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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Dustin, 373
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
L. Jeffrey Meehan, Sp. Asst. Dist. Atty., for the
Commonwealth.
William K. Danaher, Jr.,
Before HENNESSEY, C. J., and QUIRICO, BRAUCHER,
KAPLAN and WILKINS, JJ.
BRAUCHER, Justice.
The
defendant was indicted for murder in the first degree and for assault and
battery with a dangerous weapon. A judge
of the Superior Court allowed his motion to suppress statements made by him to
a police officer while in custody, and a single justice of this court allowed
an interlocutory appeal to this court by the Commonwealth pursuant to G.L. c.
278, s 28E. We uphold the judge's ruling that the defendant did not make the
voluntary[373
1. The
judge's findings. We summarize the
judge's findings of fact, which are supported by the evidence. An incident about 1 A. M. on
About 4:30
P. M. on Sunday the 18th, the defendant asked the officer assigned to
"watch" him, "If I tell you something about the incident, will I
be admitting my guilt?" The officer
replied, "You are not on the stand and you are not under oath. You can tell me anything you want to." The defendant said that if the officer
repeated what he was told, the defendant would say he had lied. The defendant then made the statements now in
issue.
The
defendant was frightened and confused, and cried periodically. There was no evidence that the officer's
reply to the defendant's inquiry was prompted by evil motive or an intent to deceive. There was no attempt to interrogate. But the defendant's question "clearly
indicated that he was confused about the legal consequences of making a
statement," and he "was effectively, though not intentionally,
deceived by the officer's response."
The judge
ruled that there was no "interrogation" of the defendant such as
would trigger Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966), and that in the absence of interrogation there was
no violation of the Sixth Amendment rights set forth in Brewer v. Williams, 430
U.S. 387, 399, 97 S.Ct. 1232, 1240, 51 L.Ed.2d 424
(1977). But, he ruled, the defendant
"did not make a voluntary and intelligent waiver of his fifth amendment rights." The officer's "deceptive statement"
distinguished [373 Mass. 614] this case from Commonwealth v. Frongillo, 359 Mass. 132, 268 N.E.2d 341 (1971). Moreover, in the "novel situation"
presented, "the officer should have given the Miranda warnings to the
defendant."
2. Voluntariness of the statements. The Commonwealth vigorously asserts that the
defendant's statements were voluntary, citing Commonwealth v. Borodine, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNa), 353 N.E.2d 649 (1976)
cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d
765 (1977), and Commonwealth v. Sousa, 350 Mass. 591, 598‑599, 215 N.E.2d
910 (1966). See Commonwealth v. Harris,
364 Mass. 236, 241‑242, 303 N.E.2d 115 (1973), and cases cited. We assume, without deciding, that the
traditional test of voluntariness was met, and the
statements would have been admissible in evidence before the decision in the
Miranda case, notwithstanding the deceptive statement by the police
officer. Frazier v. Cupp,
394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684
(1969). They might also have been
admissible if made to private persons rather than to police officers, if made
by a defendant not in custody, or if offered only to impeach the credibility of
the defendant as a witness. Commonwealth
v. Mahnke, 368 Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNb), 335 N.E.2d 660 (1975); cert. denied, 425 U.S.
959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). See Garner v. United States, 424 U.S. 648,
657‑658, 96 S.Ct. 1178, 47 L.Ed.2d 370 (1976).
[1] [2]
[3] 3. Waiver. The Miranda decision
requires that warnings be given prior to any questioning of a person in custody
and that he be given a continuous opportunity to exercise his rights during any
custodial interrogation. See
Commonwealth v. Mahnke, 368 Mass. ‑‑‑,
‑‑‑ (FNc), 335 N.E.2d 660 (1975),
cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d
204 (1976); Commonwealth v. McKenna, 355 Mass. 313, 323‑325, 244 N.E.2d
560 (1969). If interrogation continues
and a statement is taken, "a heavy burden rests on the government to
demonstrate that the defendant knowingly and intelligently waived his privilege
against self‑incrimination and his right to retained or appointed
counsel. . . . Moreover, any evidence that the accused was threatened, tricked,
or cajoled into a waiver will, of course, show that the defendant did not
voluntarily waive his privilege."
Miranda v. Arizona, 384 U.S. 436, 475‑476, 86 S.Ct.
1602, 1628‑1629, 16 L.Ed.2d 694 (1966).
