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Opinions of The and the Court of Appeals To be used in
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Commonwealth v. Selby, 420
Supreme Judicial Court of Massachusetts,
Argued
Decided
Stephen Hrones,
John P. Zanini, Asst.
Dist. Atty., for Com.
Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY,
JJ
LIACOS, Chief Justice.
On
September 16, 1992, indictments were returned against Mark Edwards, Paul
Gunter, and the defendant Cory Selby, charging each with murder in the first
degree, unlawful possession of a firearm, and entering a [420 Mass. 657]
dwelling while armed with the intent to commit a felony. Selby and his codefendants individually filed
pretrial motions to suppress custodial statements made to the police. The motions were denied. Each defendant was granted leave to pursue an
interlocutory appeal by a single justice of this court. Because the appeals present substantially
identical issues, the defendant Selby's case was consolidated with the case of
Edwards and Gunter. Our decision
regarding the appeal of codefendants Edwards and Gunter is reported separately.
Commonwealth v. Edwards, 420
[1][2] The
motion judge who heard defendant Selby's motion to suppress found the following
facts with regard to the postarrest interrogation of
the defendant. We accept these findings
of fact in the absence of clear error and we view with respect the conclusions
of law based on them.
While
investigating the murder of one Jack Berry, Jr., Boston Police Lieutenant Detective
Timothy Murray and other members of the homicide unit received information
that, on the day of the murder, the defendant Selby, Mark Edwards, and a woman
named Larricia McConnico
had been at the victim's residence in the Dorchester section of Boston prior to
the shooting of the victim. The
defendant was arrested and booked on charges of murder and armed assault in a
dwelling. He was advised of his Miranda
rights and his right to make a telephone call.
The defendant stated that he understood his rights, signed the booking
sheet acknowledging the Miranda warnings, and made a phone call.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966). The
defendant was then taken to the homicide division in South Boston.
At the
homicide division the defendant was interrogated by detectives Dennis Harris
and Murray. Harris read the [420 Mass. 658] defendant his Miranda rights, and the defendant said he
understood each of the rights, initialed and signed the Miranda form, and
indicated that he was willing to speak with the detectives.
The
defendant stated that on the day of the murder he received a phone call from
Mark Edwards during which Edwards told the defendant that he had been
robbed. Edwards asked the defendant to
accompany him to Dorchester with Paul Gunter and McConnico. The defendant stated that, when they arrived
at the victim's residence, Gunter stayed in the car and the defendant, Edwards,
and McConnico approached the house. He stated that Edwards went inside but that
he and McConnico stayed on the front porch. When they heard some noises, he and McConnico ran toward the car and were joined there by
Edwards. The group then drove away. The defendant stated that he had in his
possession a .380 caliber handgun and that Edwards was carrying a nine
millimeter handgun.
When the
defendant completed his statement, Murray opened a file and removed from it a
photocopy of a handprint. Murray asked
the defendant how the police could have found his print in the hallway of the
victim's house if he had not entered the residence. The handprint was not the defendant's and was
not found in the house. It was
apparently unconnected to the murder.
The defendant then altered his story, stating that he had been in the
"outer hallway" of the house.
He said that he, Edwards, and McConnico had
entered the house with guns drawn and that while inside there was an
argument. The defendant said that, on
hearing shots fired, he and McConnico left the house.
Murray
then asked the defendant if he was willing to record his statement on tape and
the defendant stated that he was. On
tape, the defendant was readvised of his Miranda
rights. He stated again that he
understood each one of the rights. The
defendant also acknowledged that the rights had been read to him earlier. The defendant then recounted, in response to
Murray's questions, his version of what had occurred on the day in
question. During this interview, Murray [420 Mass. 659] asked the defendant if there were "any reasons why we found your
fingerprints on the shell casings inside the house?" In fact, the police had not found any such
fingerprints. The defendant stated that
he had been playing with the gun earlier and had loaded it but he had not been
armed with the nine millimeter handgun the night of the shooting. Later in the interview, Harris asked the
defendant why an independent witness would have given a description of the
shooter which matched the defendant's physical appearance. The defendant stated that he did not know why
a witness would have given such a description.
Following
the taping of the statement, the defendant used the bathroom. When he returned he asked the detectives if
he could "tear up" the tape recording and make a new statement. The defendant stated that there was a
technicality he wanted to clear up and that he wanted to tell what really
happened.
