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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. Ira I, 439
Hampden.
Present:
Jane
Davidson Montori, Assistant District Attorney, for the Commonwealth.
Theodore F. Riordan (Deborah Bates Riordan with him) for Ira I.
John M. Corridan, for Justin R., was present but did not argue.
Lisa Siegel Belanger, for Danny C., was present but did not argue.
Frank H. Spillane, for Andy C., submitted a brief.
In June, 2001, four middle school students were
charged in the beating of a classmate. After an evidentiary hearing, a Juvenile
Court judge suppressed statements made by the juveniles to the school's
assistant principal under the theory that the assistant principal's
"investigation . . . was under the guise of a governmental agency, . . .
no Miranda rights [were] given, [and] there was no opportunity for parental
involvement." The judge subsequently dismissed the cases without prejudice
on the grounds that the Commonwealth failed to comply with discovery orders. A
single justice of this court allowed the Commonwealth's application for
interlocutory appeal from the allowance of the motions to suppress, and ordered
the appeal consolidated with the Commonwealth's appeal from the order of
dismissal then pending in the
1. Facts.
The juveniles, Ira, Justin, Danny, and Andy, all thirteen or fourteen years
old, were each charged with two counts of assault and battery by means of a
dangerous weapon (a rock and a shod foot) and one count of assault and battery
on the complainant. On
Lapan investigated the alleged June 5 incident because he believed that it was
his responsibility "to look into matters from when children leave for
school in the morning to when they return home at night, a term called
portal-to-portal jurisdiction for school officials." He testified that it
was "standard . . . when an incident like this takes place . . . [to] take
statements and . . . bring the individuals down to [his] office." Lapan
was clear, however, that he looked into such incidents for school disciplinary
purposes, and not to gather or provide information for any potential law
enforcement or court action.
In the course of investigating the alleged incident, Lapan spoke with the four
juveniles, as well as other students who might have been on the bus. On June 6
and 7, Lapan individually "called down" the four juveniles to his
office and questioned each one for approximately fifteen to twenty minutes.
Lapan warned each juvenile that "there would be consequences for [his]
actions." It appears that Lapan also took written statements from five
students: the complainant, Ira, Justin, Andy, and a student whom Justin named
as being involved in the incident, but who was not charged in this case. Lapan
could not remember whether he asked the fourth juvenile, Danny, to write a
statement. Three of the juveniles, Justin, Danny, and Ira, admitted to Lapan
that they had hit the complainant. Andy, however, maintained his innocence.
Lapan testified that it was school procedure to talk to the parents of the
students involved in the incident. He further testified that he contacted each
juvenile's parents after he talked with the particular student. In addition,
Lapan indicated that he told the complainant's mother (in accordance with his
usual practice) the "names . . . of people that were involved" and
that she "[could] further this through the court system if [she] wish[ed]."
It appears that the police were first made aware of the alleged June 5 attack
that day, when the complainant's mother reported the incident.[2] On
Three days before the scheduled trial date, Ira filed a motion to suppress
"any oral or written statements allegedly made to Assistant Principal
Albert Lapan." The juvenile claimed that any statements he made were
"pursuant to an unlawful interrogation," because he was not given
Miranda warnings and the statements were not voluntary. On the scheduled trial
date, the judge allowed the other juveniles to join Ira's motion to suppress,
over the Commonwealth's objection. On the same day, the juveniles each filed a
motion to dismiss based on the Commonwealth's failure to provide discovery.[3]
After an evidentiary hearing, the judge allowed the motions to suppress and the
motions to dismiss. Several months later, the Commonwealth filed motions to
reconsider, or alternatively, to indicate whether the dismissals were with or
without prejudice. Although the judge denied the motions to reconsider, she
issued a written order clarifying that the cases were dismissed without
prejudice. The Commonwealth appeals from the allowance of the juveniles'
motions to suppress and the motions to dismiss.
2. Discussion.
A. Motions to dismiss. We will uphold a judge's order to dismiss without
prejudice unless there has been "an abuse of discretion."
Commonwealth v.
