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16-P-981 Appeals Court
COMMONWEALTH vs. RANDALL TREMBLAY.
No. 16-P-981.
Suffolk. April 14, 2017. - September 25, 2017.
Present: Trainor, Agnes, & Neyman, JJ.
Constitutional Law, Admissions and confessions, Voluntariness of statement, Waiver of constitutional rights, Search and seizure. Evidence, Admissions and confessions, Voluntariness of statement, Videotape, Intoxication. Practice, Criminal, Motion to suppress, Admissions and confessions, Voluntariness of statement, Waiver, Findings by judge. Waiver. Intoxication. Search and Seizure, Clothing.
Indictments found and returned in the Superior Court Department on March 10, 2015.
A pretrial motion to suppress evidence was heard by Kenneth W. Salinger, J.
Applications for leave to prosecute interlocutory appeals were allowed by Geraldine S. Hines, J., and Robert J. Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeals were reported by them to the Appeals Court.
Zachary Hillman, Assistant District Attorney (Amy J. Galatis, Assistant District Attorney, also present) for the Commonwealth. 2
Patrick Levin, Committee for Public Counsel Services, for the defendant.
AGNES, J. The defendant, Randall Tremblay, was arrested
and subsequently indicted for the murder of Stephanie McMahon,
based on statements he made to the police both at the scene and
in two subsequent custodial interrogations, and blood discovered
on his clothing, which the police seized when they arrested him.
The defendant moved to suppress all statements he made to the
police and all evidence seized from him. The judge conducted an
evidentiary hearing, during which he heard testimony from three
police officers and viewed a videotape recording of the second
custodial interrogation of the defendant following his arrest on
a warrant for an unrelated offense.1 Based on the contents of
that videotape recording, the judge concluded that the defendant
was so intoxicated when he was questioned at the police station
that he was incapable of making a knowing and intelligent waiver
of his Miranda rights. As a result, the judge ruled that all of
the statements made by the defendant at the police station must
be suppressed. The judge also ruled that while the police
1 The exhibits admitted in evidence at the motion to suppress hearing include the following: the defendant's signed Miranda rights form, the restraining order obtained by the victim against the defendant, the inadvertent videotape recording of the wrong interview room, the videotape recording of the defendant's second interview, photographs of items recovered from the dumpster behind the victim's apartment, and a videotape recording of a train platform depicting the defendant. 3
lawfully seized the defendant's clothing in order to preserve
evidence of an apparent homicide, they acted unlawfully in
subjecting the clothing to forensic testing without first
obtaining a search warrant. Therefore, the judge made a further
ruling that all forensic testing results from the defendant's
clothing must be suppressed.
For the reasons more fully explained in the discussion that
follows, our independent review of the judge's ultimate finding
that the defendant was too intoxicated to waive his rights leads
us to conclude that it is erroneous. See Commonwealth v. Jones-
Pannell, 472 Mass. 429, 431 (2015).2 In addition, our
independent review of the judge's ruling of law that the
Commonwealth failed to meet its burden to prove a valid waiver
of the defendant's Miranda rights leads us to conclude that it
too is erroneous. Finally, mindful of the limits on appellate
fact finding, see id. at 438, we conclude that the unusual
circumstances of this case brings it within the rule applied in
Commonwealth v. Novo, 442 Mass. 262, 266 (2004), Commonwealth v.
Hoyt, 461 Mass. 143, 148-151 (2011), and Commonwealth v. Newson,
471 Mass. 222, 231-232 (2015). In those cases, the Supreme
2 "In reviewing a decision on a motion to suppress, we accept the judge's subsidiary findings absent clear error but conduct an independent review of the ultimate findings and conclusions of law." Commonwealth v. Jones-Pannell, supra (quotations omitted). See Commonwealth v. Haas, 373 Mass. 545, 550 (1977); Commonwealth v. Alvarado, 420 Mass. 542, 544 (1995); Commonwealth v. Thomas, 429 Mass. 403, 405 (1999). 4
Judicial Court declined to defer to the factual findings made by
the motion judge, conducted an independent review of a
videotaped interrogation session, and determined whether there
was compliance with the Miranda rights doctrine (Hoyt) and
whether the statements were voluntary (Newson and Novo), without
the need for a remand. In the present case, the judge relied on
the videotaped interrogation session to find the facts that led
him to conclude that the defendant was too intoxicated to waive
his Miranda rights.3 However, based on our independent review of
the same documentary evidence, we conclude that there is ample
evidence to support the conclusion that the Commonwealth met its
"heavy burden," Commonwealth v. Hoyt, supra at 152, to establish
that the defendant made a valid waiver of his Miranda rights,
and that his statements were voluntary.
Background. The following facts are drawn from the
findings made by the judge, and testimonial evidence presented
at the motion to suppress hearing that is consistent with those
3 The judge heard the testimony of three police officers in addition to viewing the videotape of the defendant's interrogation. The judge was entitled to make credibility assessments and weigh that evidence, which we are not permitted to do. Commonwealth v. Jones-Pannell, supra at 432. However, as we explain, infra, the judge's subsidiary findings relating to his conclusion that the defendant was incapable of waiving his Miranda rights are not supported by the testimonial evidence. In fact, the testimonial evidence is consistent with and supportive of the view we take of the videotape evidence. Instead, the judge's conclusion that the defendant was too intoxicated to waive his Miranda rights is derived from the inferences he draws from the videotape evidence. 5
findings. See Commonwealth v. Isaiah I., 448 Mass. 334, 337
(2007). We reserve certain details for our analysis of the
issues raised on appeal.
