Commonwealth v. Tremblay

950 N.E.2d 421, 460 Mass. 199, 2011 Mass. LEXIS 596

• Court: Massachusetts Supreme Judicial Court
• Decided: July 20, 2011
• Docket: SJC-10845
• Status: Published

Opinions

Spina, J.

During the evening of April 27, 2002, a boat owned by a man we shall call Harold Nelson¹ was damaged extensively by fire. Following an investigation by police and fire officials, the defendant, Mark D. Tremblay, was indicted by a grand jury on charges of malicious burning of personal property in violation of G. L. c. 266, § 5; damage to property for the purpose of intimidation in violation of G. L. c. 265, § 39; and a civil rights violation under G. L. c. 265, § 37. The defendant filed a motion to suppress statements that he made to the police during the course of their investigation. After a hearing, a judge in the Superior Court denied the motion, and the case proceeded to trial. A jury returned guilty verdicts on all three charges. The Appeals Court affirmed the convictions, concluding that none of the statements made by the defendant to a State trooper was involuntary, and, therefore, the motion to suppress was properly denied. See Commonwealth v. Tremblay, 77 Mass. App. Ct. 318, 318-319 (2010). We granted the defendant’s application for further appellate review. He now contends that his motion to suppress should have been allowed because statements that he made “off the record” during his interview with the State trooper were not voluntary. For the reasons that follow, we affirm.

1. Background. We begin with a summary of the motion judge’s findings, supplemented by uncontroverted testimony from the suppression hearing that was implicitly credited by the judge. See Commonwealth v. Washington, 449 Mass. 476, 477 (2007).

Harold Nelson lived in a home adjacent to a lake in Chelms-ford. He was the owner of a twenty-foot Bay liner boat. On April 27, 2002, the boat was atop a trailer on land that was across the street from where Nelson lived. That evening, the defendant, who owned a home next door to Nelson, was hosting a small gathering at his house. At around 11:20 p.m., while Nelson was at home in bed, his boat erupted in flames. The fire caused extensive damage to the vessel, and investigators concluded that it had been intentionally set.

Trooper Peter Cummings of the State police, who was working for the fire and explosion investigation section of the State fire marshal’s office, was assigned to assist personnel from the Chelmsford police and fire departments with their investigation of the fire. On May 8, 2002, Cummings and Chelmsford fire investigator Henry Houle conducted interviews with various individuals, including several who had attended the defendant’s gathering on April 27. Principally as a result of their conversation with one of the party guests, the defendant became the focus of the investigation.

At around 4 p.m. on May 8, Trooper Cummings telephoned the defendant’s residence and spoke with his wife. Cummings identified himself and the purpose of his call, namely, that he wanted to speak with the defendant in connection with the fire investigation. The defendant’s wife told Cummings that the defendant was at a ballfield, and she gave him the defendant’s cellular telephone number. Cummings proceeded to telephone the defendant, identified himself, and stated the purpose for his call, which the defendant said that he had been expecting. Cummings asked the defendant if there was some place where they could get together to talk about whatever information the defendant could provide, and Cummings offered to drive to the ballfield. The defendant said that he preferred not to meet there because numerous distractions would make conversation difficult. Trooper Cummings suggested, as an alternative, the Chelmsford central fire station, and they agreed to meet at that location in five to ten minutes.

When Cummings and Houle, who were traveling in an unmarked vehicle and were casually dressed, arrived at the fire station, the defendant was already there, waiting in his car. After introductions, the three men went inside the fire station and upstairs to a conference room on the second floor. The room had several windows, two doors (one of which provided access to the roof), and a conference table where the men sat; a section of the room that was used as a bedroom for firefighters was partitioned off from the conference area.

Trooper Cummings again informed the defendant that he was investigating the fire on Nelson’s boat, that he was collecting information from several people, and that he wanted to hear about the defendant’s activities and observations during the evening of April 27. Cummings told the defendant that he wanted to take a written statement from him, and, assuming that the defendant had no objections, Cummings would write the statement in the first person and then the defendant could review and sign it. Cummings told the defendant that he wanted him to be as specific as possible in his recollections of the evening. Cummings did not tell the defendant that he was a suspect or a target of the investigation. Moreover, having determined that the defendant was not in custody, Cummings did not advise him of his Miranda rights. The defendant expressed his willingness to cooperate.

