Commonwealth v. Welch

• Court: Massachusetts Supreme Judicial Court
• Decided: May 14, 2021
• Docket: SJC 11839
• Status: Published

Opinion

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SJC-11839

COMMONWEALTH vs. RYAN D. WELCH.

Hampshire. February 5, 2021. - May 14, 2021.

Present: Budd, C.J., Gaziano, Lowy, Kafker, & Wendlandt, JJ.

Homicide. Constitutional Law, Search and seizure, Admissions and confessions, Voluntariness of statement, Privacy. Privacy. Search and Seizure, Expectation of privacy, Hospital. Hospital. Evidence, Admissions and confessions, Voluntariness of statement, Authentication, Prior misconduct. Cellular Telephone. Practice, Criminal, Motion to suppress, Admissions and confessions, Voluntariness of statement, New trial, Assistance of counsel, Capital case.

Indictment found and returned in the Superior Court Department on April 24, 2012.

A pretrial motion to suppress was heard by C. Jeffrey Kinder, J.; the case was tried before Daniel A. Ford, J.; and a motion for a new trial, filed on March 20, 2019, was considered by Ford, J.

Alan Jay Black for the defendant. Cynthia M. Von Flatern, Assistant District Attorney (Jeremy C. Bucci, Assistant District Attorney, also present) for the Commonwealth. 2

LOWY, J. During the early hours of February 20, 2012, the

victim, Jessica Pripstein, foreshadowed her own death. In a

brief and frantic emergency call, she relayed to the dispatcher

that her boyfriend was trying to kill her. Soon after, officers

from the Easthampton police department responding to the call

found the victim dead on the bathroom floor of her apartment,

her throat cut. Her boyfriend, the defendant Ryan D. Welch, was

on the bedroom floor with his throat cut, but alive. The

defendant subsequently was convicted of murder in the first

degree, G. L. c. 265, § 1, on theories of both deliberate

premeditation and extreme atrocity or cruelty. The defendant's

direct appeal from that conviction was consolidated with an

appeal from the trial judge's denial of his motion for a new

trial, and both are now before this court.

On appeal, the defendant argues that the judge who heard

his motion to suppress (motion judge) erred in not suppressing

several statements that he made while hospitalized and that the

trial judge erred in admitting in evidence allegedly

unauthenticated text messages as well as prior bad acts evidence

and in denying his motion for a new trial without first holding

an evidentiary hearing. Finding no reversible error either in

any issue raised by the defendant or in our review under G. L.

c. 278, § 33E, we affirm the defendant's conviction and the

order denying his motion for a new trial. 3

Background. We summarize the facts the jury could have

found, reserving certain details for later discussion.

The defendant and the victim had been dating since the fall

of 2011. As 2012 dawned, signs of unease in their relationship

were apparent. Around early February, the victim told a

coworker that she had "broken things off" with the defendant.

Then, on February 10, one of the victim's neighbors overheard an

argument between the victim and the defendant. This altercation

culminated in the victim slamming a door and yelling at the

defendant to leave, which he did. The victim told her sister on

February 18 that she planned on finding a way to end the

relationship.

On the evening of February 19, the defendant spent several

hours eating and drinking at a local bar. He explained to a

bartender how he had recently both lost his job and been

arrested for operating a motor vehicle while under the influence

of alcohol (OUI). In regard to the OUI, the defendant

complained that the victim had refused to post his forty dollar

bail even though he had just spent seventy dollars on a bouquet

of flowers for her for Valentine's Day. According to the

bartender, the defendant appeared to be "aggravated." The

victim later joined the defendant at the bar. When the bill was

due, the defendant did not have enough money to pay it and the 4

victim paid the difference, appearing to be embarrassed. Then,

at around 11:05 P.M., the defendant and the victim left the bar.

