COMMONWEALTH
v.
COLLINS
SJC-08941
COMMONWEALTH vs. DONALD COLLINS
Present:
Constitutional Law, Waiver of constitutional rights, Self-incrimination, Assistance of counsel. Practice, Criminal, Assistance of counsel.
Indictments
found and returned in the Superior Court Department on
A motion to suppress was heard by Elizabeth M. Fahey, J.
An application
for leave to prosecute an interlocutory appeal was allowed by Greaney, J., in the
Steven E. Gagne,
Assistant District Attorney, for the Commonwealth.
Nona E. Walker, Committee for Public Counsel Services, for the defendant.
CORDY, J. In
Commonwealth v. Mavredakis, 430
In the present case, we must determine the reach of the Mavredakis
rule, and, in particular, whether suppression is required where the suspect
retained and consulted with counsel prior to his arrest, was informed of his
right to have counsel present when he waived his Miranda rights and spoke to
the police, but was not informed that several days prior to the arrest his
attorney had told the police that he wanted to be present during any interview
of his client. A judge in the Superior Court held that Mavredakis
required the defendant to be informed of his attorney's statement to the police
and suppressed the statements made during the interview. The Commonwealth's
application for interlocutory appeal was granted by a single justice of this
court and the appeal was entered in the
1. Background. We take the facts from the motion judge's findings and
undisputed testimony presented at the hearing on the motion to suppress.
Commonwealth v. Hinds, 437
After the November 30 interview was cancelled, Brennan applied for, and the
Taunton District Court issued, a warrant for Collins's arrest. Brennan informed
the
At the Seekonk police department, Brennan again advised Collins of his Miranda
rights, and Collins signed a notification of rights form on which he also initialled each of the five enumerated rights. Collins
reiterated that he was embarrassed by his attorney's actions in not getting an
interview set up with the police, said he had nothing to hide, and proceeded to
answer questions posed by Brennan and Carroll. Brennan never informed Collins
of Bond's request of November 29 to be present at the interview.
Collins was subsequently indicted for forcible rape of a child under sixteen
years, and indecent assault and battery on a child under age fourteen years.
Prior to trial, Collins moved to suppress the evidence obtained as a result of
the December 1 interview. A hearing was held at which Brennan and Carroll
testified. The judge found that "the interview of the defendant was
polite, calm and non-threatening," that "Collins was always
cooperative in answering . . . questions," that Collins "was not
confused by any of the questioning," and that he never asked to speak with
his attorney. She also found that Collins denied any sexual contact with the
complainant.[1] However, she found that the police
"failed to inform this defendant that his attorney wanted to be present
for the interview," that there was "no showing that the defendant was
aware of his attorney's desire to be present during questioning," or
"that the attorney would not have appeared at the police station within a
reasonable time were he informed that the defendant was in custody and would be
interviewed." She concluded that "[b]ecause
of the failure of the police to inform this defendant of a specific
communication from his attorney that bears directly on this defendant's right
to counsel, the defendant's statements must be suppressed."
2. Discussion. "The Commonwealth has the burden of establishing the
validity of a Miranda waiver beyond a reasonable doubt." Commonwealth v. Vao Sok,
435
The concerns underlying the rule are amply set forth in Mavredakis:
"[T]here is an important difference between the abstract right to speak
with an attorney mentioned in the Miranda warnings, and a concrete opportunity
to meet 'with an identified attorney actually able to provide at least initial
assistance and advice," id. at 859, quoting State
v. Haynes, 288 Or. 59, 72 (1979), cert. denied, 446 U.S. 945 (1980); knowledge
of an attorney's efforts to render assistance is necessary to actualize that
abstract right at the time a suspect is faced with a decision whether to waive
his constitutional rights; and "[a]ny other
approach would lend tacit approval to affirmative police interference with the
attorney-client relationship." Mavredakis, supra at 860.[3]
If, as here, a suspect volunteers that he has retained and consulted with an
attorney regarding a police request to interview him, the conclusion that the
suspect is fully cognizant of his right to consult with counsel is virtually
inescapable. The Miranda warnings received prior to such an interview do not
constitute "an abstract offer to call some unknown lawyer,"
Commonwealth v.
Additionally, this is not a case in which a lawyer has been denied access to a
client in custody or under interrogation. See Mavredakis,
supra at 861-862 (police policy of forbidding contact between third parties and
persons being interviewed violates art. 12 if applied to attorneys attempting
to contact their clients). Nor is it a case in which a suspect under
interrogation, or about to be interrogated, has been kept unaware that a
lawyer, purporting to act on his behalf, is attempting to render advice and
assistance. See Commonwealth v. Mahnke, 368 Mass.
662, 692 (1975), cert. denied, 425 U.S. 959 (1976) (waiver not voluntary where
injured suspect not notified of calls made by attorney to police on learning
that client was to be interviewed at hospital); Commonwealth v. McKenna, 355
Mass. 313, 325 (1969) (same where suspect not notified of telephone call made
by his attorney to police during interview).[4]
Collins argues, however, that his statements should be suppressed because the
circumstances in which they were made are closely akin to those present in
Commonwealth v.
Where, as here, a suspect has retained and consulted with an attorney
concerning the matter under investigation, it cannot be said that the right to
consult with counsel is "abstract"; and where the police have done
nothing to impede the contact or the flow of information or advice between
lawyer and client (including, e.g., failing to notify the defendant of attempts
by the lawyer to contact him), our concerns regarding interference with the
attorney-client relationship are simply not present. In these circumstances,
the rule does not apply, and to extend it would unduly burden law enforcement
with responsibilities that firmly belong with attorneys and defendants.
The judge's allowance of the motion to suppress on the ground that the Mavredakis rule was violated by the police is reversed. The
case is remanded to the Superior Court for further proceedings consistent with
this opinion.[5]
So ordered.
FOOTNOTES:
[1] Although Collins denied sexual contact with the complainant, statements made during the interview were inculpatory in other respects.
[2] It long has been clear in
[3] The rule was not intended to alter the principle that
"responsibility for invoking the protections guaranteed by Miranda v.
[4] While the decisions in these cases preceded Moran v. Burbine, 475 U.S. 412 (1986), and appear to be founded more on Federal constitutional rights than art. 12, we concluded in Mavredakis, supra, that they survived Moran v. Burbine, supra, and were still good law under art. 12.
[5] In his initial motion to suppress, the defendant also argued that the police continued to question him after he requested that the interview end and invoked his right to have an attorney present. The Superior Court granted the defendant's motion on the Mavredakis-based argument, and therefore did not rule on this alternate ground. Based on her findings of fact that were to the contrary, the claim is without merit.