During the interview, which lasted a little more than one hour, the demeanor of Trooper Cummings was sympathetic and understanding. He did not yell at or threaten the defendant, and the tone of his voice was conversational. At one point, he closed the windows because of outdoor construction noise, but there was no indication that the room became uncomfortable. The defendant, then approximately fifty years old, appeared relaxed, focused, and coherent. On two or three occasions, he left the conference room to engage in cellular telephone calls. The interview included small talk, and Trooper Cummings told the defendant that if he needed to leave to pick up his son from a ball game, the interview could be continued at a later time. The defendant chose to stay and finish the interview. At no point did he ask to leave.

The defendant first discussed with Cummings and Houle his two jobs, one working for a company that moved equipment for professional sports teams, and the other installing so-called “kill switches” in police cruisers. Houle did not ask the defendant any questions, but, when Cummings left the room for several minutes to answer a page, he did engage the defendant in a brief conversation about his work and about the Red Sox. At some point during the interview, Trooper Cummings asked the defendant if he had any idea who might have been responsible for setting fire to Nelson’s boat. The defendant responded that he “had his suspicions.” When asked to elaborate, the defendant suggested that Cummings probably had heard about some of the “gay activities” going on at Nelson’s house, but the defendant was reluctant to describe those activities for a written statement. Instead, he expressed a preference for having a discussion about Nelson’s activities “off the record.” Trooper Cummings responded, “Fine, you know, we’ll go off the record.”² Speaking in an increasingly agitated manner and using some profane language, the defendant proceeded to express his anger about openly sexual conduct purportedly occurring at Nelson’s house in plain view of the defendant’s home, and about the reluctance of the defendant’s son to spend time at their lake house because of those activities. As agreed, Trooper Cummings did not include these particular comments and opinions in the written statement.

The interview ultimately resulted in the production of a five and one-half page written statement consisting largely of nonin-criminating recollections and observations of the defendant’s own activities during the evening of April 27. Trooper Cummings persuaded the defendant to include in the written statement a “watered-down version” of his “off-the-record” comments about Nelson’s so-called “gay activities.”³ The written statement also set forth the defendant’s opinion that the fire “may have been caused by a lover’s quarrel” between “same-sex partners” who have “frequent arguments between them.” The written statement was reviewed by the defendant as Cummings read it aloud, corrections were made and initialed by the defendant, and the statement was signed by the defendant, Cummings, and Houle. The written statement did not include the defendant’s “off the record” comments, which the defendant sought to suppress, to the effect that the defendant’s son did not want to stay at their lake home any longer because of the sexual activities described in the written statement; that the defendant did not approve of such activities; and that he was “fucking pissed” about what was going on in Nelson’s yard.⁴

After the defendant had signed the statement, Trooper Cummings became more confrontational and told the defendant that, based on his conversations with several party guests and his examination of the fire scene, he did not believe parts of the defendant’s story. Cummings further told the defendant that he would not listen to the defendant’s “bullshit” anymore, but that if the defendant wanted to tell the truth, then Cummings would listen. Cummings then asked the defendant about a conversation between the defendant and one of the party guests, during which the defendant allegedly told the guest that he had changed his shirt during the evening of April 27 because he had spilled gasoline on himself. The defendant insisted that he did not know what Cummings was talking about. When asked about the location of the shirt, the defendant said that he assumed it was at his house and offered to produce it, but he never did.

Toward the end of the interview, Trooper Cummings told the defendant that he could be indicted for arson, and that it was time to start telling the truth. The defendant professed that he could provide no further help. Cummings ended the interview by saying to the defendant, “Good luck, you’re going to need it.” The defendant then left the fire station. Approximately fifteen to twenty minutes had elapsed from the time that the defendant signed the written statement to the time that he walked out of the fire station.