1. At the crime scene. Shortly after 2:00 A.M. on
November 18, 2014, Boston police Sergeant Scott Yanovitch
arrived at an apartment in the Hyde Park area of Boston shortly
after the victim, Stephanie McMahon, had been pronounced dead.
Another officer and two emergency medical personnel were already
on scene, after responding to a 911 call reporting that a woman
had died in the apartment. Sergeant Yanovitch requested that
the police dispatcher issue a "full notification" for a crime
scene team and homicide detective to come to the scene. He then
interviewed two witnesses who were present at the apartment when
the police arrived, Michael Doucette and Gay Finley.4 At one
point, Sergeant Yanovitch stepped outside for some fresh air.
He observed a man, later identified as the defendant, walk past
the apartment while talking and mumbling to himself. Sergeant
Yanovitch had no interaction with the defendant at that time.
Later, Doucette asked to go outside and smoke a cigarette.
Sergeant Yanovitch accompanied him. While outside, Sergeant
Yanovitch again observed the defendant walk by the apartment
while talking to himself. The defendant stopped and asked
4 We adopt the judge's spelling of Finley. 6
Doucette for a cigarette. Sergeant Yanovitch told the defendant
to move along, but otherwise had no interaction with him.
At the time of dispatch to the victim's apartment, Boston
police Officer Shawn Roberts was on patrol with his partner in a
marked police cruiser. Officer Roberts recognized the address
as one that he had previously responded to some months earlier
for a report of a broken window. He was also aware of a number
of incident reports related to that address, most of which were
for domestic violence incidents between the victim and a man
named Randall Tremblay. When Officer Roberts received the full
notification from Sergeant Yanovitch, he looked up Tremblay and
discovered that there was an active restraining order against
Tremblay requiring him to stay away from the victim's apartment,
as well as an active arrest warrant against Tremblay for failing
to register as a sex offender. He also obtained a photograph of
Tremblay. Officer Roberts contacted Sergeant Yanovitch and
informed him of the previous domestic violence incidents between
the victim and Tremblay and the active restraining order.
Shortly thereafter, Sergeant Yanovitch radioed Officer Roberts
and asked him to come to the scene to determine if Doucette, who
did not have identification, was the person whom Officer Roberts
had radioed him about. Officer Roberts arrived on scene and
told Sergeant Yanovitch that Doucette was not Tremblay; Officer
Roberts then left. 7
Later, around 3:40 A.M., Sergeant Yanovitch was inside the
apartment when he heard loud yelling coming from the street
outside. He went outside and discovered the defendant, who was
yelling things like, "What's going on in there? I know what
happened," and "She was my friend." The defendant approached
Sergeant Yanovitch and asked him what was happening in the
apartment and repeated that "she was [his] friend." Sergeant
Yanovitch asked for the defendant's name, who replied, "What,
are you going to run me?" Because the defendant had just
suggested that he knew the victim and may have information about
her death, Sergeant Yanovitch radioed Officer Roberts to return
to the scene. Officer Roberts returned and informed Sergeant
Yanovitch that the defendant was Randall Tremblay, and that he
had an active arrest warrant. Officer Roberts placed the
defendant under arrest and advised him of his Miranda rights.5
2. Unrecorded custodial interrogation. Officer Roberts
and his partner brought the defendant to police headquarters to
be interviewed. Beginning at around 4:00 A.M., Sergeant
Detective Michael Stratton interviewed the defendant in an
interview room. Sergeant Detective Stratton believed that the
interview was being recorded, but the recording equipment was
5 The judge found that the defendant did not acknowledge whether he understood his rights, but as the defendant was not questioned until later at the police station, nothing turns on this finding. 8
inadvertently turned on for a different interview room. As a
result, the interview was not recorded.6 However, Officer
Roberts was able to observe and listen to the interview on the
recording system's monitor outside the interview room.
Sergeant Detective Stratton began the interview by
explaining that the interview would be recorded and advising the
defendant of his Miranda rights. The defendant was shown a form
with each right listed, and the detective went over each right
with the defendant. The defendant signed his initials next to
each right, and indicated that he understood it. He also signed
and printed his name at the bottom of the form.
During the course of the interview, the defendant made
statements implicating himself in the victim's death. He stated
that two days previously he had been with the victim at her
apartment when they got into an argument around 9:00 P.M. The
defendant stated that he struck the victim in the head twelve to
fifteen times, that "she got it good," and that "I think I
killed her." After he struck the victim, she lay on the couch,
not moving, with blood on her face. The defendant fell asleep,
and woke up early the next morning to find the victim had not
moved. He believed he had killed her.
