Commonwealth v. Lajoie

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18-P-49 Appeals Court
COMMONWEALTH vs. WILLIAM LAJOIE.
No. 18-P-49.
Bristol. September 10, 2018. - March 5, 2019.
Present: Wolohojian, Lemire, & Englander, JJ.
Constitutional Law, Admissions and confessions, Waiver of
constitutional rights. Practice, Criminal, Admissions and
confessions, Waiver, Motion to suppress. Waiver.
Indictments found and returned in the Superior Court
Department on March 14, 2013.
A pretrial motion to suppress evidence was heard by Gregg
J. Pasquale, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Francis X. Spina, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by him to the Appeals Court.
Tara L. Johnston, Assistant District Attorney, for the
Commonwealth.
Matthew Spurlock, Committee for Public Counsel Services,
for the defendant.
2
ENGLANDER, J. Prior to a custodial interrogation, the
defendant was read Miranda warnings1 from a written form that did
not comport in all particulars with the language employed by the
United States Supreme Court. As a result the motion judge ruled
that although the defendant was advised of his "right to an
attorney," he was not explicitly advised of his right to have an
attorney present "during questioning." The defendant's
videotaped statements were accordingly suppressed. We reverse,
because rote adherence to the exact language of Miranda is not
required, and because in this case the warnings "in their
totality, satisfied Miranda." Duckworth v. Eagan, 492 U.S. 195,
205 (1989).
Background.2 On November 7, 2012, the defendant was taken
into custody at the Fall River police station, where he was
interviewed by Detective Brian Cordiero about an incident that
had occurred fifteen years earlier, involving sexual intercourse
with a girl under the age of sixteen. The interview was audio
and video recorded. The defendant admitted to having sexual
intercourse with the girl but stated that she told him that she
was nineteen, and that the sexual intercourse was consensual.
1 See Miranda v. Arizona, 384 U.S. 436, 479 (1966).
2 The facts are taken from the findings of the Superior
Court judge. They are not contested.
3
When asked if he was the father of the woman's now fifteen year
old son, the defendant stated that his name was on the birth
certificate but that he was not certain he was the father.
Prior to conducting the interview, Cordiero advised the
defendant of his rights, which he read to the defendant from a
form that the defendant later signed. Cordiero advised the
defendant:
"[1] You have the right to remain silent.
"[2] Anything you say can be used against you at
trial.
"[3] You have the right to an attorney.
"[4] If you cannot afford an attorney, one will be
appointed to you by the Commonwealth at no expense and
prior to any questioning.
"[5] If you decide to waive your Fifth Amendment
rights pursuant to Miranda, you may stop answering
questions at any time if you so desire."
After reading each right, Cordiero asked the defendant if
he understood the right, and the defendant answered that he did.
Cordiero thereafter read a series of "presentment warnings,"
which informed the defendant of various additional rights
including, for example, prompt presentment in court and the
right to a bail hearing. The motion judge found that "[t]he
defendant stated that he understood all of the rights that were
provided to him by Cordiero. The defendant further stated that
he wished to waive his Fifth Amendment rights and speak with
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Cordiero." Thereafter the defendant signed the written form
containing the rights that had been read to him. His signature
appears under the heading "WAIVER OF MIRANDA WARNINGS."
The interview lasted thirty-one minutes. The motion judge
found that Cordiero was pleasant and courteous "at all times."
The judge also found that Cordiero engaged in no conduct such as
intimidation, trickery, or promises of leniency. At one point
Cordiero asked whether the defendant would consent to a buccal
swab; the defendant stated that he would need to speak to his
lawyer about whether to submit to the swab, but after Cordiero
left the room the defendant almost immediately called Cordiero
back in and consented.3
The defendant was indicted in March of 2013 on charges of,
among other things, rape of a child with force, aggravated
assault and battery by means of a dangerous weapon, assault with
intent to rape, and violation of an abuse prevention order. The
defendant moved to suppress the statements made during the
videotaped interview, arguing in particular that the Miranda
warnings he was given were defective. The motion judge held an
evidentiary hearing and thereafter allowed the motion. Relevant
3 Cordiero also testified that he had previously encountered
the defendant in connection with an unrelated matter, and that
on that prior occasion the defendant declined to speak with the
police, "instead choosing to speak to his attorney."
5
here, the judge canvassed the Federal case law, and concluded
that Miranda required that a suspect be "explicitly warned" that
he had the right to counsel "during questioning," and that the
warning at issue did not provide such an explicit warning. The
judge also opined that such a result was consistent with the
case law under the Massachusetts Declaration of Rights.
Discussion. The question is whether the warnings given to
the defendant orally and in writing were fatally defective under
Miranda. The Miranda opinion summarizes the warnings to be
given as follows:
"He must be warned prior to any questioning that he has the
right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the
presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any
questioning if he so desires."
Miranda v. Arizona, 384 U.S. 436, 479 (1966).
