the defendant's waiver was documented in
writing is not dispositive; the validity of a waiver depends on
the totality of the circumstances. See Commonwealth v. Magee,
423 Mass. 381, 387 n.8 (1996).
21
Mass. at 341 (same); Hoyt, 461 Mass. at 148 (same). We take a
view quite different from what the motion judge did as to what
the recording reveals about the defendant's condition.
As the judge noted, at the beginning of the audio-video
recording, the defendant was a bit unsteady on his feet when he
was led into the interrogation room; this unsteadiness
dissipated quickly, however. For example, the defendant was
able to stand and pantomime hitting the victim repeatedly,
without any instability or stumbling. He also spoke coherently;
as he entered the interrogation room he was clearly arguing with
the officers about the warrant for his arrest, and was insisting
that it was a "straight warrant" rather than a "default."
The recording also shows that the defendant was paying
attention while Stratton reviewed the Miranda rights, and told
Stratton he already knew what Stratton was going to say. The
defendant did not "play" with Stratton's pen and paper, as the
judge found, but rather grabbed them while stating that he would
sign the Miranda waiver form again. He indicated that he
understood each right and remembered his earlier waiver, stating
"I understand everything. . . . I initialed everything, I
signed it, and I dated it." When Stratton asked if the
defendant understood that he had a right to remain silent, he
exclaimed, "I'll tell you whatever you want!"
22
Throughout the recording, the defendant was very responsive
to questions. He was able to recall details of the incident,
such as times, locations, and the specific bus he took, and even
corrected a few of Stratton's statements. His account of
hitting the victim repeatedly in the head was consistent with
his statements during the first interview, and he made some of
the same incriminating statements. When Stratton asked for the
defendant's friend's last name, he declined to provide it. The
defendant also minimized his culpability, insisting that he only
hit the victim in the face with an open hand, and that he had
her permission to be in the apartment and had not stolen her
keys.
The defendant was cooperative and cordial throughout the
interview, but when asked pointed questions about the victim,
his demeanor would become more grave and reticent, and he made
statements such as, "It shouldn't have happened," and "I fucked
up." Thus, although the defendant repeatedly asked when he
would be released, and disputed the technicalities of the prior
outstanding warrant, he also, contrary to the judge's findings,
understood the gravity of the situation. In addition, he
understood that he had incriminated himself; regarding the
victim's condition, he made statements such as, "You're not
going to let me go now, are ya?"; "I'm going to jail, aren't
I?"; and "Are you going to charge me with something?"
23
In sum, our de novo review of the audio-video recording
reveals that, during the second interview, the defendant's
demeanor was lucid, coherent, and responsive, and he appeared to
be in control of his mental faculties. Although intoxication
"bears heavily on the validity of a Miranda waiver," and there
is no dispute that the defendant drank at least some alcohol in
the hours prior to his arrest and interrogation, intoxication is
"insufficient alone to require a finding of involuntariness"
(citation omitted). See Wolinski, 431 Mass. at 231. See also
Holton v. Boston Elevated Ry. Co., 303 Mass. 242, 246 (1939)
("Liquor affects individuals in various ways," and "it is
sometimes difficult to determine degrees of intoxication"). In
this case, the recording demonstrates that the defendant's level
of intoxication at that point did not appear to impede his
capacity knowingly, intelligently, and voluntarily to waive his
rights during the second interview.
This conclusion, however, is not sufficient to resolve the
matter.9 The recording captured the defendant's condition more
9 The Commonwealth contends that the defendant validly
waived his rights before both interviews. The recording instead
demonstrates that at the start of the second interview, the
defendant and the officers simply reviewed the waiver form he
signed during the first interview. In any event, even if the
defendant had waived his rights at the start of the second
interview, the Commonwealth would still be required to prove
beyond a reasonable doubt that the first, unrecorded waiver was
valid. "In this Commonwealth, there is a presumption that a
24
than one hour after he had made the waiver, when the effects of
his intoxication presumably had declined to an unknown extent.
