|
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. Rubio, 27 Mass.App.Ct. 506 (1989)
Appeals Court of Massachusetts, Essex.
No. 88‑P‑914.
Argued
Decided
David Grossbaum, Asst. Dist. Atty., for the Com.
Before GREANEY, C.J., and DREBEN and WARNER, JJ.
GREANEY, Chief Justice.
A jury in
the Superior Court found the defendant guilty of trafficking in cocaine. We conclude that a statement of the
defendant, admitted in evidence at the trial over objection, was obtained by
the police in violation of the defendant's rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966). Consequently, there must be a
new trial. The admissibility of a second
statement will need to be decided at a voir dire preceding retrial.
The
Commonwealth presented the following evidence.
About
The
apartment contained four rooms. In the
living room, the officers seized notebooks and papers containing figures. One of the notebooks had the defendant's name
in it. A search of the kitchen uncovered
a strainer and four plastic bags next to it.
From a room without any furniture, the police seized an Ohaus triple‑beam
scale. This room also contained a
postcard dated June 17, 1987, from a cablevision company addressed to the
defendant at 41 Cross Street. The
postcard confirmed an appointment with the defendant on June 19, 1987. An envelope, containing a birth certificate
for one Tammy Nunez and some photographs, was also seized.
In the
bedroom closet, the officers found a man's jacket with a bag of "white
rocky powder" in the pocket. The
powder was determined to be 21.24 grams of cocaine. From the same closet, the officers seized a
white pocketbook containing three bags of "white rocky substance"
which was later found to be [27
Mass.App.Ct. 508] 179.83 grams of
cocaine. Additionally, the bedroom
contained a Western Union money transfer application dated June 19 in the
defendant's name.
While the
officers were conducting the search, two Hispanic men knocked on the door of
the apartment and were admitted. Both
individuals were questioned, and both stated that they did not live in the
apartment. A weapon was seized from one
of the individuals, and he was placed under arrest. The other man was also detained.
Shortly
thereafter, the defendant, accompanied by another Hispanic male, opened the
apartment door with keys in his hand.
The defendant identified himself to the police and admitted that he
lived in the apartment. Lieutenant
Jajuga brought him to a chair in the kitchen where he was shown the search
warrant and the cocaine found in the jacket pocket. The defendant was placed under arrest. Sergeant Regan next produced the cocaine in
the pocketbook and showed it to the defendant.
Upon seeing the cocaine the defendant stated: "It's mine. My ... girlfriend Tammy had nothing to do
with it." The defendant was
advised of his Miranda rights in English and acknowledged that he understood
his rights. The defendant also signed a
"Miranda card" in Spanish.
Regan then "asked him [the defendant] once again" whether the
cocaine was his. The defendant responded by stating once again: "It was mine. It is not my girlfriend's." (FN1)
While this occurred, the defendant was surrounded by several officers.
The
defendant's testimony at trial about the incident was materially
different. The defendant testified that
he had never been to the apartment before.
When he first entered the apartment he was immediately grabbed and
frisked by the officers, [27
Mass.App.Ct. 509] shown the weapon
which had been taken earlier and asked:
"What is this [weapon]? How
do you explain this?" The
defendant stated that when he told the officer that he did not know what the
officer was talking about he was "grabbed" and "push[ed]"
down into a chair in the kitchen, called a "liar" and a "little
punk," and told to "shut up."
The defendant stated that Sergeant Regan then produced the pocketbook containing
the cocaine and asked: "How [do]
you explain this?" The defendant
indicated that he did not know what the officers were talking about. He was then "grabbed" and had his
face pushed. One of the officers
purportedly told the defendant:
"This is yours. This stuff
here is yours. Don't lie to
me." The defendant responded by
telling the officer to "remove your hands off my body. I don't have to answer to you any
question." The defendant also
testified that "Regan just stood there holding the pocketbook. Like he tried to put it in my face, tried to
get words out of me, scaring me. But I
was in the service and I was not scared or whatever the conversation was. The only thing I didn't want was the police
to hurt me because I didn't have anything to do with anything or if I say what
they didn't like, so I kept my mouth shut." The defendant's testimony concluded with
further denials of living in the apartment or knowing anything about the
cocaine in either the jacket or the pocketbook.
1. The
matter of the defendant's first admission about the cocaine in the pocketbook
came up in the testimony of Sergeant Regan.
Regan was asked by the prosecutor what the defendant had said when he
was confronted with this cocaine. The
defendant's trial counsel (FN2) objected on the ground that the defendant
"ha[d] not been advised of his rights" when he had become "a
focus of [the] investigation." The
defendant's trial counsel then asked the judge for a voir dire on whether the
defendant had made the statement knowingly, that is, with knowledge and
understanding of his Miranda rights.
