|
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. Smith, 412
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
Charles K. Stephenson,
Sean J. Gallagher, Asst. Dist. Atty., for the Com.
Before LIACOS,
C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.
GREANEY, Justice.
A jury in
the Superior Court convicted the defendant on two indictments charging murder
in the first degree. On appeal, the
defendant argues that a custodial statement obtained from him by the police was
erroneously admitted in evidence at his trial.
We agree, and conclude that, where Federal law requires the
administration of Miranda warnings to a person in custody, the admissibility of
incriminatory statements obtained in the circumstances that appear here will,
as matter of State common law, be governed by principles stated in Commonwealth v. Haas, 373 Mass. 545,
369 N.E.2d 692 (1977), S.C., 398
Mass. 806, 501 N.E.2d 1154 (1986). As a
consequence, there must be a new trial.
We also comment briefly on some issues that may arise at the retrial.
The
relevant background to this case may be summarized as follows. The victims, Anna M. Duclos and Emile J.
Duclos, lived in the town of
William
Duclos had not been on friendly terms with his mother for several years, and
relations between the defendant and Duclos' mother were also poor. (FN1)
Several weeks [412
At
approximately
The
circumstances under which the defendant made the contested statement, as set
forth in the hearing on his motion [412
Mass. 826] to suppress, are as
follows. (FN2) When William Duclos was brought in for
questioning, he initially told the interrogating officers that after he left
his girl friend's house that evening at about 9:30 P.M., he went to the
defendant's house and that the two went "four‑wheeling" in
Duclos' truck for "quite a while."
He said that, after dropping the defendant off at his house, he arrived
home at about 11:30 P.M. and found that his parents had been shot. After one of the officers questioned him
about the blood spatterings on his socks, Duclos abandoned this alibi, admitted
having participated in the killings, and told the police of the plan by which
he and the defendant had killed his parents.
According to Duclos' statement, he and the defendant agreed that morning
on a plan to kill his parents, and Duclos showed the defendant the rifles they
would use and explained how to fire them.
At about 10 P.M. that evening, he and the defendant drove to the Duclos
home and Duclos went inside. The
defendant waited outside for a little over an hour, until Duclos signalled to
him that his parents had retired for the night and that he should come
inside. Duclos then handed the defendant
one of two rifles he had taken from the gun cabinet in his bedroom. He and the defendant, each with a rifle, then
went upstairs, where the defendant shot Anna Duclos twice and Emile Duclos
three times. Afterwards, Duclos changed
his clothes, while the defendant scattered papers on the floor downstairs.
Police
officers at the station made a telephone call to the defendant at his residence
at about 2 A.M., after Duclos had [412
Mass. 827] named him as an alibi
witness. (FN3) The defendant agreed to accept a ride to the
station, ten miles away, and he arrived about one hour later, unaccompanied by
either a family member or friend. The
defendant waited at the station for about three hours before being
interrogated; he spent much of this time
in the "radio room" talking with Kathleen Whipple, Duclos' girl
friend (whom Duclos had also named as an alibi witness), and her father.
At 6:05
A.M., Sergeant Bradley Mullen of the State police and Officer Michael Young of
the Winchendon police department began their interrogation of the
defendant. They had already concluded
their interview with William Duclos and, consequently, were aware of Duclos'
statement incriminating himself and the defendant. Before starting the questioning, they did not
inform the defendant of his Miranda rights or his right under G.L. c. 276, §
33A (1990 ed.), to use the telephone.
(FN4) Instead, Sergeant Mullen
began the interrogation by telling the defendant that he would "like to
talk to him about his activities during the day." The defendant replied that during the day,
he had worked with William Duclos.