6 The judge found that the first interview of the defendant was not recorded due to an error in turning on the recording equipment for the wrong interview room, and did not find that it was the result of any police misconduct. 9
The defendant told Sergeant Detective Stratton that he then
left the apartment and took a train to meet his friend,
Doucette. He told Doucette, "I think I killed [the victim],"
and asked Doucette to return with him to the victim's apartment
to check. Before they did so, they purchased beer, drank some
together, and met with Finley. The three returned to the
victim's apartment, where Doucette confirmed that the victim was
deceased. They remained in the apartment and drank another beer
while the defendant cleaned up. The defendant stated that he
"mopped up some big puddles of blood in the apartment and took
out some trash." Finley then called 911 to report that the
victim was deceased. Doucette told the defendant that he should
leave the apartment because the victim had an active restraining
order against him, so he left the apartment and waited around
the corner.
After he concluded the interview and left the room,
Sergeant Detective Stratton learned of the error with the
recording equipment. He returned to the interview room and
explained to the defendant that the interview had accidently not
been recorded, and asked the defendant if he was willing to do
another interview. The defendant agreed, asking if he could
have a cigarette first.
3. Recorded custodial interrogation. After being taken
outside to smoke a cigarette, the defendant was brought back to 10
the interview room to be re-interviewed by Sergeant Detective
Stratton with the proper recording system running. The
videotape begins with an empty interrogation room. The
videotape then shows Sergeant Detective Stratton and the
defendant entering the room. Before commencing the second
interview, Sergeant Detective Stratton showed the defendant the
Miranda rights form that the defendant had initialed and signed
prior to the first interview. Sergeant Detective Stratton read
each right to the defendant and asked him if he understood it.
The defendant indicated that he did. Sergeant Detective
Stratton asked the defendant the same questions he had asked in
the first interview, with the defendant giving similar answers.
The second videotaped interview did not differ in any material
respect from the unrecorded first interview. The defendant
explained in detail the events surrounding the victim's death
and what he did the next day after finding her apparently
lifeless. The defendant repeated his admission to Sergeant
Detective Stratton that he hit the victim in the head numerous
times, and stated that he believed he had killed her. He stated
that "she's dead because of me." Throughout the interview, the
defendant asked Sergeant Detective Stratton when he was going to
be released. After the conclusion of the second interview, the
defendant was taken for photographs and booking. Because some
of the defendant's clothing had apparent blood stains, his 11
clothing was held and submitted for forensic testing. The
defendant was later indicted for the murder of the victim.
Discussion. 1. Standard of review. Ordinarily, when we
review a ruling on a motion to suppress, "we accept the judge's
subsidiary findings of fact absent clear error 'but conduct an
independent review of his ultimate findings and conclusions of
law.'" Commonwealth v. Scott, 440 Mass. 642, 646 (2004),
quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).
However, we apply a different standard when the judge's findings
of fact are drawn from documentary evidence and there is no
independent testimonial evidence to support those findings. As
the Supreme Judicial Court has stated, "[w]e have consistently
held that lower court findings based on documentary evidence
available to an appellate court are not entitled to deference."
Commonwealth v. Novo, 442 Mass. at 266. This is because we are
in as good a position as the judge to view and assess such
evidence. See Commonwealth v. DiGiambattista, 83 Mass. App. Ct.
180, 181 (2013).
The critical question in a case like this, in which the
judge heard the testimony of three police officers in addition
to the videotape evidence, is whether the controlling facts are
attributable to the testimonial evidence or to the videotape, or
a combination of the two. If the controlling facts (here the
facts about the degree of the defendant's intoxication) are 12
based on testimonial evidence, we must defer to the judge's
findings unless they are clearly erroneous. Commonwealth v.
Hoose, 467 Mass. 395, 399-400 (2014). On the other hand, if the
controlling facts were derived from documentary evidence, we are
authorized to review those findings de novo. Commonwealth v.
Clarke, 461 Mass. 336, 341 (2012) ("Here, to the extent that the
judge based his legal conclusions on facts found by virtue of a
video recording, we are in the same position as the [motion]
judge in viewing the videotape" [quotation omitted]). In this
case, the judge's several findings that the defendant was
intoxicated during the first and second interviews were based on
a combination of documentary and testimonial evidence. However,
the controlling facts that support the judge's ultimate finding
that the degree of the defendant's intoxication rendered him
incapable of waiving his Miranda rights are based exclusively on
documentary evidence.7
7 In one respect, we conclude that a subsidiary finding that may have been important to the result reached by the judge is clearly erroneous. "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." J.A. Sullivan Corp. v. Commonwealth, 397 Mass. 789, 792 (1986), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948). The judge found that prior to the first unrecorded interview, "[Sergeant Detective Stratton] then read [the defendant] his Miranda rights from a preprinted form. [The defendant] put his initials next in [sic] each spot that Stratton told him to initial, and signed his name where Stratton told him to sign." Insofar as this finding means that Sergeant 13
2. The finding that the defendant was intoxicated, without
more, does not support the judge's ultimate finding and ruling
that there was no valid waiver of Miranda rights. At several
different points in his decision, the judge refers to the
defendant as "intoxicated" or "quite intoxicated." The source
of the evidence for these findings is both the testimony of the
police officers and the videotaped interview of the defendant.
The testimonial evidence relating to the defendant's
consumption of alcohol consists of the following. Sergeant
Detective Stratton testified at the motion to suppress hearing
that the defendant stated during his interview that on the
evening of Sunday, November 16, 2014, prior to the homicide, the
defendant and the victim drank beer and took some pills.
