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
21-P-940
COMMONWEALTH
vs.
MICHAEL GONZALEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of multiple
offenses relating to an armed robbery of his coworker's
apartment. The defendant claims error in (1) the denial of his
motion to suppress and (2) the admission of an unredacted audio
recording at trial. We affirm.
Background. We summarize the evidence presented at trial
and in the record, reserving additional facts for later
discussion. Around 1:40 A.M. on July 22, 2015, the defendant,
with two other men, broke into his coworker's apartment and
stole marijuana plants. Of the intruders, only the defendant
had been to the apartment before and knew where the plants were
located. While taking the plants from an upstairs bedroom, the
defendant shot one of the apartment residents (the roommate) in the leg.1 The defendant then fled the apartment and disposed of
the gun in the woods.
Later that morning, the defendant went to a hospital
emergency room with abdominal pain from a bowel obstruction
related to his Crohn's disease. He was placed in a room within
the emergency room area and given medication (Dilaudid,
oxycodone, and Benadryl) throughout the day.
Around 12:30 P.M. that same day, two police officers
arrived at the hospital to interview the defendant. They found
him awake and sitting up in his hospital bed. At some point
during the first interview, which was not recorded, the
defendant admitted that he had been involved in the robbery.
At about 2:30 P.M., in the presence of both officers, the
defendant consented to the audio recording of a second
interview. During the recorded interview, the defendant
recounted specific details about the robbery. He denied firing
the gun and admitted to disposing of it. He attempted to
exculpate himself by stating, among other things, that he was
pressured into participating in the robbery and "didn't want to
be involved" and by asking if it would "help [his] case" to give
the officers his clothes, which he said had no blood on them.
At one point, a doctor arrived to tend to the defendant; the
1 The gunshot wound ultimately resulted in the amputation of the roommate's leg.
2 officers paused the interview and left the room. The interview
ended when the defendant said he was "a little. . . high" and
asked to end it.
The defendant remained hospitalized for five days. While
in the hospital, he made several calls to one of the officers,
and on July 27, he consented to another recorded interview.2
Before this interview, the defendant was advised of, and waived,
his Miranda rights. Police interviewed him for about two hours,
at which point the defendant asked to stop the recording. After
the recorder was turned off, the defendant confessed that he
shot the victim.
The defendant moved unsuccessfully to suppress all
statements made to officers on July 22, as well as other
evidence, as fruits of the poisonous tree.3 At the suppression
2 Unlike the July 22 interviews, which took place before the defendant had been admitted to the hospital, the July 27 interview was conducted in the defendant's private hospital room. 3 The defendant argued that he was not given Miranda warnings
until after the first unrecorded interview had begun, and that, due to his pain medication, his statements were not voluntarily made. He further argued that he was unable to freely, intelligently, and voluntarily waive his Miranda rights in the recorded interviews because he remained on painkillers. The admission of those statements, he argued, would violate his constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution and under art. 12 and art. 14 of the Massachusetts Declaration of Rights. The defendant also argued that the police improperly seized his cell phone without a warrant in violation of the Fourth and Fourteenth Amendments, and arts. 12 and 14.
3 hearing, the motion judge heard testimony from the officers and
from the defendant's expert witness, a board-certified physician
who had not examined the defendant and testified about the
defendant's medications based on his medical records.
The judge denied the motion to suppress, finding that the
defendant was not in custody when questioned by police on July
22 and that his statements were voluntary beyond a reasonable
doubt. After the subsequent jury trial, the defendant was
convicted of three counts of armed home invasion, G. L. c. 265,
§ 18C; two counts of armed robbery, G. L. c. 265, § 17; use of a
firearm during a felony, G. L. c. 265, § 18B; assault and
battery by means of a dangerous weapon causing serious bodily
injury, G. L. c. 265, § 15A (c) (i); and assault by means of a
dangerous weapon.4 This appeal followed.
Discussion. 1. Denial of motion to suppress. "'In
reviewing a ruling on a motion to suppress evidence, we accept
the judge's subsidiary findings of fact absent clear error,' and
we defer to the judge's determination of the weight and
credibility to be given to oral testimony presented at a motion
hearing." Commonwealth v. Hoose, 467 Mass. 395, 399 (2014),
4 The defendant was convicted of assault by means of a dangerous weapon as a lesser included offense on an indictment charging assault and battery by means of a dangerous weapon causing bodily injury, G. L. c. 265, § 15A (b). A nolle prosequi was entered prior to trial on an indictment charging unlawful possession of a shotgun.