In the evening, he told the officers, Duclos had picked him up at about
9:30 P.M. The two then "spent two
hours or so 4 wheeling," and Duclos dropped him off at his home at about
11:30 P.M. The defendant's report of
his activities during the evening thus duplicated the alibi that Duclos had
initially[412 Mass. 828]
given. In response to further
questioning, the defendant stated that Duclos' relationship with his parents
was "[f]ine," and he denied that he or Duclos had ever discussed
killing Duclos' parents. At this point,
Sergeant Mullen advised the defendant of his Miranda rights. (FN5)
The defendant signed the Miranda card and told the officers that he was
willing to talk to them; the
interrogation continued. Mullen next
inquired if the defendant had ever fired Duclos' guns, or seen them, and the
defendant responded that he had seen the guns the previous day and that Duclos
had fired the guns in his presence, but that Duclos did not allow him to fire
the guns. Sergeant Mullen then remarked
that he did not believe that the defendant was telling the truth, and he
informed the defendant that Duclos had implicated him in the murders. (FN6)
The defendant then repudiated the alibi he had originally offered and
made the statement that was read at his trial, in which he admitted that he was
on the Duclos property at the time of the shootings, that Duclos had told him
to scatter papers around to create the appearance oa burglary on the first
floor of the Duclos home and that he had done so, that he had taken Anna
Duclos' purse and Emile Duclos' wallet to substantiate the appearance that a
burglary had occurred, and that he had helped William Duclos to throw the guns,
clothing, and other evidence into a "lake." The defendant denied that he had shot
Duclos' parents and denied that he had been upstairs in the house that
evening. The interrogation of the
defendant began at 6:05 A.M., and concluded at 7:15 A.M., when the defendant
signed the statement prepared by Sergeant Mullen. The defendant conceded that Sergeant Mullen
had treated him like a "gentleman."
[412 Mass. 829] In ruling on the suppression motion, the judge ordered that the
statements made by the defendant before being advised of his Miranda rights
were to be excluded, but he ruled that the statements made after the defendant
received his Miranda rights were voluntary and admissible. (FN7)
Under
Federal constitutional law prior to the decision of the United States Supreme
Court in Oregon v. Elstad, 470 U.S.
298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), discussed below, an admission or
confession of guilt obtained from an accused person in violation of the Miranda
requirements was presumed to taint any subsequent confession made by the
accused, and the taint could not be dissipated solely by giving Miranda
warnings.
Commonwealth v. Haas, 373 Mass. 545, 554, 369 N.E.2d 692
(1977). This principle was followed in
both Federal and State courts. See,
e.g., United States v. Lee, 699 F.2d
466, 468‑469 (9th Cir.1982); United States v. Nash, 563 F.2d 1166,
1169 (5th Cir.1977); Randall v. Estelle, 492 F.2d 118, 120
(5th Cir.1974); Fisher v. Scafati, 439 F.2d 307, 311 (1st
Cir.), cert. denied, 403 U.S. 939, 91 S.Ct. 2256, 29 L.Ed.2d 719 (1971);
Gilpin v. United States, 415 F.2d 638, 641‑642 (5th Cir.1969);
United States v. Pierce, 397 F.2d 128, 131 (4th Cir.1968);
People v. Jordan, 90 Ill.App.3d 489, 495, 45 Ill.Dec. 862, 413
N.E.2d 195 (1980); State v. Elstad, 61 Or.App. 673, 676, 658
P.2d 552 (1983); Commonwealth v. Wideman, 460 Pa. 699, 708‑709,
334 A.2d 594 (1975); State v. Badger, 141 Vt. 430, 439‑440,
450 A.2d 336 (1982); State v. Lavaris, 99 Wash.2d 851, 857‑860,
664 P.2d 1234 (1983). The presumption of
taint was intended to deter law enforcement officials from circumventing the
Miranda requirements by using the warnings strategically‑‑first
questioning the suspect without benefit of the warnings, and then, having
obtained an incriminating response or having otherwise benefited from the
coercive atmosphere, by giving the Miranda warnings and questioning the suspect
again in order to obtain an admissible statement. The presumption of taint is also consistent
with the constitutional principle that the government bears [412 Mass. 830] the
burden to show that a defendant's custodial statement was freely willed.
Jackson v. Denno, 378 U.S. 368, 376‑377, 84 S.Ct. 1774, 1780‑1781,
12 L.Ed.2d 908 (1964).
In order
to determine whether the taint from an illegal interrogation has been
eliminated, and, consequently, whether a subsequent statement is admissible,
case law here has followed two lines of analysis "to order[ ] and
evaluat[e] the necessary elements of the circumstances which bear on the
voluntariness of the later statements." Commonwealth v. Mahnke, 368 Mass. 662,
682, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48
L.Ed.2d 204 (1976). (FN8) These two approaches were described, id. 368 Mass. at 682‑683, 335
N.E.2d 660, as follows: "In the
first line of analysis, the court must look for a 'break in the stream of
events,' the coercive circumstances which extracted earlier statements,
'sufficient to insulate the [subsequent] statement from the effect of all that
went before.' Clewis v. Texas, [386 U.S. 707, 710, 87
S.Ct. 1338, 1340, 18 L.Ed.2d 423 (1967) ].
