|
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. Larkin, 429
Supreme Judicial Court of Massachusetts,
Argued
Decided
James F. McNiff, II,
Robert C. Cosgrove, Assistant District Attorney, for
Commonwealth.
Present:
WILKINS, C.J., ABRAMS, GREANEY, FRIED, &
FRIED, J.
The
defendant, Robert F. Larkin, III, was convicted of murder in the first degree,
as well as aggravated rape and unarmed robbery. We affirm the convictions and decline to
exercise our power under G.L. c. 278,§ 33E, to order a new trial or reduce the
murder verdict.
I
On
The
defendant was first interviewed regarding his possible connection with Leal's
murder on
On March
22, 1995, the defendant was once again interviewed by Sergeant Flaherty and
Trooper Shea in connection with the Leal murder. The defendant, who was still at the Norfolk
County house of correction, was brought down to an interview room and signed a
waiver indicating his willingness to speak with the troopers. Once the waiver was signed, Trooper Shea read
the defendant his Miranda rights and he again signed a Miranda card. The defendant was then questioned for
approximately one hour and fifteen minutes, during which time he admitted that,
at some time during November, 1995, he had assaulted and robbed a
prostitute. He contended that the woman
then fled and he denied any involvement in the murder of Leal. During the interview Trooper Shea took
handwritten notes.
On July
21, 1995, Sergeant Flaherty received information from the Federal Bureau of
Investigation that a fingerprint recovered from the tape wrapped around Leal's
mouth had been positively identified as that of the defendant. The troopers then [429 Mass. 428]
obtained an arrest warrant and returned to the house of correction to speak to
the defendant.
The
defendant was brought to the office of correction officer Dennis F. Casey. Casey told the defendant that the troopers
were there to talk to him. The defendant
expressed reservations about speaking with the troopers and Casey explained to
him that he did not have to see the troopers and could return to his cell block
without talking to them. He told the
defendant that, if he wanted to speak with the troopers, he could do so on
signing a law enforcement special agency waiver form. The defendant then indicated to Casey that he
wished to speak to the troopers.
The
defendant was brought into the interview room where he reviewed and signed the
waiver in the presence of Casey and Sergeant Flaherty and Trooper Shea. Casey indicated to the defendant that, should
he wish to terminate the interview and return to his cell, he could do so by
signaling the officer, whose desk was directly across from the interview room
visible from where the defendant was sitting.
Before
advising the defendant of his Miranda rights, the troopers and the defendant
engaged in a conversation which lasted approximately ten minutes. The defendant indicated his displeasure that
he had been denied parole several times and indicated that he was due to be
released soon. Flaherty told the
defendant that he should be more concerned about ever getting out of prison,
and that an arrest warrant had been issued charging him with the murder of Leal. Flaherty explained to the defendant that the
authorities were in possession of indisputable evidence that would link him to
the Leal murder. Flaherty refused to
disclose the nature of the evidence but told the defendant that if he decided
to give a statement regarding what happened the night of Leal's death, Flaherty
would reveal the evidence at the conclusion of the statement.
The
defendant asked the troopers if he would go to jail even if he made a
statement. Flaherty indicated that he
likely would. The defendant asked if he
would still be charged with murder, even if he made a statement. Flaherty again responded in the
affirmative. The defendant then asked
about the different degrees of murder.
Flaherty explained that, if the defendant were convicted of murder in
the first degree, he would receive a sentence of life in prison without parole
and if he were convicted of murder in the second degree, he could be eligible
for parole after fifteen years. Flaherty
also indicated that the [429 Mass.
429] defendant could be convicted of
manslaughter or be found not guilty of any of the aforementioned offenses but
that, based on the evidence already in the possession of the law enforcement
authorities, there was a strong likelihood that the defendant would be
convicted of murder. Flaherty also
indicated that this result would be affected by what any codefendants might say
regarding the defendant's role in the murder, and that, although the defendant
was the only one charged with Leal's murder so far, there were two others who
would also likely be charged.
