State v. Josue Morillo

December 16, 2022
Supreme Court
No. 2020-4-C.A.
(K1/16-369C)
Concurrence begins on
page 35
State :
v. :
Josue Morillo. :
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2020-4-C.A.
(K1/16-369C)
Concurrence begins on
page 35
State :
v. :
Josue Morillo. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Goldberg, for the Court. In the early morning hours of March 26,
2016, Michael Rogers and David Rogers were stabbed in their home in Warwick,
Rhode Island, as they slept in their beds. Michael died.1 The state appeals from a
Superior Court order that granted a motion to suppress two statements given by the
defendant, Josue Morillo (defendant or Morillo), to Warwick police detectives in
the course of their investigation. The state argues that the trial justice erred in
suppressing statements based on his findings that (1) the defendant was in custody
when he voluntarily accompanied the detectives in an unmarked vehicle to search
1
We refer to Michael Rogers and David Rogers by their first names for the sake of
clarity because they share the same surname. We intend no disrespect by doing so.
-1-
for evidence; (2) the defendant did not knowingly, intelligently, and voluntarily
waive his Miranda rights; and (3) the defendant’s video-recorded statement, made
after his arrest and additional Miranda warnings, was inadmissible in accordance
with Missouri v. Seibert, 542 U.S. 600 (2004).
For the reasons set forth in this opinion, we vacate the order of the Superior
Court and remand this case for limited factual determination by the trial justice
consistent with this decision.
Facts and Travel
On the morning of March 26, 2016, Detective Gilda Fortier of the Warwick
Police Department was called into work and learned that two people were stabbed
at 149 Haswill Street, one of whom suffered life-threatening injuries. The sole
suspect at the time—Jared Rogers (Rogers), a family member—was taken into
custody that afternoon.
On March 29, 2016, Warwick detectives learned of three potential witnesses,
Andrew Soben (Soben), John Ingram (Ingram), and defendant. Detective Fortier
and Detective Thomas DiGregorio2 were assigned to locate and interview Morillo.
The detectives stopped at defendant’s residence and, after speaking with his sister,
were able to connect with Morillo by telephone. The detectives informed Morillo
that, in the course of their investigation, he was identified as a potential witness to
2
Thomas DiGregorio had been promoted to Detective Sergeant by the time of the
suppression hearing.
-2-
the incident at 149 Haswill Street. Morillo was asked to come to the police
headquarters to speak with them. Morillo agreed.
After waiting a half-hour or so, Det. Fortier called Morillo again to check on
his expected arrival; however, Morillo had already been located at Ingram’s house
in Cranston by Sergeant Falcofsky, who was tasked with locating Ingram. Morillo
and Soben followed Sgt. Falcofsky to police headquarters in Soben’s car, arriving
at approximately 1:35 p.m. Detectives Fortier and DiGregorio conducted a series
of interviews with Morillo throughout the afternoon.3 The facts as relayed by
Morillo changed in each iteration, culminating in a full confession of his
participation in this homicide.
The First Statement
Detective Fortier testified that the first interview commenced around 2
p.m.—approximately twenty-five minutes after Morillo arrived at the station.
Morillo was taken into an interview room, where he was asked how he was
acquainted with Rogers and what he knew about the incident that took place on
March 26. During this initial interview, the detectives learned that Morillo was
with Soben and Ingram in Soben’s car on the night of the stabbing, when they
received a telephone call from Jake Cabral (Cabral). Cabral asked them to pick
3
We recount the evidence concerning four statements from the entire record,
including the transcripts from two recorded interviews that took place at the
Warwick Police Headquarters, which were played during the evidentiary hearing
and admitted as full exhibits.
-3-
him up in North Providence, pick Rogers up from Kent Hospital, and give Rogers
a ride home to 149 Haswill Street. According to defendant, upon arriving at
Haswill Street, Soben boosted Rogers through his bedroom window and returned
to the car, at which point Soben, with Morillo, Ingram, and Cabral, drove away—
only to receive a telephone call moments later from Rogers asking them to pick
him up from the parking lot at Warwick Veterans Memorial High School. Morillo
indicated that they complied, and the group then headed towards North Providence
to drop off Cabral and Rogers. Morillo told the detectives that, while driving to
North Providence, Rogers may have thrown some knives out of the vehicle’s
window.
Detective Fortier testified that upon learning that knives may have been
discarded and realizing that Morillo appeared to know more about the incident than
they originally thought, the detectives explained that they were going to conduct a
second interview with an audio recording device.
The Second Statement
Approximately one hour after the first interview began, at 2:58 p.m., Det.
DiGregorio commenced an audio-recorded interview by asking Morillo whether he
(1) came to the police station voluntarily; (2) was giving a statement “freely of
[his] own accord”; and (3) realized that he was free to leave at any time. Morillo
answered each question in the affirmative. Detective DiGregorio also stated to
-4-
Morillo: “You realize * * * you’re not gonna be charged with this as long as you
provide * * * correct, accurate information.” Morillo recounted many of the same
details from the first interview; however, he added that at Rogers’s request, Soben
went into the house with Rogers at 149 Haswill Street to pick a lock to an inside
door and came out after six to eight minutes, followed by a “worked-up” Rogers
minutes later. In this second iteration, the group left Haswill Street together and
headed towards North Providence.
Morillo also disclosed that, approximately a quarter-mile to a half-mile
down Airport Connector Road from Post Road, he saw Rogers pull two kitchen
knives out of his sweatshirt pocket and throw the knives toward the side of the
roadway. Morillo described the two knives; one was only the handle of a knife,
with a “wooden tip” and “two stainless steel dots on it[,]” and “the blade was
completely off”; the other was a smaller black kitchen knife, with the blade still
intact. Morillo also believed that Rogers threw a cell phone out of the window of
the car on Interstate 95 in the proximity of the Providence Place Mall. When asked
by Det. DiGregorio whether Morillo would be willing to go with the detectives to
show them where the knives might be located, Morillo agreed. The recorded
interview concluded at 3:32 p.m.
-5-
The Third Statement
Immediately after the second interview ended, Morillo, without handcuffs,
along with Dets. Fortier and DiGregorio and Sergeant Scott Robillard, exited
through the rear of police headquarters to an unmarked detective’s car. Morillo
opened the rear door and let himself into the vehicle. Detective Fortier sat in the
back seat next to Morillo; Det. DiGregorio sat in the front passenger’s seat; and,
Sgt. Robillard drove. Morillo told the officers where to stop to search for the
knives; he exited the unlocked door, and walked alongside the road, searching for
the knives. Unsuccessful, the group returned to the vehicle and headed toward the
Providence Place Mall in another futile attempt to locate Rogers’s cell phone in or
on the side of the interstate.
Detective Fortier testified that Morillo began to appear nervous and unsure
of himself and that the detectives began to notice inconsistencies in his story, at
which point Det. DiGregorio advised Morillo of his rights as required by Miranda
v. Arizona, 384 U.S. 436 (1966).4 Detective Fortier documented the time as 5:10
4
Detective Fortier described the circumstances giving rise to the reading of the
Miranda warnings as follows:
“A. * * * We took the state office exit going into
downtown Providence. And it was at that point, as he’s
telling us or recanting the story, there was some
inconsistencies to his story.
“* * *
-6-
p.m., as reflected in her police narrative. According to Det. DiGregorio’s
testimony, because of the inconsistencies in Morillo’s statements and the inability
to corroborate his story about knives or a cell phone, at 5:10 p.m., while the vehicle
was in Providence, he decided to advise Morillo of his rights.5 Detective
“So, * * * he was now coming across as unsure, not as
positive as he was in the first place. His demeanor was a
little bit more nervous.