The judge allowed the juveniles' motions to dismiss because she concluded that
the Commonwealth failed to comply with pretrial discovery orders. Although the
judge did not specify how the Commonwealth violated the discovery orders, it is
apparent that her decision was based on the prosecutor's failure to provide the
juveniles with the statements taken by assistant principal Lapan.[4]
Thus, implicit in the judge's ruling is a finding that the discovery orders
required the prosecutor to give the juveniles information that was in Lapan's
possession.
The discovery orders applied to oral and written statements "within the
possession, custody, or control of the prosecutor, or . . .
persons under his direction and control."[5]
. . . cannot stand" when "no showing that the prosecutor had access
to [such] materials, or that the [possessor of the records] was obligated to
provide its . . . files to the prosecution"). We are guided by the
interpretation of the phrase "possession or control" in the context
of a prosecutor's duty to provide exculpatory information. In determining the
scope of a prosecutor's duty, we have concluded that "[i]nformation known
to an independent witness, but unknown to the prosecution, is not within the possession
and control of the prosecution unless that witness has acted, in some capacity,
as an agent of the government in the investigation and prosecution of the
crime." Commonwealth v. Beal, 429
Applying these standards, we conclude that materials that were in Lapan's
possession were not in the prosecutor's "possession, custody, or
control," and therefore the prosecutor did not violate any discovery
order. In particular, there is no evidence in the record that Lapan acted as an
agent of the prosecution or of the police, as discussed, infra. Nor is there
any evidence that Lapan "participated in the investigation or evaluation
of the case and has reported to the prosecutor's office concerning the case."
Commonwealth v. Martin, supra. Contrary to Justin's contention, there is no
evidence that Lapan gave the police copies of the juveniles' written
statements, or that the police had any knowledge that such written statements
existed. Lapan's statement to the police, which briefly describes the
interviews but does not mention any written statements, was the only evidence
adduced at the hearing regarding police awareness of Lapan's actions.
Similarly, there is nothing in the record to indicate that prior to the day of
trial, the prosecutor was aware of, or had possession of, the written
statements. To the contrary, the Commonwealth represents that the prosecutor
first learned of the written statements on the day of the trial, when Ira's
attorney informed her of their existence.[6] The prosecutor averred that
as soon as she learned of the written statements, she asked Lapan to send them
by facsimile transmission, and "immediately" provided the statements
to the juveniles' counsel. Furthermore, although the juveniles may not have
known what the others had said or written, each of the three who wrote
statements was aware that he had done so.
Because of our conclusion that assistant principal Lapan was not an
"agent[] of the prosecution team," Commonwealth v. Beal, supra at
532, and because there is no evidence that the Commonwealth was aware of the
juveniles' written statements, we reject Andy's argument that the prosecutor
should have known about the written statements.
Because the dismissals were premised on an erroneous conclusion of law, and
because there is no basis in the record for dismissal, we reverse the allowance
of the motions to dismiss. Given these circumstances, we reject the juveniles'
argument that the judge's orders to dismiss must be affirmed because the
Commonwealth has not shown that it would be prejudiced from filing new
complaints.[7]
B. Motions to suppress. A motion judge "determin[es] . . . the weight and
credibility of the testimony" presented at the evidentiary hearing.
Commonwealth v. Moon, 380
In her findings and rulings from the bench, the judge concluded "that the
investigation that took place by [assistant] principal Lapan was under the
guise of a governmental agency and that toward that end, there was certainly no
Miranda rights given, [and] there was no opportunity for parental
involvement." Because the judge determined that it was immaterial whether
the assistant principal was acting "at the behest" of the police, she
did not make any specific findings on that issue. Rather, the judge concluded
that "[i]f [the assistant principal] holds himself out as law enforcement,
if the young people, very young people are not free to leave, are in a
custodial situation, there are due process rights. . . . When children are
treated in a custodial fashion as opposed to in a school fashion, there are
certain due process rights that attend and I find that none of them attended to
any of these defendants today." Because we conclude that these rulings are
erroneous as a matter of law, we reverse the allowance of the motions to
suppress.[8]
School officials acting within the scope of their employment, rather than
"as [instruments] of the police [or] as [agents] of the police," are
not required to give Miranda warnings prior to questioning a student in
conjunction with a school investigation. Commonwealth v. Snyder, 413
To the extent that the judge's ruling was, as two of the juveniles argue, based
on a finding that assistant principal Lapan was acting as an agent of the
police, the finding was clearly erroneous. The juveniles contend that it is
possible to infer that Lapan was an agent of the police, or, in the
alternative, that there was a school policy to provide the police with
information about possible criminal activity.[10] We disagree. The
record contains no evidence that the police directed, controlled, or otherwise
initiated or influenced assistant principal Lapan's investigation of the
alleged incident.
