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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. Hine, 393
Supreme Judicial Court of Massachusetts,
Argued
Decided
Daniel F. Toomey, Asst. Dist. Atty., for the
Commonwealth.
[393
Before [393
HENNESSEY, Chief Justice.
The
defendant was indicted on
The facts
are summarized as follows. Preliminary
investigation into the death of Angel Figueroa led State police to suspect that
the defendant had been involved in the killing.
On
The police
then advised the defendant's parole officer of the substance of his April 2
admissions and a parole violation warrant was issued. Pursuant to that warrant, the defendant was
questioned again by Troopers McDonald and Farrell on April 5 at the CPAC
office. The motion judge found that the
defendant was in custody on this occasion but that he was not advised of his
Miranda rights. The defendant was
accompanied to the interrogation by his attorney at the time, Mr. Walter A.
Rojcewicz. Relying upon Trooper
McDonald's notes of April 2, Mr. Rojcewicz asked the defendant if the
statements attributed to him were accurate.
The defendant allegedly verified his April 2 statements. The parole revocation warrant was then served
upon the defendant and he was taken to the Worcester County house of
correction. He was subsequently indicted
for the murder of Figueroa.
At the
motion hearing the defense produced a handwriting expert, Catherine A.
Cusack. She testified, based upon a
comparison of the signature on the April 2 Miranda card with six random samples
of the defendant's signature, that in her opinion "John M. Hine did not
sign the Miranda warnings." She
characterized[393 Mass. 567]
the signature on the April 2 card as "an attempt to copy [the
defendant's] signature."
Finding
the testimony of the Commonwealth's handwriting expert "largely
supportive" of Cusack's conclusions, the motion judge found that the
signature on the card was "not placed there by the defendant." As a result of the "serious
impropriety" of the police with regard to the Miranda card, the judge
granted the defendant's motion to suppress evidence of his April 2
admissions. He did not, however, credit
the defendant's allegations that he had neither received nor waived his Miranda
rights during the April 2 encounter. The
judge found that the defendant was advised of his Miranda rights before he made
the admissions of April 2.
Despite
contrary testimony of Troopers McDonald and Farrell, the judge found that the
defendant was not advised of and did not waive his Miranda rights prior to the
April 5 interrogation. For that reason
and because the judge found the defendant's April 5 adoption of his prior
statements to be "tainted" by the "Miranda card misadventure,"
he suppressed the April 5 admissions as well.
In issuing his rulings the judge conceded that "in the totality of
these findings, no prejudice to the defendant may be directly pointed
out." He explained that he chose
to suppress the defendant's admissions, rather than impose a lesser or greater
sanction, in an attempt "to strike a balance between the competing
interests of the citizenry in the enforcement of the criminal law, and the
absolute requirement that that enforcement be fair and without the taint which
I have been compelled to find here."
On appeal the
Commonwealth contends that: (1) the
judge erred in finding that the signature on the April 2 Miranda card was not
that of the defendant, and (2) even if the evidence warranted that finding, the
statements are admissible because they were obtained after the defendant had
received and validly waived his Miranda rights.
The Commonwealth also challenges the judge's findings that the defendant
was not advised of and did not waive his Miranda rights prior to his custodial
interrogation on April 5, 1982. The
Commonwealth concedes that if we accept these findings, the judge's decision to
exclude the [393 Mass. 568] defendant's April 5 admissions, as
required by Miranda, must stand.
1. The Judge's
Subsidiary Findings.
[1] The
Commonwealth claims error in the judge's subsidiary findings as to both the
April 2 and April 5 interrogations. At
the same time, the Commonwealth recognizes the well‑established principle
of appellate review that subsidiary findings of fact by the judge below will be
accepted absent clear error. Commonwealth v. Aarhus, 387 Mass. 735,
742, 443 N.E.2d 1274 (1982). Commonwealth v. White, 374 Mass. 132,
137, 371 N.E.2d 777 (1977), aff'd by an equally divided Court, 439 U.S. 280, 99
S.Ct. 712, 58 L.Ed.2d 519 (1978). We
have often stated that "[t]he determination of the weight and credibility
of the testimony is the function and responsibility of the judge who saw and
heard the witnesses, and not of this court." Commonwealth v. Moon, 380
Mass. 751, 756, 405 N.E.2d 947 (1980), and cases cited.