Flaherty
then told the defendant that, although they could not promise him anything, if
the defendant gave a statement and cooperated with the troopers, they would
indicate this to the district attorney in charge of the case. The defendant said that he had small children
and that he did not want them to have to visit him in jail, and he expressed
concern that should he give a statement he would go to jail for the rest of his
life. Flaherty told the defendant that
he might want to do some soul‑searching and make peace with himself or
his God and get the matter off his chest by making a statement.
The
defendant asked the troopers how he could make a statement without an attorney
and Flaherty explained that the decision to speak with or without an attorney
was the defendant's to make. Flaherty
also explained that the right not to speak and to have an attorney present were
among the defendant's rights, which, Flaherty indicated, they were about to read
the defendant. Sergeant Flaherty told
the defendant that he would have to waive these rights if he wished to give a
statement to them and suggested that the defendant take a minute and decide if
he wanted to go forward. After a few
minutes, the defendant indicated that he wished to give a statement. At this point, approximately ten minutes
after the start of the interview, at 9:12 P.M., Trooper Shea read the defendant
his Miranda rights from a printed card.
The defendant asked Flaherty if he was going to record the statement and
Flaherty responded that he had a laptop computer on which he would take notes
as the statement was made. The defendant
then gave a highly incriminating statement regarding his involvement in the
murder of Leal. (FN2)
The entire
interview lasted approximately one and one‑half [429 Mass. 430] hours
and consisted of statements given by the defendant and answers to questions
asked by Flaherty. At no time during the
interview did the defendant signal to the correction officer outside that he
wished to end the interview nor did he express to the troopers in the room that
he wanted to stop talking. The defendant
did not request an attorney nor did he ask to make a telephone call.
At the
conclusion of the interview, Flaherty told the defendant that they had
recovered a fingerprint from the tape around the victim's mouth and that the
fingerprint matched that of the defendant.
The troopers again advised the defendant that there was a warrant in
effect for his arrest and that he was to be charged with the murder of Leal.
The
defendant was indicted for Leal's murder, aggravated rape, and unarmed
robbery. The defendant filed a motion to
suppress the statements he made to the police on March 15, March 22, and July
21, 1995. A judge in the Superior Court
denied the motion. The defendant was
tried and was convicted by a jury on all three charges. He was convicted of murder in the first
degree by reason of extreme atrocity or cruelty and felony‑murder.
[429
Mass. 431] II
The motion
judge denied the defendant's motion to suppress the July 21 statement for two
reasons: that the defendant, although
incarcerated, was not the subject of custodial interrogation, and that in any
event the defendant had not been subjected to interrogation prior to receiving
Miranda warnings. On appeal the
defendant argues that the motion judge erred in denying the motion to suppress
his July 21, 1995, statement to the police.
(FN3) He argues that the police
improperly failed to give Miranda warnings and that his admissions were
involuntary. The motion judge was
correct in ruling that the interrogation was not custodial for purposes of
Miranda. The judge was wrong to rule that
it was clear that there had been no interrogation prior to the administration
of the warnings, (FN4) but the statements are admissible on the affirmative
ground, urged by the Commonwealth here and pressed on the
motion to suppress below, [429 Mass.
432] that the defendant had made no
incriminating statements‑‑had not "let the cat out of the
bag"‑‑in the ten minutes before the warnings were
administered.
A
[1][2][3][4]
Miranda warnings are only necessary where one is the subject of "custody
and official interrogation." Illinois v. Perkins, 496 U.S. 292, 297,
110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) (Miranda warnings only required when a
suspect is both in custody and subject to state interrogation because
"[i]t is the premise of Miranda
that the danger of coercion results from the interaction of custody and
official interrogation"). See Miranda v. Arizona, 384 U.S. 436, 444,
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Morse, 427 Mass. 117, 122‑123,
691 N.E.2d 566 (1998); Commonwealth v. Jung, 420 Mass. 675, 688,
651 N.E.2d 1211 (1995). Whether a
suspect was subject to custodial interrogation is a question of Federal
constitutional law. Morse, supra at 123, 691 N.E.2d 566.