“So, at that point, based on not finding any evidence,
his inconsistency, his demeanor, it was decided upon
[Det.] DiGregorio to read him his Miranda rights at that
point.
“Q. Okay. And did he read those rights verbally?
“A. He did.
“Q. And in their entirety?
“A. Yes.”
5
Detective DiGregorio testified that, when the vehicle was “right near the
Providence Place Mall[,]” he advised Morillo of his rights. The detective testified
as follows:
“A. And based on -- he had some inconsistent statements
that he made to us during the first and the second
interview which were on audiotape. And then I combined
that with the fact that we weren’t able to corroborate
anything that he was saying in terms of locating
evidence.
“So at that point, out of an abundance of caution, what
I did was I advised Mr. Morillo of his rights.
“Q. Okay. And those were his Miranda rights?
-7-
DiGregorio turned around in the vehicle and advised Morillo of his Miranda rights
in their entirety. According to the testimony of both Det. Fortier and Det.
DiGregorio, when asked if he understood those rights, Morillo answered, “Yes.”
The defendant, on the other hand, testified that he had no memory that Det.
DiGregorio was present in the police vehicle and no memory of having been
advised of his rights.
Detective Fortier testified that the detectives then expressed their belief to
Morillo that he was being untruthful and that “he was coming across as [if] he was
obstructing.” Detective Fortier further testified that, until the point when Morillo
was advised of his Miranda rights, she would have permitted him to leave if he
wished to do so, because he was thought to be a witness.
On the way back to headquarters the detectives learned that Morillo might
have thrown a knife from Soben’s car onto Main Avenue in Warwick after the
stabbing. Thus, the group proceeded to Main Avenue, where a patrol vehicle was
“A. Yes.
“Q. And did you read them to him in their entirety?
“A. I did.
“Q. Okay. And did you ask him whether or not he
understood those rights?
“A. I did. It was 5:10 [p].[m]. We were in the car. I
advised him of his rights verbally. And I asked him if he
understood. And he stated that he did.”
-8-
already on the scene. According to Det. DiGregorio, the drive from Providence to
Main Avenue took approximately ten to fifteen minutes. Sergeant Robillard and
Det. DiGregorio exited the vehicle to look for a knife, and Det. Fortier and Morillo
remained in the back seat. Detective Fortier testified that while in the back seat
with Morillo she stated, “Everything’s going to be okay. When we get back into
the station, we will have this formal interview. And everything’s going to be all
right. You understand we are talking to all of your other friends as well. So we
will get to the story.” According to Det. Fortier, Morillo then stated: “I know” and
“I stabbed David.”6 At this point, Morillo was arrested, placed in the patrol
vehicle, and transported back to police headquarters, arriving at approximately
6:00 p.m.
The Fourth Statement
At around 6:30 p.m., approximately thirty minutes after arriving at police
headquarters, the detectives commenced an audio-video recorded interview with
Morillo. Detective DiGregorio began by asking Morillo (1) whether he came to
the station earlier that afternoon of his own free will; (2) when he arrived at the
station that day, whether he understood he was free to leave; and (3) if he came
6
It was Morillo’s testimony that, on the way to Main Avenue from Providence,
Det. Fortier informed Morillo of what she believed to have occurred, including that
“[the detectives] kn[e]w that [Morillo] stabbed David Rogers”; and, after they
arrived at Main Avenue, in response to a second assertion from Det. Fortier to
Morillo that “[he] stabbed David Rogers[,]” Morillo stated “I stabbed him.” The
trial justice did not address this evidentiary conflict.
-9-
voluntarily. Morillo answered each question with an affirmative reply. This was
the second time that Morillo acknowledged knowing that he was free to leave.
Significantly, Det. DiGregorio asked Morillo if he remembered being advised of
his Miranda rights at 5:10 p.m., when the detectives began to think that Morillo
was being untruthful and had more involvement than originally suspected; Morillo
answered, “Yeah.” When Morillo was asked if he told the detectives that he
understood those rights, Morillo responded, “Yes, Sir.” The defendant asked no
questions at that time. Detective DiGregorio then asked whether, after being
advised of his rights, Morillo told the officers that he had discarded a knife on
Main Avenue; Morillo stated, “Yeah.”
In response to Det. DiGregorio’s next inquiries, Morillo stated that his
highest level of education was eleventh grade when he dropped out, but that he
participated in online schooling, and that he could read and write in English. Then,
Det. DiGregorio asked, “[s]o when I asked you did you understand your rights, you
can intelligently say yes”; Morillo answered, “Yes.” At this point, Morillo had
verified that he understood the Miranda warnings on three occasions. The
detectives then gave Morillo an “Advisement of Rights” form and asked him to
read the first two rights in the list aloud.7 Morillo did so without difficulty.
7
The Advisement of Rights form listed the following rights:
“You have the right to remain silent.
- 10 -
Detective DiGregorio explained that he was going to have Morillo read the
remainder of the rights silently and, “[i]f [he] underst[oo]d them all, [to] initial
next to each one[.]” Before Morillo continued to review the form, Det. DiGregorio
stated: “If you have any questions, ask me.” As he read the form, the only question
Morillo asked was “what am I being charged with?”; to which Det. DiGregorio
responded, “[r]ight now, it looks like you might be charged with assault[.]”
Morillo read and initialed each of the remaining rights and checked off “yes”
to the question: “Do you understand these rights explained to you?” Before
Morillo signed the form, Det. DiGregorio stated: “If you understand your rights
and you want to talk to us, then I’ll go forward and we can talk.” Morillo signed
the form. At the suppression hearing, Morillo testified that he understood his
rights, but that “I only understood the words. I didn’t really understand what they
really meant.” When asked by the prosecutor why he did not tell the detectives
“Anything you say can and will be used against you in a
court of law.
“You have the right to talk to a lawyer and have him
present with you while you are being questioned.
“If you cannot afford to hire a lawyer, one will be
appointed to represent you before any questioning, if you
wish.
“You have the right to use a telephone to contact a
lawyer at any time.
“You can decide at any time to exercise these rights and
not answer any questions or make any statements.”
- 11 -
that he did not understand the rights, Morillo stated, “I understood what was going
on. I just didn’t understand the severity of the whole scenario.”
Because of the inconsistencies in Morillo’s story concerning his involvement
in the events of March 26, 2016, which evolved from his remaining in the car, to
his active participation in these offenses, the detectives asked Morillo for a
“detailed statement” of what took place from “beginning to end.”
In the final rendition, Morillo explained that, after picking Rogers up from
the hospital and bringing him to 149 Haswill Street, Rogers was expecting to
encounter hostility from persons inside the house; so Soben, Ingram, and Morillo
went inside with Rogers, while Cabral stayed in the car. Prior to entering the
house, Rogers asked Morillo if he had a gun—in Morillo’s opinion, this question
was based on his recent gun charge. Soben boosted Rogers through the window,
and Rogers opened the back door for Soben, Ingram, and Morillo.
According to Morillo, the house was quiet; everyone was sleeping, including
Rogers’s mother, sister, brother, and nephew. Rogers handed everyone a knife and
gave Morillo two knives. Soben went upstairs with Rogers to pick the lock to
Michael’s bedroom door; then, Rogers came downstairs alone and led Morillo and
Ingram to Rogers’s brother David’s bedroom in the basement, where he was
sleeping. Morillo admitted to stabbing David in the stomach, but explained that
the blade snapped. Morillo and Ingram ran upstairs and out the back door, and
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Rogers remained in the basement struggling with his brother. After Ingram and
Morillo entered the car, followed by Rogers and then Soben, Cabral drove off. As
they approached the intersection of West Shore Road and Main Avenue, three
police vehicles with lights and sirens were heading in the direction of Haswill
Street, prompting Morillo to discard two knives that were in his possession—
neither of which he used to stab David.8 Morillo recanted his earlier statement that
Rogers had thrown a broken knife out the window on Airport Connector Road and
now admitted that he discarded the broken knife as he exited the basement.