4 quoting Commonwealth v. Contos, 435 Mass. 19, 32 (2001).
"[F]indings drawn partly or wholly from testimonial evidence are
accorded deference, and not set aside unless clearly erroneous,"
Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018), and "[w]e
conduct an independent review of the judge's application of
constitutional principles to the facts found," Hoose, supra at
399-400.
a. Custody. The motion judge's conclusion that the
defendant was not in custody when questioned by police on July
22 was amply supported by testimony of percipient witnesses and
by the recording. See Commonwealth v. Groome, 435 Mass. 201,
211-212 (2002) (factors relevant to custody include [1] place of
interrogation; [2] whether officers conveyed to defendant any
belief or opinion that defendant is suspect; [3] nature of
interrogation; and [4] whether, at time statement was made,
defendant was free to end interview, as evidenced by whether
interview terminated with arrest). The interview was neither
aggressive nor intimidating.
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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
21-P-940
COMMONWEALTH
vs.
MICHAEL GONZALEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
After a jury trial, the defendant was convicted of multiple
offenses relating to an armed robbery of his coworker's
apartment. The defendant claims error in (1) the denial of his
motion to suppress and (2) the admission of an unredacted audio
recording at trial. We affirm.
Background. We summarize the evidence presented at trial
and in the record, reserving additional facts for later
discussion. Around 1:40 A.M. on July 22, 2015, the defendant,
with two other men, broke into his coworker's apartment and
stole marijuana plants. Of the intruders, only the defendant
had been to the apartment before and knew where the plants were
located. While taking the plants from an upstairs bedroom, the
defendant shot one of the apartment residents (the roommate) in the leg.1 The defendant then fled the apartment and disposed of
the gun in the woods.
Later that morning, the defendant went to a hospital
emergency room with abdominal pain from a bowel obstruction
related to his Crohn's disease. He was placed in a room within
the emergency room area and given medication (Dilaudid,
oxycodone, and Benadryl) throughout the day.
Around 12:30 P.M. that same day, two police officers
arrived at the hospital to interview the defendant. They found
him awake and sitting up in his hospital bed. At some point
during the first interview, which was not recorded, the
defendant admitted that he had been involved in the robbery.
At about 2:30 P.M., in the presence of both officers, the
defendant consented to the audio recording of a second
interview. During the recorded interview, the defendant
recounted specific details about the robbery. He denied firing
the gun and admitted to disposing of it. He attempted to
exculpate himself by stating, among other things, that he was
pressured into participating in the robbery and "didn't want to
be involved" and by asking if it would "help [his] case" to give
the officers his clothes, which he said had no blood on them.
At one point, a doctor arrived to tend to the defendant; the
1 The gunshot wound ultimately resulted in the amputation of the roommate's leg.
2 officers paused the interview and left the room. The interview
ended when the defendant said he was "a little. . . high" and
asked to end it.
The defendant remained hospitalized for five days. While
in the hospital, he made several calls to one of the officers,
and on July 27, he consented to another recorded interview.2
Before this interview, the defendant was advised of, and waived,
his Miranda rights. Police interviewed him for about two hours,
at which point the defendant asked to stop the recording. After
the recorder was turned off, the defendant confessed that he
shot the victim.
The defendant moved unsuccessfully to suppress all
statements made to officers on July 22, as well as other
evidence, as fruits of the poisonous tree.3 At the suppression
2 Unlike the July 22 interviews, which took place before the defendant had been admitted to the hospital, the July 27 interview was conducted in the defendant's private hospital room. 3 The defendant argued that he was not given Miranda warnings
until after the first unrecorded interview had begun, and that, due to his pain medication, his statements were not voluntarily made. He further argued that he was unable to freely, intelligently, and voluntarily waive his Miranda rights in the recorded interviews because he remained on painkillers. The admission of those statements, he argued, would violate his constitutional rights under the Fifth and Fourteenth Amendments to the United States Constitution and under art. 12 and art. 14 of the Massachusetts Declaration of Rights. The defendant also argued that the police improperly seized his cell phone without a warrant in violation of the Fourth and Fourteenth Amendments, and arts. 12 and 14.
3 hearing, the motion judge heard testimony from the officers and
from the defendant's expert witness, a board-certified physician
who had not examined the defendant and testified about the
defendant's medications based on his medical records.
