|
Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
|
CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v.
Supreme Judicial Court of Massachusetts,
Argued
Decided
Stephanie Martin Glennon, Asst. Dist. Atty., for
commonwealth.
Joseph T. Doyle, Jr.
(William P. Smith,
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS
and O'CONNOR, JJ.
O'CONNOR, Justice.
A grand
jury returned five indictments charging the defendant with rape of a child and
three indictments charging him with indecent assault and battery on a child
under [398 Mass. 830] fourteen years of age. The indictments named two victims. The defendant moved to suppress the alleged
victims' testimony. A judge ruled that
the victims' testimony constituted "fruit of the poisonous tree," see Wong Sun v. United States, 371 U.S.
471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), and allowed the motion. A single justice of this court granted the
Commonwealth's application for an interlocutory appeal and referred the case to
the full court. We affirm.
The
question on appeal is whether the judge correctly concluded that the victims'
anticipated testimony was tainted fruit of the defendant's involuntary
statements to the police. Because the
standards applicable under art. 12 of the Massachusetts Declaration of Rights
have not been separately argued by the parties, we confine our review to the
constitutional standards applicable under the Fifth Amendment to the United
States Constitution.
The order
from which the Commonwealth appeals, suppressing the victims' testimony, was
preceded by the allowance by a different judge of the defendant's motion to
suppress incriminating statements he had made to the police. The earlier motion, which we shall refer to
as the first motion, was allowed on the ground that those statements were made
involuntarily. The correctness of that
ruling is not in issue. The first motion
judge found that on March 22, 1985, the defendant met with detectives at the
Quincy police station and discussed an incident of sexual abuse of children
"for which he had been brought in."
That incident did not involve the victims named in the present
indictments. The detectives told the
defendant that they had information implicating him in other incidents of
sexual abuse of children. They also told
him that, if he cooperated with the investigation by waiving his right against self‑incrimination and his right to
have an attorney present at the questioning, his statements would not be used
as the basis of criminal charges against him. In addition, they told him that, if he
cooperated, they would recommend to the district attorney that he be included
in a sexual offenders' diversion and treatment program rather than be
prosecuted. Lastly, the detectives told
the defendant that, if he were accepted into that program without[398 Mass. 831] having disclosed other
sexual experiences he had had with children, there was a risk that the police
would discover those incidents and he would be expelled from the program and
prosecuted.
On the following
day, March 23, 1985, the defendant telephoned one of the detectives and
described several incidents involving the victims named in the present
indictments. The judge found that the
defendant's statements were induced by the detectives' promise of leniency and
by the threat that a failure to confess everything would result in harsher
treatment. He concluded that the promise
and threat were a "calculated attempt to raise an expectation of
leniency," that the statements were involuntary, and that their
suppression was required. The
Commonwealth did not appeal from the allowance of the defendant's motion to
suppress his statements.
Thereafter,
the defendant moved to suppress the testimony of the two children named as
victims in the present indictments on the ground that their testimony would be
the fruit of his involuntary statements and therefore inadmissible under Wong Sun v. United States, supra, and
its progeny. We shall refer to this
motion as the defendant's second motion.
After a hearing, the second motion judge adopted the findings of the
first motion judge, which procedure neither party challenges, and made
additional findings. We set forth
immediately below the relevant additional findings, quoting them in large
measure.
The judge
found as follows:
"1.
The corpus delicti of the crime and
the identity of the victims were not known to the police until the defendant
told them.
"2.
As a result of the defendant's statements to the police, the mother of the
children was indirectly informed that the defendant had confessed wrongdoing
with her children.
"3.
Having thus been informed by a third party, the mother then contacted the
police department and was advised by the police that the defendant had made a
statement involving sexual misconduct with her children. The police advised her to talk to the
children about this, but cautioned that care should be [398 Mass. 832] taken
in the manner in which the children were informed because the defendant had
claimed that the children were asleep when the sexual acts took place....
"4.
The mother did question her children separately and in a guarded manner, not
indicating that the defendant had admitted wrongdoing with them. Ultimately, the children did describe to
their mother the sexual acts performed by the defendant on them and only then
did the mother indicate that the defendant had admitted the story to the
police.
"5.
Within a day or two, the children went to the police station of their own free
will and told their story to the police officer. The mother has expressed a willingness for
the children to testify in the trial in the courtroom.
"6.
The children would testify upon questioning that they told their mother of the
assaults by the defendant and that she advised them that the defendant admitted
the story to the police."