Unlike in Clarke, 461 Mass. at 337 n.1, 338-340, 343, and Novo,
442 Mass. at 263, 267-268, where the audio-video recordings were
dispositive, here the recording itself does not show the
defendant's condition when he made the waiver and cannot be
conclusive. We must accordingly consider the recording in light
of the "entire evidence," Berry, 304 Mass. at 57-58, to
determine whether the Commonwealth met its heavy burden. Hoyt,
461 Mass. at 152.
ii. The entire evidence. "It is the motion judge's
responsibility to make credibility assessments, weigh the
evidence, and make findings of fact; it remains the
responsibility of an appellate court to evaluate whether those
findings are clearly erroneous." See Jones-Pannell, 472 Mass.
at 431 n.3. In this regard, it is also the motion judge's
statement made following the violation of a suspect's Miranda
rights is tainted, and the prosecution must show more than the
belated administration of Miranda warnings in order to dispel
that taint" (quotations and citation omitted). Commonwealth v.
Osachuk, 418 Mass. 229, 235 (1994). "This presumption may be
overcome by showing that either: (1) after the illegally
obtained statement, there was a break in the stream of events
that sufficiently insulated the post-Miranda statement from the
tainted one; or (2) the illegally obtained statement did not
incriminate the defendant, or, as it is more colloquially put,
the cat was not out of the bag." Id. Here, the second
interview began ten to twenty minutes after the first interview
ended; this is insufficient to constitute a "break in the stream
of events." See id.
25
responsibility to find adequate facts pertinent to the matter at
hand; those facts "should be stated clearly, concisely and
unequivocally, and be worded so that they are not susceptible of
more than one interpretation." Isaiah I., 448 Mass. at 339.
Our ability fairly to assess the entirety of the evidence
in this case is complicated by two factors. First, we do not
know the extent to which the recording had an impact on even
those findings that did not expressly rely on it. Second, the
judge failed to address certain testimony plainly material to
the issue before him, calling into question the adequacy of the
facts found to support his conclusion as to the ultimate issue
in this case, i.e., the defendant's capacity validly to waive
his Miranda rights at the time of the first interview.
As to the first complicating factor, to the extent the
judge expressly relied on the recording of the second interview
to make findings concerning the defendant's condition during the
unrecorded first interview, these findings must be set aside in
light of our independent assessment of the recording. To the
extent that the judge made findings about the defendant's
condition that do not rest on the recording, they are drawn from
oral testimony and are entitled to deference. See Clarke, 461
Mass. at 341. We cannot know the extent to which the recording
may have had an impact on these findings, however, and are
unable to evaluate how, if at all, our de novo review of the
26
recording might alter the judge's view of the testamentary
evidence. Additionally, we cannot know whether the judge would
have reached different credibility determinations had he shared
our view of the defendant's condition at the second interview.
As to the second complicating factor, our ability fairly to
evaluate the entirety of the evidence is compromised by the
inadequacy of the findings made as to certain material matters.
For example, the judge credited police officer testimony that,
at the crime scene, approximately one hour before the first
interview, the defendant was talking and mumbling to himself
repeatedly, and yelling statements loudly at the officers such
as, "What's going on in there?"; "I know what happened"; and
"She was my friend." This testimony is not self-explanatory,
however, and the judge made no further findings regarding what,
if any, relationship this bore to the defendant's condition at
the time of the first interview.
Further, the judge did not address certain oral testimony
by the same police witnesses that was plainly material to the
ultimate issue in this case. This would include their testimony
that the defendant did not appear intoxicated at the crime
scene, and that the defendant was cooperative, lucid,
articulate, and even strategic in answering questions during the
first interview. In addition to not making any findings as to
27
this testimony, the judge also did not make any express
credibility determinations as to these three police witnesses.
The judge's prefatory statement that he credited the
officers' testimony "to the extent it [was] consistent with
[his] explicit findings of fact" does not relieve him of his
obligation to make adequate findings. Of course, motion judges
need not make findings with respect to every piece of evidence
in the record, irrespective of pertinence. It is understandable
that busy trial court judges will use brief, prefatory language
as shorthand to indicate that they are aware that the record
contains additional testimonial evidence, but find only certain
portions of the testimony credible or relevant.10 See Jones-
Pannell, 472 Mass. at 431 n.3. While such prefatory language
precludes supplementation of the findings by the reviewing
court, it does not insulate such findings from being reviewed
for their adequacy. Id.