The judge denied the motion to suppress, finding that the
defendant was not in custody when questioned by police on July
22 and that his statements were voluntary beyond a reasonable
doubt. After the subsequent jury trial, the defendant was
convicted of three counts of armed home invasion, G. L. c. 265,
§ 18C; two counts of armed robbery, G. L. c. 265, § 17; use of a
firearm during a felony, G. L. c. 265, § 18B; assault and
battery by means of a dangerous weapon causing serious bodily
injury, G. L. c. 265, § 15A (c) (i); and assault by means of a
dangerous weapon.4 This appeal followed.
Discussion. 1. Denial of motion to suppress. "'In
reviewing a ruling on a motion to suppress evidence, we accept
the judge's subsidiary findings of fact absent clear error,' and
we defer to the judge's determination of the weight and
credibility to be given to oral testimony presented at a motion
hearing." Commonwealth v. Hoose, 467 Mass. 395, 399 (2014),
4 The defendant was convicted of assault by means of a dangerous weapon as a lesser included offense on an indictment charging assault and battery by means of a dangerous weapon causing bodily injury, G. L. c. 265, § 15A (b). A nolle prosequi was entered prior to trial on an indictment charging unlawful possession of a shotgun.
4 quoting Commonwealth v. Contos, 435 Mass. 19, 32 (2001).
"[F]indings drawn partly or wholly from testimonial evidence are
accorded deference, and not set aside unless clearly erroneous,"
Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018), and "[w]e
conduct an independent review of the judge's application of
constitutional principles to the facts found," Hoose, supra at
399-400.
a. Custody. The motion judge's conclusion that the
defendant was not in custody when questioned by police on July
22 was amply supported by testimony of percipient witnesses and
by the recording. See Commonwealth v. Groome, 435 Mass. 201,
211-212 (2002) (factors relevant to custody include [1] place of
interrogation; [2] whether officers conveyed to defendant any
belief or opinion that defendant is suspect; [3] nature of
interrogation; and [4] whether, at time statement was made,
defendant was free to end interview, as evidenced by whether
interview terminated with arrest). The interview was neither
aggressive nor intimidating. The defendant had full and private
access to medical personnel, and although he was unable to
leave, the restraint on his liberty was caused by his medical
condition rather than by the police. The defendant was
expressly told he could stop the conversation at any time and
was neither arrested nor informed he was a suspect. See
Commonwealth v. Welch, 487 Mass. 425, 435-437 (2021) (defendant
5 not in custody where he was held at hospital by medical
personnel for medical purposes rather than by law enforcement
for investigatory purposes, medical staff could come freely in
and out of hospital room, and he could have asked officers to
leave at any time). A reasonable person in the defendant's
position would not have experienced the environment as coercive,
especially where the officers immediately honored his request to
stop the interview. See Commonwealth v. Kirwan, 448 Mass. 304,
312 (2007) (interrogation not custodial where "circumstances did
not demonstrate an environment so dominated by the police that a
reasonable person would perceive that his liberty was restrained
to a degree associated with a formal arrest").5
b. Voluntariness. Our review of the record further
supports that the defendant's Miranda waiver, as well as his
statements made to officers on July 22, were voluntary beyond a
reasonable doubt. "A statement is voluntary if it is the
expression of a 'rational intellect' in its formulation and a
'free will' in its expression." Commonwealth v. Lujan, 93 Mass.
App. Ct. 95, 100 (2018), quoting Commonwealth v. Miller, 68
Mass. App. Ct. 835, 842 (2007). In assessing voluntariness, "we
5 Given our conclusion that the defendant was not in custody on July 22, we need not address his remaining Miranda claims. See Commonwealth v. Libby, 472 Mass. 37, 47 (2015), quoting Commonwealth v. Baye, 462 Mass. 246, 253 (2012) ("[t]he requirements of [Miranda] are not triggered unless the interrogation is custodial").
6 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." Commonwealth v. Selby,
420 Mass. 656, 663 (1995).
At the suppression hearing, the officers testified that
they did not perceive the defendant to be under the influence at
any point on July 22. Although the judge heard expert testimony
about the possible effects of the defendant's pain medication,
the recording supports that the defendant was awake and alert
throughout the interview, expressed no signs of intoxication or
extreme pain, and willingly gave detailed narrative responses to
the officers' questions. See Commonwealth v. Richards, 485
Mass. 896, 909-910 (2020) (effects of medication did not render
statements involuntary where statements were rational and
appropriate). Where the evidence supported the officers'
testimony, the judge was free to discredit the expert's
testimony as inconsistent with the evidence, especially given
the expert's admission that he lacked personal knowledge of the
degree to which the medication affected the defendant. See
Commonwealth v. Tolan, 453 Mass. 634, 644 (2009) (motion judge
free to discredit testimony that is unsupported by evidence).