The motion judge's decision concludes that the warnings
here "did not convey the right to the presence of an attorney
during questioning." It is not entirely clear, however, what
portion of the warnings the judge considered defective. At one
point the decision seems to focus on the statement: "[i]f you
cannot afford an attorney, one will be appointed to you by the
Commonwealth at no expense and prior to any questioning." The
implication is that the judge considered this warning defective
because the right to a lawyer "prior to" any questioning does
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not explicitly include "during."4 In this court, however, the
defendant emphasizes a different portion of the warnings. He
argues that the defect arises because he was not given what is
known as Miranda's third warning; that warning is "that he has
the right to the presence of an attorney." The third warning
given to the defendant here was "you have the right to an
attorney." The difference the defendant focuses on is the
omission of the three words -- "the presence of." The
contention is that being told "you have the right to an
attorney," and that if you cannot afford an attorney, one will
be appointed "prior to any questioning," is not sufficient to
advise of the right to an attorney during questioning.
Contrary to defendant's argument, however, the United
States Supreme Court has made clear that Miranda does not
require that its warnings be given in "precise formulation."
California v. Prysock, 453 U.S. 355, 359 (1981). Indeed, the
Supreme Court has three times addressed contentions that a
particular set of Miranda warnings was inadequate, and each time
it has held that warnings that varied in some way from Miranda's
formulation were nevertheless adequate. In Prysock, for
example, the California Court of Appeals had held that the
4 Note that this portion of the defendant's warning was
nearly identical to the language in the Miranda opinion.
7
warning "you have the right to have a lawyer appointed to
represent you at no cost to yourself" was defective because it
failed to advise of the right to appointed counsel "before
further questioning." The Court reversed. It rejected the
notion that a "talismanic incantation" was required, emphasizing
that Miranda itself contemplated that "equivalent" warnings
would suffice.5 Id. at 359-360.
The Court next addressed the adequacy of particular
warnings in Duckworth, 492 U.S. at 198. Once again, the
contention was that the warnings given in Duckworth about the
right to appointed counsel did not convey that the suspect had
that right prior to being questioned, because although the
warnings stated "[y]ou have a right to talk to a lawyer for
advice before we ask you any questions," the warnings later
stated that "[w]e have no way of giving you a lawyer, but one
will be appointed for you, if you wish, if and when you go to
court" (emphasis omitted). Id. The argument was that these
warnings, taken together, implied that "only those accused who
can afford an attorney have a right to have one present before
5 In Prysock, the Court relied on other portions of the
warnings given in that case. Those other portions were more
detailed than the language of Miranda, and advised of "the right
to talk to a lawyer before you are questioned, have him present
with you while you are questioned, and all during the
questioning." 453 U.S. at 358.
8
answering any questions." Id. at 203. The Court again found
the warnings sufficient. It emphasized that courts "need not
examine Miranda warnings as if construing a will or defining the
terms of easement." Id. Viewed "in their totality," the
warnings in Duckworth satisfied Miranda, where one of the
warnings described the right to counsel before being questioned,
and another stated the suspect's right to stop answering "until
[he] talk[ed] to a lawyer." Id. at 205, quoting Eagan v.
Duckworth, 843 F.2d 1554, 1555-1556 (1988).
Finally, in Florida v. Powell, 559 U.S. 50 (2010), the
Court addressed the warning "[y]ou have the right to talk to a
lawyer before answering any of our questions," coupled with the
statement "[y]ou have the right to use any of these rights any
time you want during this interview." Id. at 54. As in this
case, the warnings in Powell were challenged because they did
not explicitly state that the suspect's right to consult with
counsel continued during questioning. See id. Once again, the
Court rejected the contention that the warnings were fatally
defective: "Although the warnings were not the clearest
possible formulation of Miranda's right-to-counsel advisement,
they were sufficiently comprehensive and comprehensible when
given a commonsense reading." Id. at 63.
Prysock, Duckworth, and Powell support the conclusion that
the warnings given here were adequate to satisfy Miranda. Most
9
critically, those cases warn against the kind of overly
technical review that the defendant employs here. Many
different formulations of the warnings have been found adequate,
as long as they convey the "equivalent" of Miranda's warnings.
No doubt, one could parse the warnings given in Prysock,
Duckworth, and Powell and argue that the warnings in those cases
contained more specific language regarding the right to counsel
than the warning given in this case. But to do so would miss
the most important teaching of those cases, which is that courts
should focus on the totality of the warnings conveyed, rather
than their precise form. That teaching can be derived from
Miranda itself. It is true that the Miranda opinion emphasizes
the importance of the ability to have a lawyer present "during
any questioning." Miranda, 384 U.S. at 470. But when it came
time to summarize what a suspect needed to be told, the Miranda
opinion did not formulate the warning in terms of a right to
counsel "during questioning"; rather, Miranda used the language,
the "right to the presence of an attorney," without any temporal
component. Id. at 479. No doubt, the Court saw the two
formulations as equivalent. Thus, Miranda itself evidences no
talismanic adherence to the "during questioning" formulation.
