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Opinions of
The Massachusetts Supreme Judicial Court
and the Massachusetts
Court of Appeals
To be used in
conjunction with the CPS Criminal Procedure Textbook
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CPS
Commonwealth
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Commonwealth v. Clark C, 59 Mass.
App. Ct. 542 (2003)
Hampden. December 13, 2002. - October 9, 2003.
Present: Beck, Dreben, &
McHugh, JJ.
Indictments found and returned in the Superior Court
Department on February 15, 2001.
After transfer to the Springfield Division of the
Juvenile Court Department, a pretrial motion to suppress evidence was heard by
Judith A. Locke, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him to this court.
Jane Davidson Montori,
Assistant District Attorney, for the Commonwealth.
Erica E. Cushna for the juvenile.
BECK, J.
A Juvenile Court
judge suppressed "all statements" a juvenile made to Larry Brown, a Springfield
police lieutenant. In its interlocutory appeal, see Mass.R.Crim.P.
15(a)(2), as appearing in 422 Mass.
1501 (1996), the Commonwealth claims that none of the three
"categories" of statements at issue here constituted custodial interrogation
and therefore should not have been suppressed. We reverse the judge's findings
as to the first two statements and affirm as to the third.
Governing legal principles. "Miranda safeguards
come into play whenever a person in custody is subjected to either express
questioning or its functional equivalent." Rhode
Island v. Innis, 446 U.S.
291, 300-301 (1980). "The term 'functional equivalent' encompasses 'any
words or actions on the part of the police (other than those normally attendant
to arrest and custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.'" Commonwealth v.
Rubio, 27 Mass. App. Ct.
506, 512 (1989), quoting from Rhode Island
v. Innis, 446 U.S.
at 301. See Commonwealth v. Morse, 427 Mass. 117, 123 (1998). "[An] 'incriminating response' . . . [is] any response -- whether inculpatory or exculpatory -- that the prosecution may seek
to introduce at trial." Rhode Island
v. Innis, 446 U.S.
at 301 n.5 (emphasis in original). "[A]nalysis under Innis 'turns upon
the objective purpose manifested by the police.' Interrogation is present 'if
an objective observer (with the same knowledge of the suspect as the police
officer) would . . . infer that the
[officer's speech or conduct was] designed to elicit an incriminating
response.'" Commonwealth v. Rubio, 27 Mass. App. Ct. at 512, quoting from
White, Interrogation Without Questions: Rhode Island v. Innis
and United States v. Henry, 78 Mich. L. Rev. 1209, 1231-1232 (1980). See Commonwealth
v. Sheriff, 425 Mass. 186, 198 (1997).
In reviewing a judge's findings in ruling on a motion to suppress, we "accept[] the judge's subsidiary findings of fact absent
clear error, give[] substantial deference to the judge's ultimate findings and
conclusions of law, but independently review[] the correctness of the judge's
application of constitutional principles to facts found." Commonwealth v.
Magee, 423 Mass. 381, 384 (1996),
quoting from Commonwealth v. Mello, 420 Mass.
375, 381 n.8 (1995).
Discussion. We review the statements in chronological
order, setting out the facts relevant to that statement, followed by the
analysis.
1. The telephone call. The judge made the following undisputed findings of fact
as to the first "category" of statements. On January 4, 2001, Lieutenant Brown interviewed the
victim of a home invasion. As a result of that interview, the juvenile became
the "focal point" of the investigation. Later that day, the
lieutenant met with the juvenile's grandmother. The juvenile was not home.
Five days later, Lieutenant Brown received a telephone call at the police
department assessment center from someone who identified himself as "Clark."
At first, the lieutenant assumed it was a friend of his, but the caller
corrected the lieutenant and identified himself as Clark C., the juvenile. The
lieutenant had never spoken to the juvenile before. The lieutenant told the
juvenile that he had talked to the juvenile's grandmother. The juvenile
responded, "I didn't do all that lady said I did, I just hit her."
The caller then asked Lieutenant Brown whether he should confess. The
lieutenant declined to advise the caller, but asked the juvenile if he would
turn himself in. The caller said he would call at 8:30
A.M. to be picked up or come to the assessment center the next
morning. After including these facts in her findings, the judge made no further
comment about the admissibility of the telephone call. Ultimately, however, she
ordered that all statements the juvenile made to the lieutenant should be
suppressed.
The Commonwealth argues that these statements should not have been suppressed
because the juvenile was not in custody. We agree. The juvenile initiated the
telephone call and was free to end the call at any time. See Commonwealth
v. Ryan, 11 Mass. App. Ct. 906, 907 (1981). Indeed, even the juvenile argues only that
it would have been "better practice" for the lieutenant to have given
him Miranda warnings over the telephone. The judge swept too broadly when she
explicitly suppressed "all statements" (although without specific
comment about the telephone call). The telephone call did not constitute
custodial interrogation. It should not have been suppressed on Miranda grounds.