The grand jury returned an indictment charging defendant with murder,
conspiracy to commit murder, assault with intent to commit murder, and
conspiracy to commit assault with intent to commit murder. The defendant moved
to suppress all statements he made to the Warwick detectives on the grounds that
“his statements to the police were not freely and voluntarily made after waiving his
Miranda rights[.]”
A four-day suppression hearing ensued, and the trial justice denied the
motion with respect to the first two statements and granted the motion with respect
to the third and fourth statements. The state filed a timely appeal. Additional facts
will be set forth as necessary to the issues before us.
8
According to Morillo, one of the knives he discarded out the car window was a
knife he kept in “the side console [of the car] just in case.”
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Standard of Review
“When reviewing a trial justice’s decision granting or denying a motion to
suppress, we defer to the factual findings of the trial justice[.]” State v. Storey, 8
A.3d 454, 459-60 (R.I. 2010) (quoting State v. Flores, 996 A.2d 156, 160 (R.I.
2010)). This Court “will not overturn a trial justice’s factual findings unless they
are clearly erroneous.” State v. Gonzalez, 254 A.3d 813, 817 (R.I. 2021) (quoting
State v. Tejeda, 171 A.3d 983, 994-95 (R.I. 2017)). “A finding is clearly erroneous
when, although there is evidence to support it, the reviewing court on the basis of
the entire evidence is left with the definite and firm conviction that a mistake has
been committed.” State v. Grayhurst, 852 A.2d 491, 513 (R.I. 2004) (quoting State
v. Briggs, 756 A.2d 731, 736 (R.I. 2000)). “With respect to questions of law and
mixed questions of law and fact involving constitutional issues, however, this
Court engages in a de novo review[.]” State v. Jimenez, 33 A.3d 724, 732 (R.I.
2011) (deletion omitted) (quoting State v. Linde, 876 A.2d 1115, 1124 (R.I. 2005)).
Whether a defendant was in custody and whether a waiver of constitutional rights
was voluntary are questions that are reviewed de novo. See id.; see also State v.
Dumas, 750 A.2d 420, 423 (R.I. 2000).
Analysis
The United States Constitution guarantees that: “No person * * * shall be
compelled in any criminal case to be a witness against himself[.]” U.S. Const.,
- 14 -
Amend. V. As such, procedural safeguards designed to protect one’s constitutional
right against self-incrimination have evolved since the landmark holding in
Miranda. See State v. Perez, 422 A.2d 913, 914-15 (R.I. 1980). For instance, in
accordance with Miranda, “prior to custodial interrogation a suspect must receive
explicit warnings concerning his constitutional privilege against self-incrimination
and his right to counsel.” Grayhurst, 852 A.2d at 513 (quoting State v. Amado, 424
A.2d 1057, 1061 (R.I. 1981)). In addition, “before a confession can be used at
trial, the state must establish, by clear and convincing evidence, that the defendant
knowingly and intelligently waived his or her right against self-incrimination and
that the statement was voluntary.” State v. Monteiro, 924 A.2d 784, 790 (R.I.
2007).
In a bench decision, the trial justice found that (1) Morillo was in custody at
the point the officers “placed” him in the unmarked detective’s vehicle; (2) Morillo
“did not knowingly, intelligently, and voluntarily waive his rights” that were given
in the detective’s vehicle; and (3) viewing the fourth statement “in the context of
[Morillo’s third] statement[,]” the Miranda rights preceding the fourth statement
were ineffective in apprising Morillo of his constitutional rights in accordance with
Seibert. The state assigns error to each of these findings, which we address
seriatim.
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Custody
It is well established that the warnings under Miranda and the application of
the exclusionary rule to statements made in violation thereof arise only when a
suspect is in custody and undergoing police interrogation. See, e.g., State v.
Edwards, 810 A.2d 226, 239 (R.I. 2002). In the absence of a formal arrest,
however, a person is in custody “if, in view of all the circumstances, a reasonable
person would believe that he or she was not free to leave.” Jimenez, 33 A.3d at 732(quoting State v. Vieira, 913 A.2d 1015, 1020 (R.I. 2007)). In determining
whether a person is in custody, “a court may consider * * *: (1) the extent to which
the person’s freedom is curtailed; (2) the degree of force employed by the police;
(3) the belief of a reasonable, innocent person in identical circumstances; and (4)
whether the person had the option of not accompanying the police.” Briggs, 756
A.2d at 737 (quoting State v. Diaz, 654 A.2d 1195, 1204 (R.I. 1995)).
Although the trial justice found that Morillo was in police custody when he
was “placed” in the detective’s vehicle, he also found, despite defendant’s failure
of memory on this point, that defendant was advised of his Miranda rights while
the vehicle was in Providence and before he admitted that he stabbed David.
Detective Fortier testified that until defendant was advised of his rights, he was
free to leave.
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The state argues that the custody of defendant commenced at the point when
Det. DiGregorio advised him of his Miranda rights in the police vehicle.9 It is
undisputed, as found by the trial justice, that at the time he admitted to stabbing
David, an admission that triggered his arrest, defendant had been advised of his
rights by Det. DiGregorio. Because both custodial statements that were suppressed
by the trial justice were obtained after the rights as required by Miranda were
administered, we deem it unnecessary to address the issue of custody or when
custody commenced.
We emphasize however, that we take no position on the correctness of the
trial justice’s findings that defendant was in custody at the time he voluntarily
accompanied the detectives in the police vehicle, or the factors that were relied
upon by the trial justice to reach this conclusion, because it is simply irrelevant to
our analysis.
The trial justice did find, however, that the third statement, “I stabbed
David” was not a knowing, intelligent, and voluntary waiver of defendant’s
privilege against self-incrimination. This finding served as the basis for what we
consider to be the erroneous decision by the trial justice to suppress the fourth
statement, based on Seibert, as discussed infra.
9
We note that in response to the Court’s inquiry and to his credit, defense counsel
agreed that a custodial interrogation commenced when defendant was advised of
his rights.
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We thus turn to the question of whether the state met its burden of
establishing that the third statement was a knowing, intelligent, and voluntary
waiver of defendant’s constitutional rights.
“I stabbed David.”
After Morillo was advised of his Miranda rights in the vehicle, the
detectives expressed their belief that he was untruthful and that he was obstructing
the investigation. The trial justice set forth several reasons for his conclusion that
defendant’s third statement was not voluntary, but coerced, such that defendant did
not make a knowing and intelligent waiver of the constitutional privilege against
self-incrimination.
We note there is some overlap in the trial justice’s findings concerning the
voluntariness of the third statement. The trial justice focused on what he
characterized as a “forbidden” promise by Det. DiGregorio that defendant would
not “be charged with this as long as [he] provide[d] * * * correct, accurate
information.” Although the trial justice recognized that an investigating officer’s
admonishment to a suspect to tell the truth and a suggestion that cooperation may
be helpful is allowable under the law and does not render a subsequent confession
involuntary, he declared that “a statement that rises to a promise or an unlawful
inducement that could bend an individual’s will” can render a confession
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involuntary. (Emphasis added.) He failed to specifically find that the “forbidden”
promise did in fact overcome Morillo’s will.