[2] As to
the April 2 interview, the Commonwealth claims the evidence did not warrant the
judge's finding that the defendant did not sign the Miranda card. According to the Commonwealth, the judge
misconstrued the testimony of its handwriting expert, John Swanson, which the
judge characterized as "largely supportive" of defense expert
Cusack's testimony. While in Cusack's
opinion the defendant's signature was forged, Swanson stated that he could not
express an opinion as to the authenticity of the signature because a faulty pen
was used which could have distorted the writing. Swanson, however, did testify that he agreed
with Cusack's comparison of the writing samples in all respects but one. (FN3)
We perceive no "clear error" in the judge's characterization
of Swanson's testimony and his conclusion that the defendant did not sign the
Miranda card.
[3] We are
also urged by the Commonwealth to set aside the judge's assessment of the
conflicting testimony regarding the events of April 5. Under the well‑established principles
shown [393 Mass. 569] above, it is clear that the judge, in
accordance with his duties, assessed the credibility of the witnesses and was
warranted in reaching the factual conclusions that he entered in the
record. Accordingly, there was no error
in the judge's conclusion that, on April 5, Miranda warnings had not been given to the defendant and that the
defendant's admissions on that date must be suppressed.
2. The Exclusion
of the Admissions of April 2.
[4] We
agree with the Commonwealth that it was error for the judge to exclude the
admissions made by the defendant on April 2.
We note at the outset that, according to the judge's findings, the
defendant was not in custody on April 2, 1982.
Therefore, the interrogating officers were not required to issue Miranda
warnings.
Oregon v. Mathiason, 429 U.S. 492, 494‑495, 97 S.Ct. 711, 713‑714,
50 L.Ed.2d 714 (1977). Commonwealth v. Bryant, 390 Mass. 729,
736, 459 N.E.2d 792 (1984). See Commonwealth v. Haas, 373 Mass. 545,
551‑552, 369 N.E.2d 692 (1977).
Nonetheless, the judge found that the defendant was advised of and did
validly waive his Miranda rights. Even
if we were to assume that it was a custodial interrogation, the fact that the
defendant did not sign the Miranda card does not vitiate his oral waiver.
Commonwealth v. Appleby, 389 Mass. 359, 368, 450 N.E.2d 1070
(1983). See Commonwealth v. Cavanaugh, 371 Mass. 46, 54, 353 N.E.2d 732
(1976). For these reasons alone the
police misconduct with regard to the April 2 Miranda card does not warrant the
suppression of the defendant's statements of that date.
The judge
erred in suppressing the defendant's admissions despite finding that the April
2 "Mirdana card misadventure" did not prejudice the defendant's
rights. The purpose of the exclusionary
rule is to deter official misconduct by barring the use of evidence obtained as
a result of the illegal action. The rule
is predicated on a causal relationship between the acquisition of the evidence
and the official transgression. United States v. Crews, 445 U.S. 463, 470‑471,
100 S.Ct. 1244, 1249‑1250, 63 L.Ed.2d 537 (1980). Wong Sun v. United States,
371 U.S. 471, 484‑485, 83 S.Ct. 407, 415‑416, 9 L.Ed.2d 441
(1963). The exclusionary rule prevents
the introduction of evidence obtained "as a result" of custodial
interrogation where the police have not advised the defendant of his rights
against self‑incrimination and the defendant has not voluntary waived
those rights. Miranda v. Arizona, 384 U.S. 436, 479, 86
S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966).
