NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
23-P-589
COMMONWEALTH
vs.
MARK BARRY.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
In 2013, the defendant pleaded guilty to two counts of
possession of child pornography. In 2015, he filed a motion to
withdraw his guilty plea and for a new trial (later amended in
2017), alleging that his plea counsel was ineffective for
failing to file a motion to suppress evidence and statements and
that his plea was not knowing and voluntary because of his
mental health limitations.1 The motion judge, who was not the
1The 2017 motion, filed pursuant to Mass. R. Crim. P. 30 (b), as appearing in 435 Mass. 1501 (2001), was an amendment to the one filed in 2015. In his amended motion, the defendant asserted additional grounds to withdraw his plea, specifically, that his cognitive processing issues and developmental delays due to cerebral palsy prevented him from voluntarily consenting to the interactions with police in 2012 and during his 2013 plea colloquy. plea judge, denied the defendant's motion without an evidentiary
hearing, and the defendant now appeals. We vacate and remand
for an evidentiary hearing on the defendant's amended motion.
Background. Although the Superior Court judge who accepted
the defendant's change of plea ordered an evidentiary hearing on
the defendant's motion to withdraw his guilty plea, the motion
judge subsequently assigned to the case proceeded without one.
The motion judge relied on grand jury testimony and police
reports for the facts recited in his decision, and therefore we
do as well.2 Like the motion judge, we did not see the witnesses
firsthand; nor was there an opportunity for cross-examination.
On August 9, 2012, an Amtrak "red cap" at South Station
observed the defendant surreptitiously taking pictures of an
eleven year old girl on his cell phone. The girl was wearing a
dress and sitting on a bench next to her parents. The red cap
walked behind the defendant to confirm that the image of the
girl was on the defendant's phone and, once confirmed, he
attempted to find a police officer. Unable to find a police
officer, the red cap alerted a uniformed Amtrak patrol officer
of the defendant's behavior. The red cap and Amtrak officer
2 We acknowledge that the grand jury minutes remain impounded and discuss them only as necessary to resolve this appeal.
2 approached the defendant, and the defendant attempted to quickly
walk away. The Amtrak officer told the defendant to stop.
At that time, another Amtrak officer approached the
defendant, resulting in the defendant being boxed in by the
Amtrak employees. One of the Amtrak officers asked the
defendant if he could hold the defendant's phone. The officer
asked for the phone to prevent the defendant from running away.
The defendant complied and gave the officer his phone. The
officer then asked the defendant if he would come with him to
the station services office; the defendant complied and followed
the officer. At no point during this interaction did the Amtrak
officers handcuff the defendant or place him under arrest. Once
in the office, an Amtrak officer contacted the Massachusetts Bay
Transportation Authority (MBTA) police department.
Before the MBTA police arrived, one of the Amtrak officers
asked the defendant if she could look at the photographs in his
phone; the defendant complied. The officer saw photographs of
the girl wearing a dress and could view the girl's underwear in
at least one of the photographs. When the Amtrak officers
questioned the defendant, he admitted to taking the photographs.
An MBTA detective arrived approximately fifteen minutes
later; the detective stated that she provided the defendant with
his Miranda warnings, though there was no signed record of that,
3 and questioned him. After the defendant admitted to
photographing the girl, the detective took him to transit police
headquarters for a recorded interview.3
At the outset of the interview, the defendant was reminded
that he was given his Miranda warnings at the South Station
Amtrak office. The detective read the defendant his Miranda
warnings a second time and asked the defendant to sign the form.
The detective then asked the defendant if he wanted to continue
to talk to the police. In response, the defendant said, "I
guess I'll talk, but I don't know," and asked if he was "allowed
to leave." He was told he could not leave, although he was also
told, "You're not under arrest though. I'm not arresting you
right now. But I'm just saying that I would rather talk to you
because some things are questionable." The defendant asked
again if he was under arrest, and was told the following:
"You're not under arrest right now, no. But I would have to discuss it with my supervisor on whether or not I would place you under arrest.
"Ultimately, what I would like to do is get consent from you to look through this telephone, signed consent because you see that this phone is frozen on a picture right now. . . .