The trial justice also drew an inference that the statement was not voluntary,
based on the duration of the interrogation, defendant’s age and eleventh-grade
education, and the timing of the third statement, which he characterized as “almost
immediately” after the Miranda warnings which, he declared “demonstrate[d] that
the defendant did not truly understand or comprehend the rights that were being
provided to him,” such that he could not reasonably believe he had a right to
remain silent. Because this latter finding is more closely connected with the
question of whether defendant’s admission was knowing, intelligent, and
voluntary—rather than compelled—we first address the so-called promise made by
Det. DiGregorio, which the trial justice relied upon in finding that the statement
was coerced.
A
“The Promise”
The state bears the burden of establishing, by clear and convincing evidence,
that a “defendant knowingly and intelligently waived his or her right against
self-incrimination and that the statement was voluntary.” Monteiro, 924 A.2d at
790. “This inquiry ‘requires an analysis of the totality of the circumstances
- 19 -
surrounding the interrogation.’” State v. Bojang, 83 A.3d 526, 533 (R.I. 2014)
(quoting Jimenez, 33 A.3d at 734).
“A voluntary statement is a product of free will and rational choice, whereas
a statement is deemed involuntary when the defendant’s will [i]s overcome by
coercion, threats, violence, or undue influence.” Bojang, 83 A.3d at 533 (quoting
Monteiro, 924 A.2d at 790). “A determination of voluntariness must be made on
the basis of all facts and circumstances, including the behavior of the defendant
and the behavior of the interrogators, and the ultimate test is whether the
defendant’s statements were the product of his free and rational choice * * * or the
result of coercion that had overcome the defendant’s will at the time he confessed.”
Briggs, 756 A.2d at 738 (quoting State v. Griffith, 612 A.2d 21, 25 (R.I. 1992)).
The law concerning the issue of coercion, threats, or undue influence is well
settled; for a statement to be suppressed, the defendant’s free will and rational
choice must have been overborne.
It is equally clear that “cases in which a defendant can make a colorable
argument that a self-incriminating statement was ‘compelled’ despite the fact that
the law enforcement authorities adhered to the dictates of Miranda are rare.”
Dickerson v. United States, 530 U.S. 428, 444 (2000) (quoting Berkemer v.
McCarty, 468 U.S. 420, 433 n.20 (1984)). A finding of compulsion should be
based on a carefully scrutinized record that considers the evidence in the record
- 20 -
and the totality of the circumstances. Because the trial justice concluded that the
officers “adhered to the dictates of Miranda,” see id., we look for objective facts,
as set forth in the record, demonstrating that the statement “I stabbed David” was
coerced or compelled, in violation of the Fifth and Fourteenth Amendments. The
record before us is devoid of any evidence that Det. DiGregorio’s statement
overcame defendant’s free will and rational choice, nor did the trial justice find
otherwise.
In order for an officer’s direct or implied promise to have any bearing on
whether an accused’s post-Miranda statement was involuntary, the confession
must have been obtained as a result of that promise—namely, there must be a
causal nexus between the promise made and the involuntary statement. Cf. State v.
Leuthavone, 640 A.2d 515, 518-19 (R.I. 1994) (considering, for purpose of a
finding of voluntariness, that the defendant presented no evidence that the officer
“manipulated him in any way”); see Griffith, 612 A.2d at 25 (considering that the
police statements “did not contribute to make defendant’s confession coerced”);
see also State v. Pacheco, 481 A.2d 1009, 1025-26 (R.I. 1984) (discussing
Miranda’s effect on confessions induced by promises and considering that “a
promise, standing alone, was insufficient to render the confession involuntary”).
- 21 -
In support of his conclusion that the statement, “I stabbed David” was
involuntarily compelled, the trial justice looked to the statement of the officer and
not its effect, if any, on the accused. He stated:
“[T]his [c]ourt is troubled by the promise Detective * * *
DiGregorio made to the defendant earlier in the day
* * *: ‘You’re not going to [be] charged with this as long
as you provide correct and accurate information.’ * * *
[D]irect promises are forbidden and render a subsequent
statement involuntary.” (Emphasis added.)
We note at the outset that defendant offered no testimony that Det.
DiGregorio’s statement pressured or compelled him to confess. The statement was
made at the start of the audio-recorded second statement, in advance of the vehicle
trip and hours before defendant admitted that he stabbed David. Despite being
“troubled” by Det. DiGregorio’s so-called “promise,” the trial justice made no
findings that this statement overcame Morillo’s will, caused Morillo to confess, or
influenced him in any way. There simply is no evidence in the record before us
that Det. DiGregorio’s statement manipulated Morillo’s decision to admit to
stabbing David. The defendant offered no evidence to support this finding.
Indeed, Morillo testified that the officers “were insinuating that the truth [would]
- 22 -
be my best option” while acknowledging that he was not truthful and that he lied to
the detectives when he disclosed that Rogers tossed the knives from the vehicle.10
The trial justice’s conclusion that “direct promises are forbidden and render
a subsequent statement involuntary” is incorrect. The trial justice erroneously
cited this Court’s holdings in State v. Marini, 638 A.2d 507 (R.I. 1994), and State
v. Hall, 940 A.2d 645 (R.I. 2008), as “illustrative of factual situations where
promises made a statement involuntary.” The trial justice misconstrued the
holdings in these cases which served as the basis for finding that the third
statement was involuntary. In Marini, and again in Hall, this Court held that
statements made after assurances or promises to the accused were nonetheless
voluntary and admissible.
In Marini, this Court determined that, based upon the totality of the
circumstances, officers’ promises of “help” to an accused in exchange for a
confession did not cause the accused to make a statement against his will. Marini,
638 A.2d at 513. “It is well-established that admonitions by the police to tell the
truth do not render a subsequent confession involuntary.” Id. We also recognized
that law enforcement officers may tell an accused that his or her cooperation may
be helpful. Id. This Court reaffirmed these principles in Hall, where an officer
10
The defendant also admitted that he lied to Det. Fortier during the initial
telephone call when he told her he was at work, when in fact he was in a hotel in
Seekonk, Massachusetts, with a co-defendant.
- 23 -
advised the defendant of his rights and then stated that if he was cooperative and
truthful, the officer would advise the prosecutor and judge of the defendant’s
cooperation. Hall, 940 A.2d at 651. The defendant provided a recorded statement
that was later transcribed for the jury. Id. Before this Court, the defendant argued
that his statement was involuntary because the officer advised him that if he
cooperated and gave a true statement, he would advise the prosecutor and trial
judge. Id. at 656. We held, based on the totality of the circumstances, that the
officer’s statement encouraging truthfulness and cooperation did not constitute a
promise or unlawful inducement “that could bend a man’s will, causing him to
wrongly confess.” Id. The facts in Hall are quite similar to the case at bar. To the
extent that the trial justice’s finding that defendant’s statement was involuntary
rests upon what he characterized as a “forbidden” promise, we deem this clear
error. We turn to the issue of whether the defendant’s statement “I stabbed David”
was knowing, intelligent, and voluntary.
B
Knowing and Intelligent Waiver
In order for a waiver of one’s rights to be knowing and intelligent, this Court
has determined that:
“If a suspect has been advised of Miranda rights and
thereby comprehends that there is a right to counsel and a
right to remain silent and that any statements made may
be used against the suspect in subsequent criminal
- 24 -
proceedings, the suspect—for purposes of the
Constitution—has been made fully aware of the nature of
his or her rights and the possible consequences of
abandoning those rights. In such a case any subsequent
waiver of those rights would be found to be knowing and
intelligent.” Leuthavone, 640 A.2d at 520 (emphasis
omitted).