(FN3) The judge overruled [27 Mass.App.Ct. 510] the objection and denied the request
for a voir dire, commenting that "[t]his is [not] a custodial
interrogation. He doesn't have to be
advised [of his rights]."
The
judge's ruling was based on the state of the case then before him. The prosecutor had made a short opening
statement which outlined the Commonwealth's expected proof in very general
terms but which contained no mention of any admissions by the defendant. Sergeant Regan had been called as the
Commonwealth's first witness and had given brief testimony in direct
examination about the execution of the search warrant, what had been seized,
and the defendant's arrival at the apartment.
Regan's testimony did not disclose that the defendant had identified
himself as living in the apartment or that he had been placed under arrest
shortly after his entry. Up to the point
of the objection by the defendant's trial counsel, Regan's testimony left
unclear what connection the defendant had with the apartment and the drugs and
drug paraphernalia that had been seized.
Based on the prosecutor's opening statement and the testimony of Sergeant
Regan, the judge might have thought that, at the time the defendant appeared in
the apartment, the police had no clear picture of his involvement and, as a
result, that the police were still operating at an investigatory stage.
Despite
the state of the evidence when the judge made his ruling, the objection made by
the defendant's trial counsel was sufficient to raise (and preserve for appeal)
the issue of the admissibility of the defendant's initial admission against an
attack that it had been made in violation of the Miranda case. In certain
respects, the situation resembles the situation in Commonwealth v. Adams, 389 Mass. 265, 450 N.E.2d 149 (1983), in
which defense counsel, who had not filed a prior motion to suppress, objected
to the introduction of incriminating statements of the defendant in the absence
of Miranda warnings. The Court said: [27
Mass.App.Ct. 511] "Even if the
defendant has not moved to suppress his statements the burden is still on the
Commonwealth, upon seasonable objection, to prove affirmatively, prior to the
admission of [the defendant's] statements, that the statements were properly
obtained and that the defendant waived his rights." 389 Mass. at 269‑270, 450 N.E.2d 149.
[1] While
a pretrial motion to suppress or for a voir dire is the required method of challenging
the admissibility of a defendant's incriminating statement, see Mass.R.Crim.P.
13(c)(2), 378 Mass. 873 (1979), defendants have been permitted to rely upon an
objection made at trial. See Commonwealth v. Adams, 389 Mass. at 269‑270
& n. 1, 450 N.E.2d 149. See also United States v. Vazquez, 857 F.2d 857,
863‑864 (1st Cir.1988). When an
objection is made at trial to the admission of a defendant's incriminating
statement on the ground that it was obtained in violation of the Miranda case or was involuntary, or
both, and no pretrial hearing has been held, the prudent thing for the judge to
do is to stop the trial and conduct an appropriate inquiry. (FN4)
2. The
defendant argues that his initial admission about ownership of the cocaine
found in the pocketbook was the product of custodial interrogation made before
he had been advised of his Miranda rights.
The Commonwealth concedes that the defendant was in custody when he was
confronted with this contraband. The
concession is proper and is accepted.
See California v. Beheler, 463
U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (Miranda warnings
are required where there is a formal arrest or equivalent restraint of
freedom). See also Commonwealth v. Gil, 393 Mass. 204, 212‑213, 471 N.E.2d 30
(1984);
Commonwealth v. Shine, 398 Mass. 641, 647‑649, 500 N.E.2d 1299
(1986).
[2] The
critical question therefore becomes: was
the defendant interrogated?
"Interrogation" for
Miranda purposes is defined as "express questioning or its functional
equivalent." Rhode
[27 Mass.App.Ct. 512]
Island v. Innis, 446 U.S. 291, 300‑301, 100 S.Ct. 1682, 1689,
64 L.Ed.2d 297 (1980). The term
"functional equivalent" encompasses "any words or actions on the
part of the police (other than those normally attendant to arrest and custody)
that the police should know are reasonably likely to elicit an incriminating
response from the suspect." Id. at 301, 100 S.Ct. at 1690.
Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 1935, 95 L.Ed.2d 458
(1987). The focus of the inquiry is
primarily on "the perceptions of the suspect," (FN5) Rhode Island v. Innis, supra 466 U.S. at 301, 100 S.Ct. at 1690,
because the purpose of the Miranda
case is to prevent "government officials from using the coercive nature of
confinement to extract confessions that would not be given in an unrestrained
environment." Arizona v. Mauro, supra, 107 S.Ct. at
1936‑1937. As has been suggested
by one commentator, analysis under Innis "turns upon the objective purpose
manifested by the police."