At 12:04 A.M. on February 20, the victim called 911,

screaming that her boyfriend was trying to kill her. By the

time the call was transferred to a public safety dispatcher, the

victim was no longer on the line. The dispatcher's attempts to

call the victim back went unanswered. Officers arrived at the

victim's apartment within three minutes of being dispatched.

After knocking on the apartment's door and receiving no

response, an officer peered through a window and noticed blood

on the floor. Officers then forced their way through the front

door, which was blocked by a futon. Once inside the apartment,

the officers discovered the victim dead on the bathroom floor

with her throat cut and a knife lying on her back. The

defendant was lying nearby on the floor of the bedroom, a knife

in his back pocket. His throat, too, was cut, but he was alive.

Bloody sock prints led from the bathroom toward where he lay.

The defendant's fingerprints were later found on the futon that

had blocked officers' entry through the front door, and a large

amount of his blood was found in front of the futon.

The defendant received emergency medical treatment at the

scene and then was transported to a nearby hospital, where he

underwent surgery. Autopsy results later confirmed that the

victim's throat wound -- which measured two and one-half inches 5

deep and four inches across -- was inconsistent with suicide.

The defendant subsequently was arrested and charged with the

victim's murder.

Discussion. 1. Motion to suppress. Prior to trial, the

defendant moved to suppress handwritten notes and oral

statements he made to officers while he was hospitalized on

February 21 and February 22, 2012.1 The motion judge allowed the

motion as to the statements the defendant made to officers after

he had been arrested on February 22, but otherwise denied it.

On appeal, the defendant makes three arguments pertaining to the

motion to suppress: (1) that his handwritten notes should have

been suppressed as the product of an illegal search; (2) that

his statements were obtained in violation of his Miranda rights,

see Miranda v. Arizona, 384 U.S. 436, 444-445 (1966); and (3)

that even if these statements were not obtained in violation of

Miranda, they were made involuntarily.2

1 The defendant also argued below that the notes were seized illegally, but he does not renew this argument on appeal.

2 The defendant further argues that suppression of several notes to hospital personnel, as well as statements he made to a nurse at the Hampshire County house of correction, is required because these communications were provided to officers, resulting in violations of both the Federal Health Insurance Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C. § 1320d-6, and the Massachusetts Patient's Bill of Rights, G. L. c. 111, § 70E. Yet even if the notes are covered by it, "HIPAA does not provide any private right of action, much less a suppression remedy." United States v. Streich, 560 F.3d 926, 935 (9th Cir.) (Kleinfeld, J., concurring), cert. denied, 558 6

"In general, in reviewing 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. Tremblay, 480 Mass.

645, 652 (2018), quoting Commonwealth v. Clarke, 461 Mass. 336,

340 (2012). As is noted infra, some of the interactions between

the officers and the defendant were video recorded. When a

judge's findings are based solely on documentary evidence such

as a video recording, we review those findings de novo.

Tremblay, supra at 654-655. "By contrast, findings drawn partly

or wholly from testimonial evidence are accorded deference and

are not set aside unless clearly erroneous." Id. at 655.

a. Facts. Before considering each of the defendant's

arguments in turn, we set out the relevant facts that the motion

judge found following an evidentiary hearing. The facts are

supplemented with uncontroverted facts in the record.

Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).

U.S. 920 (2009). See, e.g., State v. Yenzer, 40 Kan. App. 2d 710, 712-713 (2008) (HIPAA does not provide suppression remedy); State v. Straehler, 2008 WI App 14, ¶ 13 ("HIPAA does not provide for suppression of the evidence as a remedy for a HIPAA violation"). See also United States v. Zamora, 408 F. Supp. 2d 295, 298 (S.D. Tex. 2006) ("HIPAA was passed to ensure an individual's right to privacy over medical records, it was not intended to be a means for evading prosecution in criminal proceedings"). A breach of G. L. c. 111, § 70, also "does not require exclusion at trial." Commonwealth v. Senior, 433 Mass. 453, 457 n.5 (2001). 7

After officers discovered the defendant at the victim's

apartment on February 20, he was transported to a nearby

hospital. Following surgery on his neck, the defendant was

moved to the intensive care unit (ICU) for recovery. Officer

Timothy Rogers accompanied the defendant into the ICU but did

not have contact with him or communicate with him. The

defendant was sedated, as hospital staff believed he might pose

a suicide risk.