Despite the defendant's being hospitalized and treated with pain
medication, the recording reflects a defendant who was
7 articulate, aware of his immediate surroundings, and coherent
enough to offer exculpatory statements during the interview.
See Commonwealth v. Sneed, 440 Mass. 216, 222 (2003)
(exculpatory statements supported finding defendant's statements
voluntary). We see no error in the judge's conclusion, which
was amply supported by the record and consistent with his
decision to credit the officers' testimony.
2. July 27 recorded interview. Before the motion judge,
the defendant conceded the voluntariness of his recorded
statements made on July 27 and challenged the recording only
insofar as it constituted fruit of the poisonous tree.6 At
trial, the defendant expressly allowed the jury to hear the
unredacted recording in its entirety, declining a limiting
instruction and reiterating his lack of objection when the
recordings were introduced in evidence.
We are unpersuaded by the defendant's contention that his
statements on July 27 were the involuntary product of police
coercion. "[T]he issue of voluntariness turns on 'all the
surrounding circumstances -- both the characteristics of the
accused and the details of the interrogation'" (citation
omitted). Commonwealth v. Baye, 462 Mass. 246, 256 (2012).
6 The defendant argues for the first time on appeal that the interview was coercive and that its unredacted admission at trial was error because it contained inadmissible evidence that was highly prejudicial.
8 Viewing the July 27 interview in context, the defendant
initiated the contact that led to the interview, received and
waived his Miranda rights, and was awake, alert, and admittedly
"clear-headed" enough for questioning. The officers immediately
honored his request to stop recording. See Commonwealth v.
Morales, 461 Mass. 765, 777 (2012) (defendant's will not
overborne where he willingly responded to questions without
hesitation, answered clearly and intelligently, had opportunity
to rest between questioning, was afforded his Miranda rights,
and there was no evidence of coercive conduct by police). The
tone of the interview was predominantly conversational, and the
questions asked by officers were justified by physical evidence,
victims' accounts, and the inconsistencies in the defendant's
narrative. See Commonwealth v. Molina, 467 Mass. 65, 76-77
(2014) (statements voluntary despite aggressive tone of
interrogation, where officers did not engage in deception and
defendant voluntarily came to station and appeared sober, alert,
oriented, and lucid throughout interview); Commonwealth v.
Johnson, 463 Mass. 95, 105 & n.10 (2012) (police did not
improperly imply that they had evidence they did not when they
asked if there was "any reason" they might find defendant's
fingerprints on evidence).
The judge also did not err in admitting the unredacted
recording, which the defendant agreed to. We review to
9 determine whether there was error, and if so, whether the error
created a substantial risk of a miscarriage of justice. See
Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016). The
unredacted recording contained opinions and accusations of the
interviewing officers, as well as repeated denials by the
defendant. While such evidence may not be offered to prove the
defendant's guilt, it may be admissible for some other purpose,
such as to show voluntariness of the defendant's statements or
to call into question the conduct of the police. See
Commonwealth v. Cruz, 373 Mass. 676, 692 (1977).
Throughout trial, the defendant's primary theory of defense
was that he did not commit the crime, and if he did, it was
under duress. The defendant maintained that his statements to
officers were involuntarily made, and in his closing argument,
he urged the jury to consider his statements in light of his
medical condition at the time. The defendant's repeated,
recorded denials were consistent with his theory of defense, and
his reference to the recording in his closing argument supports
that it was admitted as part of a trial strategy. Commonwealth
v. Adams, 434 Mass. 805, 813-814 (2001) (fact that challenged
evidence was part of trial strategy weighed heavily in
determining its prejudicial effect). The opinions and
accusations of the interviewing officers "were highly relevant
to the issue of voluntariness," an issue raised by the defendant
10 and referenced in his closing argument. Cruz, 373 Mass. at 692.
Where the evidence was not objected to and was used as part of
an apparent defense strategy, and where the other evidence of
the defendant's guilt was substantial, we see no error in the
admission of the challenged recording.
Judgments affirmed.
By the Court (Massing, Singh & Hershfang, JJ.7),
Clerk
Entered: February 8, 2023.
7 The panelists are listed in order of seniority.