Following a hearing on the defendant’s motion to suppress his statements to Trooper Cummings on May 8, 2002, a Superior Court judge denied the motion.⁵ The judge first concluded that Trooper Cummings’s interview with the defendant was not a custodial interrogation. As such, Cummings was not required to read the defendant the Miranda rights before the defendant made oral or written statements, and those statements did not need to be excluded from evidence on that ground. The judge next concluded, based on the totality of the circumstances, that Trooper Cummings’s agreement that certain limited statements by the defendant would be “off the record” did not render those particular statements involuntary. The judge stated that, apart from this agreement by Cummings, there were no other factors present that would indicate that the defendant was coerced into making the statements. Further, the judge stated that, although the defendant “was likely misled concerning the ultimate use against him of his more offensive description of his neighbor’s alleged sexual preference and conduct,” the defendant had been speaking voluntarily with Trooper Cummings before any promise or assurance was made, and he agreed to have the essence of his comments included in his written statement. Indeed, the judge continued, the fact that the defendant was “sufficiently savvy to ensure that the version which was potentially more harmful to [the defendant] was not included in the written statement [was] another indication of the absence of coercion.” Accordingly, all of the oral and written statements made by the defendant to Trooper Cummings on May 8 were deemed admissible.

2. Discussion. When reviewing the denial of a motion to suppress, we accept the judge’s findings of fact and will not disturb them absent clear error. See Commonwealth v. Gomes, 453 Mass. 506, 508-509 (2009); Commonwealth v. Jones, 375 Mass. 349, 354 (1978). We make an independent determination as to the correctness of the judge’s application of constitutional principles to the facts as found. See Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). Questions of credibility are the province of the motion judge who had the opportunity to observe the witnesses. See Commonwealth v. Martin, 447 Mass. 274, 280 (2006). Our review here is based on the facts as developed at the suppression hearing, not at trial. See Commonwealth v. Grandison, 433 Mass. 135, 137 (2001).

We begin our analysis by pointing out that the present case is not one that is governed by Miranda v. Arizona, 384 U.S. 436 (1966) (Miranda). In that case, the United States Supreme Court established a “prophylactic” mechanism, see New York v. Quarles, 461 U.S. 649, 653 (1984), for safeguarding the privilege against self-incrimination afforded by the Fifth Amendment to the United States Constitution to an individual who is subjected to custodial police interrogation. See Miranda, supra at 444. The Court’s primary impetus for establishing the Miranda warnings was its concern that the coercive atmosphere created by police custody and interrogation would “subjugate the individual to the will of his examiner,” wholly undermining the exercise of free and rational choice and jeopardizing the privilege against self-incrimination. Id. at 457-458. See Commonwealth v. Simon, 456 Mass. 280, 286, cert. denied, 131 S. Ct. 181 (2010). To protect an individual from such presumptive coercion, the Supreme Court concluded that unless the individual was given specific warnings prior to making any statements during a custodial interrogation, those statements would not be admissible at trial. See Miranda, supra at 467, 476. See also Commonwealth v. Simon, supra.

Here, the defendant has not challenged the judge’s finding that he was not in custody while he was being interviewed by Trooper Cummings, and, therefore, no Miranda warnings were required. The defendant’s sole contention on appeal is that his motion to suppress should have been allowed because Trooper Cummings’s representation to the defendant that certain statements would be “off the record” rendered those statements involuntary. In the defendant’s view, Cummings’s representation was the functional equivalent of telling the defendant that what he said would not be used against him, thereby providing an impetus for the defendant to express his anger at and negative feelings for Nelson. We conclude that, in the particular circumstances of this case, the judge properly denied the defendant’s motion to suppress.

It is well established that a confession or an admission is admissible in evidence only if it is made voluntarily. See Commonwealth v. Sheriff, 425 Mass. 186, 192 (1997). At a suppression hearing, a defendant’s statement initially is presumed to be voluntary, placing the burden on the defendant to produce evidence tending to show otherwise. See Commonwealth v. Hilton, 450 Mass. 173, 177 (2007); Commonwealth v. Harris, 371 Mass. 462, 471 n.3 (1976). See also Commonwealth v. Crawford, 429 Mass. 60, 65 (1999). Where such evidence is forthcoming, through a motion and affidavit or a proffer, the presumption disappears, and the Commonwealth then bears the burden of proving beyond a reasonable doubt that the statement was made voluntarily. See Commonwealth v. Hilton, supra; Commonwealth v. DiGiambattista, 442 Mass. 423, 439 (2004); Commonwealth v. Crawford, supra at 64-65; Commonwealth v. Tavares, 385 Mass. 140, 151-152, cert. denied, 457 U.S. 1137 (1982). See also J.A. Grasso & C.M. McEvoy, Suppression Matters Under Massachusetts Law § 18-9[d], at 18-85 (2010).