The judge
further found that "[t]he Commonwealth clearly did not 'coerce' the
children to testify. Their mother was
first informed of the defendant's admissions, not by the police, but by her
friend, the defendant's girlfriend. The
mother then voluntarily called the police and followed their advice on
questioning her children in a guarded manner.... They later spoke voluntarily to the police. I find no State coercion in this chain of events." The judge concluded that the officers'
"intervention ... trigger[ed] a chain of events that would produce ...
victim/witness[es] willing to press charges and to testify against the
defendant." The judge also
concluded that the officers "must have realized" that that chain of
events would occur, and that the officers "deliberately and intentionally
extracted the identities of these witnesses/victims from the defendant."
As we
explain below, our decision in this case rests on the judge's findings that the
police obtained the defendant's involuntary statement for the very purpose of
obtaining information, previously unknown to them, of other crimes committed by
the defendant and the identity of victims whose testimony might be used as
proof, and that the effort of the police was successful. The evidence warranted those findings. The [398
Mass. 833] Commonwealth in its brief
states that "there is no suggestion that the third party was prompted by
any official to make [the] disclosure" to the alleged victims' mother
about the assaults. If that statement
was meant to be an assertion that there was no evidence that the mother's
friend was prompted by the police to tell the mother about the defendant's
assaults against her children, we reject it.
The judge clearly was warranted in finding that the police used promises
and threats to stimulate the defendant to disclose crimes and victims' names
for law enforcement purposes. As the
judge observed, "[i]t was particularly shocking to learn from the
officers' testimony that, although the defendant was encouraged to 'come clean'
and to tell all, in fact, the longer a suspect has been involved in the sexual
abuse of children, the less likely he
is to be accepted into the program, and the more likely he is to be
indicted" (emphasis in original).
The evidence disclosed that, promptly after the defendant told the
police about his abuse of the victims, in keeping with the police objectives,
the mother's friend notified the mother about the incidents to which the
defendant had confessed, and advised her to call the police. The judge was justified in concluding that
that chain of events was other than coincidental.
We turn to
a discussion of the applicable Federal law.
It is well established that the exclusionary rule applies not only to
the direct results of police misconduct but also to the "fruits" of
official illegality. See Wong Sun v. United States, supra at
484, 83 S.Ct. at 415. This broad
exclusionary rule follows from the fact that "[t]he essence of a provision
forbidding the acquisition of evidence in a certain way is that not merely
evidence so acquired shall not be used before the Court but that it shall not
be used at all." Silverthorne Lumber Co. v. United States,
251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920). Equally well‑established precepts
qualify this sweeping exclusionary principle, however. Thus, evidence is admissible if the
government learns of it from a source independent of the illegality, id., if the connection between the
police misconduct and the discovery of the challenged evidence is "so
attenuated as to dissipate the taint,"
Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 267, 84 L.Ed.
307 (1939), or if the evidence would [398
Mass. 834] inevitably have been
discovered in the normal course of a legal police investigation, Nix v. Williams, 467 U.S. 431, 104
S.Ct. 2501, 81 L.Ed.2d 377 (1984).
From Wong Sun v. United States, supra 371
U.S. at 485‑488, 83 S.Ct. at 416‑417, we learn that not only may
physical materials obtained during or as a direct result of an unlawful
invasion of a defendant's Fourth Amendment rights be barred from evidence, but
evidence of visual and auditory observations made in such circumstances may be
barred as well. The present case raises
the question, not whether materials the government has acquired or observations
its witnesses have made as a result of an unlawful intrusion are admissible,
but rather whether the testimony of a witness discovered through the
involuntary statement of a defendant is admissible. Our question is whether, in the circumstances
of this case, the connection between the involuntary statement of March 23,
1985,
and the acquisition of the
witnesses' anticipated testimony is so attenuated that the exclusionary rule
does not apply. The Commonwealth does
not contend that the testimony is admissible because of the independent source
or inevitable discovery qualifications of the exclusionary rule.
A similar
question was presented to the Supreme Court in the case of United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55
L.Ed.2d 268 (1978), although as we shall see, there is a critical distinction
between that case and this one. Ceccolini concerned the testimony of a
witness who was discovered as a result of an illegal search rather than, as
here, an involuntary statement. However,
we have not been made aware of a sufficient reason why a different attenuation
analysis should apply under the Fifth Amendment to testimony acquired through
an involuntary statement than applies under the Fourth Amendment to testimony
acquired as a result of an illegal search.
Indeed, the arguments of the parties are in large measure focused on the Ceccolini case and on the case of Commonwealth v. Caso, 377 Mass. 236,
385 N.E.2d 979 (1979), in which this court considered the admissibility of the
testimony of a witness whose identity was disclosed to the police through an
illegal wiretap.
In United States v. Ceccolini, supra, the
witness's significance, although not her identity, was discovered as a result
of [398 Mass. 835] an unlawful search of the defendant's
shop by a police officer named Ronald Biro.
After being interviewed by the police, the witness testified against the
defendant voluntarily. Nothing acquired
by Officer Biro in the course of his search was used to obtain the witness's
cooperation. Id.