The focus of this line of analysis is on external constraints,
continuing or new, which may have overborne the defendant's will. When circumstances no longer coerce the
defendant, a break in the stream has occurred.
The second line of analysis looks more specifically to the effect of the
previous confession on the defendant's will.
To be admissible, subsequent statements may not be 'merely the product
of the erroneous impression that the cat was already out of the bag' (Darwin v. Connecticut, 391 U.S. 346,
351, 88 S.Ct. 1488, 1491, 20 L.Ed.2d 630 [1968] [Harlan, J., concurring and
dissenting] ) because one coerced confession[412 Mass. 831] has let the secret 'out for good.'
United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 1398, 91
L.Ed. 1654 (1947)."
Applying
these principles in Commonwealth v. Haas,
supra 373 Mass. at 554, 369 N.E.2d 692, we ordered the suppression of a
second custodial statement made by the defendant after police had obtained an
admission from him in a situation where Federal law required that Miranda
rights be given. Suppression was required
despite the fact that the defendant's second statement was found to have been
made voluntarily after the knowing and intelligent waiver of his Miranda
rights. Applying the "break in the
stream of events" analysis, we held that "the proper police
questioning followed so closely their illegal interrogation [that] we cannot
discern a break in time or the stream of events sufficient to insulate the
latter statement from the events which went before." Id. We also concluded that the admission made by
the defendant prior to receiving his Miranda warnings (that he had left his
home for work that morning at 6:30 A.M.), had let the cat out of the bag, and
that " '[a] belated adequate warning could not put the cat back in the
bag.' " Id., quoting Gilpin v.
United States, 415 F.2d 638, 642 (5th Cir.1969).
In Commonwealth v. Watkins, 375 Mass. 472,
482, 379 N.E.2d 1040 (1978), a case involving a suspect's invocation of his
right to counsel, we ruled that a second custodial statement made by the
suspect was admissible. Applying the
"break in the stream of events" analysis, we concluded that, because
the defendant's second statement was made after he was given the opportunity to
communicate with an attorney and after he had a lengthy telephone conversation
with his mother and his sister, "[t]he 'temporal proximity' of the prior
illegally obtained statements to the subsequent statements [was] overshadowed
by the presence of such 'intervening circumstances' " (citations omitted). Id. The "cat out of the bag" theory was
inapplicable in Watkins, we ruled,
because the defendant's first statement to the police was not inculpatory, and
only his later statement described his involvement in the crimes.
[412 Mass. 832] In the 1985 case of Oregon
v. Elstad, supra, the United States Supreme Court rejected the rule of
presumptive taint. The rule of Federal
constitutional law enunciated in the
Elstad case 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.
470 U.S. at 314, 105 S.Ct. at 1296.
[1] The
judge in the present case found that the defendant was not coerced or pressured
into making his statements, that he was not under the influence of alcohol or
drugs at the time of the interrogation, and that he exhibited self‑control
and was willing to talk to the police.
This evidence supports the judge's ultimate finding that the defendant's
statements were voluntary and, therefore, that his second statement would be
admissible as a matter of present Federal constitutional law.
Oregon v. Elstad, supra. See Commonwealth v. Rubio, 27 Mass.App.Ct.
506, 514‑515, 540 N.E.2d 189 (1989); Bryant v. Vose, 785 F.2d 364, 366‑368
(1st Cir.), cert. denied, 477 U.S. 907, 106 S.Ct. 3281, 91 L.Ed.2d 570 (1986).
[2] The
defendant argues, however, as he did in the Superior Court, that we should
continue to follow the requirements that we set out in Commonwealth v. Haas, supra.
Under the principles of that case, we conclude, the suppression of the
defendant's subsequent statement would be required.