Commonwealth v. Snyder, 413 Mass. 521, 531, 597 N.E.2d 1363
(1992). The defendant bears the burden
of proving custody. United States v. Charles, 738 F.2d 686,
692 (5th Cir.1984). The test is an
objective one: whether a reasonable
person in the suspect's shoes would experience the environment in which the
interrogation took place as coercive.
See Stansbury v. California,
511 U.S. 318, 323, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) ("the initial
determination of custody depends on the objective circumstances of the
interrogation, not on the subjective views harbored by either the interrogating
officers or the person being questioned"); Morse, supra at 123‑124,
691 N.E.2d 566.
Whether a
person was in custody for the purposes of the Miranda rule has been a much
litigated and troublesome question.
Usually the issue has revolved around whether a person invited to the
police station to answer questions (FN5) or whether one interviewed away from a
police station, but in a more or less [429
Mass. 433] impressive police
presence, should be considered in custody so that Miranda warnings are a
precondition of questioning. Compare Berkemer v. McCarty, 468 U.S. 420, 437‑438,
104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (roadside questioning not custodial
because it is presumptively temporary and brief and takes place in public), and Sprosty v. Buchler, 79 F.3d 635, 641
(7th Cir.), cert. denied, 519 U.S. 854, 117 S.Ct. 150, 136 L.Ed.2d 95 (1996)
(finding of custody less likely if confronted by only one or two officers),
with Orozco v. Texas, 394 U.S. 324,
324‑325, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969) (defendant confronted in
his bedroom by four police officers was in custody), and Commonwealth v. Alicea, 428 Mass. 711, 714‑715, 705 N.E.2d
233 (1999) (suspect, questioned regarding murder of his children at his
apartment, then agreed to accompany police to cemetery where he indicated he
had heard that their bodies were buried, not in custody).
It might
seem, therefore, that this is an easy case:
there is no nice legal issue about whether the defendant was actually
under arrest, whether he thought he was, or whether a reasonable person in his
situation would have thought so. He was,
after all, incarcerated at the time, and it is hard to be more in custody than
that. And yet the motion judge was
correct to rule that the defendant was not in custody for Miranda purposes at
the time of the interview.
The Miranda rule is not a legislative mandate,
whose plain meaning must be followed even where the result in a particular case
may seem unreasonable; it is a judicial
exposition of what the Supreme Court has concluded is an implication or
implementation of the constitutional privilege against self‑incrimination.
Miranda, supra at 490‑491, 86 S.Ct. 1602 (Miranda warnings are
a judicial creation, "the Constitution does not require any specific code
of procedures for protecting the privilege against self‑incrimination
during custodial interrogation"). Miranda states a principle, and it is the
principle to which we must look in determining Miranda 's proper range. Miranda itself states the principle: custodial interrogation raises sufficient
concerns that it is coercive because during such interrogation the subject is
likely to feel so wholly in the power of the police, isolated, not free to go
or to terminate the interview unless he gives the police what they want, that,
in such conditions of isolation and powerlessness the required readings are
necessary to assume the voluntariness of any [429 Mass. 434]
incriminating statements. See Miranda, supra at 461, 86 S.Ct.
1602. The question, therefore, is not
whether a person is in custody in some abstract sense or for some other
purpose, but whether he is in custody in the sense that implicates the concerns
motivating the Miranda rule in the first place.
Numerous
courts have acknowledged that the usual test for determining if a person is in
custody when questioned‑‑whether there was a restraint on the
defendant's freedom of movement of the degree associated with formal arrest‑‑is
not particularly apposite in considering the question of prison inmates. See
United States v. Conley, 779 F.2d 970, 973 (4th Cir.1985), cert. denied, 479
U.S. 830, 107 S.Ct. 114, 93 L.Ed.2d 61 (1986); Bradley v. State, 473
N.W.2d 224, 228 (Iowa Ct.App.1991); People v. Margolies, 125 Misc.2d 1033,
1042, 480 N.Y.S.2d 842 (N.Y.Sup.Ct.1984).