Sergeant Detective Stratton also testified that the defendant
stated that he left the victim's apartment during the day of
Detective Stratton told the defendant to sign the waiver form, there is no evidence in the testimony or in the videotape to support this finding. The testimony at the hearing before the judge was that, prior to the first interview, Sergeant Detective Stratton advised the defendant of his Miranda rights and went over each right on a printed form. The defendant wrote his initials next to each right and signed and printed his full name at the bottom of the form. The videotape shows that Sergeant Detective Stratton reviewed with the defendant each of the Miranda rights on the form before he conducted the second interview, and the defendant responded by stating that he understood his Miranda rights. Thus, insofar as the judge's finding that Sergeant Detective Stratton told the defendant to initial and sign the written Miranda rights form was intended to indicate that the defendant did not make a knowing, voluntary, and intelligent waiver of his Miranda rights before the first, unrecorded interview, we disregard it. 14
November 17 and met Doucette. They purchased some beer. There
is videotape evidence of the defendant and Doucette standing on
the platform at the Back Bay train station minutes before
midnight on November 17 drinking from a can or bottle inside a
paper bag. The defendant also stated that when he, Doucette,
and Finley returned to the victim's apartment during the early
morning of November 18, he drank a beer before the victim's
death was reported to the police at approximately 2:00 A.M.
Finally, there is testimony from Officer Roberts, who detected a
"slight odor of alcohol" on the defendant at the crime scene
shortly before his arrest.8
The judge did not further explain what he meant by
"intoxication." Although the law recognizes that "the effects
of liquor upon the mind and actions of men are well known to
8 The bulk of the testimonial evidence regarding the defendant's intoxication, which the judge disregarded, as he was entitled to do, indicates that the defendant was not intoxicated. For example, while Officer Roberts testified that the defendant had a "slight odor of alcohol" about him at the scene, he also testified that the defendant exhibited no other signs of intoxication, such as slurred speech or difficulty walking. He also observed the defendant at the police station, and testified that the defendant did not appear to have difficulty understanding him and did not appear to be confused. Sergeant Yanovitch, who interacted with the defendant at the scene, testified that the defendant did not smell of alcohol and did not appear intoxicated. Significantly, Sergeant Yanovitch also testified that Doucette did smell of alcohol and did appear intoxicated. In addition, Sergeant Detective Stratton, who spent nearly three hours with the defendant, testified that the defendant did not smell of alcohol, did not slur his speech, was lucid, cooperative, and articulate, and did not appear intoxicated at any point that night. 15
everybody," Commonwealth v. Taylor, 263 Mass. 356, 362 (1928),
the term intoxication does not have a single, uniform meaning.
"Liquor affects individuals in various ways and it is sometimes
difficult to determine degrees of intoxication." Holton v.
Boston Elevated Ry. Co., 303 Mass. 242, 246 (1939).9 It is
precisely because the term intoxication refers to a range of
conditions and competencies that the law recognizes that a
person's intoxication does not preclude a determination that the
person made a valid waiver of his Miranda rights.10
9 See Commonwealth v. Canty, 466 Mass. 535, 542 (2013) (lay opinion testimony regarding person's intoxication probative "because such an opinion, especially as to the level of intoxication, may be shaped by observations too numerous or subtle to mention" [emphasis original]). The fact that intoxication describes a range of conditions is reflected in our decisional law. See, e.g., Commonwealth v. Henson, 394 Mass. 584, 592-593 (1985) (defendant's voluntary intoxication does not negate specific intent as matter of law, but is factor which jury may consider in determining whether he had capacity to form specific intent); Commonwealth v. Urban, 450 Mass. 608, 613 (2008) (before jury may find that adult is incapable of consenting to sexual activity with another, they must find "an extreme degree of intoxication"). 10 The following cases illustrate that a person may be intoxicated and nonetheless make a valid waiver of Miranda rights. See, e.g., Commonwealth v. Simmons, 417 Mass. 60, 65 (1994) (noting that there was basis for judge’s finding that "although the defendant may have been somewhat intoxicated when he spoke to the police, his mind was rational and his faculties were under control"); Commonwealth v. Mello, 420 Mass. 375, 383 (1995) ("intoxication alone is insufficient to negate an otherwise voluntary act"); Commonwealth v. Griffin, 19 Mass. App. Ct. 174, 182-183 (1985) (upholding judge's decision that defendant was under influence of alcohol, but nonetheless alert and capable of waiving his Miranda rights). See also Commonwealth v. Wolinski, 431 Mass. 228, 231 (2000) ("[T]he 16
"An otherwise voluntary act is not necessarily rendered
involuntary simply because an individual has been drinking or
using drugs." Commonwealth v. Shipps, 399 Mass. 820, 826
(1987).11 For these reasons, we conclude that the judge's
determination that the defendant was intoxicated at the time he
was advised of his Miranda rights does not answer the question
whether he was capable of validly waiving his Miranda rights.