At around 11:45 A.M. on February 20, Rogers was relieved by

Sergeant Bruce Nichol, who entered through the ICU's door, which

remained open throughout the officer's stay. Nicol sat against

a wall in the defendant's ICU room and observed him, although at

no point did Nicol have any contact with him or communicate with

him. Over the next twelve hours, the defendant began to regain

consciousness and started to communicate with nurses by

gesturing. Because the defendant was intubated with breathing

and feeding tubes, he was unable to speak. The defendant also

was connected to an intravenous line. Nichol observed that the

defendant responded appropriately to questions asked by a nurse

to assess his mental cognition.

Officer Dennis Scribner relieved Nichol at around

11:40 P.M. on February 20. Scribner mostly monitored the

defendant from a position in the hallway outside the defendant's

ICU room by looking into the room through its door, which 8

remained open. Scribner observed hospital staff members

entering and leaving the defendant's room freely. At around

5:30 A.M. on February 21, a nurse offered Scribner a note

written by the defendant that the defendant had given to the

nurse. In the note, the defendant asked if he would recover and

be able to speak again, what would happen to him when he left,

why there were police officers in his room, and about his

girlfriend's condition. After Scribner read the note, it

remained on a table in the hallway outside the defendant's room

until one of Scribner's replacements eventually took it into

custody.

At roughly 7:45 A.M. on February 21, Scribner was relieved

by State police Trooper William McMillan. At around 9:50 A.M.,

a nurse invited McMillan to approach the defendant's bedside to

answer the defendant's question. The defendant wrote a note to

McMillan that asked about whether he could be evicted because he

was behind on rent. After telling the defendant that he would

investigate the situation, McMillan had no more interaction with

him during this shift.

State police Trooper John Riley, the lead investigator for

the case, arrived at the ICU at around 1:35 P.M. on February 21.

Upon entering the defendant's ICU room, Riley explained who he

was and that he was there to investigate the circumstances

surrounding the defendant's injury. The defendant was still 9

unable to speak, so he nodded his head. After Riley suggested

that the defendant might have information that would be helpful,

the defendant nodded his head again. After an unclear gesture

by the defendant, Riley asked if the defendant was not yet ready

to speak because of his neck injury. The defendant nodded his

head, and Riley left the defendant's room.

Later, a nurse informed Riley that they would be reducing

the defendant's pain management medication, fentanyl, and begin

administering oxycodone so that the defendant could be moved out

of the ICU. The same nurse also informed Riley that the

defendant scored perfectly on a cognitive test. Shortly

afterward, a nurse told Riley that the defendant had given the

nurse a note. The note stated: "Bleeding from neck then

vaguely remember paramedics police? Before passing out.

Girlfriend unconscious completely. Don't know why her or me."

Riley left the defendant's room and noticed more notes on a

table in the hallway. Eventually, these notes were taken into

custody when a nurse asked another officer whether he wanted

them.

At 4 P.M., Riley introduced State police Trooper Gary

Darling, who had arrived for a shift, to the defendant. Riley

told the defendant that if he wanted to talk, he should let

Darling know. The defendant responded by writing "one more day

in ICU before I can talk." Riley then departed but returned two 10

hours later and learned that the medical staff would soon be

administering another cognitive test. Riley informed the

defendant that if he wanted to speak with the officers, this

would be a good time. The defendant responded in writing:

"We can talk briefly, but I am still terrified about the situation, I also know that you will most likel[y] be considering me a suspect. Until I can speak, I can't have a reasonable conversation with anyone, but believe me, I am trying my best to get this moving. I Just [sic] lost someone very important to me, and I am not sure why."