In fact, literal application of the "free to leave" standard
to inmates "would not only be inconsistent with Miranda but would torture
it to the illogical position of providing greater protection to a prisoner than
to his nonimprisoned counterpart." Cervantes v. Walker, 589 F.2d 424, 427
(9th Cir.1978). See United States v. Menzer, 29 F.3d 1223, 1231‑1232 (7th Cir.),
cert. denied, 513 U.S. 1002, 115 S.Ct. 515, 130 L.Ed.2d 422 (1994);
United States v. Cofield, 960 F.2d 150 (6th Cir.), cert. denied, 506
U.S. 1023, 113 S.Ct. 662, 121 L.Ed.2d 587 (1992); United States v. Conley, supra
at 973. Thus, in such circumstances,
rather than asking whether a prisoner was free to leave the facility, courts
have asked whether he is subject to some restraint in addition to those
normally imposed on him by virtue of his status as an inmate. See
United States v. Willoughby, 860 F.2d 15, 24 (2d Cir.1988), cert. denied,
488 U.S. 1033, 109 S.Ct. 846, 102 L.Ed.2d 978 (1989) (there must be some
"measure of compulsion above and beyond that confinement" or a change
in surroundings of the prisoner which results in an added imposition of his
freedom of movement); Leviston v. Black, 843 F.2d 302, 304 (8th
Cir.), cert. denied, 488 U.S. 865, 109 S.Ct. 168, 102 L.Ed.2d 138 (1988) (there
must be "some restriction on [the inmate's] freedom of action in
connection with the interrogation itself"); State v. Conley, 574 N.W.2d
569, 573‑574 (N.D.1998) ("Incarceration does not automatically make
an inmate in custody for Miranda
purposes. Some added restriction on the
inmate's freedom of movement during the interrogation itself must
exist.... If a prisoner makes a
challenged statement when he was not subjected to more than the usual restraint
on a prisoner's freedom of movement, the prisoner is not in custody and Miranda warnings are not
required"); State v. Warner, 125 Wash.2d 876, 885,
889 P.2d 479 (1995)[429 Mass. 435]
("When dealing with a person already incarcerated, 'custodial'
means more than just the normal restrictions on freedom incident to
incarceration").
[5][6][7]
An additional restraint is one that places a restriction on the inmate's
freedom of action in connection with the interrogation and prevents him from
leaving the scene of questioning by placing a further limit on his already
restricted freedom of movement. See Willoughby, supra at 24;
Leviston, supra at 304. The
precise question is thus "whether the prisoner would reasonably believe
himself to be in custody beyond that imposed by the confines of ordinary prison
life." Margolies, supra at 1041, 480 N.Y.S.2d 842.
See United States v. Conley, supra
at 973;
Cervantes, supra at 428.
This determination requires an assessment of the totality of the
circumstances surrounding the alleged interrogation. Garcia v. Singletary, 13
F.3d 1487, 1492 (11th Cir.), cert. denied, 513 U.S. 908, 115 S.Ct. 276, 130
L.Ed.2d 193 (1994).
[8] In
this case it is as clear as can be that the circumstances of the interview were
in the special Miranda sense noncustodial.
Though the defendant was certainly in custody in the sense that he was
not free to walk off the correctional institution's premises, he was not at all
in the control of the troopers who were interrogating him, and indeed
everything had been done to make it quite clear to him that he held the reins
of the encounter. First of all, he had
been told that he did not have to meet with the troopers at all. Then he met with them apart from his usual
place of confinement, in a lawyer's interview room. (FN6)
And finally he had been told by Officer Casey, who was part of the
correctional, not the interrogating, staff, (FN7) that he could end the [429 Mass. 436] interview at any time merely by signaling Casey (who was directly
across the hall and visible from where the defendant sat) and that if he did so
the interview would be ended and he would immediately be returned to his
cell. (FN8) Moreover, the discussion was of a relaxed
tenor, with the defendant often controlling the direction of the conversation
with his questions, and was not excessively lengthy. The defendant was not placed in any type of
physical restraints.
B
The
defendant's statements in the July 21 interview were admissible on the
alternative ground that he made no incriminating statements prior to the
administration of the Miranda warnings.
In the jargon peculiar to this corner of the law, he did not "let
the cat out of the bag" prior to the Miranda warnings, although he surely
did afterward. See
Commonwealth v. Sarourt Nom, 426 Mass.