Applying these principles, we conclude that the warnings
given here, in their totality, adequately conveyed the Miranda
warnings, including the ability to have a lawyer present during
10
questioning. First, the warning stated "you have the right to
an attorney." That warning is unequivocal, and unqualified.
Read literally, it states a right to a lawyer, and therefore a
right to legal advice, at any time -- before, during, and after
any questioning. True, it does not include the three words from
Miranda -- "the presence of." But one might reasonably question
how much those words add to the unequivocal, "you have the right
to an attorney."6 And this is particularly so, where other
portions of the warnings contain additional advice regarding the
right to counsel.
In this case, we need not rest our conclusion solely on the
warning, "you have the right to an attorney." Here the
defendant was also told of the right to have appointed counsel
"prior to any questioning." That statement reasonably confirmed
to the defendant that his right to an attorney, previously
stated, included both the right to the presence of counsel, and
the right to consult with counsel about any questioning in
advance. Such is the import of the warnings themselves: the
suspect has a right to a lawyer; that right obtains prior to any
6 Indeed, were those three words not specifically included in
the Miranda opinion one could envision a defendant arguing that a
warning containing "the presence of" was itself defective, and
claiming that advising of the right to the "presence" of an
attorney did not adequately convey the right to consult with the
attorney.
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questioning. The warnings did not also need to say: "your
right to a lawyer includes the right to consult with a lawyer
before, during, and after questioning and to have the lawyer
physically present at all times." Miranda did not require a
parsing out of all subspecies of the right to counsel.
Moreover, the Supreme Court in Powell has already rejected the
argument that advice of a right to counsel "prior to"
questioning is defective for not stating "during."
In sum, viewed in their totality we believe the warnings
adequately advised the defendant of his right to an attorney,
including his right to consult with counsel and to have him or
her present before, during and after questioning. In so holding
we note, as the Supreme Court did in Powell, that we are not
sanctioning a retreat from Miranda; rather we find the warning
adequate "because it communicated just what Miranda prescribed."
Powell, 559 U.S. at 62 n.5. While not the "clearest possible"
12
formulation, it conveyed the equivalent of the warnings
required.7,8 Id. at 63.
We acknowledge that, in Commonwealth v. Miranda, 37 Mass.
App. Ct. 939 (1994), we concluded that a Miranda warning was
inadequate where the defendant was never "informed that he had
the right to the presence of an attorney, either retained or
appointed, during any interrogation." Id. at 940. The warning
recited in Commonwealth v. Miranda differed materially from the
warning at issue here, because although there the defendant was
advised of his "right to an attorney," he was not also advised
(as the defendant was here) of his right to appointed counsel
"prior to any questioning." Moreover, we reached our conclusion
in Commonwealth v. Miranda without examining whether, despite
the missing language, the warnings as a whole reasonably
conveyed to the defendant the protections to which he was
7 There are several United States Courts of Appeals
decisions that address warnings similar but not identical to
those at issue here, and that arguably reach conflicting
results. See United States v. Frankston, 83 F.3d 79 (4th Cir.
1996) (no Miranda violation); United States v. Caldwell, 954
F.2d 496 (8th Cir. 1992) (no Miranda violation); United States
v. Noti, 731 F.2d 610 (9th Cir. 1984) (finding Miranda
violation); Windsor v. United States, 389 F.2d 530 (5th Cir.
1968) (finding violation). These cases do not point to a
particular result in this case. They are not directly on point,
and predate at least the Powell decision.
8 We note, approvingly, that we were advised at oral
argument that since the events at issue the Fall River police
department has revised the form at issue, so that it now
conforms to the language of the warnings in Miranda.
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entitled. Subsequent to our decision in Miranda, the Supreme
Court decided Powell, which made clear that a deficiency in the
language of the warnings is not necessarily dispositive, but
that the reasonable meaning of the warnings as a whole must be
considered. See 559 U.S. at 63. We have taken that approach
here.
The Supreme Judicial Court has not held that more precision
is required under the Massachusetts Declaration of Rights than
is required by the Federal Constitution, and we decline the
defendant's invitation to extend beyond the Federal requirements
here. See Commonwealth v. The Ngoc Tran, 471 Mass. 179, 185
(2015) (citing and following standards from Powell, Duckworth
and Prysock, and confirming that Miranda warnings need not be
given word for word). The Miranda warnings are directed to
preserving the right of an accused against compelled self-
incrimination. In terms of the formulations of those warnings,
the Federal case law has established the parameters, and has
shown how to enforce their use. Certainly the facts of this
case evidence none of the concerns of overbearing custodial
interrogation that led to Miranda's requirements. The
statements at issue should not have been suppressed.
Order allowing motion to
suppress reversed.