With the defendant's consent, Riley and Darling videotaped

the cognitive test. After the defendant passed the test, Riley

interviewed the defendant. While Riley was explaining the

interview's purpose, the defendant wrote that he "was at her

house," "She was in the bathroom," and "Hygiene/makeup." Riley

then asked the defendant to stop and listen, and Riley explained

that the defendant was not under arrest and verbally advised the

defendant with an incomplete set of Miranda warnings.3 When

asked whether he was familiar with Miranda warnings, the

defendant nodded affirmatively. The defendant then wrote:

"What I will say for now is that when I opened the bathroom

door, I found her in a pool of blood unconscious."

At this point, Riley paused the interview again and

explained to the defendant that everything he wrote became part

3 Riley failed to advise the defendant that an attorney would be appointed for him if he could not afford one. 11

of the record and asked the defendant if he wished to continue.

The defendant replied in writing, "I was in a total state of

panic[] when I saw her and didn't know what to do. I think this

would be better discussed when I am more capable. ASAP I want

to talk to you all the same." The defendant added, "It's too

serious to discuss right now. I will accept a lawyer maybe,"

then crossed out the words "I will accept a lawyer maybe" and

wrote, "I will do my best. I'm sorry."4 Nearly an hour into the

interview, Riley terminated it after the defendant wrote, "At

this point I would like to see a lawyer. You k[n]ow w[h]ere to

look now."

Riley returned the following day, February 22, and arrested

the defendant at around 10:38 A.M. This occurred in a non-ICU

hospital room where the defendant had been moved sometime during

either the evening of February 21 or the early morning of

February 22. Riley explained to the defendant that he would be

seizing the defendant's notepad and seeking a warrant to search

it. The defendant replied by writing, "[A]m I somehow waiving

my right to an attorney by doing this?" He added, "[A]t this

4The defendant also offered the following in notes: "Is she still alive? Prior injuries. Also longstanding psychiatric issues as well, and as I do to some extent"; "I injured myself only. I couldn't deal with having to be in this position for no fault of my own. Sorry"; and "With the knife I picked up from next to her. There is much more to this story beyond that, but both wounds were self inflicted, as far as I can tell." 12

point, I do reserve my right to remain silent, and the right to

any private conversations with medical providers."

b. Search. The defendant first argues that officers

violated his rights under the Fourth Amendment to the United

States Constitution and art. 14 of the Massachusetts Declaration

of Rights when they read handwritten notes that the defendant

passed to both hospital staff and law enforcement while he was

recovering in the ICU.5 The motion judge found that no search

occurred. We agree.

"The Fourth Amendment and art. 14 protect individuals from

unreasonable searches and seizures. For these constitutional

protections to apply, however, the Commonwealth's conduct must

constitute a search in the constitutional sense." Commonwealth

v. Almonor, 482 Mass. 35, 40 (2019). Whether such a search

occurred "turns on whether the police conduct has intruded on a

constitutionally protected reasonable expectation of privacy."

Commonwealth v. Porter P., 456 Mass. 254, 259 (2010), quoting

Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). "The

measure of the defendant's expectation of privacy is (1) whether

5 Although the thrust of the defendant's argument focuses on whether a search of his ICU room occurred, he references in passing multiple hospital rooms in which a search may have occurred. Insofar as the defendant refers to the non-ICU hospital room where officers arrested him on February 22, we have reviewed the record, and it is at best unclear whether officers even entered this room before arresting the defendant. 13

the defendant has manifested a subjective expectation of privacy

in the object of the search, and (2) whether society is willing

to recognize that expectation as reasonable." Porter P., supra,

quoting Montanez, supra. "The defendant bears the burden of

establishing both elements." Porter P., supra, quoting

Montanez, supra.

The motion judge correctly found that the defendant lacked

a subjective expectation of privacy in his ICU room. The door

to the room remained open throughout the defendant's stay there.