Moreover, Miranda warnings were not required prior to questioning because the
juveniles were not subject to "custodial interrogation." Miranda v.
The juveniles argue that they were "in custody" because they were
questioned individually (and three were asked to write statements) by the
assistant principal, in his office, for fifteen to twenty minutes. They argue
that a student summonsed to the assistant principal's office to discuss a
potentially criminal matter, would not feel free to leave, nor did they
consider themselves free to leave. These facts alone are insufficient to
establish custodial interrogation. Cf. Commonwealth v. Magee, 423 Mass. 381,
385 (1996) ("defendant was interviewed in a closed room at a police station
by a succession of three law enforcement officers over a period of
approximately seven hours" and "was repeatedly told that she would
not receive [requested mental health] help until she answered the
interrogators' questions"); Commonwealth v. A Juvenile, supra at 277-278
(juvenile was interrogated "in a detention facility . . . at which he was
subject to continuous supervision" and "had been physically
restrained from leaving the premises immediately prior to his
confession"). A trip to the principal's office for an interview is not a
"formal arrest," nor does it suggest to the student that he or she
faces such an arrest. It is unrealistic to expect school officials who are
responsible for addressing student behavioral issues to refrain from investigating
allegations of students' harming each other, and the mere fact that such
officials are in positions of authority over students does not transform every
interview of a student into a custodial interrogation. There is no evidence in
the record that Lapan did anything other than what we would expect an assistant
principal to do. See New Jersey v. T.L.O., 469 U.S. 325, 350 (1985) (Powell,
J., concurring) ("apart from education, the school has the obligation to
protect pupils from mistreatment by other children").[11]
Although Ira raised the issue of voluntariness in his memorandum in support of
the motion to suppress, the issue was not specifically addressed at the
evidentiary hearing and the judge did not make any findings or determinations
whether the juveniles' statements were voluntary. "A confession (or
admission), whether made to police or to a civilian, is admissible only if it
is voluntarily made." Commonwealth v. Benoit, 410 Mass. 506, 511 (1991),
citing Commonwealth v. Allen, 395 Mass. 448, 456 (1985). However, "[a]t a
suppression hearing, there is an initial presumption that the defendant's
statement is voluntary, placing the burden on the defendant to produce evidence
tending to show otherwise." Commonwealth v. Crawford, 429 Mass. 60, 65
(1999), citing Commonwealth v. Harris, 371 Mass. 462, 471 n.3 (1976). The
juveniles posit that the statements were involuntary because: the juveniles
were thirteen and fourteen years old, the record is devoid of evidence that the
juveniles wrote their statements free of duress, they were questioned without
their parents being present, they were not given Miranda warnings, they were
questioned by a person in authority, and they were told that there would be
"consequences" for their actions. Ira's affidavit in no way alleged
that he was "intimidated or coerced or that his ability to reason was in
any way impaired," Commonwealth v. Snyder, supra at 531 n.9, nor did the
juveniles introduce any other evidence showing that the statements were
involuntary. We will not conclude that a statement is involuntary simply
because it is taken by a school official who is in a position of authority.
Such an approach would invalidate, on voluntariness grounds, the results of any
questioning of students and thereby would wreak havoc on our schools. Thus,
based on the evidence presented at the hearing on the motions to suppress, we
cannot conclude that the judge, in allowing the juveniles' motions, impliedly
found that the statements were involuntary.
3. Conclusion.
For the above-stated reasons, we conclude that it was error for the judge to
dismiss the complaints and to suppress the juveniles' statements. We reverse
the judgments and the orders allowing the juveniles' motions to suppress, and
the cases are remanded to the Juvenile Court for proceedings consistent with
this opinion.
