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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. Morais, 431
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Brownlow M. Speer,
Kevin J. Curtin, Assistant District Attorney, for
the Commonwealth.
Present:
The
defendant, Augusto Morais,
was convicted by a jury of rape of a child and indecent assault and battery on
a child under the age of fourteen. In
this appeal, the defendant argues that his motion to suppress his statements to
a Department[431
1. Motion to Suppress.
In his
order denying the defendant's motion to suppress, the judge found the following
facts. See Commonwealth v. Yesilciman, 406
On May 17,
the defendant voluntarily went to the department office to meet with Tynan. Before this
meeting, Tynan had had no contact with the police,
nor had she received any instructions from the police
to interview the defendant. (FN2) Tynan and the
defendant met alone in an interview room.
The defendant made several incriminating statements in response to Tynan's detailed description of the allegations of sexual
abuse. He appeared to be lucid,
communicated in English, and did not appear to be under the influence of drugs
or alcohol. At the end of the interview,
the defendant indicated that he realized that he had committed a crime. At no time did Tynan
explain to the defendant that, under G.L. c. 119, §
51B, she was required to tell the district attorney's office and police any
admissions he might make involving sexual abuse of the victim.
[431 Mass. 382] On May 18, Tynan went to an interview
of the victim held at the district attorney's office. After the interview, Tynan
told Peter McGeown, a Chelmsford police officer
attending the interview, what the defendant had said to her. The Chelmsford police then began an
investigation. On May 22, the defendant
went to the Chelmsford police station at the request of the police. He met McGeown and
a police detective in an interview room, where he was read his Miranda rights
and signed a Miranda card. He did not
appear to be under the influence of drugs or alcohol, and appeared to
understand English. The defendant then
made several incriminating statements to the officers and wrote out his
statements at McGeown's request.
[1] a. Minimal warnings and § 51B investigations. First, the defendant argues that his
statements to Tynan should have been suppressed
because she failed to warn or give him notice that she was obligated to report
incriminating statements to law enforcement officials, violating his
constitutional due process rights. He
contends that a department investigator is required to give a "minimal
cautionary warning," similar to the warning required by Commonwealth v. Lamb, 365 Mass. 265,
269‑270, 311 N.E.2d 47 (1974) (psychotherapist conducting court‑ordered
interview required to give warning to defendant that communications not
privileged). We conclude that the
defendant was not entitled to such a warning.
(FN3)
[2] We
begin by noting that because the defendant was not in custody when interviewed
by the department investigator, no Miranda warning was required during the
investigatory interview. See Commonwealth v. Berrio,
407 Mass. 37, 41, 551 N.E.2d 496 (1990).
Neither is a more minimal warning required. The defendant does not point to any case law
in any other jurisdiction that would support the creation of a warning
requirement in these circumstances. The
defendant confuses a constitutionally required warning with a statutorily
created privilege.
[431 Mass. 383] Our decision in Lamb
was based on construction of the psychotherapist‑patient privilege
statute, G.L. c. 233, § 20B (b ), and an exception to the statute that required a
psychotherapist conducting a court‑ordered interview to inform a patient
that subsequent communications were not privileged. See
Commonwealth v. Lamb, supra at 268‑269, 311 N.E.2d 47. We have not recognized a "Lamb warning" outside the context
of psychotherapist‑patient privilege.
Here, neither G.L. c. 119, § 51A, or § 51B,
compels a department investigator to inform a potential defendant that any
incriminating statements made will be reported to law enforcement
officials. Moreover, no social worker‑client
privilege applies in this context, as the Legislature has expressly stated that
otherwise applicable social worker privileges do not apply to a § 51B
investigation. See G.L.
c. 112, § 135B (f ). Extending
Lamb‑type warnings to this case would run contrary to the
Legislature's intent. We decline to
establish a new rule requiring this type of limited warning.
[3] b. Voluntariness of
statements. Next, the defendant
argues that his statements should be suppressed because they were
involuntary. Citing to Commonwealth v. Carp, 47 Mass.App.Ct. 229, 712 N.E.2d 622 (1999), he asserts that
his statements were involuntary because the investigator concealed from him her
duty to report while eliciting incriminating statements.
[4][5] To
determine the voluntariness of a confession, we look
to "the totality of the circumstances surrounding the making of the
statement." Commonwealth v. Souza, 428 Mass. 478, 483‑484,
702 N.E.2d 1167 (1998), quoting
Commonwealth v. Raymond, 424 Mass. 382, 395, 676 N.E.2d 824 (1997). See
Commonwealth v. Mahnke, 368 Mass. 662, 680, 335
N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct.
1740, 48 L.Ed.2d 204 (1976) (totality of circumstances test applies to
statements made to private parties as well as to police officers). Further, "we accept the judge's
subsidiary findings of fact unless not warranted by the evidence," and,
while open to review, we afford the judge's ultimate findings "substantial
deference." See Commonwealth v. Raymond, supra at 395,
676 N.E.2d 824, citing Commonwealth v.
Tavares, 385 Mass. 140, 144‑145, 430 N.E.2d 1198, cert. denied, 457
U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982).
The motion
judge concluded that the defendant made his statements to Tynan
voluntarily. He found that the defendant
"freely gave his statements in a non‑coercive setting,"
voluntarily meeting with Tynan without being
influenced by orders, threats, or promises.
