Commonwealth v. Ortiz

995 N.E.2d 833, 84 Mass. App. Ct. 258, 2013 WL 5273074, 2013 Mass. App. LEXIS 146
CourtMassachusetts Appeals Court
DecidedSeptember 20, 2013
DocketNo. 12-P-456
StatusPublished
Cited by1 cases

This text of 995 N.E.2d 833 (Commonwealth v. Ortiz) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Ortiz, 995 N.E.2d 833, 84 Mass. App. Ct. 258, 2013 WL 5273074, 2013 Mass. App. LEXIS 146 (Mass. Ct. App. 2013).

Opinion

Cohen, J.

The defendant stands indicted and is awaiting trial on charges of murder in the first degree (G. L. c. 265, § 1), armed robbery (G. L. c. 265, § 17), and carrying a dangerous weapon (G. L. c. 269, § 10), arising from the shooting of Luis Rodriguez at a party in Haverhill. After an evidentiary hearing, [259]*259a judge of the Superior Court allowed, in part, the defendant’s motion to suppress statements made during an interview with police. Having obtained leave from a single justice of the Supreme Judicial Court, the Commonwealth brings this interlocutory appeal.

Like the motion judge, we conclude that the nineteen year old defendant’s will was overborne by improper police interrogation tactics. Those tactics included misrepresenting statements given by witnesses; informing the defendant that the interview was his “last chance” to tell his story; and assuring the defendant, who had been steadfast in denying that he had given the suspected shooter a gun, that he would not be culpable if the defendant had given the shooter the gun for a purpose other than to rob or kill the victim, and the shooter had acted like a “cowboy.” However, unlike the motion judge, we further conclude that suppression is required of all statements made once the defendant’s will was overborne, and not merely selective statements pertaining to the gun.

1. Standard of review. The evidence before the motion judge consisted of the testimony of State Trooper Steven O’Connor at the motion hearing, the video recording of the defendant’s interview and a transcript thereof, and transcripts of the interviews of several witnesses who met with the police prior to their meeting with the defendant. All of these items have been transmitted to us. Accordingly, to the extent the judge’s decision rests on the testimony at the motion hearing, we determine whether his subsidiary findings were warranted by the evidence, and, if so, accept them; but to the extent the decision is based on the recording and the transcripts submitted in evidence, we independently make judgments with respect to their contents without deference to the judge’s findings. Commonwealth v. Novo, 442 Mass. 262, 266 (2004).

2. Background. On Friday, April 16, 2010, Gena Quintana hosted a party at her Haverhill apartment, which was attended by three other women (Stephanie Michaud, Cassie Fournier, and Susan Sullivan) and four men (the defendant, Patrick “Butter” Warren, Everett “Chey” Leonard,1 and the victim, Luis [260]*260Rodriguez). The party continued into early Saturday morning, when, as the guests began to disperse, gun shots were heard. It later was determined that Rodriguez had been shot in the hallway outside Quintana’s apartment; he died at the hospital later that day.

Upon learning of the shooting, the State police and the Haverhill police began an investigation, which included interviewing those present at the party. At some point during the weekend, Trooper O’Connor left a telephone message for the defendant requesting an interview. The message included the comment that O’Connor “knew” that the defendant was not the shooter. The defendant, urged by his ex-girlfriend’s mother to get this “squared away,” ingested marijuana by smoking “half a blunt,” and proceeded by himself to the police station in the late afternoon of Monday, April 19, 2010.

By the time the defendant was interrogated, the police already had conducted multiple interviews of the four female witnesses, and had interviewed Warren once. One witness, Michaud, eventually implicated the defendant and Leonard during her third interview with the police. She told the detectives that Rodriguez, who had just cashed his paycheck, asked for change for two fifty dollar bills while playing cards at the party. She later saw the defendant hand Leonard a gun in the bedroom of Quintana’s apartment, at which point Leonard walked out into the hallway where Rodriguez and Warren were smoking. According to Michaud, when Sullivan, who was Leonard’s girlfriend, entered the bedroom to say good bye, the defendant told her to stay there; his telephone rang, he walked from the bedroom into the living room, and then walked out the door into the hallway. Some minutes later, Michaud, who remained inside the apartment, heard shots and then saw Rodriguez stumble into the apartment. Michaud first estimated the interval between the defendant’s departure and the shots as “three to four minutes,” and later said, “probably like two minutes if that.”

[261]*2613. The interview. The interview with the defendant, which was recorded with the defendant’s consent, started at approximately 4:39 p.m. and ended at approximately 7:29 p.m. There was no break, and the defendant was not offered (and did not request) water or the opportunity to use the bathroom.

In addition to O’Connor, Detective Glenn Fogarty of the Haverhill police department interrogated the defendant. Lieutenant Norman Zuk also was present for a time.2 O’Connor took the lead, and, at times, Fogarty was actively involved; Zuk’s participation was very limited.3 The defendant and the detectives were seated around a small table. Fogarty sat directly across from the defendant, and O’Connor was seated to the defendant’s left. Both officers were roughly two to four feet from the defendant, and both were in plain clothes. The defendant was unrestrained until he was arrested at the conclusion of the interview.

O’Connor administered Miranda warnings,4 and the defendant affirmed his understanding and willingness to speak with the police. The defendant was nineteen years of age. Although he had some prior involvement with law enforcement, there was no evidence that he previously had received Miranda warnings. He had no trouble speaking or understanding English, and did not appear to be suffering from any physical or mental illness or impairment. He was not asked and did not disclose the extent of his education.

About thirty minutes into the interview, the defendant told the detectives that he had gotten “high” on marijuana before coming to the police station but that he had sobered up once he got there. O’Connor testified at the motion hearing that the defendant displayed no adverse effects from the use of marijuana, and the motion judge credited this testimony.

[262]*262The manner of interrogation ranged from conversational and reassuring to aggressive and confrontational. After introductory matters, the defendant was asked to recount what he knew about the shooting. He explained that he had been speaking to Michaud in the bedroom when he decided to leave the party. He made his way to the apartment door, opened it, and shut it behind him, and immediately gunfire went off; for his safety, he ran down the stairs to where his friend Warren already was standing, and the two of them both ran out. A short time later, he went back upstairs to make sure that Quintana was all right and left when she told him she was fine. Later, Quintana called him at home to say that Rodriguez was throwing up all over her back stairs. The defendant went back to her house and spoke with Rodriguez, who was lying on the floor at the foot of the back stairs. Rodriguez was vomiting but said that he was “good,” and that he was “just fucked up” (had too much to drink). The defendant and Quintana went back upstairs where she called Rodriguez’s “boy” to come and get him.

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Commonwealth v. Thomas
21 N.E.3d 901 (Massachusetts Supreme Judicial Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
995 N.E.2d 833, 84 Mass. App. Ct. 258, 2013 WL 5273074, 2013 Mass. App. LEXIS 146, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-ortiz-massappct-2013.