The tape
recorder was reactivated and the defendant was again advised of his Miranda
rights. The defendant then stated that
on the day in question he went to the house of the victim armed with a nine
millimeter handgun to retrieve money and drugs, and that Edwards was with him,
also armed with a nine millimeter handgun.
He stated that when they entered the apartment, all of its occupants
were in the kitchen and that as he was leaving one of the occupants, a man
(Berry), grabbed his hand and the gun went off, firing two or three shots. The defendant stated that he later learned
that the man had died of a gunshot wound to the chest.
The judge
found that throughout the interrogation the defendant was "sober, alert,
oriented and lucid. He understood his
rights and the questions asked. He was
responsive to the questions and at times, gave answers in a narrative
form." The judge also found that,
although Murray and Harris did not actually possess an incriminating handprint
or fingerprints, they had received a statement or statements from a witness
that the defendant was in the apartment and that he had shot the victim. They also knew that the shells recovered were
nine millimeter in caliber.
[420 Mass. 660] Based on these facts, and after a careful review of the relevant
law, the judge concluded that the statements were admissible because they were
made voluntarily and also followed a knowing, intelligent, and voluntary waiver
of Miranda rights. The record supports
the judge's findings of fact and we affirm his conclusion that the defendant's
statements were made voluntarily and after a valid Miranda waiver. See
Commonwealth v. Quigley, 391 Mass. 461, 463‑64, 462 N.E.2d 92 (1984),
cert. denied, 471 U.S. 1115, 105 S.Ct. 2356, 86
L.Ed.2d 258 (1985). Accordingly, we
affirm the denial of the defendant's motion to suppress.
The
defendant does not argue that the police failed to administer accurate and
complete Miranda warnings. Nor does he
argue that his initial waiver of these rights on his arrival at the homicide
division was invalid. Rather, he argues
that he invoked his right to remain silent after making the first taped
statement when Harris asked him whether he had "anything further to
add" and the defendant answered, "no." He claims that his right to remain silent
was not scrupulously honored by the officers, because the interrogation continued
and, although the officers read him his Miranda rights again prior to the
second taped statement, any potential waiver was tainted by the false
information used by the detectives earlier in the interrogation. The defendant also argues that the intentional
use of false information by the interrogating officers, i.e., the palm print
and the fingerprints, to elicit incriminating responses from him, rendered his
subsequent statements involuntary as a matter of both due process and in
violation of the Miranda precepts. We
disagree with both of the defendant's claims.
[3][4] 1.
Invocation of right to silence.
The defendant's first argument can be disposed of without lengthy
discussion. A valid Miranda waiver is
one that is made knowingly, intelligently, and in all respects, voluntarily.
Miranda v. Arizona, 384 U.S. 436, 467, 86 S.Ct.
1602, 1624, 16 L.Ed.2d 694 (1966).
Moreover, we agree that if, at any time, a suspect subject to custodial
interrogation indicates that he wants the interrogation to cease, i.e., he
invokes his right to remain silent, that request must be scrupulously honored
by the police. Commonwealth v. Taylor, 374 Mass. [420 Mass. 661] 426, 431‑432, 374 N.E.2d 81 (1978). See
Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46
L.Ed.2d 313 (1975).
[5] The
record supports the judge's conclusion, and the defendant does not dispute it,
that the defendant made a valid waiver of his Miranda rights prior to the start
of the interrogation by Harris and Murray.
However, the defendant argues that he invoked his right to remain silent
when, at the conclusion of the first taped statement, Harris asked him if he
had anything to add and the defendant replied that he did not. Specifically, the record indicates that the
detective asked the defendant, "Is there anything else you'd like to add
before we shut off?" to which the defendant responded, "no."
The
defendant's response to the detective's question did not amount to an exercise
of his right to remain silent. See Commonwealth v. Messere,
14 Mass.App.Ct. 1, 7‑8, 436 N.E.2d 414 (1982)
(defendant did not exercise right to silence by answering "no" when
asked if he had anything to add to statement).
The detective's question was merely in reference to the completion of
the taped statement and was wholly innocuous.
The exchange is the equivalent of the detective stating, "I'm going
to shut off the tape recorder now, OK?" and the defendant responding,
"all right." The defendant's
negative response appears to have been merely an indication that he had
finished his statement and the machine could be shut off rather than an
invocation of his right to remain silent.