“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. Souza, 428 Mass. 478, 483-484 (1998), quoting Commonwealth v. Raymond, 424 Mass. 382, 395 (1997). A voluntary statement is one that “is the product of a ‘rational intellect’ and a ‘free will,’ and not induced by physical or psychological coercion.” Commonwealth v. LeBlanc, 433 Mass. 549, 554 (2001). See Commonwealth v. Jackson, 432 Mass. 82, 85 (2000); Commonwealth v. Davis, 403 Mass. 575, 581 (1988). “Under this ‘totality of the circumstances’ test, we consider all of the relevant circumstances surrounding the interrogation and the individual characteristics and conduct of the defendant.” Commonwealth v. Selby, 420 Mass. 656, 663 (1995). See Commonwealth v. Hilton, supra; Commonwealth v. Parker, 402 Mass. 333, 340 (1988), S.C., 412 Mass. 353 (1992), and 420 Mass. 242 (1995). Relevant factors include, but are not limited to, “promises or other inducements, conduct of the defendant, the defendant’s age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, the initiator of the discussion of a deal or leniency (whether the defendant or the police), and the details of the interrogation, including the recitation of Miranda warnings.” Commonwealth v. Mandile, 397 Mass. 410, 413 (1986). See Commonwealth v. Selby, supra. “The presence of one or more factors suggesting a statement may have been made involuntarily is not always sufficient to render the statements involuntary.” Commonwealth v. Selby, supra at 664.

The motion judge found that, at the time of the defendant’s statements to Trooper Cummings on May 8, 2002, the defendant was a fifty year old man, involved in two businesses, in apparent good mental and physical condition, and unimpaired by alcohol or drugs. There is nothing in the record to suggest that he lacked education or intelligence. The defendant periodically engaged in cellular telephone calls during the course of the interview, and he chose to stay and finish the interview, even after being given the option to leave and continue at a later time. The judge stated that there was no credible evidence that the defendant had had any experience with the criminal justice system that would have prepared him for his encounter with law enforcement officials on May 8, but the judge found that the manner and place of “interrogation” were not overtly coercive. The judge stated that the only questionable tactic by Trooper Cummings was his agreement to the defendant’s request that a limited portion of the defendant’s oral statements be “off the record.” We turn now to the import of that agreement on the defendant’s subsequent statements and whether it rendered them involuntary.

As a general matter, law enforcement officials must exercise caution when employing deception or trickery or when giving assurances to a suspect during an interrogation. With respect to the former, we have, over the years, expressed our disapproval of police tactics that employ the use of false statements during an interrogation because such tactics cast doubt on the voluntariness of any subsequent confession or admission. See Commonwealth v. DiGiambattista, supra at 432, and cases cited. Nonetheless, we also have repeatedly held that such deception or trickery does not necessarily compel suppression of the confession or admission but, instead, is one factor to be considered in a totality of the circumstances analysis. See id. at 432-433. See also Commonwealth v. Edwards, 420 Mass. 666, 673 (1995) (use of false information by police to elicit incriminating statements from defendant is relevant factor in determining whether statements were made involuntarily in violation of due process). In those cases where “the use of a false statement is the only factor pointing in the direction of involuntariness, it will not ordinarily result in suppression, but ... if the circumstances contain additional indicia suggesting involuntariness, suppression will be required” (emphasis in original). Commonwealth v. DiGiambattista, supra at 433. Compare Commonwealth v. Selby, supra at 663-665 (where use of false information by detectives, in effort to elicit incriminating statements from defendant, was only factor suggesting alleged coercion, defendant’s statements held voluntary in totality of circumstances and, therefore, not suppressed), with Commonwealth v. Meehan, 377 Mass. 552, 563, 567-568 (1979), cert. dismissed, 445 U.S. 39 (1980) (communication of misinformation about strength of Commonwealth’s case, taken alone, not sufficient to establish involuntariness, but presence of other factors suggesting possible coercion will result in suppression of inculpatory statements).