Here, the portion of the officers' testimony that was
omitted from the judge's findings was the only evidence directly
10We are not unaware that the widespread use of such
prefatory language also may have arisen in response to perceived
appellate overreaching in the form of augmented or substituted
fact finding, often to reach a different outcome from that
reached by the trial court. Such perceived overreaching may
occur when the reviewing court supplements findings by relying
upon apparently uncontroverted witness testimony of record that
has not been otherwise specifically discredited by the trial
court judge. See Jones-Pannell, 472 Mass. at 432.
28
addressing the defendant's condition during the unrecorded first
interview. As such, it warranted the judge's attention. While
the credibility of this testimony was for the motion judge alone
to assess, the testimony should have been addressed, and not
ignored. This omission unnecessarily impairs our ability on the
entire evidence to evaluate whether the judge's findings
adequately support his ultimate conclusions of law.
Nevertheless, appellate courts must not overstep our
boundaries by substituting our view of the testamentary
evidence, appearing in a cold transcript, for that of the motion
judge who, as it were, "eyeballed" the witnesses when in a
unique position to assess credibility. See Jones-Pannell, 472
Mass. at 438, citing Clarke, 461 Mass. at 340–341, and cases
cited. Given this, we have little alternative but to remand the
matter for further fact finding, despite the fact that remand is
ordinarily disfavored; it comes at the expense of court and
litigants' resources and time, and prolongs proceedings. Here,
however, remand is prudent to ensure that the judge will have an
opportunity to make findings regarding all pertinent evidence in
light of our assessment of the recording of the second
interview. It will also give the judge an opportunity to
clarify the nexus, if any, between the defendant's intoxication
and his capacity to make a valid waiver during the relevant
period. Cf. Jones-Pannell, 472 Mass. at 437 ("where the facts
29
as found are susceptible of more than one interpretation, and
there is additional evidence in the record, neither implicitly
credited nor discredited by the judge, remand may be
appropriate" [quotation and citation omitted]); Isaiah I., 448
Mass. at 338 (remand for further fact finding necessary where
judge's findings omitted certain evidence and it was unclear
whether omission was result of credibility determination or
clear error).
Because of the unusual circumstances here, including the
factors complicating our ability fairly to assess the entire
evidence, this case is the exception, not the rule. Now, as
before, what is needed from a trial court judge are credibility
determinations as to pertinent matters, and concise, clear, and
adequate findings of fact. See Isaiah I., 448 Mass. at 339.
This will allow a reviewing court to evaluate whether the
findings are clearly erroneous and whether they support the
judge's ultimate findings and conclusions of law.
c. Voluntariness of statements. Remand also is
appropriate here because the judge made no separate findings
concerning the voluntariness of the defendant's statements.
"Due process requires a separate inquiry into the voluntariness
of [a defendant's statement] apart from the validity of the
Miranda waiver" (citation omitted). Commonwealth v. Morales,
461 Mass. 765, 776 (2012). This is necessary in order to ensure
30
that the statements were "free and voluntary" and "not the
result of inquisitorial activity that had overborne his will."
Id. "Relevant factors include, but are not limited to, promises
or other inducements, conduct of the defendant, the defendant's
age, education, intelligence and emotional stability, experience
with and in the criminal justice system, physical and mental
condition, the initiator of the discussion of a deal or leniency
(whether the defendant or the police), and the details of the
interrogation, including the recitation of Miranda warnings"
(quotation and citation omitted). Id. On remand, the judge
therefore should assess separately the voluntariness of the
defendant's statements.
d. Suppression of clothing and forensic testing. "The
Fourth Amendment [to the United States Constitution] and art. 14
[of the Massachusetts Declaration of Rights] provide that every
person has the right to be secure against unreasonable searches
and seizures of his or her possessions" (quotation and citation
omitted). Commonwealth v. White, 475 Mass. 583, 587 (2016).