[4] [5]
The judge found that there was no such interrogation [373 Mass. 615] as to
trigger the Miranda rule. We reject the
defendant's argument that there was conduct "tantamount to
interrogation" as in Brewer v. Williams, 430 U.S. 387, 399, n. 6, 97 S.Ct. 1232, 1240, n. 6., 51 L.Ed.2d 424 (1977). But the defendant was in custody, and had
been for more than twenty hours. He had
been given Miranda warnings twice and each time had indicated that he wished to
remain silent. "At this point he
has shown that he intends to exercise his Fifth Amendment privilege; any
statement taken after the person invokes his privilege cannot be other than the
product of compulsion, subtle or otherwise." Miranda v. Arizona, 384 U.S. 436, 474, 86 S.Ct. 1602, 1627‑1628, 16 L.Ed.2d 694 (1966). Nevertheless, subsequent statements may be
admissible if his "right to cut off questioning" has been
"scrupulously honored." Michigan
v. Mosley, 423 U.S. 96, 103‑104, 96 S.Ct. 321,
46 L.Ed.2d 313 (1975). See United States
v. Olof, 527 F.2d 752, 754 (9th Cir. 1975). Here the defendant asked, in effect, whether
if he made a statement it could be used against him. The police officer's response carried an
implication that it could not be. This
was directly contrary to the required Miranda warning that anything the
defendant said could and would be used against him in court.
Moreover,
the defendant had been visited by two attorneys while in custody, as the police
knew; each had advised him to remain silent.
He had been informed of his right to counsel and appeared to understand
it, and he was free to disregard the advice of counsel. "But waiver requires not merely
comprehension but relinquishment," and his conversation with the police
officer does not support any suggestion that he waived the right; the officer
did not tell him that he had a right to the presence of a lawyer, and
"made no effort at all to ascertain whether" he "wished to
relinquish that right." See Brewer
v. Williams, 430 U.S. 387, 404‑405, 97 S.Ct.
1232, 1242‑1243, 51 L.Ed.2d 424 (1977).
[6] [7] In
this context we apply the rule that the Commonwealth bears a "heavy
burden" to show a knowing and intelligent waiver, notwithstanding the
absence of interrogation. The intention
to waive constitutional rights must be made clear, without implication,
inveiglement or subtlety, as it was, for example, in Commonwealth v. Frongillo,[373
Mass. 616] 359 Mass. 132, 137, 268 N.E.2d 341
(1971). The judge who saw and heard the
witnesses concluded that there was no voluntary and intelligent waiver, and we
cannot say he was plainly wrong. See
Commonwealth v. Hosey, 368 Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNd),
334 N.E.2d 44 (1975) Even an innocent misrepresentation of the Miranda rights
of the defendant renders suspect a claim that he waived those rights. See Commonwealth v. Jones, 457 Pa. 423, 435,
322 A.2d 119 (1974). The statement of
the police officer is not easily characterized as "scrupulously"
honoring Miranda rights; it seems rather to be "heedless" of those
rights. See Commonwealth v. Mahnke, 368 Mass. ‑‑‑, ‑‑‑
(FNe), 335 N.E.2d 660 (1975), cert. denied, 425 U.S.
959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976).
The facts
of this case do not fall squarely within the holding of any binding Federal
precedent. But we think faithful
adherence to the spirit of the Federal cases we have cited and quoted requires
us to uphold the judge's decision. The
result is to exclude the defendant's statements from evidence, even though they
were voluntarily made, even though they bear indicia of reliability, and even
though they are found not to have been the product of any intentional violation
of constitutional standards. If that
result is thought undesirable, the remedy must be sought in a Federal
forum. As to the jurisdiction of the
Supreme Court to review such a case, see Miranda v. Arizona, 384 U.S. 436, 498
n. 71, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The order
of the judge allowing the motion to suppress evidence is affirmed. The case is remanded to the Superior Court
for further proceedings consistent with this opinion.
So
ordered.
FNa. Mass.Adv.Sh. (1976) 2153, 2159.
FNb. Mass.Adv.Sh. (1975)
2897, 2913‑2916, 2943‑2947.
FNc. Mass.Adv.Sh. (1975)
2897, 2936.
FNd. Mass.Adv.Sh. (1975)
2732, 2741‑2743.
FNe. Mass.Adv.Sh. (1975)
2897, 2935.