"I'm not going to look through the telephone, but I can get a search warrant for the phone."
The detective continued,
3 We have the video recording and transcripts of that interview.
4 "Even if you were arrested tonight, I need to find out what's going on with you. Why these pictures are being taken and what help we can get you. Does a person who's taking pictures of young girls just need to get locked up and do prison time, does that help them? I don't know. I don't think that it does. So do I need to talk to the DA and say hey, we need a different avenue for this; we need to go down a different avenue. This guy, obviously, needs some help because he's got something going on.
. . .
"I don't want you to continue to talk to me if you're saying that you're concerned about talking to me. I would have to have you sign this form first saying yes, you agree to talk to me. I have to protect you and your rights. If you don't want to talk to me, you don't have to talk to me. You don't have to talk to us. You don't have to do that.
"But then, like I said, I would have to get a search warrant for the telephone. We're going to look into the telephone. We'll probably get a search warrant for your apartment. Go back to your apartment and look in your apartment and see what else is in there. I mean because now do I have to be concerned that there's pornography or pictures of small children in your apartment. If you have a computer at your apartment, do I have to worry that there's anything there? Do I even have to worry that there's a small child tied up somewhere in your apartment? I know it sounds a little crazy, right, but see if I don't talk to you, what am I to go off of? But if we can talk, if we can [get] some dialogue going, if you can tell me what's going on with you, what type of things that you prefer, what fetish you have, if I can get a better understanding of who you are, then I know what I'm dealing with and I know what I have to do and what I have to say to the DA, if the DA has to get involved in something like this and we say where do we go from here. Does that make sense to you?
5 "Do you think you want to talk to us and tell me what's going on with you? Why you are taking pictures like this of small kids? Because then I have a concern like you said that you have some nieces; do I have to be concerned that something is going to happen to your nieces? And is it your sister or your brother that have children?"
The defendant responded, "My brother." The detective
continued, "Your brother, okay. So you don't want your brother
concerned about the kids, do you?" The defendant said, "No."
The detective responded,
"You want to be able to have a relationship with those kids and so how do we get past this where you would be able to have a relationship with those children. I think those are legitimate questions that I have for you. But it's up to you whether or not you want to talk about it. I don't want to force you into anything.
"However, one way or another, even if you decide that you don't want to talk to me, I'm going to leave this office right now. I'm going to leave you here just for a couple of minutes and I'm going to discuss it with my supervisor about what we're going to do. I mean I already know that if you don't want to consent to a search of this telephone, we're still going to get a search warrant for the telephone because of the one picture because of the family. The family saw you taking pictures of the girl underneath her skirt. The family saw that and there is a picture there, right Mark? I mean you know that it's there. So that's why I want to be able to get past this, get past the Miranda portion of it, if you agree to talk to us. If not, we're going to decide what else we're going to do if we do need to make an arrest, if we do have to arrest you tonight. I do have to make that decision.
"I'm just saying to you at this point, I'm not going to place handcuffs on you, but at some point tonight, I may do that. I may not let you walk out of here tonight."
6 The defendant replied, "I've never touched anyone in my
life." The detective said, "So this is saying that you agree to
talk with me?" The defendant responded, "Yes, yes," and then
signed the Miranda warnings form.
Shortly thereafter, the defendant's girlfriend called his
phone and before he answered, the detective told him, "You don't
have to tell her anything right now . . . you don't have to tell
her that you're at the police station." Ultimately during the
interrogation, the defendant consented to the search of his
phone, and in response to the interrogation, made incriminating
statements. The next morning, the defendant signed another
waiver of his Miranda rights and a waiver of his right to
arraignment after an officer told him falsely, "This is so you
know you're not going to be here all day." In response to
interrogation, the defendant again made incriminating
statements.
Ultimately, a search warrant was executed of the
defendant's cell phone and revealed two images of prepubescent
girls dressed in adult lingerie and posed provocatively with
underwear revealing part of their genital areas.
On May 8, 2013, the defendant pleaded guilty in Superior
Court to two counts of possession of child pornography, G. L.
7 c. 272, § 29C, first offense.4 On October 20, 2015, the
defendant filed a motion to withdraw his guilty plea and for a
new trial. Therein, he claimed that his counsel failed to file
motions to suppress evidence and statements.