Interrogation is present "if an objective observer (with the same
knowledge of the suspect as the police officer) would ... infer that the
[officer's speech or conduct was] designed to elicit an incriminating
response." White, Interrogation
Without Questions: Rhode Island v. Innis and United States v. Henry, 78 Mich.L.Rev.
1209, 1231‑1232 (1980). See People v. Ferro, 63 N.Y.2d 316, 319,
482 N.Y.S.2d 237, 472 N.E.2d 13 (1984); State v. Cunningham, 144 Wis.2d 272, 278,
423 N.W.2d 862 (1988).
On the
testimony most favorable to the Commonwealth, (FN6) we conclude that the
defendant's first admission, procured without Miranda warnings, to ownership of
the cocaine in the pocketbook should have been suppressed. When the statement was made the defendant was
under arrest, confined to a kitchen chair, and surrounded by police
officers. He had been shown the search
warrant. Two individuals who had been
detained or arrested by the police were confined nearby. The police knew [27 Mass.App.Ct. 513]
that the defendant lived in the apartment, that the cocaine in the jacket was
most likely his, and that the quantity of cocaine found in the jacket, together
with the other items that had been seized, particularly the scale and
notebooks, indicated that the apartment was being used for large scale
trafficking in cocaine. The police were
not in the process of either discovering or securing (taking inventory of) the
cocaine when the defendant made his first admission. Rather, the police were in the process of building
a case against the defendant, and his admission to ownership of the cocaine in
the pocketbook considerably enhanced the case against him. (FN7)
[3]
Showing the cocaine in the pocketbook to the defendant in this setting was
clearly confrontational and had the force of an implicit question: "Is this yours?" An affirmative answer would prove the crime
itself or link him to a joint venture.
The fact that the defendant could have responded in a number of ways,
including the denial of any knowledge, does not take the situation out of the
purview of Innis. An "incriminating response" for
purposes of impermissible interrogation includes any response by an accused,
inculpatory or exculpatory, which can be used at trial to help prove guilt. (FN8)
[27
Mass.App.Ct. 514] We reject the
Commonwealth's argument that the conduct of the officers was "ordinarily
attendant to arrest and custody."
There is nothing in the record to establish that someone who has been
arrested is ordinarily shown the evidence against him as part of the arrest
process so that he can admit or disclaim ownership. We also reject the Commonwealth's argument
that the admission was not the product of interrogation because the defendant
was motivated solely by the desire to clear his girlfriend of any
wrongdoing. Even if that was the
defendant's purpose, the Miranda case
is designed to ensure that an accused has the requisite information about his
rights before he responds to any
interrogation. See Oregon v. Elstad, 470 U.S. 298, 307, 105 S.Ct. 1285, 1292, 84
L.Ed.2d 222 (1985) (even "patently voluntary statements taken in violation
of Miranda must be
excluded"). Quite simply, Miranda prohibits the use of any
exculpatory or inculpatory statement resulting from interrogation in the absence
of a showing that the accused has been warned of his rights and has waived
them. Finally, the record does not
support a finding that the admission was spontaneous. The admission followed Sergeant Regan's
deliberate act of showing the defendant the cocaine, and it constituted a
verbal response to a purposeful technique calculated to obtain information that
could be used against the defendant.
3. The
question of the admissibility of the defendant's second admission‑‑when
he repeated, after Miranda warnings, that the cocaine in the pocketbook was his‑‑cannot
be decided on [27 Mass.App.Ct. 515] this record. Suppression of the first admission does not
necessarily preclude admission of the second.
The judge assigned the retrial must conduct a voir dire to inquire
whether the second admission should be allowed in evidence under the standard
set forth in Oregon v. Elstad, 470
U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), for consideration of an
admission made after compliance with the
Miranda case but subsequent to an unwarned admission. (FN9)
In resolving the matter, the judge will be required to take up the issue
of the voluntariness of both admissions. Id. at 318, 105 S.Ct. at 1297.
4. If the
defendant's second admission is introduced in evidence at retrial, and if its
voluntariness is made a live issue, the judge should instruct the jury in
accordance with the instruction outlined in
Commonwealth v. Tavares, 385 Mass. 140, 152‑153, 430 N.E.2d 1198
(1982).
Judgment reversed.
Verdict set aside.
(FN1.) This account is drawn principally from
Sergeant Regan's testimony. Lieutenant
Jajuga's testimony was basically the same as Sergeant Regan's except for the
following on Jaguga's cross‑examination by the defendant's trial counsel.