[393 Mass. 570] [5] The decisions of this court are to the same effect. We exclude only that evidence obtained as the
"fruit of the constitutional violation." Commonwealth v. Benoit,
382 Mass. 210, 217, 415 N.E.2d 818 (1981).
"Where the nexus between the conduct of the police deemed illegal
and the discovery of the challenged evidence is so attenuated as to dissipate
the taint, such evidence is admissible." Commonwealth v. Cote, 386
Mass. 354, 362, 435 N.E.2d 1047 (1982), quoting Commonwealth v. Haas, 373 Mass. 545, 556, 369 N.E.2d 692
(1977). See Commonwealth v. Saia, 372 Mass. 53, 58, 360 N.E.2d 329 (1977)
(evidence sought to be suppressed must be shown to be "an 'exploitation'
of the primary illegality").
In this
case, the judge found that the police forgery of the defendant's Miranda card
resulted in "no prejudice to the defendant." Before the card was presented to the
defendant, he had received and orally waived his Miranda rights. The card itself did not assist the police in
obtaining the defendant's statements.
His admissions were therefore not the "fruit" of the alleged
illegality. Without this nexus, the
judge was not justified in suppressing the defendant's statements despite the
seriousness of the police misconduct.
"[W]e believe that a trial court judge is required to consider not
only the degree of misconduct, but also the closeness of the link between that
misconduct and the eventual testimony sought to be suppressed. If the connection is sufficiently attenuated,
the testimony must be admitted." Commonwealth v. Caso, 377 Mass. 236, 241‑242,
385 N.E.2d 979 (1979).
The judge
was clearly correct in suppressing the Miranda card, based upon his subsidiary
finding that the defendant did not sign the card. We express no opinion as to the admissibility
of the card at trial for any purpose if offered by the defendant. Cf.
Commonwealth v. Harris, 364 Mass. 236, 303 N.E.2d 115 (1973) (statements
elicited by police in violation of Miranda safeguards are admissible for
impeachment purposes); Harris v. New York, 401 U.S. 222, 91
S.Ct. 643, 28 L.Ed.2d 1 (1971) (same).
3. The Motion to
Dismiss the Indictment.
The
defendant, relying upon Commonwealth v.
Manning, 373 Mass. 438, 367 N.E.2d 635 (1977), contends that the judge
erred in failing to dismiss the indictment for prosecutorial misconduct. We [393
Mass. 571] disagree. The facts in this case establish neither the
same level of egregious misconduct nor the prejudice to the defendant's rights
which combined to require dismissal of the indictment in Manning.
[6]
Contrary to the defendant's contentions,
Manning did not establish a per se rule mandating the dismissal of
indictments where government agents have intentionally violated a defendant's
rights.
Id. at 444, 367 N.E.2d 635.
In Manning, we confronted
misconduct by Federal agents amounting to "a deliberate and intentional
attack ... on the relationship between Manning and his counsel in a calculated
attempt to coerce the defendant into abandoning his defense." Id.
at 443, 367 N.E.2d 635. We ordered the
exceptional remedy of dismissal because the defendant "had in fact been
prejudiced to some extent" by the impairment of his right to the
assistance of counsel and "the officers' misconduct was so pervasive as to
preclude any confident assumption that proceedings at a new trial would be free
of the taint." Id. at 443‑444, 367 N.E.2d
635. The police misconduct in this
case, while deliberate and deplorable, did not so violate the defendant's
constitutional rights as to call into question his ability to obtain a fair
trial. The judge did not find that the
"Miranda card misadventure" cast such doubt on the credibility of the
offending officers as to poison the entire investigation and subsequent
indictment. Cf. Commonwealth v. Manning, supra at 444, 367 N.E.2d 635 ("[t]he
indictment itself is so inextricably interwoven with the misconduct which
preceded it that the only appropriate remedy ... is to dismiss");
Commonwealth v. Salman, 387 Mass. 160, 166‑167, 439 N.E.2d 245
(1982) (knowing use of false testimony by police to obtain indictment is ground
for dismissal). In fact, the judge
specifically found that the defendant's rights had not been prejudiced, and the
judge accepted as true the police testimony as to the admissions of the
defendant. Suppressing the evidence of
the April 2 Miranda card sufficiently purged the proceedings of the taint of
the illegally obtained evidence. As a
result, "[w]e are left with a record which fails to show that the behavior
of the police strengthened the prosecution's case against the defendant, or
weakened his position." Commonwealth v. Carlson, 17 Mass.App.Ct.