2. Service of the arrest warrant. The second and third statements occurred the
next day. When the juvenile did not call the lieutenant or appear at the
assessment center the next morning, the lieutenant went to the juvenile's home
around 10:30 A.M. with an arrest
warrant he had apparently obtained some days before. A woman answered the door.
According to Lieutenant Brown's testimony, she was either the juvenile's aunt
or older sister. After the lieutenant identified himself and said he had an
arrest warrant for the juvenile, the woman acknowledged that the juvenile was
there and led the police to the juvenile's bedroom where he was still sleeping.
The lieutenant woke the juvenile, told him he had a warrant for his arrest, and
instructed the juvenile to get up, get dressed, and come with him. The juvenile
responded to this instruction by asking, "[D]id my grandmother turn me
in?"
The Commonwealth argues that this statement was spontaneous because it was not
made in response to interrogation. Again we agree. See Commonwealth
v. Gittens, 55 Mass. App. Ct. 148, 150 (2002). The lieutenant did nothing to provoke the
juvenile's question other than inform him that he was under arrest. See Rhode
Island v. Innis, 446 U.S. at 301 (1980) (Miranda
warnings requirement does not apply to words or actions of police normally
attendant to arrest and custody); Commonwealth v. King, 17 Mass. App. Ct. 602,
608-609 (1984) (same; nothing about a request to see an arrest warrant again
should have alerted officers that the defendant might make an incriminating
statement).
3. Officer's answer to juvenile's question. In response to the juvenile's
question as to whether his grandmother had turned him in, the lieutenant
replied, "No." The judge further found that the lieutenant told the
juvenile, "You said you were going to turn yourself in yesterday when I
spoke to you, you said you were going to turn yourself
in at 8:00 in the morning." The
juvenile then stated that he was afraid because he had had "a previous bad
experience with police officers." There is no dispute that having been
informed of the warrant for his arrest and told to accompany the lieutenant,
the juvenile was in custody when he made this statement. The issue then, as the
judge correctly pointed out, is whether the lieutenant's comment and the
juvenile's response constituted interrogation or its functional equivalent,
requiring Miranda warnings. See Commonwealth v. Rubio, 27
Mass. App. Ct. at
511-512, citing Rhode Island v. Innis, 446 U.S. at
300-301.
The judge's findings on this point are somewhat difficult to follow. At the
hearing on the juvenile's motion to suppress, counsel for the juvenile
established that the lieutenant had never spoken to the juvenile prior to the
telephone call the day before the arrest, and that "the only reason why
[the lieutenant] thought [the caller was the juvenile] was because the
individual identified himself as [Clark C.]." Continuing with
cross-examination, counsel asked the lieutenant about the lieutenant's
conversation with the juvenile on the day of the arrest regarding the telephone
call the day before, and the juvenile's statement in that call that he would
turn himself in. Counsel asked the lieutenant, "[D]idn't you think that [your comment would lead the
juvenile to] corroborate the phone call?" The lieutenant denied that his
remark to the juvenile was a question, and said that it was "a form of a
statement." In an effort to establish that the lieutenant was attempting
to insure the admissibility of the telephone call, counsel then asked the
lieutenant, "[T]he statement that you made[] directly supports the phone call
that you had the day before, is that right?" While continuing to deny that
such was his intent, the lieutenant acknowledged that "[i]t could be interpreted like that."
In her subsequent findings and order, the judge adopted the correct legal
standard -- that the "'functional equivalent' test turns on whether the
officer's statements and conduct would be perceived as an interrogation by a
reasonable person in the same circumstances." See
Commonwealth v. Sheriff, 425 Mass.
at 198 ("in order to determine whether a suspect has been subjected to
custodial interrogation, the primary focus is on the suspect's perceptions
rather than the police officer's intent"). See also Commonwealth v. Rubio,
27 Mass. App. Ct. at 512; United
States v. Taylor,
985 F.2d 3, 7 (1st Cir.), cert. denied, 508 U.S. 944 (1993). Taking into
account all of the circumstances, including the fact that Clark C. was a juvenile, the judge found that the lieutenant's statement
"was reasonably likely to elicit an incriminating response . . . . The
officer, consciously or unconsciously, attempted to verify a voice that he
heard, but did not recognize, on the phone the previous day." The judge
further found that "[the lieutenant's] topic was the information necessary
to substantiate [the] earlier phone call for evidentiary purposes."