In ruling
on the defendant's suppression motion, the judge made no findings on the issue
whether a "break in the stream of events" had occurred to remove the
taint of the first, illegally obtained, admission. The record demonstrates, however, that there
was no evidence before the judge to have allowed him to conclude that such a
break had taken place; both statements
were the result of a single continuous interrogation. The judge did make findings with respect to
the second line of analysis. He ruled
that the "cat out of the bag" theory was inapplicable to this case
because the defendant's first [412
Mass. 833] statement was "non‑inculpatory"
and because the "pre‑Mirandized statement ... does not impact on the
second statement.... [I]t is different
from the post‑Miranda statement and does not qualify as a so‑called
cat‑out‑of‑the‑bag statement." (FN9)
We regard
the judge's finding that the defendant's first statement was not inculpatory as
clearly erroneous; if the judge's
statement is a conclusion of law, we consider it to be wrong. The defendant's first statement, that he and
Duclos were "4 wheeling" in Duclos' truck at the time the killings
occurred, put him in Duclos' company at the time of the murders, and clearly
amounted to an "incriminating" response. Commonwealth v. Tavares,
385 Mass. 140, 150, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct.
2967, 73 L.Ed.2d 1356 (1982). Commonwealth v. Rubio, supra at 513 &
n. 8, 540 N.E.2d 189. Moreover, in view
of what the police had already learned from Duclos, the defendant's statement
was particularly incriminating, because Duclos had offered the same alibi just
before confessing to the crimes. The
first statement, if available to the prosecution, would have constituted strong
evidence of consciousness of guilt.
[3] We
also disagree with the judge's conclusion that the first statement "does
not impact on the second." On this
issue, the facts of the present case closely resemble those in Commonwealth v. Haas, supra. (FN10)
We concluded that the "cat was out of the bag" following the
defendant's admission that he had [412
Mass. 835] left his home for work at
6:30 A.M., id. 373 Mass. at 551, 369
N.E.2d 692, because the police knew from separate forensic evidence that the
victims had been killed a few hours before that time. The inculpatory quality of the defendant's
statement was established conclusively by
other evidence already known to the police‑‑the defendant may have
believed, mistakenly, that his statement was exculpatory. Having realized that the suspect had made an
incriminating statement without benefit of the Miranda warnings, the police
were then obligated not only to administer the warnings, but also to create a
break in the stream of events to insulate any later statement from the taint of
the prior illegality. Because they did
not do so, the defendant's subsequent statement was inadmissible.
[4]
Similarly here, the inculpatory quality of the defendant's statement that he
was "4 wheeling with Duclos" was established conclusively by the
prior knowledge of the police that Duclos had offered a similar alibi just
before confessing to the crimes.
Because, as in Haas, the
police did not afford the defendant a break in the stream of events, a similar
result is required. Where the police
have become aware that the suspect has incriminated himself during a custodial
interrogation, and yet, after reciting the warnings, allow the interrogation to
continue without affording the defendant a break in the stream of events, the
law prior to Oregon v. Elstad, supra,
required that subsequent statements be suppressed. Following the analysis in Commonwealth v. Haas, supra, therefore, we conclude that the
Commonwealth has failed to meet its burden of dissipating the taint of the
illegal interrogation, requiring suppression of the defendant's post‑Miranda
statement. (FN11)
[5] We
therefore reject the Commonwealth's argument that the case should be decided
solely on the principles set forth [412
Mass. 836] in Oregon v. Elstad, supra.
The failure to administer the Miranda warnings as presently required by
Federal law is itself an improper police tactic, and "any confession
obtained in the absence of proper Miranda
warnings is by definition 'coerced'‑‑regardless of how 'friendly'
the actual interrogation," State v.
Lavaris, supra 99 Wash.2d at 857, 664 P.2d 1234. The defendant in this case was eighteen
years of age; he had a poor educational
background; he was ten miles from his
home and without transportation; he was
not informed of his statutory right to use the telephone (see discussion at
note 4, supra); he made an incriminating statement during a
custodial interrogation; then, after
receiving the Miranda warnings, he confessed his involvement in the crimes. To allow that statement to be used at his
trial would countenance precisely the kind of police interrogation that the
presumption of taint was intended to deter.