In a distinct but related vein, assurances made by the police to a suspect for the purpose of securing a confession or admission may render the suspect’s statements involuntary. Such assurances frequently arise in the context of a suggestion by the police that the defense would benefit from a confession. See Commonwealth v. Meehan, supra at 563-564. “An officer may suggest broadly that it would be ‘better’ for a suspect to tell the truth, may indicate that the person’s cooperation would be brought to the attention of the public officials or others involved, or may state in general terms that cooperation has been considered favorably by the courts in the past. What is prohibited, if a confession is to stand, is an assurance, express or implied, that it will aid the defense or result in a lesser sentence.” (Footnotes omitted.) Id. at 564. See Commonwealth v. O’Brian, 445 Mass. 720, 727-728, cert. denied, 549 U.S. 898 (2006) (where, among other factors, detective stopped short of making assurances to defendant about benefits of confessing, defendant’s statement deemed voluntary, not coerced); Commonwealth v. Raymond, 424 Mass. 382, 395-396 (1997) (statement by police officer that it would be in defendant’s best interest to tell “his side of the story” did not constitute coercion that overrode will of defendant and rendered confession involuntary); Commonwealth v. Mandile, 397 Mass. 410, 414-415 (1986) (statements not induced by assurances of protection or leniency deemed voluntary); Commonwealth v. Fournier, 372 Mass. 346, 348-349 (1977) (good faith promise by police officer not to disclose defendant’s statement to particular patrolman was not inducement to confess because promise “merely limited the use to be made of the statement the defendant was ready to make”). Contrast Commonwealth v. Novo, 442 Mass. 262, 267-269 (2004) (misrepresentation of defendant’s right to defend himself at trial, by officer’s incessantly repeated statement that defendant must tell his side of story “now-or-never,” irretrievably tainted defendant’s subsequent confession, rendering it involuntary).

Trooper Cummings’s statement to the defendant that they could go “off the record” to discuss the defendant’s opinions about Nelson is not one that fits squarely within the purview of either engaging in trickery or making assurances that a statement will benefit the defense. As to the former, Cummings simply was acquiescing to the defendant’s request that certain of his comments not be included in the written statement that Cummings was preparing with the defendant’s agreement and cooperation. By not including those comments in the written statement, Cummings fulfilled his promise to the defendant and, therefore, did not engage in trickery or deception.⁶ As to the latter, Trooper Cummings never gave the defendant any assurances of protection, leniency, or the like. Nonetheless, given that Cummings told the defendant that they could go “off the record” for a portion of their interview, we consider whether certain of the defendant’s statements were involuntary because he could have believed that his “off the record” comments would not be used against him, and, therefore, he was free to say whatever he wanted.

The focus of our inquiry is on coercion because that is the hallmark of an involuntary statement. As we have emphasized, we examine whether the defendant’s will was overborne to the extent that his “off the record” statements were not the result of a rational and voluntary act, and our decision is based on the totality of the circumstances surrounding Trooper Cummings’s interview with the defendant. See Commonwealth v. Souza, 428 Mass. 478, 483-484 (1998); Commonwealth v. Raymond, supra. This is not an area of the law that is governed by bright-line rules, but is one that requires a fact-intensive analysis. We recognize that a slightly different factual scenario from the one presented here could result in a different outcome.⁷ Nonetheless, we decide the case before us, not one that may arise in the future with other factual variables.

Here, after expressing his reluctance to have his opinions about Nelson’s activities included in the written statement, the defendant asked that those comments be “off the record.” Trooper Cummings acquiesced. The transcript of the suppression hearing does not suggest that Cummings pressured or otherwise coerced the defendant into making incriminating statements by indicating that they would be “off the record.”⁸ Further, we do not conclude that Trooper Cummings’s representation, by itself, was inherently coercive as a matter of law given that our analysis is based on a totality of the factual circumstances.⁹ Once he had expressed his blunt opinions about Nelson’s activities, the defendant then went back “on the record” by agreeing to have a “watered-down version” of his comments included in the written statement. As such, the written statement contained nothing that was “off the record,” and there is no evidence of police coercion with regard to the defendant’s decision to include the “watered-down version” of his comments in the written statement. The defendant was perfectly free to exclude his “off-the-record” comments from the written statement, to make changes to the written statement when he reviewed it, or to refuse to sign it altogether.