152, 156, 686 N.E.2d 1017 (1997); Commonwealth v. Watkins, 375 Mass. 472,
480‑482, 379 N.E.2d 1040 (1978).
The motion judge did not reach this issue, but her findings of fact are
sufficient to allow us to conclude that, as a matter of law, what the defendant
said prior to the warnings was not inculpatory.
[9] It has
never been the law that once the police fail in their obligations under Miranda all subsequent uncounselled
statements[429 Mass. 437]
by an accused must be excluded.
The taint of a Miranda violation is not ineradicable. We have differed from the Supreme Court on
this issue, but the difference is one of degree. In
Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the
Court rejected the rule of presumptive taint.
The rule of law established in
Elstad is that "absent deliberately coercive or improper tactics in
obtaining the initial statement, the mere fact that a suspect has made an
unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has
given a voluntary but unwarned statement ordinarily should suffice to remove
the conditions that precluded admission of the earlier statement." Id.
at 314, 105 S.Ct. 1285. We have been
more demanding. Commonwealth v. Smith, 412 Mass. 823,
836, 593 N.E.2d 1288 (1992) (establishing Massachusetts rule that a statement
made following a violation of a suspect's Miranda rights is presumptively
tainted requiring that the prosecution show "more than the belated
administration of Miranda warnings in order to dispel that taint"). According to our cases, the taint of an
earlier Miranda violation may be removed if either (1) sufficient time has
elapsed and there has been a sufficient break in the course of events to allow
the conclusion that the taint has been dissipated, Commonwealth v. Osachuk, 418 Mass. 229, 231, 635 N.E.2d 1192
(1994), or (2) the pre‑Miranda
interview led to no inculpatory statement.
See Sarourt Nom, supra at 156,
686 N.E.2d 1017; Smith, supra at 835‑837, 593 N.E.2d
1288;
Watkins, supra at 482, 379 N.E.2d 1040. (FN9)
[10] In
this case there was no break in the course of the interview, the Miranda
warnings being issued some ten minutes after it began. The defendant admitted nothing in those ten
minutes. Much of the conversation was
taken up by the defendant's asking what his rights and liabilities might
be. The troopers gave accurate answers,
answers which enhanced rather than detracted from the sense of the seriousness
of the situation in which the defendant found himself, and thus gave greater
assurance that when he did waive his Miranda rights the defendant had a good
understanding of what he was up against.
This made the Miranda warnings, when given a few minutes later, if
anything [429 Mass. 438] more effective. In one part of the pre‑Miranda exchange
the defendant specifically asked if he might make a statement without his
lawyer being present and the troopers answered correctly that the decision to
speak without an attorney being present was completely up to him. This in fact is an anticipation of one of the
crucial parts of the Miranda warning, and it would be grotesque if somehow
giving this information out of the canonical sequence, colloquially, and not in
the rote, mechanical manner in which the warning is usually administered, would
somehow count against the admissibility of a subsequent statement.
C
[11][12]
Apart from the claim as to the Miranda warnings, the defendant makes no
colorable claim that his statement of July 21, 1995, was in any way
involuntary. First, there is no evidence
that the defendant was intoxicated, under the influence of narcotics, or
otherwise disabled at any point in the process.
The defendant was a veteran of the criminal process, having been read
his Miranda warnings in excess of ten times (and waiving
them in most of these instances) in connection with this and other crimes. Throughout the meeting, both during the
initial phases and while giving his actual statement, the defendant spoke
freely and was responsive, alert, and coherent.
Upon completing his statement, the defendant informed the troopers that
he had previously wanted to tell them the information he had just given
them. The motion judge found that
"[t]here was no credible evidence that the troopers were coercive or
overbearing in the manner in which they conducted their questioning." The motion judge thus properly determined
that the Commonwealth satisfied its burden of demonstrating beyond a reasonable
doubt that the defendant's statements were voluntary. See
Commonwealth v. Williams, 388 Mass. 846, 856, 448 N.E.2d 1114 (1983);
Commonwealth v. Tavares, 385 Mass. 140, 152, 430 N.E.2d 1198, cert.
denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). (FN10)
[429
Mass. 439] III
[13] The
defendant asserts that the judge erred in using a blackboard during her jury
instructions to set forth the elements of murder but not doing the same for the
elements of manslaughter, aggravated rape, and unarmed robbery. The defendant does not claim that the judge's
instructions were incorrect, rather, he claims that charting one set of
elements and not others was "selective overemphasis." As we explained recently in Commonwealth v. DiBenedetto, 427 Mass.