(FN12)
[6] The
wiser course, we believe, is to presume that a statement made following the
violation of a suspect's Miranda rights is tainted, and to require the
prosecution show more than the belated administration of Miranda warnings in
order to dispel that taint. (FN13) This presumption supports one of the purposes of the "bright‑line"
Miranda rule: to avoid fact‑[412 Mass. 837] inquiries into the
voluntariness of confessions, where police officers are generally more credible
witnesses than criminal defendants. It
is also consistent with our "humane practice" holding that,
"before any statement by a defendant to law enforcement officers or their
agents may be placed before the jury, the Commonwealth must prove voluntariness
beyond a reasonable doubt." Commonwealth v. Tavares, supra 385 Mass.
at 152, 430 N.E.2d 1198. See Commonwealth v. Mandile, 397 Mass. 410,
413, 492 N.E.2d 74 (1986). Compare Lego v. Twomey, 404 U.S. 477, 489, 92
S.Ct. 619, 626, 30 L.Ed.2d 618 (1972) (standard for voluntariness under the
Federal Constitution is by a preponderance of the evidence). Therefore, as a common law rule of evidence,
see Commonwealth v. Tucceri, 412
Mass. 401, 408‑409, 589 N.E.2d 1216 (1992), governing the admissibility
of confessions and admissions, we shall, in a situation where Federal law
requires Miranda protections, continue to follow the principles set forth in Commonwealth v. Haas.
Because we
are requiring the suppression of the defendant's statement on other grounds, we
need not consider whether an independent basis for suppression is presented by
the defendant's claim that the police intentionally violated G.L. c. 276, §
33A, by failing to inform him on his arrival at the police station of his right
to use a telephone.
Two other
arguments made by the defendant are relevant to his retrial. The defendant argues that the prosecutor's
closing argument, in which he urged the jury to conclude that both Duclos and
the defendant committed the crimes, contradicts Duclos' own testimony, in which
he contended that the defendant alone shot Duclos' parents. Therefore, the defendant argues on appeal,
the prosecutor knowingly presented false evidence in violation of Napue v. Illinois, 360 U.S. 264, 79
S.Ct. 1173, 3 L.Ed.2d 1217 (1959), in conducting his examination of Duclos as a
witness for the Commonwealth. This
argument is without merit. There is no
evidence in the record that Duclos' testimony was false or that the
Commonwealth knew it to be so. In making
his closing argument, the prosecutor was simply informing the jury that it was
unnecessary for them to credit Duclos' testimony completely in order to convict
the defendant; this argument was proper.
[412 Mass. 838] The defendant was not entitled to a jury instruction on the
failure of the police to conduct certain tests.
"The decision whether to instruct a jury regarding the inferences
that may be drawn from the failure of the police to conduct forensic tests lies
within the discretion of the trial judge." Commonwealth v. Cordle, 412
Mass. 172, 177, 587 N.E.2d 1372 (1992), and cases cited. As in
Commonwealth v. Andrews, 403 Mass. 441, 463, 530 N.E.2d 1222 (1988), the
defendant here was afforded the opportunity to conduct a thorough cross‑examination
of the police officers as to any investigative procedure not used. The decision not to give the requested jury
instruction was well within the judge's discretion.
The order
denying suppression of the defendant's signed statement to the police is
reversed and that statement is ordered suppressed. The judgments are reversed, the verdicts set
aside, and the case remanded for a new trial.
So ordered.
NOLAN,
Justice (dissenting).
The rule
of Oregon v. Elstad, 470 U.S. 298,
314, 105 S.Ct. 1285, 1296, 84 L.Ed.2d 222 (1985), should be followed. There, the United States Supreme Court
correctly left to the fact finder the only crucial question, whether the
suspect made a rational and intelligent choice either to waive or to invoke his
rights after Miranda warnings had been given.
I dissent.
(FN1.) Duclos told the police that his mother
"bitched, complained all the time to me and my father did everything she
wanted." He wrote in a letter from
jail that "the only reason [the killings] took place is my mother treated
me shity [sic ]."
The
hostility between the defendant and Anna Duclos arose out of an incident one
year before the killings, where the defendant attempted to take a gun from the
Duclos' house in order to shoot his own mother.
Anna Duclos stopped him, reported the incident to his mother, and would
not allow him inside her home for several months afterward.
(FN2.) The judge made no formal written
findings of fact or memorandum of law regarding the suppression motion. Rather (perhaps due to the necessity of
starting the trial), the judge dictated into the record limited findings of fact
and rulings of law which were cast in general terms. The evidence before us consists of the
statements given by Duclos and by the defendant on the morning of May 23, 1989
(the statements were not recorded, but were prepared by Sergeant Bradley Mullen,
one of the interrogating officers, and were signed by the suspects), and the
transcript of the motion hearing. We
consider the evidence in the light most favorable to the Commonwealth, and
conclude as a matter of law that the statement was erroneously admitted. See
Commonwealth v. Rubio, 27 Mass.App.Ct. 506, 512 & n. 6, 540 N.E.2d 189
(1989).