Compare Commonwealth v. Roberts,
407 Mass. 731, 555 N.E.2d 588 (1990) (defendant's refusal to answer certain
questions was not an assertion of right to remain silent); Commonwealth v. Hussey, 410
Mass. 664, 574 N.E.2d 995, cert. denied, 502 U.S. 988, 112 S.Ct.
601, 116 L.Ed.2d 624 (1991) (defendant's statement that he "had nothing
else to say" and his thinking out loud as to whether he should talk or not
did not amount to invocation of right to remain silent); Commonwealth v. Pennellatore, 392 Mass. 382, 467 N.E.2d 820 (1984)
(where defendant was willing to talk both before and after break in
questioning, his request "Can we stop please?" did not amount to an
assertion of his right to remain silent), with Commonwealth v. Brant, 380 Mass. 876, 406 N.E.2d 1021, cert.
denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301
(1980) (defendant invoked right to remain silent [420 Mass. 662] when he
responded "no" to the officer's question whether he was willing to
proceed without an attorney present); Commonwealth v. Jackson, 377 Mass. 319,
386 N.E.2d 15 (1979) (defendant invoked right to silence when he responded to
reading of Miranda warnings by saying that he "didn't have anything to
say"); Commonwealth v. Taylor, supra (defendant
exercised right to silence when he stated that on advice of counsel he did not
wish to say anything).
"If a
defendant who has initially waived his right to remain silent wishes later to
cut off questioning, he must 'indicat[e] in [some]
manner' that he is invoking the right he previously waived."
Commonwealth v. Bradshaw, 385 Mass. 244, 265, 431 N.E.2d 880 (1982),
quoting Miranda v. Arizona, 384 U.S.
436, 473‑474, 86 S.Ct. 1602, 1627‑1628,
16 L.Ed.2d 694 (1966). "For the
rule of Miranda regarding the termination of questioning to apply, there must
be either an expressed unwillingness
to continue or an affirmative request for an attorney (emphasis
supplied)." Commonwealth v. Roberts, supra at 734,
555 N.E.2d 588, quoting Commonwealth v. Pennellatore,
supra at 387, 467 N.E.2d 820. The
defendant did not express an unwillingness to speak in the instant case which
can be considered tantamount to the exercise of the right to remain silent.
2. Voluntariness of
statements. The defendant also
argues that the intentional use of false information by the detectives, in an
effort to elicit incriminating statements from the defendant, rendered any
statements made subsequent to the utilization of the false information
involuntary under the due process clause of the Fourteenth Amendment to the
United States Constitution. (FN1)
[6][7] A
statement is voluntary if it is the product of a "rational intellect"
and a "free will." Commonwealth v. Davis, 403 Mass. 575,
581, 531 N.E.2d 577 (1988). In
determining whether a statement [420
Mass. 663] was made voluntarily, in
compliance with due process of law, we examine whether, in light of the
totality of the circumstances surrounding the making of the statement, the will
of the defendant was overborne to the extent that the statement was not the
result of a free and voluntary act. See Commonwealth v. Colon‑Cruz, 408
Mass. 533, 539, 562 N.E.2d 797 (1990); Commonwealth v. Parker, 402 Mass. 333,
340, 522 N.E.2d 924 (1988); Delle Chiaie v. Commonwealth, 367 Mass. 527, 533, 327 N.E.2d
696 (1975). See also 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). Under this
"totality of the circumstances" test, we consider all of the relevant
circumstances surrounding the interrogation and the individual characteristics
and conduct of the defendant. Commonwealth v. Parker, supra at 340, 522
N.E.2d 924. Relevant factors include,
but are not limited to, "promises or other inducements, conduct of the
defendant, the defendant's age, education, intelligence and emotional
stability, experience with and in the criminal justice system, physical and
mental condition, the initiator of the discussion of a deal or leniency
(whether the defendant or the police), and the details of the interrogation,
including the recitation of Miranda warnings." Commonwealth v. Mandile, 397 Mass. 410, 413, 492 N.E.2d 74 (1986). See Withrow v. Williams, 507 U.S. 680, 113 S.Ct. 1745, 123 L.Ed.2d 407 (1993); Commonwealth v. Meehan, 377
Mass. 552, 563, 387 N.E.2d 527 (1979), cert. dismissed, 445 U.S. 39, 100 S.Ct. 1092, 63 L.Ed.2d 185 (1980); Commonwealth v. Mahnke, supra at 699, 335 N.E.2d 660, for examples of
other factors considered. See also
Smith, Criminal Practice and Procedure §§ 372‑382 (2d ed. 1983).