So ordered.
FOOTNOTES:
[1] Three against Justin R., three against Danny C.,
three against Andy C., and two against Ira I., all juveniles. The names are
assigned pseudonyms.
[2] The juveniles contend that the testimony from the
hearing on the motions to suppress indicates that Lapan was the person who
first made the investigating officer, Officer Robert V. Majewski, Jr., aware of
the alleged June 5 incident. Given the totality of the circumstances in these
cases, our conclusion is unaffected by whether Lapan contacted Officer
Majewski, or Officer Majewski contacted Lapan.
[3] The record is sparse concerning how or when the
juveniles' attorneys became aware of either the oral or written statements. The
only information before us is as follows: the Commonwealth claims that the
juveniles were informed as "part of pre-trial discovery" that Lapan
took oral statements because that information was contained in Lapan's written
statement to Officer Majewski (which was produced); the prosecutor averred that
she was unaware of the juveniles' written statements until the day of the
hearing, when Ira's counsel informed her of their existence; Danny's attorney
stated at the hearing that his motion to suppress was "based on some
information that I just [found] out a week ago"; and Justin's motion to
dismiss indicates that his attorney was "never given written statements
until [the day of the hearing]."
[4] The juveniles' briefs allege that the prosecutor
violated the discovery orders by failing to provide the juveniles' written
statements prior to trial. There is no evidence that the Commonwealth failed to
provide counsel with "pictures" or "medical reports," as
alleged in Danny's and Ira's written motions.
[5] The record appendix does not include a copy of
the discovery orders. However, Danny's brief included a standard pretrial
conference report form that provides for all discretionary discovery, including
statements made by the juvenile or codefendant, if "within the possession,
custody or control of the prosecutor." This is consistent with the
Commonwealth's representation at oral argument. We take this opportunity,
however, to remind litigants and attorneys that the appellant is required to
"file an appendix to the briefs" that "shall contain . . . any
paper filed in the case relating to an issue which is to be argued on
appeal." Mass. R. A. P. 18 (a), as amended, 425
[6] This information appears only in the prosecutor's
affidavit in support of the Commonwealth's motion to reconsider. We reject
Danny's contention that it is improper to consider this affidavit. Contrary to
the juvenile's claim, the record reflects that the Commonwealth did file
notices of appeal from the judge's orders denying the Commonwealth's motions to
reconsider the allowance of the dismissals of the complaints. Furthermore, the
docket sheets indicate that there was a hearing on the motions to reconsider,
and the judge allowed the motions in part, as she issued written orders
indicating that the dismissals were without prejudice.
[7] Because we conclude that the judge's orders to
dismiss the cases without prejudice were an abuse of discretion, we need not
address the other grounds for reversal argued by the Commonwealth.
[8] Because we conclude that the motions to suppress
were erroneously granted as a matter of law, we decline to address the
Commonwealth's arguments that the motions did not comply with the rules of
criminal procedure.
[9] We decline the juveniles' invitation to overrule
the portion of Commonwealth v. Snyder, 413
[10] The juveniles posit that the following supports
a finding that Lapan was an agent of the police: Lapan "conducted an
investigation" of the alleged incident even though it did not occur on
school property; Lapan "interview[ed]" the complainant, the
juveniles, and other students who may have witnessed the alleged event, and procured
written statements from some of the students; Lapan informed the complainant's
mother that she could seek criminal charges against the juveniles, and
testified that in such circumstances, he "always [told] parents" they
could bring criminal charges; the record does not contain any information
concerning a school-related punishment of the juveniles; Officer Majewski
testified that he was a member of the "Youth Aid Bureau," that
"work[ed] in the schools [and] with juvenile issues," and that Lapan
contacted him about the alleged incident; and Lapan's statement to the police
indicates that he contacted Officer Majewski.
[11] Because we conclude that assistant principal
Lapan was not required to give the juveniles Miranda warnings, it is immaterial
that the juveniles were not given an opportunity to consult with their parents
prior to answering questions about the alleged incident. A juvenile's
opportunity to consult with an "interested adult" is relevant to the
validity of the juvenile's waiver of his rights guaranteed by the Fifth
Amendment to the United States Constitution.