(FN3.) By the time the police finished their
interrogation of Duclos three hours later, he had implicated the defendant in
the killings, with the result that the defendant was no longer an alibi witness
but a suspect in the crimes.
(FN4.) The Commonwealth did not dispute that
the defendant's interrogation was custodial;
both officers testified at the suppression hearing that once the
interrogation had begun, the defendant would have been arrested had he
attempted to leave. Consequently, the
Commonwealth did not argue that the statements made by the defendant prior to
receiving his Miranda warnings were admissible.
The explanation for Sergeant Mullen's failure to give the defendant his
Miranda warnings prior to starting the interrogation was that when the
interview began, Duclos' statement implicating the defendant was
uncorroborated, and Sergeant Mullen "did not feel initially that Miranda
was required." At the time of the
interrogation, Sergeant Mullen had been a police officer for eighteen years,
and he
knew that the defendant was
eighteen years of age.
(FN5.)
Officer Young testified that the defendant was also informed of his right to
use the telephone at this time. Sergeant
Mullen, however, testified that the defendant was not informed of this right
until the interrogation was over.
(FN6.) The defendant's statement, as prepared
by Sergeant Mullen, states that at this point the defendant was "[a]dvised
of statement made by Bill Duclos and agrees to tell truth." Sergeant Mullen testified that he did not
provide the defendant with any details of Duclos' story.
(FN7.) At trial, the judge properly instructed
the jury that, before they could consider the statement, they must find beyond
a reasonable doubt that it was voluntarily made. See
Commonwealth v. Tavares, 385 Mass. 140, 152‑153, 430 N.E.2d 1198,
cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982).
(FN8.) The admissibility of such a statement
has been evaluated in a variety of ways.
For example, some decisions have held that a second statement is
inadmissible where the suspect is not informed of the invalidity and
inadmissibility of the earlier statement.
See Fisher v. Scafati, 439
F.2d 307, 311 (1st Cir.), cert. denied, 403 U.S. 939, 91 S.Ct. 2256, 29 L.Ed.2d
719 (1971); State v. Edwards, 284 N.C. 76, 80‑81,
199 S.E.2d 459 (1973). In the analogous
case of Brown v. Illinois, 422 U.S.
590, 603‑604, 95 S.Ct. 2254, 2261‑2262, 45 L.Ed.2d 416 (1975),
which involved the voluntariness of statements made after a warrantless arrest
without probable cause, the Court considered, in addition to the administration
of Miranda warnings, "[t]he temporal proximity of the arrest and the
confession," "the presence of intervening circumstances," and
"the purpose and flagrancy of the official misconduct."
(FN9.) The Commonwealth argues that the judge
was correct in finding that there was no violation of the defendant's rights
under the "cat out of the bag" test, and furthermore, that in the
absence of such a violation, no "break in the stream of events" was
required.
The
observations of Justice Harlan, concurring in part and dissenting in part, in Darwin v. Connecticut, 391 U.S. 346,
350‑351, 88 S.Ct. 1488, 1490, 20 L.Ed.2d 630 (1968), have been cited
widely as authority for the "cat out of the bag" analysis. In
Darwin, a case not controlled by
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),
Justice Harlan stated that the prosecution should be required to meet its
burden under both tests in order to render a subsequent statement
admissible: "[W]hen the prosecution
seeks to use a confession uttered after an earlier one not found to be
voluntary, it has, in my view, the burden of proving not only that the later
confession was not itself the product of improper threats or promises or
coercive conditions, but also that it
was not directly produced by the existence of the earlier confession ... Here, the facts as stated by the state courts
fail to satisfy this additional burden. "
(Emphasis supplied.) Id. 391 U.S. at 351, 88 S.Ct. at
1490. See People v. Chapple, 38 N.Y.2d 112, 114‑115, 378 N.Y.S.2d 682,
341 N.E.2d 243 (1975), rejecting the argument made by the State that, because
the "cat out of the bag" theory was inapplicable, the confession was
consequently admissible, and requiring suppression of a confession where the
prosecution failed to demonstrate a break in the stream of events: "Warnings ... must precede the subjection of a defendant to questioning. Later is too late, unless there is such a
definite, pronounced break in the interrogation that the defendant may be said
to have returned, in effect, to the status of one who is not under the
influence of questioning."