[8] Once a
defendant has presented evidence that the statements at issue were made
involuntarily, the burden is on the Commonwealth to prove beyond a reasonable
doubt that the statements were made voluntarily. See
Commonwealth v. Tavares, supra at 151‑152, 430 N.E.2d 1198;
Commonwealth v. Mandile, supra at 413, 492
N.E.2d 74. See Smith, Criminal Practice
and Procedure § 370 (2d ed. 1983).
[9] The
defendant argues that the detectives' use of nonexistent incriminatory
information as a "ruse" to elicit incriminating statements amounted
to psychological coercion by the detectives, thus rendering any subsequent
statements involuntary. [420 Mass. 664] The use of false
information by police during an interrogation is deceptive and is a relevant
factor indicating a possibility that the defendant's statements were made
involuntarily. However, "[t]aken alone, the misinformation [does] not, we think,
suffice to show 'involuntariness' " in the instant case.
Commonwealth v. Meehan, supra at 563, 387 N.E.2d 527 (statements
held involuntary where defendant was young, poorly educated, intoxicated, was
assured confession would aid defense, was told police had strong case against
him, and was not informed of his right to make a telephone call). See
Oregon v. Mathiason, 429 U.S. 492, 495‑496,
97 S.Ct. 711, 713‑714, 50 L.Ed.2d 714 (1977);
Frazier v. Cupp, 394 U.S. 731, 738‑739, 89 S.Ct. 1420, 1424‑1425, 22 L.Ed.2d 684 (1969);
Miranda v. Arizona, supra.
Cf. Moran v. Burbine,
475 U.S. 412, 421, 106 S.Ct. 1135, 1140‑1141,
89 L.Ed.2d 410 (1986) ("[o]f the numerous varieties of police trickery ...
a lie that relates to a suspect's connection to a crime is the least likely to
render a confession involuntary").
See also Commonwealth v. Forde, 392 Mass. 453, 455, 466 N.E.2d 510 (1984)
("The fact that the statement was educed by trickery was 'relevant but not
conclusive' " to a determination of whether Miranda rights were
voluntarily waived).
[10] The
presence of one or more factors suggesting a statement may have been made
involuntarily is not always sufficient to render the statements
involuntary. See, e.g., Commonwealth v. Fernette,
398 Mass. 658, 500 N.E.2d 1290 (1986) (fact that defendant was hungry and tired
during interrogation did not render statements involuntary);
Commonwealth v. Look, 379 Mass. 893, 402 N.E.2d 470, cert. denied,
449 U.S. 827, 101 S.Ct. 91, 66 L.Ed.2d 31 (1980)
(upset emotional state did not render statements involuntary). We conclude that, in the totality of the
circumstances surrounding the making of the statements at issue, the use of the
false information did not cause subsequent statements to be uttered
involuntarily. The defendant does not argue
that he was in any way incapacitated or incompetent. In fact the motion judge found that he was
"sober, alert, oriented and lucid" during the interrogation. The defendant was read his complete Miranda rights
and waived them prior to any questioning.
Moreover, the detectives read the defendant his Miranda rights three
times more over the course of the interrogation. [420 Mass. 665]
There is no evidence supporting the defendant's assertion of
involuntariness beyond the use of the false handprint and the
fingerprints. While such deception is
not approved of by this court, see
Commonwealth v. Jackson, 377 Mass. 319, 328 n. 8, 386 N.E.2d 15 (1979), we
do not think that its occurrence in the instant case resulted in the defendant
making involuntary statements.
We affirm
the denial of the motion to suppress.
So ordered.
NOLAN, J.,
participated in the deliberation on this case, but retired before the opinion
was issued.
(FN1.) The defendant also argues, as did
codefendant Edwards, that the use of the false handprint rendered his Miranda waiver
involuntary. For essentially the reasons
stated in Commonwealth v. Edwards,
420 Mass. 666, 651 N.E.2d 398 (1995), and because all other relevant factors
specific to the instant case indicate a voluntary waiver was made, we disagree
and affirm the judge's conclusion that the defendant made a valid waiver of his
Fifth Amendment rights under Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966).