435 U.S. at 279, 98 S.Ct. at 1061.
Furthermore, there was "not the slightest evidence to suggest that
Biro entered the shop or picked up the envelope with the intent of finding
[relevant] tangible evidence ..., much less any suggestion that he entered the
shop and searched with the intent of finding a willing and knowledgeable
witness to testify against respondent." Id. at 279‑280, 98 S.Ct. at 1061‑1062. Given those facts, and in view of the balance
to be struck between protecting constitutional rights by deterring official
misconduct, on the one hand and, on the other hand, "encroach[ing] upon
the public interest in prosecuting those accused of crime and having them
acquitted or convicted on the basis of all the evidence which exposes the
truth," id. at 275‑276, 98
S.Ct. at 1059‑1060, the Court concluded that the exclusionary rule ought
not apply to the witness's testimony. Id. at 280, 98 S.Ct. at 1062.
The Court
in Ceccolini reasoned that the basic
purpose of the exclusionary rule, deterrence of official misconduct, would not
be served by application of the rule in the circumstances of that case. Although the Court considered several
factors, two considerations were predominant in the Court's rationale. The first of these was the willingness of the
witness to testify. The Court
observed: "The greater the
willingness of the witness to freely testify, the greater the likelihood that
he or she will be discovered by legal means and, concomitantly, the smaller the
incentive to conduct an illegal search to discover the witness." Id.
at 276, 98 S.Ct. at 1060. The Court's
other predominant consideration was that "[a]pplication of the
exclusionary rule ... could not have the slightest deterrent effect on the
behavior of an officer such as Biro [whose unlawful search was not made for the
purpose of discovering evidence or the identity of a witness]. The cost of permanently silencing [the
witness] is too great for an evenhanded system of law enforcement to bear in
order to secure such a speculative and very likely negligible deterrent
effect." Id. at 280, 98 S.Ct. at 1062.
[398 Mass. 836] The Court's reasoning in
Ceccolini appears to contain the implicit assumption that, if an unlawfully
discovered witness turns out to be willing to testify, the police would have
been able to predict at an earlier time that without police intervention the
witness would not only testify voluntarily on request but would voluntarily
come forward as well. The police, then,
would not be motivated to engage in illegal activity for the specific purpose
of discovering the witness and securing the witness's
testimony. Deterrence of purposeful
police misconduct thus would be unnecessary.
(FN1) We need not evaluate the
Court's reasoning, because it is sufficient for our purposes that in the
present case, despite having found that the witnesses, as things developed,
were willing to testify, the judge also found on adequate evidence that the
police obtained the defendant's involuntary statement for the very purpose of
discovering the defendant's crimes and witnesses to testify to them. In this case, therefore, unlike in Ceccolini, and unlike in Commonwealth v. Caso, supra, where
there was no suggestion that the illegal wiretap was designed to discover
witnesses, the willingness of the witnesses to testify permits neither an
inference nor an assumption that the police conduct was not purposeful. The purposeful conduct forcefully suggests
that the police did not think that the witnesses would come forward and testify
voluntarily. In this case, therefore,
legitimate concerns for deterrence compel the application of the exclusionary
rule to the children's testimony.
As the
Court in Ceccolini noted, "[o]f
course, the analysis might be different where the search was conducted by the
police for the specific purpose of discovering potential witnesses." Id.
at 276 n. 4, 98 S.Ct. at 1060 n. 4. We
are persuaded that the attenuation [398
Mass. 837] analysis not only might
be different but must be different in a case such as this, where the issue is
the admissibility of the expected testimony of witnesses whose identity the
police purposefully discovered by taking an involuntary statement from the
defendant. "[S]urely the
exclusionary rule should not be withheld as to the very kind of evidence which
motivated the [taking of the statement]."
W.R. LaFave, Search and Seizure § 11.4, at 673 (1978). We hold that in this case the link between
the defendant's involuntary statement and the children's expected testimony is
so close that to permit the Commonwealth to use the testimony at a trial of the
defendant would defeat the exclusionary rule's purpose to protect
constitutionally guaranteed rights and privileges. Therefore, we affirm the order suppressing
the children's testimony.
So ordered.
(FN1.) Focusing on this part of the Court's
reasoning in Ceccolini, Justice
Marshall, with whom Justice Brennan joined, dissenting, said, "The
somewhat incredible premise ... is that the police in fact refrain from illegal
behavior in which they would otherwise engage because they know in advance both
that a witness will be willing to testify and that he or she 'will be
discovered by legal means.' [Id. at 276, 98 S.Ct. at 1060]. This reasoning surely reverses the normal
sequence of events; the instances must
be very few in which a witness' willingness to testify is known before he or
she is discovered." Id. at 288, 98 S.Ct. at 1066.