(Emphasis in original.)
In
circumstances where a suspect is subjected to a continuous custodial
interrogation (i.e., there is no break in stream of events) but does not
respond with an incriminating statement until after the Miranda warnings have
been given (i.e., the cat is not out of the bag), it may be argued that no
Fifth Amendment violation has occurred.
The exclusionary rule, when utilized to protect Fifth Amendment rights,
is directed solely toward police misconduct that produces incriminating testimony
as its fruit; by contrast, when it is
utilized to effect the Fourth Amendment, "[i]t is directed at all unlawful
searches and seizures...." Brown v. Illinois, 422 U.S. 590, 601, 95
S.Ct. 2254, 2260, 45 L.Ed.2d 416 (1975).
(No separate Fourth Amendment violation is alleged in this case.) However, because interrogation without
benefit of the Miranda warnings is itself improper police conduct, the absence
of a break in the stream of events, in some circumstances, may mandate the
suppression of a post‑Miranda statement, even where the suspect made no
incriminating statement during the course of the illegal interrogation. See
Westover v. United States, 384 U.S. 436, 494‑497, 86 S.Ct. 1602, 1638‑40,
16 L.Ed.2d 694 (1966).
Because
the defendant argues, and we agree, that the facts are in his favor under both
the relevant tests, the relationship between the two tests is not an issue in
this case.
(FN10.)
As we noted in Commonwealth v. Watkins,
375 Mass. 472, 481, 379 N.E.2d 1040 (1978), in the Haas case, we employed the "cat out of the bag" theory
in conjunction with the "break in the stream of events" theory. In
Haas, we held that where the police are aware that a suspect has
incriminated himself, they are required to afford the suspect a break in the
interrogation. We follow that rule in this
case.
We
disagree with the Commonwealth's contention that the facts of this case more
closely resemble those in Commonwealth v.
Watkins, supra at 482, 379 N.E.2d 1040.
In Watkins, the defendant, who
was being interrogated in Louisville, Kentucky, first made a statement that
"detailed in the main his activities in Louisville on the day of his
arrest," although he did admit that he had recently been in Boston (where
the crime for which he was being interrogated had taken place). We concluded that "[t]he later
statements ... could not be deemed the 'product' of his earlier
statement...." Id.
We consider the statement made by the defendant in this case to have
been significantly more inculpatory.
Moreover, in Watkins, the
defendant was afforded a "break in the stream of events" sufficient
to insulate the later statement from any prior illegality. No such break was offered to the defendant in
this case.
(FN11.) The defendant's second statement, in
which he admitted his knowledge of the plan, his presence at the scene, and his
assistance afterward, was sufficient to support a conviction of murder in the
first degree on a theory of joint venture.
Its admission in evidence at the defendant's trial, therefore, cannot be
said to have been harmless. Commonwealth v. Hanger, 377 Mass. 503,
510‑512, 386 N.E.2d 1262 (1979).
(FN12.) See The Supreme Court, 1984 Term‑‑Leading
Cases, 99 Harv.L.Rev. 120, 147 (1985) (criticizing Oregon v. Elstad decision on the ground that it "sacrifices
the precision of Miranda and promises
once again to sink lower courts in a mire of inquiries into voluntariness"
and "affords law enforcement officers positive incentives to withhold Miranda warnings strategically and thus
vitiates the ability of Miranda's
bright line test to instill norms of proper conduct in law enforcement
agents").
(FN13.) The Court of Appeals of New York, in People v. Bethea, 67 N.Y.2d 364, 502
N.Y.S.2d 713, 493 N.E.2d 937 (1986), rejected the decision in Oregon v. Elstad, and required
suppression as a matter of State constitutional law. The court reasoned that its State
constitutional protection against compelled self‑incrimination
"would have little deterrent effect if the police know that they can as
part of a continuous chain of events question a suspect in custody without
warning, provided only they thereafter question him or her again after warnings
have been given." Id. at 366, 502 N.Y.S.2d 713, 493 N.E.2d
937. But see State v. Elstad, 78 Or.App. 362, 365, 717 P.2d 174, review denied,
302 Or. 36, 726 P.2d 935 (1986). After
remand from the United States Supreme Court decision, the State of Oregon
declined to apply a standard more strict than the newly‑enunciated
Federal standard for the admissibility of such statements under its State
Constitution.