The answer to that question depends on whether there was
physical or psychological coercion on the part of the police and
whether, based on the totality of the circumstances, the
defendant had the capacity to make a rational choice about
defendant was not intoxicated to the point his ability to think freely and rationally was impaired"). 11 The principle that intoxication alone does not preclude a person from making a valid waiver of Miranda rights and does not make an otherwise voluntary statement involuntary has been stated repeatedly by the Supreme Judicial Court and this court. See Commonwealth v. Doucette, 391 Mass. 443, 447-448 (1984); Commonwealth v. Shipps, supra at 826-827 (defendant appeared glassy-eyed and smelled of alcohol); Commonwealth v. Ward, 426 Mass. 290, 294 (1997) (defendant had been drinking for several hours, smelled of alcohol, and had .39 blood alcohol content); Commonwealth v. Wolinski, supra (defendant had drug and alcohol addiction and had used heroin earlier that day); Commonwealth v. Silanskas, 433 Mass. 678, 686 (2001) (officer testified that defendant smelled of alcohol and was under influence of alcohol); Commonwealth v. Duffy, 36 Mass. App. Ct. 937, 938-939 (1994) (defendant had been drinking before he walked into police station and confessed); Commonwealth v. Liptak, 80 Mass. App. Ct. 76, 79 (2011) (defendant had .19 blood alcohol content, had strong odor of alcohol on breath, and had been given morphine and oxycodone at hospital); Commonwealth v. Bigley, 85 Mass. App. Ct. 507, 509 (2014) (defendant had strong odor of alcohol, glassy eyes, and was unsteady on his feet). 17
whether to speak or to remain silent or to request an attorney.
See Commonwealth v. Silanskas, 433 Mass. 678, 685-688 (2001).
In the present case, the judge's answers to those questions were
based entirely on the videotape evidence.
3. Waiver of Miranda rights. The judge connected his
subsidiary finding that the defendant was intoxicated to his
ultimate finding that the defendant was incapable of waiving his
Miranda rights, and to his ruling that the Commonwealth did not
meet its burden of proving a valid waiver of Miranda rights, by
drawing inferences from the appearance and conduct of the
defendant during the second, recorded, interrogation. Our
independent review of the same evidence leads us to reach a
different conclusion, namely, that based on the conduct of
Sergeant Detective Stratton and the defendant's statements and
behavior throughout the course of the videotape, the
Commonwealth satisfied its heavy burden to prove that the
defendant made a valid waiver of his Miranda rights. See
Commonwealth v. Hilton, 443 Mass. 597, 607-608 (2005), S.C., 450
Mass. 173 (2007).
In deciding whether a defendant's waiver of his Miranda
rights is valid, "[we] must examine the totality of the
circumstances surrounding the making of the waiver."
Commonwealth v. Edwards, 420 Mass. 666, 670 (1995), quoting from
Commonwealth v. Medeiros, 395 Mass. 336, 345 (1985). This 18
requires us to consider such factors as the "conduct of the
defendant, the defendant's age, education, intelligence and
emotional stability, experience with and in the criminal justice
system, [and] physical and mental condition." Commonwealth v.
Martinez, 458 Mass. 684, 692 (2011) (quotation omitted). An
officer is entitled to rely on the suspect's outward appearance,
words, and other behaviors in assessing whether he is capable of
waiving his Miranda rights and whether he, in fact, did waive
them. Commonwealth v. Lanoue, 392 Mass. 583, 588-589 (1984).
"[S]pecial care is taken to review the issue of
voluntariness where the defendant claims to have been under the
influence of drugs or alcohol." Commonwealth v. Mello, 420
Mass. 375, 383 (1995). When a suspect is under the influence of
alcohol or drugs, "police should not assume they can immediately
receive a knowing and intelligent waiver of Miranda rights and
commence interrogation." Commonwealth v. Hosey, 368 Mass. 571,
579 (1975). Here, based on his viewing of the videotaped
interview, the judge noted a number of factors that led him to
conclude that the defendant was too intoxicated to waive his
Miranda rights.
The judge found that the defendant was not paying attention
when Sergeant Detective Stratton went over his Miranda rights
again prior to the second interview. When asked if he
understood each right, the defendant responded, "Yes" or 19
"Obviously." While the defendant does appear to be more
interested in explaining why the arrest warrant was incorrect,
we do not regard that as evidence that he did not understand
what the warnings meant. The defendant was not a stranger to
police. He had had numerous interactions with the police in the
past, had been arrested on at least one prior occasion, and
demonstrated knowledge of police procedures and the criminal
justice system.12 See Commonwealth v. St. Peter, 48 Mass. App.
Ct. 517, 519-520 (2000) ("experience in the criminal justice
system" is "relevant factor" with respect to Miranda rights
waiver).
The judge also found that the defendant had "great
difficulty walking" to his seat, and that he stumbled several
times before sitting down. While the defendant does appear to
stumble when he first enters the room with handcuffs on, at
several points during the interview, the defendant stands up,
and each time he appears quite steady on his feet. At one
point, he stands to demonstrate how he hit the victim, and
raises his knee while standing steady on one foot. When the
12 For example, the defendant was hesitant to provide his name to Sergeant Yanovitch at the scene out of fear that the sergeant would "run" him. He knew the difference between a straight warrant and a default warrant. He had paperwork pertaining to an arrest warrant on his person. From his warrant for failing to register as a sex offender, it can be inferred that he had a prior conviction requiring him to register. See G. L. c. 6, § 178E(f). 20
defendant is led out of the room at the end of the interview, he
shows no signs of unsteadiness or difficulty walking.13
The judge also found that the defendant "sounds drunk and
seems to have trouble speaking clearly." To the contrary, the
videotape demonstrates that the defendant is alert and his
answers to questions are responsive, coherent, and often "quite
self-serving."14 Commonwealth v. Silanskas, 433 Mass. at 686.