Although the judge set out these rulings in her conclusions of law, they were
findings of fact. See Smith, Criminal Practice & Procedure § 1948, at 287
(2d ed. 1983) (a finding is a finding of fact "if it calls for the
application of the reasoning powers of the Judge as to the facts or involves
weighing of evidence"). See also Gauvin v.
Clark, 404 Mass. 450, 453 n.4 (1989) (what a reasonable person should know is a
question of fact). The judge's findings were not clearly erroneous. We
therefore defer to her subsequent conclusion that the lieutenant's remark was
the functional equivalent of "express question[ing]."
The Commonwealth argues that the lieutenant's comment was not an attempt to
confirm that it was the juvenile who made the telephone call because there was
no need for such a confirmation. Lieutenant Brown testified that he recognized
the juvenile's voice when the juvenile asked whether his grandmother had turned
him in. According to the Commonwealth, that voice recognition plus the
circumstantial evidence that the person on the telephone was the juvenile was
sufficient to authenticate the telephone call. See Liacos,
Brodin &
Avery, Massachusetts
Evidence § 12.4, at 743 (7th ed. 1999). The Commonwealth contends that
since no additional authentication was necessary, it was "clearly
erroneous" for the judge to conclude that the lieutenant's "answer to
the juvenile's question constituted the functional equivalent of
interrogation." The Commonwealth also contends that the judge's failure to
make an explicit finding that the lieutenant recognized the juvenile's voice
was clearly erroneous. We disagree with this analysis.
That the Commonwealth might successfully introduce the statements the juvenile
made during the telephone call without his later statement essentially
confirming that it was he who made the call, does not change the status of that
later statement. The later statement would likely ensure the introduction of
the telephone call and thus clearly strengthen the Commonwealth's case. The
juvenile's explanation of why he did not carry through on the arrangement he
made with Lieutenant Brown on the telephone was an "'incriminating response' . . . by an accused . . . which
[could] be used at trial to help prove [his] guilt." Commonwealth v.
Rubio, 27 Mass. App. Ct. at
513, citing Rhode Island v. Innis, 446 U.S.
at 301 n.5. The judge heard the testimony, and her
conclusion that the lieutenant's statement eliciting the juvenile's response
was the functional equivalent of custodial interrogation is "binding in
the absence of clear error." Commonwealth v. Cao,
419 Mass. 383, 384, cert. denied,
515 U.S. 1146
(1995), quoting from Commonwealth v. Correia, 381 Mass.
65, 76 (1980).
This case is distinguishable from Commonwealth v. Figueroa, 56 Mass. App. Ct.
641 (2002), in which we recently affirmed a Superior Court judge's denial of a
defendant's motion to suppress on somewhat similar facts. In Figueroa, the
defendant, who was not a juvenile, maintained a "congenial conversation"
with police while being driven from New York
to Massachusetts. Id. at 644.
The trial judge found that it was the defendant who initiated the conversation
and asked the questions to which the police only responded. Id. at 645.
(The Commonwealth did not attempt to introduce at trial any statements
concerning the defendant's whereabouts while a fugitive.)
In the case before us, while it was the recently awakened juvenile who asked
the question about his grandmother, the lieutenant did more than answer the
juvenile's question in the negative. He went on to raise the issue of the
arrangements made in the telephone call. Although the lieutenant testified that
he was trying to protect the grandmother, the judge was not required to credit
this testimony. See Commonwealth v. Franklin, 376 Mass. 885, 898 (1978)
(credibility of witnesses' testimony is within the province of the trier of fact even when the proof offered is in support of
a constitutional claim and the evidence is uncontradicted).
Moreover, it is not the officer's professed purpose in making the remark that
controls, but rather the perception of an objective observer. See Commonwealth
v. Rubio, 27 Mass. App. Ct. at 512.
4. Voluntariness of juvenile's statement. Since the
judge did not err in determining that the lieutenant's remark was in effect a
question, the safeguards of Miranda v. Arizona, 384 U.S. 436 (1966), were
required. See In re Gault, 387 U.S.
1, 55 (1967). No Miranda warnings were given. In their absence, we need not
consider whether the juvenile's statements were otherwise voluntary. In any
case, on these facts, the Commonwealth could not sustain its heavy burden. See Commonwealth
v. Mark M., ante 86, 89 & n.3 (2003). The juvenile's statement
explaining his failure to turn himself in was therefore correctly suppressed.
5. Conclusion. The judge's order as applied to the juvenile's statements on the
telephone and to his question the next morning asking whether his grandmother
turned him in is reversed. Those statements should not have been suppressed on
Miranda grounds. We express no opinion as to whether there may be other grounds
for objection to the admission of the first two statements. The judge's order
suppressing the statement of explanation for the juvenile's failure to turn himself in is affirmed. That statement may not be
introduced.
So ordered.
FOOTNOTES:
[1] A pseudonym.