414, 421‑422, 693 N.E.2d 1007 (1998), this does not constitute
error. As we stated in that case, the
judge is entitled to place the elements of the crime on the blackboard, id. at 422, 693 N.E.2d 1007, and
"reasonable steps to assist a jury in performing their function should be
encouraged." Id. While the judge only charted the
elements of one crime on the blackboard, (FN11) she told the jury on more than
one occasion that all of her instructions were important and that any questions
about them would be answered. Before
proceeding to the specific instructions regarding the charges at issue, she
instructed the jury that they should not consider anything "in the way I
give these instructions as any evidence of my feelings about the
case." She made clear that, in
order to convict of any one of the offenses, the jury must find each element of
the crime beyond a reasonable doubt. The
jury proceeded to find the defendant guilty of not only murder in the first
degree, but also the "uncharted" crimes of rape and unarmed robbery.
We have
examined the entire record, as required by G.L. c. 278, § 33E, and conclude
that there is no basis for ordering a new trial or directing the entry of a
verdict of a lesser degree of guilt.
Judgments affirmed.
(FN1.) The defendant had, in the past, been
arrested and informed of his Miranda rights.
(FN2.)
The defendant indicated that, on or about November 15, 1994, he and Shawn Kane
had gone to the Combat Zone area of Boston to pick up a prostitute. He indicated that they had difficulty getting
any prostitute to enter the car because the prostitutes had a safety concern
about getting into a car with two men.
They therefore decided to have Kane hide in the back of the car so that
the women would see only one person in the car.
The defendant then picked up the victim, Leal, who agreed to accompany
him home in exchange for one hundred dollars.
Once there, the defendant gave the victim seventy‑five dollars and
they went to the defendant's bedroom where the victim performed oral sex on the
defendant and had intercourse with him.
When the
victim emerged from the bedroom, Kane, who had hidden in the car, and a third
individual, Kevin Lynch, were present.
One of these individuals requested sex but the victim refused because
the individual indicated that he had no money.
An argument ensued and, as the victim headed for the door, the defendant
grabbed her purse and the three men beat her.
Once the victim was unconscious, the men got some rope and tied her
hands and legs and put tape over her mouth.
They then dragged her into the back bedroom where one of the other men
had sex with her. When this man was
done, the third individual went into the room and also had sex with the
victim. When this third man emerged,
according to the defendant, he announced that he did not think that the victim
was breathing. Once this was verified,
the three wrapped the body in a bedspread.
After spending the next day drinking heavily, they decided to weigh the
body down with cinder blocks and dump it in the quarry.
Kevin
Lynch was convicted of murder in the first degree. That judgment was affirmed. See
Commonwealth v. Lynch, 428 Mass. 617, 703 N.E.2d 1182 (1999). Shawn Kane was awaiting trial on Leal's
murder as of January, 1999.
(FN3.) The defendant does not, on appeal,
challenge the admission of the statements of March 15 or March 22, 1995.
(FN4.) Although the Supreme Court of the
United States has defined interrogation as "express questioning or its
functional equivalent," Rhode Island
v. Innis, 446 U.S. 291, 300‑301, 100 S.Ct. 1682, 64 L.Ed.2d 297
(1980), the term "functional equivalent" has been construed quite
broadly. It has been defined as
"any words or actions on the part of the police ... that the police should
know are reasonably likely to elicit an incriminating response from the
suspect," id. at 301, 100 S.Ct.
1682, including "psychological ploys" likely to elicit such a
response.