Both the defendant and Commonwealth requested an
evidentiary hearing on the motion to withdraw the guilty plea.
On July 18, 2016, the plea judge ordered an evidentiary hearing
on the defendant's motion. However, the scheduling of the
hearing was stayed pending the defendant's amended motion, which
was docketed on July 20, 2017. In his amended motion, the
defendant asserted additional grounds to withdraw his plea,
specifically, that his cognitive processing issues and
developmental delays due to cerebral palsy prevented him from
voluntarily consenting to the interactions with police in 2012
and during his 2013 plea colloquy. In support, the defendant
submitted affidavits from his sister and a psychologist.
The plea judge also allowed the defendant's motions for
expert funds. Through discovery, the defendant obtained medical
records and a neuropsychological exam report. Notably, they
reflect that at around the age of fifty-five, the defendant
4 Pursuant to the plea agreement, the defendant's third indictment, for photographing a nude or partially nude person, G. L. c. 272, § 105, was dismissed and the counts for possession of child pornography were reduced from subsequent offense counts to first offense counts.
8 presented with a "substandard logical reasoning ability,"
similar to that of a nine year old child. A 2018 report
summarized the defendant to have an "impaired intellectual
ability . . . stemming from a medical issue, cerebral palsy."
His intelligence quotient (IQ) scores -- which have tested
between sixty-seven and ninety during his life –- have resulted
in "a severe learning disability that affects his ability to
integrate and organize his perceptual and emotional experience."
Prior to the evidentiary hearing, the case was assigned to
another judge (motion judge) and hearings were held. Defense
counsel informed the motion judge that he intended to call two
experts, a psychologist who would testify regarding the
defendant's cerebral palsy and another expert on police coercive
techniques used by the MBTA police. The motion judge requested
that the parties submit a filing detailing the grounds that
exist to withdraw the plea, including from any information
gleaned during discovery. The judge stated that after he
reviewed the filings, he "might hold a hearing." He went on,
"It might be evidentiary or not. It depends on what your filings
say. I'm not denying a hearing, but until I see the papers, I'm
not exactly sure what kind of a hearing we need."
9 On April 14, 2023, the motion judge denied the defendant's
motion without holding an evidentiary hearing. The defendant
timely appealed.
Discussion. Generally, we review a motion judge's decision
whether to hold an evidentiary hearing for an abuse of
discretion. See Commonwealth v. Denis, 442 Mass. 617, 628
(2004). Where, as here, however, the motion judge was not the
plea judge, and the motion judge only reviewed documentary
evidence, we review the denial of a motion for a new trial de
novo. See Commonwealth v. Mazza, 484 Mass. 539, 547 (2020).
See also Commonwealth v. Lykus, 451 Mass. 310, 326 (2008) (where
motion judge was not trial judge and took no evidence, review on
appeal is de novo).5
"Although a defendant's motion and affidavits need not
prove the issue raised, to be adequate they must at least
contain sufficient credible information to cast doubt on the
issue" (emphasis added; quotation and citation omitted).
5 We give deference to the plea judge who ordered the evidentiary hearing. See Commonwealth v. Lastowski, 478 Mass. 572, 575 (2018). See also Commonwealth v. Sullivan, 435 Mass. 722, 733 (2002) (awarding substantial deference to trial judge on issue whether to hold evidentiary hearing). Here, the first judge, who had taken the defendant's plea, ordered an evidentiary hearing on the defendant's claim for ineffective assistance of counsel. As discussed infra, we agree that an evidentiary hearing should have been ordered on the defendant's motion (and amended motion) for a new trial.
10 Commonwealth v. Lys, 481 Mass. 1, 5 (2018). An evidentiary
hearing should be conducted "where a substantial issue is raised
and is supported by a substantial evidentiary showing."
Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). See
Commonwealth v. Drayton, 473 Mass. 23, 36-38 (2015), S.C., 479
Mass. 479 (2018) (substantial issue raised regarding admission
of witness's affidavit that directly contradicted incriminating
testimony by purported eyewitness). "In determining whether a
motion for a new trial warrants an evidentiary hearing, both the
seriousness of the issue itself and the adequacy of the
defendant's showing on that issue must be considered." Denis,
442 Mass. at 628.
A motion for new trial alleging ineffective assistance of
counsel "raises 'an issue of constitutional importance' that
readily qualifies as a serious issue" depending on the adequacy
of the showing with respect to that issue. Denis, 442 Mass. at
629, quoting Commonwealth v. Licata, 412 Mass. 654, 661 (1992).
Here, the defendant's motion for a new trial adequately raised
substantial issues regarding ineffective assistance of counsel.
The defendant's motion for new trial asserts two grounds:
(1) his counsel was ineffective for failing to file a motion to
suppress both the photographs on his cell phone and the
11 statements he made while in custody,6 and (2) his plea was not
knowing or intelligent because of his mental health limitations.
1. Failure to file a motion to suppress. When a defendant
asserts a motion for a new trial based on the failure of counsel
to file a motion to suppress, "the defendant has to demonstrate
a likelihood that the motion to suppress would have been
successful." Commonwealth v. Comita, 441 Mass. 86, 91 (2004).
"We analyze that likelihood objectively, 'given what [the
attorney] knew or should have known at each relevant moment in
time,' and without 'the advantage of hindsight'" (citations
omitted). Commonwealth v. Gosselin, 486 Mass. 256, 260 (2020).
The defendant argues that there were three different
reasons a motion to suppress likely would have succeeded:
(1) the defendant was seized without reasonable suspicion or
probable cause; (2) the waiver of his Miranda rights was
invalid; and (3) the statements and consent to search were
involuntary as a matter of due process. His argument is that
6 The motion judge concluded that the defendant's counsel strategically chose to forgo filing a motion to suppress because the defendant was facing a five-year mandatory minimum sentence for the two child pornography counts as charged. However, counsel claimed that she did not file a motion to suppress not as a strategic matter or because she thought it lacked merit, but because she "thought that the court would not allow the motion."
12 the defendant's statements and consent to search his phone were
fruits of any and all of these errors.
a. Seizure of the defendant. "A person is seized by the
police only when, in light of all the attending circumstances, a
reasonable person in that situation would not feel free to
leave." Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007).
"[A]n investigatory stop is constitutionally justified if it is
conducted on reasonable suspicion that the person seized has
committed, is committing, or is about to commit a crime." Id.
at 371. Such "suspicion must be grounded in 'specific,
articulable facts and reasonable inferences [drawn] therefrom'
rather than on a 'hunch.'" Id., quoting Commonwealth v. Scott,
440 Mass. 642, 646 (2004). "If an officer exceeds the scope of
an investigatory stop, the seizure becomes an arrest," requiring
probable cause to believe a crime has been committed.
Commonwealth v. Manha, 479 Mass. 44, 48 (2018). "Whether a stop
is a seizure, requiring reasonable suspicion, or an arrest,
requiring probable cause, depends upon the circumstances of each
case." Id.
"Whether an encounter between a law enforcement official
and a member of the public constitutes a noncoercive inquiry or
a constitutional seizure depends upon the facts of the
particular case." Commonwealth v. Matta, 483 Mass. 357, 363
13 (2019). For instance, "coercion must be objectively
communicated through the officer's words and actions for there
to be a seizure." Id. at 364. "[A]n initially consensual
encounter between a police officer and a citizen can be
transformed into a seizure . . . if the target of the inquiry
refuses to answer and the police take additional steps . . . to
obtain an answer" (quotations and citations omitted).
Commonwealth v. Barros, 435 Mass. 171, 174-175 (2001).
The Supreme Judicial Court reasoned in Barros, 435 Mass. at
172, that an officer's initial request of a defendant, "Hey you
. . . I want to speak with you" was not a seizure. See id. at
174. Whereas, the officer's second request, "Hey you. I wanna
talk to you. Come here," id. at 172, which was accompanied by
the officer stopping his cruiser, walking up to and pointing at
the defendant, "had a compulsory dimension to it that the first
request did not." Id. at 174. As such, the officer's second
request was "what a reasonable person would understand as a
command that would be enforced by the police power." Id. at
176. The court went on, "[e]vidence that the defendant did in
fact stop suggests that he believed, as would any reasonable
person, that he was not free to leave."7 Id.