Importantly, even “[i]f, after being apprised of the Miranda warnings, a suspect
‘nonetheless lacks a full and complete appreciation of all [of] the consequences
flowing from a waiver, it does not defeat a showing that the information * * *
provided to him satisfied the constitutional minimum.’” Id. (emphasis added)
(brackets omitted) (quoting Patterson v. Illinois, 487 U.S. 285, 294 (1988)).
Although the trial justice found that Det. DiGregorio was present in the
detective’s vehicle and did in fact advise Morillo of the rights required by
Miranda—contrary to Morillo’s testimony that he had no memory that Det.
DiGregorio was in the vehicle or that he administered the rights—the trial justice,
nonetheless, found that defendant’s statement “I stabbed David” was not a
knowing and intelligent waiver of his rights. The trial justice found:
“[T]his [c]ourt is troubled by the manner of
administration of these rights. This [c]ourt finds that the
manner in which defendant was given his rights was
surprisingly casual.” (Emphasis added.)
The trial justice faulted Det. DiGregorio because he “told the defendant his rights
‘as a whole,’ and then asked if he understood them[]” but he “did not explain each
right individually[.]” The trial justice also faulted this procedure because “there
- 25 -
was no audio or video recording of the administration of these rights, nor was there
an attempt to immediately access the proper equipment or forms to do so.” He also
found “[t]here were no rights forms in the car, nor was there an attempt to have
them promptly brought to the scene.” The trial justice failed to cite to any
authority to support the existence of such requirements, nor are we aware of any
such mandate to that effect.
The trial justice also declared that his task was to consider these facts “in
light of defendant’s background, experience, conduct, as well as level of
education.” He went on to find that “[t]he totality of these facts and circumstances
leads this [c]ourt to believe that the defendant did not knowingly, intelligently, and
voluntarily waive his rights.” He concluded that “[n]o person with the education,
or limited education and limited experience with law enforcement, * * * who was
casually given their rights in the back of a moving police vehicle, surrounded by
three detectives, after hours of questioning, could have reasonably believed that he
had a right to silence.” (Emphasis added.)
Our review of the record discloses no testimony that defendant’s level of
education, limited experience with law enforcement, or his presence in the police
vehicle, prevented him from comprehending his rights. This finding also
overlooks the undisputed fact that he consistently stated that he did comprehend
his rights.
- 26 -
The trial justice also declared the following:
“Further, this [c]ourt finds it highly unusual that the
defendant who did not make any incriminating
statements all afternoon during continuous questioning
decided to admit his guilt * * * almost immediately after
being administered his Miranda warnings[.] * * * While
it is factually possible that this happened, the [c]ourt
finds it peculiar, and, if anything, actually is evidence
that demonstrates that the defendant did not truly
understand or comprehend the rights that were being
provided to him[.]” (Emphasis added.)
In our opinion, the trial justice did not properly perform his fact-finding
function in concluding that Morillo’s admission was not knowingly and
intelligently made. The trial justice failed to make findings of fact and conclusions
of law to support his conclusions. He stated that he was “troubled” and of the
belief that Morillo’s admission was “highly unusual” and “peculiar,” without
resolving the conflicting evidence before him and failed to make credibility
determinations that supported his conclusion that defendant did not comprehend
his rights while in the police vehicle.
Bearing in mind that there was no testimony from defendant about Miranda
warnings in the police vehicle, the trial justice’s ad hoc statements of belief,
without more, do not satisfy his role as a factfinder and are not sufficient to support
a conclusion that Morillo’s waiver of rights was not knowing or intelligent.
Moreover, the trial justice viewed Morillo’s admission of guilt, “almost
immediately after being administered his Miranda warnings * * * [as] evidence
- 27 -
that demonstrates that the defendant did not truly understand or comprehend the
rights[.]” (Emphasis added.) Simply put, the trial justice drew an inference that
defendant did not “truly understand or comprehend” his rights based on the timing
of his admission, while overlooking the clear testimony of both detectives that the
statement was not made “almost immediately” after the Miranda warnings. We
are of the opinion that this is not a reasonable inference based on the evidence and
lacks a factual foundation.
First, the trial justice overlooked the gap in time between the reading of the
Miranda rights at 5:10 p.m., in Providence, and when Morillo admitted that he
stabbed David, which was after the vehicle arrived at Main Avenue in Warwick
and after Det. DiGregorio and Sgt. Robillard embarked on yet another futile hunt
for evidence.11 There was, at a minimum, a ten- to fifteen-minute span between
the reading of the Miranda rights in Providence and the arrival in Warwick—a
calculation that does not account for Det. Fortier’s conversation with Morillo that
led to his admission. Also, in response to the trial justice’s own examination of
Det. Fortier, she unequivocally responded, “[i]t wasn’t within minutes.” There was
11
Detective DiGregorio not only testified to advising Morillo of his rights at 5:10
p.m., while still in Providence, Det. DiGregorio also stated in the fourth
audio-video recorded statement that: “* * * I read you your rights at 5:10 p.m.
when I realized that I felt that you were lying to us and that you had more
involvement than what you were saying. Do you agree with that?” Morillo
answered, “Yeah.”
- 28 -
no evidence to the contrary. The trial justice ignored this colloquy and failed to
address this testimony.
Apart from the issue of timing, the trial justice ignored the testimony from
both detectives that Morillo acknowledged that he understood his rights and that he
re-confirmed his understanding several times, including the audio-video recorded
fourth statement. The trial justice failed to set forth his reasoning as to why the
officers were not entitled to rely on defendant’s numerous assurances that he
understood his rights. The trial justice also failed to pass on the credibility of these
witnesses, including defendant, who testified that he had no memory of Det.
DiGregorio giving him Miranda warnings in the police vehicle, despite his video
recorded acknowledgment that he understood those rights.
As noted, the trial justice engaged in a lengthy colloquy with Det. Fortier, at
the conclusion of her testimony as the state’s first witness. The trial justice
expressed his opinion that defendant may have been “feeling pressure, like he was
in a jam” when he “blurts out” that he “stabbed one of the individuals in that
house.” He also expressed concern about what defendant was thinking, “in his
mind when he is being questioned by police officers.”
“[TRIAL JUSTICE]: So -- would it be fair to infer that
he may have heard the Miranda words spoken to him but
didn’t understand? Why would he have fear or be feeling
anxiety if he knew he could be 100 percent quiet, not say
another word, and have a lawyer? Why would he feel that
- 29 -
way if he understood those Miranda warnings that the
officer turned around from the front seat and read to him?
“[DET. FORTIER]: I believe that every single time he
was given information of, like, what had transpired, he’d
always say, ‘Okay. I’m going to tell you the truth.’ ‘I
want to tell you the truth.’ I think within him he wanted
to tell the truth.
“[TRIAL JUSTICE]: Okay.
“[DET. FORTIER]: And it wasn’t until the end when the
two other detectives got out of the vehicle where -- I
don’t know if he felt something heavy. But I can only
describe his demeanor and the way he looked was
something heavy was on him.
“[TRIAL JUSTICE]: Okay.
“[DET. FORTIER]: And he stated to me that he stabbed
David.
“So, at that point, I was shocked. I didn’t expect him
to tell me that. Um, I saw his demeanor change. I thought
it would be something different. But I was shocked.
“And I could have continued questioning him at that
point because his Miranda rights were given. But I opted
to stop. Because at that point I knew there would be a
preservation of evidence that would be better if it was
under recording.”
“[TRIAL JUSTICE]: Okay.” (Emphasis added.)
The trial justice failed to address this colloquy.