Arizona v. Mauro, 481 U.S. 520, 526, 107 S.Ct. 1931, 95 L.Ed.2d 458
(1987). Here the officers both told the
defendant that they possessed incontrovertible evidence of his involvement in
the crime and offered to bring any cooperation on his part to the attention of
the district attorney. They also told
the defendant that he might wish to do some "soul‑searching" or
make peace with himself or his God by getting the matter off of his
chest. Such actions have been held
"likely to elicit an incriminating response." See, e.g., United States v. Montana, 958 F.2d 516, 518 (2d Cir.1992)
(functional equivalent of interrogation to tell suspect that any cooperation
would be brought to attention of assistant United States attorney);
United States v. Gomez, 927 F.2d 1530, 1538‑1539 (11th
Cir.1991) (information concerning harshness of sentences and benefits of
cooperation are precisely the type of psychological ploy Innis and Miranda sought
to prevent because they are likely to be interpreted by accused as pressure to
respond and come clean); Toliver v. Gathright, 501 F.Supp. 148
(E.D.Va.1980) (confronting an accused with incriminating evidence against him
is a common and traditional method of prompting a recalcitrant witness to confess);
State v. Koltay, 659 So.2d 1224, 1225‑1226
(Fla.Dist.Ct.App.1995) (faced with statement indicating that police already
believe him to be guilty, suspect likely to determine that he has nothing to
lose by making a statement or may believe his silence will condemn him);
Alford v. State, 699 N.E.2d 247, 250 (Ind.1998) (confronting suspect
with potentially incriminating evidence was "interrogation" as it had
no other apparent purpose other than inducing suspect to say something
inculpatory).
(FN5.)
See, e.g., California v. Beheler, 463
U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) ("Miranda warnings are not required
'simply because the questioning takes place in the station house, or because
the questioned person is one whom the police suspect' "), quoting Oregon v. Mathiason, 429 U.S. 492, 495,
97 S.Ct. 711, 50 L.Ed.2d 714 (1977); Commonwealth v. Morse, 427 Mass. 117, 127‑128,
691 N.E.2d 566 (1998) (suspect who agreed to be questioned at police station
not in custody for Miranda purposes); Commonwealth v. Phinney, 416 Mass. 364,
369‑371, 622 N.E.2d 617 (1993) (suspect who voluntarily went to police
station and was aware he was free to leave not in custody for Miranda
purposes); Commonwealth v. Gil, 393 Mass. 204, 212,
471 N.E.2d 30 (1984) ("Although we recognize that 'an interview at [a
police station or at another] official place intimates a degree of coercion,
... it does not, in itself, brand an interrogation as custodial' "),
quoting Commonwealth v. Bookman, 386
Mass. 657, 660, 436 N.E.2d 1228 (1982).
(FN6.) Courts have uniformly found that such a
setting militates against a finding of custody.
If anything, movement from his cell block to this more open part of the
facility increased the defendant's sense of freedom from confinement. See
United States v. Menzer, 29 F.3d 1223, 1232‑1233 (7th Cir.), cert.
denied, 513 U.S. 1002, 115 S.Ct. 515, 130 L.Ed.2d 422 (1994) (interview room);
United States v. Cofield, 960 F.2d 150 (6th Cir.), cert. denied, 506
U.S. 1023, 113 S.Ct. 662, 121 L.Ed.2d 587 (1992) (assistant warden's room);
Leviston v. Black, 843 F.2d 302, 304 (8th Cir.), cert. denied, 488
U.S. 865, 109 S.Ct. 168, 102 L.Ed.2d 138 (1988) (interview room);
United States v. Cooper, 800 F.2d 412, 414 (4th Cir.1986)
(conference room); Flittie v. Solem, 775 F.2d 933, 944 (8th
Cir.1985) (en banc), cert. denied, 475 U.S. 1025, 106 S.Ct. 1223, 89 L.Ed.2d
333 (1986) (visitors' room). See also Commonwealth v. Cartagena, 386 Mass.
285, 288, 435 N.E.2d 352 (1982) (proper for police to bring defendant into
conference room to tell his story).
Additionally, the situs of the interview militates against finding the
situation coercive because the defendant was familiar with the setting, having
previously been questioned by these troopers in the same room. Cf.