7 As this court recently explained,
14 Here, one officer testified to the grand jury that as he
was walking toward the defendant the officer said, "Hey, just a
minute." In response, the defendant "looked at [the officer],
he looked away, and then he stopped."
The Amtrak officer's statement "Hey, just a minute" is
similar to the officer's first request in Barros, 435 Mass. at
172. The red cap, however, testified that the officer told the
defendant was told to stop. The red cap's testimony clearly
indicates a command to stop.8 This conflicting grand jury
testimony must be resolved by an evidentiary hearing.
The Amtrak officer then asked the defendant "if it was okay
that if [sic] I held on to his phone," explaining to the grand
jury that he asked for the phone "so [the defendant] wouldn't
"In the context of whether a police officer had 'seized' the defendant, for which reasonable suspicion of criminal conduct is required, the Supreme Judicial Court observed that because civilians rarely feel 'free to leave' a police encounter, the more pertinent question is whether an officer has, through words or conduct, objectively communicated that the officer would use his or her police power to coerce that person to stay" (quotations and citation omitted).
Commonwealth v. Earl, 102 Mass. App. Ct. 664, 670 n.4 (2023), citing Matta, 483 Mass. at 360, 362.
Without hearing any evidence, the motion judge concluded 8
that all Amtrak police were not State actors and thus not subject to constitutional restraints on searches and seizures. Amtrak is an agency or instrumentality of the United States. See Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 394 (1995).
15 run away from [him]." Whether the officer's request for the
defendant's cell phone transformed this encounter to a seizure
also depends on the particular facts, necessitating an
evidentiary hearing. See Commonwealth v. Hilaire, 92 Mass. App.
Ct. 784, 790 (2018), quoting Commonwealth v. Greenberg, 34 Mass.
App. Ct. 197, 201-202 (1993) ("Whether one who hands his
property over to the police at their request voluntarily
consents, or merely acquiesces to a claim of lawful authority,
presents a question of fact"). See also Commonwealth v. Lopez,
451 Mass. 608, 611 (2008) ("Only when the officer, by means of
physical force or show of authority, has in some way restrained
the liberty of a citizen may we conclude that a 'seizure' has
occurred" [citation omitted]); Commonwealth v. Perry, 62 Mass.
App. Ct. 500, 502 (2004) (showing authority by "attempting to
block or control an individual's path, direction, or speed, or
commanding the individual to halt" may be considered a pursuit,
which, when "designed to effect a stop is no less intrusive than
a stop itself" [citations omitted]).
At the time the defendant was seized, either when he
stopped walking away from the officer or when the officer
obtained the defendant's cell phone, based on the record before
us, the officers lacked "specific, articulable facts" that the
defendant committed (or was going to commit) a crime. See
16 DePeiza, 449 Mass. at 371, quoting Commonwealth v. Scott, 440
Mass. 642, 646 (2004). The defendant was observed taking
photographs of a girl at the train station. Although his
behavior or posture may have been unusual,9 and upsetting, and
while his actions were certainly cause for concern, it is
undisputed that the girl who was the object of his photography
was clothed. It is not a crime to take a picture of a young
girl with clothes on. See G. L. c. 272, § 105, inserted by
St. 2008, c. 451, § 149 (criminalizing one who "willfully
photographs, videotapes or electronically surveils another
person who is nude or partially nude" [emphases added]);10 G. L.
c. 272, § 29C (vii) (criminalizing possession of photographs
depicting or portraying a child that is, among other things,
"depicted or portrayed in any pose, posture or setting involving
a lewd exhibition of the unclothed genitals, pubic area, [or]
buttocks" [emphasis added]). Moreover, the images viewed by the
red cap and the various officers prior to the forensic search of
the phone, to which the defendant ultimately consented that
night, depicted the girl's "whole body" and, the girl was
9 The red cap attendant described the defendant as "strange looking," and said that the defendant appeared to be facing one way, while pointing his camera in a different direction to photograph the minor girl.
10We cite the version of the statute in effect at the time of the defendant's arrest.