The defendant's speech is clear and he appears alert and awake,
not groggy or drowsy. He recounts a relatively complex series
of facts replete with specific details, such as bus numbers, the
name and location of a liquor store, the victim's home telephone
number, and the location of specific items in the victim's
apartment. The defendant corrects Sergeant Detective Stratton
at one point when he asked, "so what happened tonight?" The
defendant replies, "actually, wait a minute, it didn't happen
tonight."
The judge's conclusion was also based on his finding that
the defendant did not appear to understand that he had
13 The defendant also noted that he had previously sustained injuries requiring a hospital stay after jumping out of a fifth- floor window. 14 There are numerous examples of the defendant's self- serving statements during the interview. He is careful to tell the police that he only hit the victim with an open hand, not with closed-fist punches, and that he only hit her in the face. He says repeatedly that he only went to the victim's apartment when she invited him, knowing that there was a restraining order. He also withholds Doucette's last name. 21
incriminated himself with his statements during the interview.
The judge reasoned that, because the defendant continuously
asked when he was going to be released, he did not understand
the consequences of waiving his Miranda rights and speaking with
the police. However, the videotape shows that the defendant is
aware that his statements were incriminating. Throughout the
interview, he is very animated and forceful when talking about
why he believes he should not have been arrested on a warrant
that should have been recalled, but when asked about what
happened to the victim, he becomes very quiet and subdued. He
pauses, drums his fingers on the table, breaks eye contact with
Sergeant Detective Stratton, and mumbles. The defendant also
demonstrates that he is conscious of the consequence of his
actions when he states many times during the interview, "I
fucked up." In addition, several times during the interview, he
makes statements indicating that he knows criminal charges could
come from his statements. For example, at one point, the
defendant opines that the victim "died in her own blood," then
raises his hands and says, "charge me with something." Later,
he states, "Yeah I did whack her, and I'm sorry I did that. It
sucks. But whatever you guys want to do." When asked if there
was anything else he wanted to talk about, the defendant states,
"I had a restraining order. I wasn't supposed to be there in
the first place. So I'm, it's jail-bound regardless, right?" 22
The defendant also stated, "I've never done that to her before,
either."15 Finally, toward the end of the interview, the
defendant asks if he can see the victim. When Sergeant
Detective Stratton says no, the defendant says, "I'm going to
jail aren't I?" These statements demonstrate that the defendant
was aware of the consequences of waiving his right to remain
silent and speaking with the police.16 The Commonwealth's burden
of proof with respect to the waiver of Miranda rights does not
require it to establish that the defendant understood and
appreciated the tactical or strategic consequences of waiving
his Miranda rights.17
15 This statement can be viewed as an attempt by the defendant to minimize the seriousness of his conduct by avoiding an admission that he is a repeat abuser. 16 The judge viewed the defendant's admission of guilt and his questions about being released as so incompatible with one another that they were indicative of a person not thinking rationally. However, those two aspects of the defendant's statements are not incompatible. The videotape shows that the defendant strongly believed that the warrant was defective, and while he understood that there would be a penalty for being involved in the victim's death, he believed that the investigation was ongoing and that when it was time for charges to be filed, the police could easily find him because he was local. 17 The police are not required to provide a suspect with a "flow of information to help him calibrate his self-interest in deciding whether to speak." Commonwealth v. Raymond, 424 Mass. 382, 393 (1997) (quotation omitted). The duty to advise suspects of their Miranda rights prior to questioning does not include the "requirement that a defendant be advised of all the ramifications of any waiver of his rights." Commonwealth v. Lee, 10 Mass. App. Ct. 518, 529 (1980). The police have no 23
The judge relied on Commonwealth v. Hosey, 368 Mass. 571
to support his conclusion that the defendant was incapable of
making a rational choice. However, the facts of that case are
markedly different from those in the case before us. In Hosey,
the defendant was arrested for drunkenness while at the
hospital, where his girl friend's young daughter was being
treated for injuries. Id. at 573-574. After being taken to the
police station and being advised of his Miranda rights, the
defendant was questioned regarding the circumstances surrounding
the injuries to the child. Id. at 576. The questioning officer
testified that the defendant appeared "extremely high,"
"extremely emotional," and "detached from reality" while he was
being questioned. Id. at 579. The court held that based on the
observations by the police, the defendant could not have made a
valid Miranda rights waiver and that officers should have ceased
questioning the defendant until he was capable of responding
intelligently. Ibid.