DEFENSE
COUNSEL: "Getting back to the items
that were listed, sir, in your report ... you stated that he explained that his
wife‑girlfriend had nothing to do with it. He just explained that before anybody said
anything to him. He just blurted that
out. Is that correct?"
LIEUTENANT
JAJUGA: "That's correct, sir."
(FN2.) The defendant is represented by new
counsel on appeal.
(FN3.) The defendant's trial counsel did not
object to this admission on the ground that it was involuntary. His new appellate counsel argues on appeal
that both this admission and the subsequent admission were involuntary as well
as procured in violation of the Miranda
case. Voluntariness of an incriminating
statement and compliance with Miranda
pose different issues. See Commonwealth v. Williams, 388 Mass.
846, 851 n. 2, 448 N.E.2d 1114 (1983).
We disregard the defendant's arguments on voluntariness in deciding the
issues on appeal, although (as we will explain later) it will be necessary to
inquire into the issue of the voluntariness of both admissions at the voir dire
to be held before retrial.
(FN4.) We also conclude that the objection by
the defendant's trial counsel to the first admission preserved the defendant's
right to challenge his second admission.
The judge's ruling that he would allow in evidence the first admission
obviously would have applied to the second, which closely followed the first
and, according to the police testimony, was preceded by Miranda warnings. It would have been futile for the defendant's
trial counsel to object again and to make a second request for a voir dire.
(FN5.) The subjective intent of the police has
some limited relevance but that intent cannot require a finding that
interrogation has or has not occurred.
See Arizona v. Mauro, 107
S.Ct. at 1934, 1936, 1937.
(FN6.) This would be Lieutenant Jajuga's
testimony that the defendant "blurted out" that the cocaine was
his. See note 1, supra. Because we conclude
on the Commonwealth's best evidence as matter of law that there was improper
interrogation as to the first admission, there is no need to have the matter
reheard so that the findings of fact can be made. See
Commonwealth v. Delrio, 22 Mass.App.Ct. 712, 718‑719, 497 N.E.2d 1097
(1986).
(FN7.) The 21.24 grams of cocaine found in the
jacket would not have brought the defendant within the purview of G.L. c. 94C,
§ 32E(b ), as in effect prior to
St.1988, c. 124, which called for a mandatory minimum three‑year prison
sentence for trafficking in more than twenty‑eight grams of cocaine. A finding of ownership of the other 179.83
grams of cocaine found in the pocketbook would, however, make the offense one
requiring a mandatory minimum prison sentence of ten years because more than
200 grams of cocaine were involved. G.L.
c. 94C, § 32E(b )(3), as in effect
prior to St.1988, c. 124.
Keeping
in mind that the police were members of a drug task force, and that Lieutenant
Jajuga was qualified at the trial and gave testimony as an expert in the method
of operation of drug traffickers, one can infer that it was important to the
police to commit the defendant as early as possible to an admission or denial
of ownership of the cocaine found in the pocketbook.
(FN8.)
This point was made in Rhode Island v.
Innis, 446 U.S. at 301 n. 5, 100 S.Ct. at 1690 n. 5, as follows:
"By
'incriminating response' we refer to any response‑‑whether
inculpatory or exculpatory‑‑that the prosecution may seek to introduce at trial. As the Court observed in Miranda:
'No
distinction can be drawn between statements which are direct confessions and
statements which amount to "admissions" of part or all of an
offense. The privilege against self‑incrimination
protects the individual from being compelled to incriminate himself in any
manner; it does not distinguish degrees
of incrimination. Similarly, for
precisely the same reason, no distinction may be drawn between inculpatory
statements and statements alleged to be merely "exculpatory." If a statement made was in fact truly
exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be
exculpatory by the defendant are often used to impeach his testimony at trial
or to demonstrate untruths in the statement given under interrogation and thus
to prove guilt by implication. These
statements are incriminating in any meaningful sense of the word and may not be
used without the full warnings and effective waiver required for any other
statement.' 384 U.S. at 476‑477
[86 S.Ct. at 1629]."
(FN9.) As was said about the issue in Oregon v. Elstad: "[A]bsent 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. In such circumstances, the finder of fact may
reasonably conclude that the suspect made a rational and intelligent choice
whether to waive or invoke his rights."
470 U.S. at 314, 105 S.Ct. at 1296.
Related Massachusetts cases (decided prior to Elstad ) are Commonwealth v.
Mahnke, 368 Mass. 662, 335 N.E.2d 660 (1975), Commonwealth v. Haas, 373 Mass. 545, 369 N.E.2d 692 (1977), and Commonwealth v. Watkins, 375 Mass. 472,
379 N.E.2d 1040 (1978).