17 clothed. Likewise at least the record before us shows no
additional basis for probable cause by the time the defendant
was incontrovertibly in custody when the transit police took him
to headquarters and told him he could not leave.
Based solely on the record before us, the defendant's
behavior was not illegal given the plain language of the
statute. Nor is there anything in the record before us that
indicates that there was reasonable suspicion for the
defendant's seizure at any point in time prior to his responding
to the interrogation at the transit police headquarters.11
Nevertheless, the Commonwealth should have the opportunity to
present additional facts, if any, at an evidentiary hearing,
that might justify the seizure. See Commonwealth v. Santos, 95
Mass. App. Ct. 791, 798 (2019) ("In these circumstances, the
correct result on appeal is to decline to reach the merits of
the issue raised for the first time on appeal because it depends
on the development of facts not in the record before us"). See
also Commonwealth v. Brule, 98 Mass. App. Ct. 89, 92 (2020)
(record inadequate to review newly raised claim of whether
officer conducted unlawful search where circumstances of
patfrisk were not developed in trial court); Hilaire, 92 Mass.
11It was also not reasonable to think that the statute covered clothed individuals when it clearly did not.
18 App. Ct. at 785 (eliciting facts at evidentiary hearing to
establish probable cause to stop defendant).12
b. Defendant's interrogation. The defendant's motion for
new trial also asserts that defense counsel was ineffective for
failing to move to suppress his statements given to the police
at the time of his interrogation. The defendant submits that he
was in custody and that his statements were given in violation
of Miranda, and that they, and the consent to search his phone,
12The Commonwealth asserts that there was also reasonable suspicion at the time of the initial stop that the defendant was guilty of "annoying and accosting a person of the opposite sex" in violation of G. L. c. 272, § 53, as amended through St. 2009, c. 27, § 98, on the basis that there were "specific and articulable facts established that the defendant was taking photographs of the eleven-year-old victim, while sitting 20 feet away from, attempting to do so surreptitiously, and the victim was so uncomfortable that she was crying, and her parents feared he would post them online." This argument is wrong. The statute requires an act that is not only offensive, but disorderly. "'[D]isorderly' acts or language 'are those that involve fighting or threatening, violent or tumultuous behavior, or that create a hazardous or physically offensive condition for no legitimate purpose of the actor, whether the resulting harm is suffered in public by the public or in private by an individual.'" Commonwealth v. Sullivan, 469 Mass. 621, 626 (2014), quoting Commonwealth v. Chou, 433 Mass. 229, 233 (2001). "With respect to the creation of a 'physically offensive' condition under G. L. c. 272, § 53, 'physical contact with a victim's person is not necessary to render one's actions physically offensive.' However, a defendant must create a condition that would cause a reasonable person to fear imminent physical harm." (Citations omitted.) Sullivan, supra at 627. There is nothing in the record that amounts to a physically offensive act here; the defendant was twenty feet away from the family, trying not to be seen. Nor was there any threatening by the defendant, who communicated nothing to anyone by his conduct. Compare Chou, supra at 234.
19 were fruit of that poisonous tree. Among other things, whether
he was in custody involves unresolved questions of fact.
He argues that he was not, in fact, given Miranda warnings
by the detective in the office at South Station. Again, this,
at the least involves a question of fact. To the extent that
the defendant's reference to the "substantial coaxing from" the
MBTA detective prior to his signing the waiver of Miranda at the
police station is intended to challenge the validity or
voluntariness of that waiver, the issues are the same as those
described below with respect to the voluntariness of his
statements and consent at his interrogation at the transit
police headquarters, see infra.