In addition, the circumstances surrounding the defendant's
waiver in Hosey were concerning even without considering his
"duty to give legal advice to suspects." Commonwealth v. Cunningham, 405 Mass. 646, 657 (1989). The constitutional measure of whether a person's decision to waive his Miranda rights and speak with police without counsel present is not whether the decision is in his best interests, but rather whether it was a voluntary choice by a person who was aware of his rights and had the capacity to make a rational choice. See Commonwealth v. Magee, 423 Mass. 381, 386-387 (1996). 24
intoxication. In Hosey, when reviewing the defendant's Miranda
rights during the questioning, one of the officers interjected
that it would be difficult for the defendant to obtain counsel
at 5:00 A.M., but that he could do so if he "insisted." Id. at
576. The court concluded that this statement, coupled with the
defendant's mental condition and the officers' knowledge that
the defendant wanted to finish quickly so that he could get to
work at 6:00 A.M., was an improper attempt to induce a waiver.
Id. at 578. As we said in Commonwealth v. Bigley, 85 Mass. App.
Ct. 507, 513-514 (2014), "[t]he result in Hosey turned on a
combination of three factors: severe intoxication, the
officers' description of the defendant as 'detached from
reality,' and the defective administration of Miranda rights."
Hosey, thus, is not an appropriate guidepost for the present
case.
For these reasons, on the basis of the same documentary
evidence relied on by the judge below, our independent review
leads us to conclude that the evidence was sufficient to meet
the Commonwealth's burden to demonstrate that the defendant's
waiver of his Miranda rights was knowing, intelligent, and
voluntary. Contrary to the judge's conclusion, the video
recording of the defendant's interview with the police does not
reveal a person who is "far too intoxicated to be able to make a
knowing and intelligent waiver of his right to remain silent." 25
See Commonwealth v. Simmons, 417 Mass. 60, 65-66 (1994).
Instead, we have a settled conviction that notwithstanding the
defendant's intoxication, he made a knowing, intelligent, and
voluntary waiver of his Miranda rights.
4. Voluntariness. The defendant also contends, as with
his Miranda rights waiver, that his intoxication at the time of
his questioning by the police rendered his statements
involuntary. Whether the defendant made a valid waiver of
Miranda rights and whether any statements he made were voluntary
are separate and distinct questions. See Commonwealth v. Magee,
423 Mass. 381, 387 (1996). When, as here, both issues are
raised by the defendant, the judge must make findings and
rulings on each question. See Commonwealth v. Melkebeke, 48
Mass. App. Ct. 364, 366 (1999). However, we have generally
applied the voluntariness test only after concluding that the
police complied with their obligations under Miranda v. Arizona,
384 U.S. 436, 469 (1966). Commonwealth v. Baye, 462 Mass. 246,
252 n.8 (2012). Here, the judge did not determine whether the
defendant's statements were voluntary, as he concluded that the
defendant did not knowingly and intelligently waive his Miranda
rights. In the circumstances of this case, a remand to enable
the judge to make findings of fact as to the issue of
voluntariness is unnecessary because we are in as good a
position to evaluate the recorded interview. 26
As with our analysis of the voluntariness of a Miranda
rights waiver, we apply the "totality of the circumstances"
test. Commonwealth v. Hensley, 454 Mass. 721, 730 (2009).
"There is no bright line test for voluntariness . . . . [W]e
[must] consider all of the relevant circumstances surrounding
the statement[s] and the individual characteristics and conduct
of the defendant." Commonwealth v. Burbine, 74 Mass. App. Ct.
148, 153 (2009). "A judicial determination of voluntariness
involves an assessment of the totality of relevant circumstances
to ensure that the defendant's [statements were] a free and
voluntary act and [were] not the product of inquisitorial
activity which had overborne his will." Commonwealth v. Allen,
395 Mass. 448, 454-455 (1985) (quotation omitted). Among the
relevant factors we consider under the totality of the
circumstances test are "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. Selby, 420
Mass. 656, 663 (1995). The focus of our inquiry into
voluntariness is whether the incriminating statements were "the 27
result of coercion or intimidation." Commonwealth v. Durand,
457 Mass. 574, 595 (2010).
Here, the police did not engage in any coercion or use
discredited tactics such as minimization of the crime, false
promises, or assurances of leniency. See Commonwealth v. Baye,
supra at 257-260. They did not mischaracterize the law so as to
make the defendant think he was not confessing to a crime, or
tell him that his statements would not be used against him. See
Commonwealth v. DiGiambattista, 442 Mass. 423, 435 (2004);
Commonwealth v. Tremblay, 460 Mass. 199, 211-212 (2011).
The determination of voluntariness also requires us to
consider the defendant's physical and mental condition at the
time he made the statements. See Commonwealth v. Lopes, 455
Mass. 147, 167 (2009). Statements that are the product of "a
defendant's debilitated condition, such as insanity, drug abuse
or withdrawal symptoms, [or] intoxication, are not the product
of a rational intellect or free will and are involuntary."
Commonwealth v. Allen, supra at 455 (citations omitted).
"Although alcohol intoxication is an important factor bearing on
the issue of voluntariness, intoxication alone is not sufficient
to negate an otherwise voluntary act." Commonwealth v. Parker,
402 Mass. 333, 341 (1988). A defendant's personal
characteristics and demeanor during an interrogation are 28
appropriate considerations when deciding the issue of
voluntariness. See Commonwealth v. Durand, supra at 597-598.