As discussed infra, the Miranda warnings administered in the vehicle and
the admissibility of the third statement (“I stabbed David”) have no bearing on the
use of the fourth statement by the state at trial. However, should the state elect to
- 30 -
pursue the admissibility of the third statement, appropriate factual findings are
required. In that event, the trial justice shall, based on the existing record, make
factual findings and conclusions of law concerning whether defendant made a
knowing, intelligent, and voluntary waiver of his rights in the police vehicle,
including findings concerning the timing of the third statement, the credibility of
the witnesses, including defendant, and shall set forth the evidence upon which he
relies in making these findings. However, should the state decide to proceed to
trial without resort to the third statement, no further factfinding is necessary. The
third statement shall be excluded. Neither circumstance shall have any bearing on
the admissibility of the fourth statement.
The Seibert Effect
We now turn to the fourth statement. The state argues that the trial justice’s
reliance on Seibert was erroneous because there was no evidence of a
question-first, Mirandize-later interrogation tactic by the detectives, particularly
because Morillo made his admission after Det. DiGregorio advised him of his
rights. See Seibert, 542 U.S. 600. We agree.
We note at the outset that the trial justice declared that, but for his finding
that the third statement was not a knowing, intelligent, and voluntary waiver of
defendant’s right to remain silent, the fourth statement would be admissible:
“[S]tanding alone, the defendant’s confession during this
fourth period of questioning would be admissible. The
- 31 -
audio and video recording establishes that the defendant
was presented with a rights form, guided through it by
the detectives, he voluntarily signed the form, and he
placed his initials next to each right on the form.”
The Supreme Court’s pronouncements in Seibert and Oregon v. Elstad, 470
U.S. 298 (1985), upon which the trial justice rested his decision suppressing the
fourth statement, have no bearing on the facts of this case because the custodial
statements were made after the requirements of Miranda were met. See Seibert,
542 U.S. at 604, 616; see also Elstad, 470 U.S. at 314-15. Because Elstad and
Seibert concerned the admissibility of custodial statements obtained in the absence
of Miranda warnings, their holdings are unrelated to the circumstances of this case.
See Seibert, 542 U.S. at 604, 616 (condemning a police tactic to intentionally
withhold Miranda and first produce a confession, leaving “little, if anything, of
incriminating potential left unsaid”); see also Elstad, 470 U.S. at 314-15 (assessing
the effect of an initial unwarned statement on a second statement given after
Miranda). Importantly, neither Elstad nor Seibert, nor their progeny, concerned
whether a suspect’s statement was knowing and voluntary when Miranda warnings
had been administered before the first statement.
In Seibert, the United States Supreme Court was confronted with an
established police protocol, designed to deliberately withhold Miranda warnings,
interrogate a suspect until a confession was obtained, then administer Miranda
- 32 -
warnings, and “cover the same ground a second time.” Seibert, 542 U.S. at 604.
The Supreme Court held this practice rendered the Miranda warnings ineffective
and the later statement inadmissible. See id. at 604, 617.
Elstad also concerned an incriminating statement by the accused without the
benefit of Miranda, but, in contrast to Seibert, the officer’s failure to advise the
defendant of his rights in Elstad was considered an oversight and not a police
practice. Elstad, 470 U.S. at 315-16. In Elstad, after being advised of Miranda
warnings, which were “undeniably complete[,]” the issue became “whether, in
fact, the second statement was also voluntarily made.” Id. at 314, 318. There being
“no question that[,] [in the second statement, the defendant] knowingly and
voluntarily waived his right to remain silent before he described his participation in
the [crime,]” the second statement did not violate the defendant’s Fifth
Amendment right against the use of compelled testimony. Id. at 315, 318.
In contrasting the facts of Seibert with those of Elstad, the Supreme Court
set forth several factors relevant to whether a midstream recitation of warnings
could be effective in accomplishing their objective, which was to “reasonably
convey to a suspect his rights as required by Miranda.” Seibert, 542 U.S. at 611,
615 (brackets omitted) (quoting Duckworth v. Eagan, 492 U.S. 195, 203 (1989)).
These factors include:
“the completeness and detail of the questions and
answers in the first round of interrogation, the
- 33 -
overlapping content of the two statements, the timing and
setting of the first and the second, the continuity of police
personnel, and the degree to which the interrogator’s
questions treated the second round as continuous with the
first.” Id. at 615.
In the case at bar, the first incriminating statement consisted of three words.
All further questioning ceased; defendant was arrested and transported to police
headquarters in a separate vehicle. There was a change of setting between the third
and fourth statements; and more than a thirty-minute break between the statements.
Additionally, Morillo acknowledged at the hearing that “the information in the
videotaped interview * * * is different from the other interviews[.]”
We are of the opinion that the circumstances leading to Morillo’s confession
are not governed by the holdings in Seibert or Elstad. In this case, the trial justice
found that Det. DiGregorio administered Miranda warnings to the defendant while
in the police vehicle, in Providence. Therefore, there was neither an unwarned
statement, as in Elstad, 470 U.S. at 314, nor a deliberate question-first warn-later
investigative tactic that was designed to produce a full confession, leaving “little, if
anything, of incriminating potential * * * unsaid[,]” as in Seibert, 542 U.S. at 604,
616. Thus, Seibert and Elstad are wholly inapplicable, and the trial justice’s
reliance on Seibert to order suppression of the fourth statement was clearly
erroneous. Accordingly, we vacate that portion of the order that suppressed the
fourth statement.
- 34 -
Conclusion
For the reasons set forth in this opinion, we vacate the order of the Superior
Court and hold that the fourth statement is admissible in evidence. However,
should the state elect to pursue the admissibility of the third statement, “I stabbed
David[,]” further factfinding, within sixty days of the date of this opinion, on the
basis of the existing record, is required on the issue of whether this admission was
a knowing, intelligent, and voluntary waiver of the defendant’s Fifth Amendment
rights. Therefore, we remand this case to the Superior Court for further factfinding
or trial in accordance with this opinion. The papers may be remanded to the
Superior Court.
Justice Long, with whom Justice Lynch Prata joins, concurring. We
agree with the majority’s holding with respect to both Seibert and the need to
remand this matter for additional factfinding regarding Mr. Morillo’s failure to
waive his Miranda rights. However, our reading of the record reveals a more
nuanced view of the events of March 29, 2016, as well as the testimony elicited
from Detectives Fortier and DiGregorio, and Mr. Morillo, during the three-day
suppression hearing in the trial court. We believe this more nuanced view of the
testimony is significant for two reasons. First, Mr. Morillo has not been tried and
- 35 -
convicted of the four charges in the indictment. It is imperative that this Court not
characterize the evidence in the record in a way that potentially prejudices his right
to a fair trial. Second, our view of the record leads to a different evaluation of the
state’s assignments of error concerning the third statement. Therefore, we draw
distinctions in our analysis of the third statement with respect to both custody and
waiver.
In discussing the events of March 29, the majority opinion highlights that
Mr. Morillo’s narrative varied over the course of the afternoon and evening when
he spoke with Dets. Fortier and DiGregorio. However, the majority opinion does
not acknowledge the problematic, confusing, and conflicting testimony of the
detectives themselves. Moreover, although the majority opinion discloses Mr.
Morillo’s testimony about his incriminating statement in a footnote, it does not
describe the context of the statement as he did in his testimony. Additionally, the
majority opinion recounts Dets. Fortier and DiGregorio’s testimony about their
perception of Mr. Morillo, but it does not relate Mr. Morillo’s testimony about how
he perceived their interactions.
From our review of the testimony of Dets. Fortier and DiGregorio, it appears
that their preparation for the hearing was problematic. For example, Det. Fortier
testified that she took notes during the events in question, which served as the basis
of her report narrative. However, she admitted that her notes of the interviews no
- 37 -
longer existed at the time of the hearing and further conceded that she may have
forgotten additional information contained in the notes. Moreover, Det.