The defendant was aware that he was the subject of an investigation
concerning allegations of sexual [431
Mass. 384] abuse. The judge also found that the defendant
appeared lucid and unconfused, did not appear to be under the influence of
drugs, and conversed in English. Tynan had no contact with the police before interviewing
the defendant, and made no misrepresentations to the defendant about her
duties. See Commonwealth v. Berrio, supra at 41‑42,
551 N.E.2d 496 (statements to department social worker admissible where judge
found they "were prompted not by coercion but by the defendant's decision
that his cooperation would best serve his own interests"). We therefore conclude that the defendant's
statements to Tynan were voluntary.
Furthermore,
the Carp case is clearly
distinguishable. In that case, the judge
suppressed a defendant's statements to a department investigator acting in
tandem with the police. There, the
totality of the circumstances, which included misrepresentations to the
defendant that a criminal investigation was not being conducted and assurances
that neither Miranda warnings nor an attorney were needed, "demonstrated
that the defendant's will was overborne in that he was lulled into a false
sense of security." See Commonwealth v. Carp, supra at 234, 712
N.E.2d 622. Although the Appeals Court
did note that the department investigator failed to inform the defendant until
the end of the interview that any incriminating evidence would be used against
him, it was only one of a host of factors leading to a conclusion that the
statements were involuntary. (FN4)
Fresh
Complaint Testimony.
[6] We
turn now to the defendant's claims that the trial judge abused his discretion
in allowing two witnesses to testify about four fresh complaint incidents
because such testimony was needlessly repetitive, and erred by omitting a
limiting jury instruction after one of these witnesses testified.
At trial,
the Commonwealth sought to introduce fresh complaint evidence through four
witnesses‑‑the victim's school guidance counsellor,
teacher, school nurse, and a nurse [431
Mass. 385] practitioner. The judge allowed the Commonwealth's motion
in part, permitting the guidance counsellor to
testify to three of the victim's disclosures of sexual abuse in her presence,
and permitting the nurse practitioner to testify to a fourth disclosure. (FN5)
The judge properly instructed the jury at trial after the guidance counsellor testified about each disclosure. The judge did not instruct the jury after the
nurse practitioner testified. He did
give a limiting instruction in his final instructions to the jury.
[7][8] The
fresh complaint doctrine "permits an out‑of‑court complaint
seasonably made by the complainant in a sexual assault case to be admitted as
part of the prosecution's case‑in‑chief," for the purposes of
corroborating the complainant's testimony. Commonwealth v. Peters, 429 Mass. 22, 27,
705 N.E.2d 1118 (1999). Although we have
established no per se rule of how many fresh complaint witnesses may testify,
see Commonwealth v. Kirkpatrick, 423
Mass. 436, 445 n. 5, 668 N.E.2d 790 (1996), citing Commonwealth v. Trowbridge, 419 Mass. 750, 761, 647 N.E.2d 413
(1995), we have stated that "[t]rial judges
should be cautious in admitting evidence of a fresh complaint."
Commonwealth v. Licata, 412 Mass. 654, 660, 591 N.E.2d 672
(1992). Trial judges should use
discretion to prevent needless repetition of details, and instruct the jury on
the proper use of fresh complaint evidence.
See id.
In this
case, the judge acted properly within his discretion. The judge prevented needless repetition of
testimony by allowing only two of the four fresh complaint witnesses to
testify. Additionally, the judge then
gave complete and accurate limiting instructions three times during the
guidance counsellor's testimony, and again in his
final instructions to the jury. Such
comprehensive instructions clearly informed the jury on the proper use of such
evidence. Compare Commonwealth v. Kirkpatrick, supra at 444‑445 & n. 5,
668 N.E.2d 790 (no error where judge instructed jury twice during trial and in
final charge after testimony of five fresh complaint witnesses), with Commonwealth v. Trowbridge, supra at
761‑762, 647 N.E.2d 413 (reversible error where judge failed to give any
adequate fresh complaint instructions to jury).
We conclude that the judge's allowance of fresh complaint evidence was [431 Mass. 386] within his discretion, and that he adequately instructed the jury
as to the purpose and use of such evidence.
Judgments affirmed.
(FN1.) Pursuant to G.L.
c. 119, §§ 51A and 51B, upon receiving a report alleging sexual abuse of a
child, the department conducts an investigation to determine whether the
allegations may be substantiated. Once
substantiated, the department is required to notify the district attorney's
office in writing by transmitting a copy of the report detailing the results of
its investigation.
(FN2.)
See note 1, supra.
(FN3.)
We recognize the serious concerns faced by parents and caretakers subject to a
§ 51B investigation, who must either comply with department investigators or
risk losing custody of their children.
The department has also recognized these concerns in nonemergency
situations, providing that "[a]t the time of the first contact with
parent(s) or caretaker(s), the investigator shall deliver to said individual a
statement of rights which shall include written notice that a § 51A report has
been made, the nature and possible effects of the investigation, and that
information given could and might be used in subsequent court
hearings." 110 Code Mass. Regs. § 4.27(5) (1996).
In this case, the subject of the § 51B investigation is the victim's
cousin, and no such warning was required.
(FN4.)
Though the defendant does not dispute the voluntariness
of his admissions to the Chelmsford police, he claims that these statements
were the product of coercion arising from previous involuntary statements, made
because "the cat was already out of the bag." We disagree.
The motion judge correctly held that this was not a "cat out of the
bag situation" because the initial statement by the defendant was not
illegally obtained. Because we likewise
conclude that the defendant's first statement was voluntary, we need not reach
its effect on his second statement to the police. See
Commonwealth v. Larkin, 429 Mass. 426, 437‑438, 708 N.E.2d 674
(1999).
(FN5.) The guidance counsellor
testified about the victim's initial disclosure to her of sexual abuse. She also testified about two similar
disclosures that the victim made to a teacher and a school nurse later that
same day in the guidance counsellor's office while
she was present.