Here, the defendant did not appear to be in the fragile
physical or emotional state displayed by defendants in cases
where the court found their statements involuntary. See, e.g.,
Commonwealth v. Meehan, 377 Mass. 552, 565-566 (1979) (evidence
that defendant was in withdrawal from drug and alcohol
intoxication). In contrast, throughout the videotaped
interview, the defendant here appears "alert, oriented, and
lucid." Commonwealth v. Durand, supra at 597. As noted in our
discussion of his Miranda rights waiver, the defendant speaks
clearly and effectively when describing a lengthy series of
events taking place over a period of two days. He appears to
understand Sergeant Detective Stratton's questions and responds
appropriately. His answers are responsive, detailed, and at
times, self-serving. On several occasions, he corrects Sergeant
Detective Stratton when the latter incorrectly states something
he recalls the defendant said previously. The defendant also
waived his Miranda rights. See Commonwealth v. Selby, 420 Mass.
656, 664 (1995) (whether defendant waived his Miranda rights is
factor in assessment of voluntariness of statement). In sum,
consideration of the totality of the circumstances surrounding
the defendant's statements, including the details noted earlier 29
in our discussion of the Miranda rights waiver issue, leads us
to conclude that he spoke voluntarily.18
5. Seizure and forensic testing of clothing. The judge
also suppressed the results of the forensic testing performed on
the clothing seized from the defendant at the police station.
The judge, finding that the defendant's statements implicating
himself in the victim's death were obtained in violation of
Miranda v. Arizona, 384 U.S. at 469, concluded that the police
did not have probable cause to arrest the defendant for murder
absent those statements, and thus the search of the defendant's
clothing was invalid. He then reasoned that while the police
could lawfully seize the defendant's clothing pursuant to the
exigency exception to the search warrant requirement,19 they were
obliged to secure a warrant prior to subjecting the clothing to
any forensic examination. See Commonwealth v. Straw, 422 Mass.
18 Because we conclude that the voluntariness of the defendant's statements "appear[s] from the record with unmistakable clarity," Commonwealth v. Jackson, 432 Mass. 82, 85 (2000) (quotation omitted), we need not address the defendant's request to remand this case for findings and rulings on the voluntariness of the defendant's statements. Our conclusion that the Commonwealth met its heavy burden to establish that the defendant's statements at the police station were made voluntarily should not be understood as a ruling that at a trial voluntariness will not be a "live issue." Thus, if a trial in this case takes place, the judge may be obligated to instruct the jury on our "humane practice." See, e.g., Commonwealth v. Pavao, 46 Mass. App. Ct. 271, 273-274 (1999). 19 See Illinois v. McArthur, 531 U.S. 326, 334 (2001); Commonwealth v. Gentile, 437 Mass. 569, 577 (2002). 30
756, 759 (1996) (warrant required to search briefcase as
exigency expired once briefcase was seized).
No search warrant was required if the police had probable
cause to arrest the defendant for the murder of the victim. See
Commonwealth v. Santiago, 410 Mass. 737, 742-743 (1991). Under
those circumstances, the police could have seized and tested the
defendant's clothing pursuant to a search incident to a valid
arrest. See Commonwealth v. Robles, 423 Mass. 62, 65-66 (1996).
See also United States v. Edwards, 415 U.S. 800, 806 (1974)
(police may seize clothing worn at time of arrest when it
becomes apparent that clothing may contain evidence). When
seizing a defendant's clothing incident to an arrest, the police
need only establish that the clothing contained evidence
connected to the crime. See Commonwealth v. Robles, supra.
Because we determine that the defendant's statements were
obtained in compliance with Miranda v. Arizona, supra, and were
made voluntarily, the police had probable cause to arrest him
for murder. Thus, the police were authorized to seize and
subsequently test his clothing. See Commonwealth v. Robles,
supra at 65 n.8 & 67-68, and cases cited.20
20 Even if the defendant's custodial statements are not considered, the police had probable cause to arrest the defendant for murder. The record shows that the defendant was first observed outside of the victim's residence in violation of an active restraining order. See Commonwealth v. Todd, 394 Mass. 791, 794-795 (1985) (lurking near murder scene combined 31
Conclusion. This is a case in which a conscientious judge
viewed a videotaped interrogation of the defendant that lasts
approximately forty-five minutes and inferred from the
defendant's appearance and conduct that he was intoxicated to
such an extent that he was not capable of waiving his Miranda
rights. However, our independent review of the same documentary
evidence leaves us with a settled conviction that the defendant
had the capacity to make a knowing and voluntary waiver of his
rights and that he did so. The same evidence persuades us that
the defendant's statements made during the first and second
interviews were voluntary. Finally, we conclude that the
seizure and forensic testing of the defendant's clothing was
justified as a search incident to a lawful arrest. Accordingly,
so much of the judge's order that allowed the defendant's motion
to suppress is reversed, and the case is remanded to the
Superior Court for further proceedings consistent with this
opinion.
So ordered.
with other conduct could be viewed as consciousness of guilt). The police knew that the victim had a history of domestic violence incidents with the defendant as the primary aggressor. The defendant also made statements to the police at the scene, which the judge did not order suppressed, indicating that the victim was his friend and that he knew what had happened to her. Finally, the police observed blood on the defendant's clothing and shoes, after investigating a murder scene that was "very bloody."