DiGregorio testified that he took no notes of his own, but relied on Det. Fortier’s
report narrative in preparing for the hearing.
In addition to relying on Det. Fortier’s report narrative, Det. DiGregorio
impermissibly communicated with Det. Fortier during the suppression hearing. On
his second day of testimony, Det. DiGregorio explained that Det. Fortier escorted
Mr. Morillo to the interview room at about 6:00 p.m. on March 29. However, this
deviated from his previous testimony. Regarding this inconsistency, Det.
DiGregorio acknowledged that he spoke to Det. Fortier about a lapse in time
between Mr. Morillo’s arrival at the police station and the beginning of Mr.
Morillo’s final interview; he also admitted that he knew it was impermissible to
communicate with others about his testimony. Detective Fortier also
acknowledged having spoken to Det. DiGregorio in violation of the trial court’s
sequestration order.
Our review of the transcripts also reveals not insignificant conflicts in the
detectives’ testimony. For example, Det. Fortier described the group making one
stop, for fifteen to twenty minutes, on the right side of the Airport Connector to
search for knives near a marsh in the vicinity of the Welcome Beautiful Rhode
Island sign. However, Det. DiGregorio testified that the group stopped at a
- 38 -
“number of locations” on the Airport Connector. Additionally, Det. Fortier
testified that, once Mirandized, Mr. Morillo said that he understood that it seemed
as though he was obstructing, at which point he said that he might have discarded a
single knife near Main Avenue. By contrast, Det. DiGregorio testified that, upon
being Mirandized, Mr. Morillo told the detectives that he had discarded two knives
at that location. Finally, Det. Fortier provided conflicting testimony regarding Mr.
Morillo’s arrival at the Warwick Police Department before his final interview. She
initially testified that it was “[n]ot possible” for her to have communicated with
him between leaving Main Avenue and when he arrived in the interview room for
the fourth interview. However, after reviewing video footage on the final morning
of Det. DiGregorio’s testimony, Det. Fortier conceded that she in fact had walked
Mr. Morillo upstairs and directed him into the interview room.
We also wish to highlight confusing testimony by the detectives regarding
Mr. Morillo’s third statement. Both detectives testified that Mr. Morillo might
have repeated the incriminating statement to Det. DiGregorio after saying it to Det.
Fortier alone. However, Det. DiGregorio further testified that he could not recall
whether he heard Mr. Morillo’s admission from Det. Fortier or from Mr. Morillo
directly. This equivocation, in addition to the problematic and conflicting
testimony previously described, contributes to our nuanced view of the testimony
elicited from the detectives during the three-day suppression hearing.
- 39 -
Additionally, our view of Mr. Morillo’s divergent testimony differs from
that of our colleagues. Mr. Morillo testified that he did not remember being read
his Miranda rights in the vehicle, and he provided a conflicting account of the
events leading up to the third statement. Specifically, Mr. Morillo testified that,
during the drive, Det. Fortier was “kind of consoling, telling [him] that [he] was
going to be okay[,]” and that they just needed to find the items that Mr. Rogers had
discarded. However, once they were unable to locate any knives near the Airport
Connector, or the cell phone near Providence Place Mall, Det. Fortier’s demeanor
changed. Mr. Morillo stated that she became “a little more aggressive” and was no
longer consoling or “telling [him] that [he] was going to be okay[.]” He explained
that she stated that his friends were being interrogated and that the detectives
would find out what happened. Mr. Morillo testified that she told him that he was
not being truthful, and that he was obstructing the investigation. She further stated
that she knew what happened and did not believe what Mr. Morillo had said. Mr.
Morillo recounted that Det. Fortier received a phone call during the drive and then
began “basically running down renditions of what * * * they th[ought] happened.”
Detective Fortier explained to Mr. Morillo that the detectives believed Mr. Morillo
and his friends went to Mr. Rogers’s house and “that they know that [he] stabbed
David Rogers.”
- 40 -
Then, while the vehicle was parked on Main Avenue, Det. Fortier received
another phone call. After the call ended, Det. Fortier told Mr. Morillo that she
thought he was hiding something and not telling the truth. She also stated that he
would be returning to the police station in a marked police car. She told Mr.
Morillo: “You stabbed David Rogers. I know you did.” To which Mr. Morillo
responded, “I stabbed him.”
Mr. Morillo also testified about his interaction with the detectives while at
the police station. Specifically, Mr. Morillo testified that when the detectives
asked him questions, he “felt like [he] had to answer them” because “[he] was
going to be arrested anyways.” Further, Mr. Morillo explained that he changed his
story to the detectives because he “felt as though when they were telling [him] to
tell the truth, they meant what information they were giving [him].” Mr. Morillo
also testified that he thought if he did not comply, he would be arrested and
charged.
After hearing all of the testimony about the events of March 29, the trial
justice remarked on the lack of clarity regarding the interactions between Mr.
Morillo and the detectives. Specifically, the trial justice characterized Mr.
Morillo’s meetings with the police as “confusing” and sought clarification from the
attorneys during their argument on the motion to suppress.
- 41 -
Our similarly equivocal view of the testimony shapes our approach to the
state’s assignments of error related to the custody and waiver rulings.
When this Court reviews a decision regarding a motion to suppress a
confession, we conduct “a two-step analysis.” State v. Musterd, 56 A.3d 931, 938
(R.I. 2012) (quoting State v. Barros, 24 A.3d 1158, 1179 (R.I. 2011)). We first
review the trial court’s findings of fact with deference. See State v. Munir, 209
A.3d 545, 550 (R.I. 2019). We then apply the historical facts and review de novo
any “mixed questions of law and fact involving constitutional issues,” State v.
Jimenez, 33 A.3d 724, 732 (R.I. 2011), including whether and when a defendant is
in custody, see State v. Corcoran, 274 A.3d 808, 813 (R.I. 2022), as well as
whether a waiver of rights is valid. Jimenez, 33 A.3d at 734.
Given this standard of review, the trial justice’s failure to resolve conflicting
testimony or to make credibility determinations complicates this Court’s review of
the errors specified in the instant appeal. The absence of clarity regarding what the
trial justice found happened during the car ride, how he made sense of the
“confusing series of meetings between the defendant and the Warwick Police
Department,” and whom he believed, stymies this Court in conducting a de novo
review of when Mr. Morillo was in custody and whether his waiver was knowing,
intelligent, and voluntary.
- 42 -
However, because neither party disputes that Mr. Morillo was in custody
prior to the crucial incriminating statement, we do not believe it is necessary to
address the merits of the state’s assignment of error on this issue. More
specifically, we do not believe that this Court should offer a statement in support of
the state’s contention that custody commenced at any particular moment. Our
prior caselaw counsels against discussing the merits of a claim when our
discussion would amount to nothing more than dicta. See Tempest v. State, 141
A.3d 677, 687 n.15 (R.I. 2016) (“‘[T]he cardinal principle of judicial restraint’ is
that ‘if it is not necessary to decide more, it is necessary not to decide more[.]’”)
(quoting PDK Laboratories, Inc. v. United States Drug Enforcement
Administration, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J. concurring in part
and concurring in judgment)).
By contrast, the equivocal state of the record presents a greater obstacle for
this Court’s analysis of whether the state met its burden of establishing that Mr.
Morillo’s incriminating statement was a knowing, intelligent, and voluntary waiver
of his constitutional rights.