The defendant argues that the statements and consent given
in that interrogation were involuntary in the constitutional
sense. The test for voluntariness is "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." Commonwealth v. Raymond, 424 Mass. 382, 396 (1997), S.C.,
450 Mass. 729 (2008), quoting Commonwealth v. Selby, 420 Mass.
656, 663 (1995), S.C., 426 Mass. 168 (1997). Factors which can
be relevant to the determination of voluntariness include the
defendant's age, education, intelligence, emotional stability,
20 experience with the criminal justice system, and any discussion
of leniency or a deal by police or other promises or
inducements. See Commonwealth v. Mandile, 397 Mass. 410, 413
(1986). Although the interrogation tactic of minimization does
not compel a conclusion that a confession is involuntary, see
Commonwealth v. Harris, 468 Mass. 429, 436 (2014), it is
problematic, as implied assurances of leniency or "now or never"
propositions by officers can lead a judge to determine that a
confession was not freely and voluntarily made. See
Commonwealth v. Baye, 462 Mass. 246, 257 (2012). Finally, and
critically,
"[w]hile the promise of psychiatric help standing alone will not invalidate a statement, it may if the help is offered as a quid pro quo for the statement, or if it, in the totality of circumstances, overbore the defendant's free will, inducing in him a belief that help, rather than punishment, would be forthcoming" (citation omitted).
Commonwealth v. Felice, 44 Mass. App. Ct. 709, 712 (1998).
Review of the video footage and transcript from the
defendant's interrogation may lead a motion judge to conclude
that the defendant's will was overborne. See Baye, 462 Mass.
255. The detective said that if the defendant spoke with her,
but only if he did so, she would talk to the district attorney
about going down a "different avenue" than criminal prosecution.
On the record we have, this appears to amount to an
impermissible quid pro quo, see Commonwealth v. Magee, 423 Mass.
21 381, 387-389 (1996), because the detective told the defendant
that if he spoke to her, she would work to see that the
defendant would "not be prosecuted and would not go to jail."
Felice, 44 Mass. App. Ct. at 714.
Nonetheless, as with the claim that there was no reasonable
suspicion or probable cause for the detention at the transit
police headquarters, the record is inadequate for us to decide
the issue, and we think the Commonwealth should have an
opportunity to present any relevant additional evidence it may
have to meet its burden of establishing voluntariness. See
Santos, 95 Mass. App. Ct. at 797-798.
Additionally, a motion judge, who hears evidence regarding
the defendant's mental health limitations could reasonably
conclude that the defendant's waiver of his Miranda rights was
not valid. Thus, again barring a conclusion by the judge that
suppression was required on any of these other grounds, an
evidentiary hearing regarding the defendant's mental health
limitations in consideration of what took place during the
defendant's interrogation is warranted.
c. Voluntariness of the defendant's plea. Lastly, we
address the defendant's assertion that his plea was not
voluntarily made as a matter of due process. Factual questions
also remain unanswered regarding the voluntariness of the
22 defendant's plea. See Commonwealth v. Buckley, 478 Mass. 861,
875 (2018), quoting Commonwealth v. Harmond, 376 Mass. 557, 561
(1978) ("Voluntariness of consent 'is a question of fact to be
determined in the circumstances of each case'"). An evidentiary
hearing would produce information regarding whether the
defendant's plea was knowing, voluntarily, and intelligent in
light of his mental health limitations. The motion judge
reasoned, "Nothing in this case suggests that [the defendant's]
psychological condition prevented him, a man experienced in the
criminal justice system, from understanding his rights and
voluntarily waiving them." However, the motion judge did not
have any evidence before him regarding the defendant's
limitations because plea counsel did not address the defendant's
mental health limitations. The defendant planned to have his
expert testify at an evidentiary hearing to provide evidence
supplied in the affidavits.
Conclusion. We acknowledge that a judge has discretion in
deciding whether to hold an evidentiary hearing. See
Commonwealth v. Meggs, 30 Mass. App. Ct. 111, 114 (1991). A
judge also has discretion in deciding whether to discredit
affidavits submitted in support of a motion for a new trial.
Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015). On this
record, we believe the defendant has raised sufficient credible
23 and persuasive information, not dependent on an affidavit which
a judge could determine was self-serving, on the issue whether
his counsel was ineffective for failing to file a motion to
suppress. Compare Commonwealth v. Gilbert, 94 Mass. App. Ct.
168, 178 (2018).
We accordingly vacate the order denying the defendant's
amended motion to withdraw his guilty plea and for a new trial
and remand the matter to the Superior Court for proceedings
consistent with this memorandum and order.
So ordered.
By the Court (Rubin, D'Angelo & Smyth, JJ.13),
Clerk
Entered: March 11, 2025.
13 The panelists are listed in order of seniority.