Warrantless searches and seizures are presumptively
unreasonable, but may be justified if the Commonwealth can
demonstrate that the search or seizure "falls within a narrow
class of permissible exceptions to the warrant requirement"
(quotation and citation omitted). Id. at 588. For instance,
police may seize a defendant's clothing incident to arrest if
31
they have "probable cause to believe that the [clothing] was
connected to the crime." Commonwealth v. Robles, 423 Mass. 62,
66 (1996). "[P]robable cause requires a substantial basis for
concluding that the items sought are related to the criminal
activity under investigation" (quotations and citations
omitted). Commonwealth v. Kaupp, 453 Mass. 102, 110 (2009).
In this case, the defendant's clothing was validly seized
incident to his arrest. The officers had probable cause to
arrest the defendant even in the absence of his incriminating
statements. See Commonwealth v. Williams, 422 Mass. 111, 119-
120 (1996) (because arrest was proper, police were permitted to
seize as evidence clothing and shoes worn by defendant at time
of arrest); Commonwealth v. Gliniewicz, 398 Mass. 744, 750
(1986) ("Once a defendant has been arrested and is in custody,
clothing that constitutes evidence may be taken from him").
Specifically, although the defendant initially was arrested
at the crime scene pursuant to a warrant for failure to register
as a sex offender, police also had probable cause at that time
to arrest him for the victim's death. That arrest took place
after police observed him standing outside the apartment where
the victim's body had been found, shouting that he knew the
victim and knew what had happened to her. The officers knew
that the defendant had been involved in prior incidents of
domestic violence involving the victim, at the same address, and
32
his proximity to the victim's apartment indicated that he was in
violation of the abuse prevention order. Since the officers
could have arrested the defendant for murder at the crime scene,
their later observation11 of apparent bloodstains on his socks
and shoes provided a substantial basis to conclude that his
clothing contained evidence of the victim's death. See Robles,
423 Mass. at 66-67 (defendant's coat properly seized incident to
arrest where police observed bloodstains on it and defendant was
wearing same clothes he had worn on night of murder).
Once the defendant's clothing was properly seized, the
officers did not need a separate warrant for forensic testing.
We repeatedly have rejected such a requirement in the context of
clothing. See Robles, 423 Mass. at 65 n.8; Commonwealth v.
Varney, 391 Mass. 34, 38–39 (1984). While an individual has a
reasonable expectation of privacy in the clothes he or she is
wearing, that expectation dissipates once the clothes are
lawfully in the possession of the police. See Arzola, 470 Mass.
at 816-817. At that point, clothing is more comparable to
latent fingerprints. Id. In such cases, the "DNA analysis is
not a search in the constitutional sense." Id. at 820. See
Commonwealth v. Aviles, 58 Mass. App. Ct. 459, 463 (2003)
11The officers first noticed the bloodstained clothing
during the booking process after they had arrested the defendant
for murder following the second interview.
33
("where the police have lawfully obtained evidence, it may be
subjected to scientific testing").
The judge's reliance on Kaupp, 453 Mass. at 106 n.7, was
misplaced. That case concerned forensic analysis to search the
contents of a computer that was seized pursuant to the exigent
circumstances exception to the warrant requirement. It is
inapposite here, particularly as the search of a computer can
produce significantly more information than basic forensic
testing of clothing. See Commonwealth v. Keown, 478 Mass. 232,
239 (2017), cert. denied, 138 S. Ct. 1038 (2018) ("Searches of
the many files on electronic devices . . . must be done with
special care and satisfy a more narrow and demanding standard
than searches conducted in the physical world" [quotations and
citation omitted]). Compare Varney, 391 Mass. at 41 ("A white
powder, unlike a film, is not a communicative medium. A
warrantless scientific examination by government agents of white
powder lawfully obtained and plainly visible may confirm the
fact that it is contraband . . . [but] does not, in our view,
implicate any Fourth Amendment privacy interest"). Accordingly,
the suppression of the results of forensic testing of the
defendant's clothing is reversed.
3. Conclusion. So much of the judge's order requiring
suppression of the results of forensic testing of the
defendant's clothing is reversed. So much of the judge's order
34
requiring suppression of the defendant's statements is remanded
for further factual findings, reconsideration of legal
conclusions in light of the further findings, and other
proceedings consistent with this opinion.
So ordered.