With respect to the few oral statements that remained “off the record,” Trooper Cummings’s simple acquiescence to the defendant’s request that certain of his comments be “off the record” was not so manipulative or coercive that it deprived the defendant of his ability to make a free and rational choice about whether to make such comments in the first instance. This fact, together with all the other circumstances surrounding the interview, which we already have determined did not suggest co-erciveness, supports the conclusion that the defendant’s “off the record” statements were not involuntary. We do not foreclose the possibility that, in different circumstances, if a law enforcement officer tells a suspect that his statements will be “off the record,” a tactic that should be avoided, subsequent statements by the suspect may be deemed involuntary because of the presence of indicia of coercion. Here, however, based on the totality of the circumstances surrounding the defendant’s May 8 interview with Trooper Cummings, that is not the case.

3. Conclusion. The defendant’s “off the record” statements were not involuntary, and, therefore, his motion to suppress was properly denied.

Judgments affirmed.

1 In the interest of privacy, we use the same pseudonym adopted by the Appeals Court. See Commonwealth v. Tremblay, 77 Mass. App. Ct. 318, 319 & n.1 (2010).

2 According to Trooper Cummings’s testimony, he did not explain to the defendant that his “off the record” statements potentially could be used against him in court.

3 The motion judge asked Trooper Cummings how he persuaded the defendant to go back “on the record” with regard to his feelings about and observations of Nelson. Trooper Cummings testified: “I said words to the effect of, you know, ‘I mean, do you want to try — do you want to say anything in writing about, you know, what you’ve been subjected to? I mean do you think it will do any good that, you know, maybe you’re bringing some attention to the fact that, you know, you’ve been subjected to all of this,’ and that he agreed with me and thought that, you know, maybe we should put something in there. Which, I guess, is what you’re reading. It’s a little bit of a watered down version of what his opinions were.”

4 These oral statements were admitted at trial. Although not specifically described during closing arguments before the motion judge, they were categorically included in the defendant’s motion to suppress.

5 The defendant did not testify at the suppression hearing. Testimony regarding the fire investigation and the circumstances surrounding the May 8, 2002, interview was provided by Trooper Cummings and by Henry Houle, the Chelmsford fire investigator.

6 At the suppression hearing, defense counsel stated that he did not contend that Trooper Cummings was trying to trick the defendant or was acting with malice.

7 See, e.g., United States v. Walton, 10 F.3d 1024, 1028-1032 (3d Cir. 1993) (agent’s statement to suspect that he could tell agent what had happened “off the cuff,” coupled with agent’s reference to prior relationship with suspect as basis for inviting suspect to confide in agent, agent’s promise to suspect that statements were not going to be used against him, and agent’s provision of Miranda rights to suspect on previous day, rendered suspect’s confession involuntary and, therefore, inadmissible).

8 Contrary to the assertion in the dissent, Trooper Cummings never agreed not to testify at trial regarding what the defendant said “off the record,” and Cummings never made any promises to the defendant that his “off the record” statements would not be used against him.

9 The dissent proposes that we should reach just such a conclusion — that Trooper Cummings’s representation is inherently coercive and, consequently, it alone suffices to render the defendant’s “off the record” comments involuntary. This position contradicts the dissent’s acknowledged agreement with the court that the voluntariness of the defendant’s “off-the-record” statements is based on a totality of the circumstances. The import of the dissent is that the factual circumstances surrounding a police interrogation become wholly irrelevant because a single action by an officer, here, a statement that a particular discussion could be “off the record,” is deemed inherently coercive, thereby rendering a defendant’s subsequent statements involuntary. No longer would we consider all of the relevant circumstances surrounding the interrogation and the individual characteristics and conduct of the defendant. Instead, one factor, albeit one that has the potential to render subsequent statements involuntary, becomes dispositive, to the exclusion of all else. That is not, and never has been, our jurisprudence with regard to testing the voluntariness of a defendant’s statements to police. The effect of the dissent is a wholesale erosion of our totality of the circumstances analysis, one that has provided a fair, clear, and workable framework for evaluating the myriad circumstances that can, and do, arise during a police interrogation.