Commonwealth v. O'Toole, 351 Mass. 627, 631, 223 N.E.2d 87 (1967).
(FN7.) The fact that the questioners were
outside visitors rather than correction personnel also points to a finding that
the defendant was not in custody. Cooper, supra at 413‑415.
State v. Owen, 1 Neb.App. 1060, 1091, 510 N.W.2d 503 (1993), cert.
dismissed, 513 U.S. 923, 115 S.Ct. 350, 130 L.Ed.2d 271 (1994).
(FN8.) Courts have consistently found no
custody where the inmate was told that the interview was voluntary and that he
could end it at any time. See Commonwealth v. Hine, 393 Mass. 564,
565, 569, 471 N.E.2d 1342 (1984); Cofield, supra; Owen, supra at 1090, 510
N.W.2d 503; People v. Alls, 83 N.Y.2d 94, 101‑104,
608 N.Y.S.2d 139, 629 N.E.2d 1018 (1993), cert. denied, 511 U.S. 1090, 114
S.Ct. 1850, 128 L.Ed.2d 474 (1994). See
also Commonwealth v. Phinney, 416
Mass. 364, 370, 622 N.E.2d 617 (1993) (fact that suspect is free to terminate
interview is strong evidence that questioning is noncustodial). Indeed, even absent explicit statements that
the inmate was free to leave, an inmate could be found not to be in custody
simply because he could have asked to do so. Leviston, supra at 309 n. 3;
People v. Patterson, 146 Ill.2d 445, 453‑455, 167 Ill.Dec.
1045, 588 N.E.2d 1175, cert. denied, 506 U.S. 838, 113 S.Ct. 116, 121 L.Ed.2d
73 (1992).
Here,
the defendant was expressly told that he did not have to see the troopers and
that he could return to his cell block without talking to them. The defendant understood this; in fact, on a previous occasion the defendant
was presented with the same option‑‑police officers had come to the
house of correction and asked him to speak to them voluntarily. In that instance, the defendant declined and
his wishes were honored. In this instance,
after expressing reservations about speaking with the troopers, he ultimately
decided to sign a waiver indicating that he wanted to speak with them.
(FN9.) Commonwealth v. Prater, 420 Mass. 569,
580 n. 10, 651 N.E.2d 833 (1995), should not be read to require that the
Commonwealth, which bears the burden of proof on this matter, must demonstrate
that both conditions have been
met. Nothing in the opinion supports
such a reading, and neither do the cases cited in the footnote. See
Commonwealth v. Smith, 412 Mass. 823, 835‑837, 593 N.E.2d 1288
(1992);
Commonwealth v. Watkins, 375 Mass. 472, 480‑482, 379 N.E.2d
1040 (1978).
(FN10.) The motion judge was also correct in
holding that the defendant's claim that his rights were violated because the
troopers failed to videotape or tape record his statements is without
merit. This court has twice considered
imposing a rule requiring the taping of interrogations and twice declined to
impose such a stringent rule. See Commonwealth v. Diaz, 422 Mass. 269, 661
N.E.2d 1326 (1996); Commonwealth v. Fryar, 414 Mass. 732,
742, 610 N.E.2d 903 (1993), S. C.,
425 Mass. 237, 680 N.E.2d 901, cert. denied, 522 U.S. 1033, 118 S.Ct. 636, 139
L.Ed.2d 615 (1997). We have stated,
however, that defense counsel is entitled to pursue the failure of law
enforcement officials to tape an interrogation, among other things, as a means
of casting doubt upon the voluntariness of any statements made.
Diaz, supra at 273, 661 N.E.2d 1326. Defense counsel here availed himself of this
opportunity. He cross‑examined
Sergeant Flaherty and Trooper Shea extensively as to their access to, and
failure to use, a video recorder, tape recorder, or a stenographer. He argued extensively that the court should
suppress the confession, in part due to the failure of the troopers to record
it. The judge, presented with these
arguments, was nonetheless within the discretion expressly granted by the
decisions in Diaz and Fryar when she declined to suppress the
statements.
(FN11.) The judge charted the crime of murder
in the first degree, explaining the element of malice and the theories of
felony‑murder and joint venture.