Once an accused has received Miranda warnings, their incriminating
statement “is inadmissible at trial unless the prosecution can establish that the
accused ‘in fact knowingly and voluntarily waived [Miranda] rights’ when making
the statement.” Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) (quoting North
- 43 -
Carolina v. Butler, 441 U.S. 369, 373 (1979)); see also Miranda v. Arizona, 384
U.S. 436, 475 (1966). The state must meet its burden by clear and convincing
evidence. See State v. Monteiro, 924 A.2d 784, 790 (R.I. 2007). A waiver of one’s
right against self-incrimination need not be an express waiver for the resulting
statement to be admissible at trial. Berghuis, 560 U.S. at 384. “Where the
prosecution shows that a Miranda warning was given and that it was understood by
the accused, an accused’s uncoerced statement establishes an implied waiver of the
right to remain silent.” Id.Courts may find an individual’s waiver to be both knowing and intelligent if
the prosecution demonstrates that “a suspect has ‘full awareness of both the nature
of the right being abandoned and the consequences of the decision to abandon.’”
United States v. Carpentino, 948 F.3d 10, 26 (1st Cir. 2020) (quoting United States
v. Sweeney, 887 F.3d 529, 535-36 (1st Cir. 2018)). In order to find voluntariness,
courts must first determine that the suspect’s waiver was the product of both “a
free and deliberate choice.” United States v. Simpkins, 978 F.3d 1, 11 (1st Cir.
2020) (quoting United States v. Rang, 919 F.3d 113, 118 (1st Cir. 2019)).
While Berghuis and its progeny articulate a dichotomy between a suspect
waiving their rights knowingly and intelligently, and whether their ultimate
confession is voluntary under Miranda, courts must nevertheless consider the
totality of the circumstances surrounding the interrogation for both inquiries. See
- 44 -
Moran v. Burbine, 475 U.S. 412, 421 (1986) (“Only if the ‘totality of the
circumstances surrounding the interrogation’ reveal both an uncoerced choice and
the requisite level of comprehension may a court properly conclude that
the Miranda rights have been waived.”) (quoting Fare v. Michael C., 442 U.S.
707, 725 (1979)); see also State v. Amado, 424 A.2d 1057, 1062 (R.I. 1981) (“A
review of all the ‘attendant circumstances’ is as important to a consideration of the
voluntariness of a confession as it is to the determination of whether a knowing
and intelligent waiver was made.”).
The assessment of the totality of the circumstances may include
consideration of “both the characteristics of the accused and the details of the
interrogation[.]” United States v. Rojas-Tapia, 446 F.3d 1, 7 (1st Cir. 2006)
(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Thus, when
analyzing whether a waiver was knowing and intelligent, courts look to whether
the totality of the circumstances demonstrates that the accused understood that they
had the right to counsel and the right to remain silent, and that the accused’s
statements could be used against them in subsequent criminal proceedings. E.g.,
State v. Leuthavone, 640 A.2d 515, 520 (R.I. 1994) (analyzing when a waiver
becomes knowing and intelligent under the totality of circumstances); see also
Colorado v. Spring, 479 U.S. 564, 574 (1987) (“The Miranda warnings protect
[the Fifth Amendment] privilege by ensuring that a suspect knows that he may
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choose not to talk to law enforcement officers, to talk only with counsel present, or
to discontinue talking at any time.”). Similarly, when evaluating voluntariness,
courts view the totality of the circumstances to determine whether the defendant’s
“will has been overborne and his capacity for self-determination critically
impaired[.]” Schneckloth, 412 U.S. at 225-26 (quoting Culombe v. Connecticut,
367 U.S. 568, 602 (1961)); see also State v. Hall, 940 A.2d 645, 656 (R.I. 2008).1
Additionally, for purposes of this Court’s review of a decision concerning a
motion to suppress an incriminating statement, the trial court’s “[d]etermination of
what happened requires assessments of the relative credibility of witnesses whose
stories, * * *, are frequently, if indeed not almost invariably, contradictory. That
1
Promises and inducements on the part of law enforcement are among the factors
that courts may consider in reviewing the totality of the circumstances. See Arizona
v. Fulminante, 499 U.S. 279, 285-87 (1991); United States v. Hughes, 640 F.3d
428, 438 (1st Cir. 2011).
We do not agree with the following statement in the majority opinion: “In
order for an officer’s direct or implied promise to have any bearing on whether an
accused’s post-Miranda statement was involuntary, the confession must have been
obtained as a result of that promise—namely, there must be a causal nexus
between the promise made and the involuntary statement.” (Slip op. at 21)
(additional emphasis supplied). In making the statement, the majority cites and
compares Leuthavone, Griffith, and Pacheco as analogous to and supportive of this
assertion. However, we do not believe that those cases can be reasonably read as a
basis for a requirement that departs from Rhode Island and federal law on this
subject. Each case involves promises that were found not to be coercive, and none
discuss, mention, or imply the need for a causal nexus between the promise and an
incriminating statement. Cf. Amado, 424 A.2d at 1063 (examining a promise found
to be coercive and explaining that subtle pressures and improper influences, when
considered as a whole, may deprive a defendant of the right to knowingly and
voluntarily waive their constitutional rights).
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ascertainment belongs to the trier of facts before whom those witnesses actually
appear[.]” State v. Humphrey, 715 A.2d 1265, 1273 (R.I. 1998) (quoting Culombe,
376 U.S. at 603) (emphasis added). Here, after reciting testimony heard at the
suppression hearing, the trial justice made some findings of fact regarding the
events and circumstances of March 29, 2016. However, the trial justice did not
rule on key factual and credibility determinations required for this Court to conduct
its de novo review of the conclusions drawn from the historical facts relating to the
“totality of the circumstances surrounding the interrogation.” Jimenez, 33 A.3d at
732, 734 (quoting Fare, 442 U.S. at 725).
Critically, on the issue of whether Mr. Morillo knowingly waived his right to
silence, the trial justice noted, but failed to resolve, conflicting testimony by the
detectives and Mr. Morillo that spoke directly to the issue. For example, the trial
justice acknowledged the testimony by Det. DiGregorio that, when asked whether
he understood his rights, Mr. Morillo stated that he did. The trial justice also
acknowledged Mr. Morillo’s inconsistent testimony that he did not recall being
read his rights in the car at all. Although the trial justice recognized the
inconsistencies in testimony given by both detectives and Mr. Morillo, he did not
make credibility determinations concerning their testimony or indicate the basis for
finding that Mr. Morillo did not comprehend his rights while in the police vehicle.
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The trial justice’s decision similarly included broad statements of belief
related to the voluntariness of Mr. Morillo’s confession, but failed to provide
sufficient findings of fact and credibility determinations to resolve key questions
related to the totality of the circumstances.
In the absence of clear findings of fact, and considering the equivocal state
of the testimony in this case, we submit that we cannot infer key factual issues
related to Mr. Morillo’s knowledge and understanding of his Miranda rights at the
time Det. DiGregorio read them to him. Quite simply, this Court cannot gauge
what testimony, if any, the trial justice found to be clear and convincing. Because
of this Court’s “longstanding reluctance to engage in factfinding or to make
credibility determinations in the first instance[,]” “the appropriate procedure in this
circumstance is to remand the case to the Superior Court so that the trial justice can
make the appropriate findings of fact and conclusions of law.” State v. Bojang, 83
A.3d 526, 535, 536 (R.I. 2014).
For these reasons, we concur with the majority’s opinion remanding the trial
justice’s decision to suppress the third statement for further findings of fact.
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STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case State v. Josue Morillo.
No. 2020-4-C.A.
Case Number
(K1/16-369C)
Date Opinion Filed December 16, 2022
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Kent County Superior Court
Judicial Officer from Lower Court Associate Justice Daniel A. Procaccini
For State:
Christopher R. Bush
Attorney(s) on Appeal Department of Attorney General
For Defendant:
Michael S. Pezzullo, Esq.
SU-CMS-02A (revised November 2022)