52, 59‑60, 455 N.E.2d 647 (1983).
See Commonwealth v. Sherman, [393 Mass. 572] 389 Mass. 287, 295, 450 N.E.2d 566 (1983) (failure of police to
inform defendant of attorney's request to be present at interrogation fell
short of conduct condemned in Manning
).
Our post‑Manning decisions underscore the
exceptional circumstances in which dismissal of an indictment is the proper
prophylactic remedy for prosecutorial misconduct. In
Commonwealth v. Cinelli, 389 Mass. 197, 209‑211, 449 N.E.2d 1207
(1983), we held that, although police officers acted improperly by conducting a
postarraignment interview without defense counsel, dismissal was not warranted
in the absence of prejudice to the defendant.
Summarizing the guiding principles of
Manning, we stated that, "[a]bsent egregious misconduct or at least a
serious threat of prejudice, the remedy of dismissal infringes too severely on
the public interest in bringing guilty persons to justice."
Commonwealth v. Cinelli, supra at 210, 449 N.E.2d 1207.
In Commonwealth v. Lam Hue To, 391 Mass.
301, 461 N.E.2d 776 (1984), we reviewed an order by a Superior Court judge
dismissing a murder indictment due to the Commonwealth's late disclosure of
exculpatory evidence. We noted that
whether an indictment should be dismissed "turns primarily on the ability
of the defendant to obtain a fair trial after, and in light of, the impropriety." Id.
at 312‑313, 461 N.E.2d 776. To
determine whether this criterion was satisfied we remanded the case to the
trial court for findings as to whether the late disclosure "so prejudiced
the defendant that he will be unable to obtain a fair trial in any subsequent
proceeding." Id. at 312, 461 N.E.2d 776. See
Commonwealth v. Jackson, 391 Mass. 749, 754‑755, 464 N.E.2d 946
(1984) (pretrial publicity did not require dismissal where defendant's rights
to fair trial were not impaired).
We
conclude that, in light of the suppression of the Miranda card, the misconduct
alleged in this case has neither caused prejudice to the defendant nor impaired
his ability to receive a fair trial.
Therefore, we agree with the motion judge that dismissal of the indictment
is unwarranted. (FN4)
[393 Mass. 573] Basic to our conclusions in this and similar cases is that our
courts should not adopt prophylactic remedies for police misconduct which
needlessly frustrate law enforcement and the public interests in that sphere. Our emphasis has always been that any remedy
should be tailored to cure the prejudice to the defendant. That such remedies may not be adequate to
deter official misconduct is well stated by the motion judge. In obvious appreciation that he was entering
a punitive order, he stated that in the enforcement of the criminal law there
is an "absolute requirement that that enforcement be fair and without the
taint which I have been compelled to find here." Because judicial responses should be limited
to truly remedial, and not punitive, measures, the absolute necessity for
integrity in law enforcement recommends, in appropriate cases, recourse to
civil remedies and departmental police discipline.
We reverse
the judge's suppression of the defendant's April 2 statements, affirm his
suppression of the defendant's April 2 Miranda card and April 5 statements, and
affirm his denial of the defendant's motion to dismiss the indictment.
So ordered.
(FN1.) Lieutenant DeFuria testified that he
left the room after seeing the defendant sign the card and Trooper McDonald
sign as a witness. According to Troopers
McDonald and Farrell, the latter then signed the card as a second witness to
the defendant's signature.
(FN2.)
The defendant admitted to inducing the victim from his home and delivering him
to one Eddy Rivera in exchange for "a spoon and a half of heroin."
(FN3.)
In Swanson's opinion, the signature on the card and the defendant's signature
contained some of the same "unconscious writing strokes." However, he agreed the signature differed as
to slants, stops, extra strokes, and spacing.
(FN4.)
As an alternative to dismissal of the indictment, the defendant urges us to bar
the offending police officers from testifying at trial. The defendant argues that by allowing their
testimony we force him to disclose the suppressed statements in order to
impeach their credibility effectively.
However, since we have ruled that the April 2 statements are admissible,
this objection lacks a foundation.