Hospital staff entered and left the room freely. Various

officers also entered the room to speak with the defendant.

Significantly, the defendant never asked the officers to leave.

On the contrary, on at least one occasion the defendant appears

to have invited an officer to enter the ICU room in order to

communicate with him.

The defendant also made no effort to maintain the privacy

of the notes themselves until after he was arrested on February

22, 2012, at which point he expressed concern over their legal

ramifications. Compare State v. Stott, 171 N.J. 343, 350, 354-

358 (2002) (defendant manifested expectation of privacy by

hiding pills in hospital room's curtain), with State v. Rheaume,

2005 VT 106, ¶ 9 (no subjective expectation of privacy in part

of emergency room where door was open, defendant did not ask

officer to leave, and defendant voluntarily communicated with 14

officer). Instead, the defendant voluntarily shared the notes

with both hospital staff and police to communicate with them.

Some of the notes that the defendant gave to hospital staff were

left by staff on a table outside the ICU for indeterminate

lengths of time. The defendant also passed notes to officers to

communicate with them multiple times. In this regard, "[o]ur

conclusion that [the defendant] had no subjective expectation of

privacy is compelled not by a finding that he legally abandoned

[the notes] as much as it is by his wholesale failure to

manifest any expectation of privacy in the items whatsoever."6

Commonwealth v. Bly, 448 Mass. 473, 491 (2007).

Although this settles whether a search occurred in this

case, we nonetheless discuss whether there is an objectively

reasonable expectation of privacy in an ICU room.7 When

determining whether society is willing to recognize an

expectation of privacy as reasonable, we consider the following

nonexclusive factors: (1) the nature of the place searched, (2)

whether the defendant owned the place searched, (3) whether the

defendant controlled access to the place searched, (4) whether

the defendant owned the item seized or inspected, and (5)

6 Because no search in the constitutional sense occurred, we do not consider the defendant's argument that nurses at the hospital operated as agents of law enforcement.

7 We have never ruled on whether there is an objectively reasonable expectation of privacy in such a space. 15

whether the defendant took "normal precautions to protect his

privacy." Porter P., 456 Mass. at 259, quoting Commonwealth v.

Pina, 406 Mass. 540, 545, cert. denied, 498 U.S. 832 (1990).

Much like in an emergency room, a patient's privacy

interests are greatly diminished in the ICU. See Flannery,

First, Do No Harm: The Use of Covert Video Surveillance to

Detect Munchausen Syndrome by Proxy -- An Unethical Means of

"Preventing" Child Abuse, 32 U. Mich. J.L. Reform 105, 155

(1998) ("The emergency room, by its very nature, functions as a

freely accessible area over which a patient has no control and

where his privacy is diminished"). Although "the public at

large may not freely access" the ICU, "medical personnel,

hospital staff, patients and their families, and emergency

workers . . . are, as a matter of course, frequently, and not

unexpectedly, moving through the area." Rheaume, 2005 VT 106,

¶ 10 (detailing lack of reasonable expectation of privacy in

curtained off area of emergency room).

Such is true in this case. Not only did several officers

enter the defendant's ICU room unhindered, but a steady stream

of hospital personnel also freely flowed through it in order to

keep watch over him. Given the severity of the defendant's

injuries, and the potential suicide risk that he posed, the

constant attention paid to him by medical staff is unsurprising.

See Flannery, 32 U. Mich. J.L. Reform at 155-156 (whereas "it is 16

possible for the hospital to respect a patient's request for

privacy in the room for a certain time period[,] such a request

would be unreasonable in an emergency room setting" where

constant attention is inherent to treatment).

As other courts have reasoned, it is difficult, if not

impossible, in these conditions for a patient to control access

to the area he or she wishes to safeguard. See, e.g., State v.

Cromb, 220 Or. App. 315, 325 (2008) ("social norms do not treat

a hospital emergency room, even curtained areas within it, as

space in which privacy rights inhere" because of patient's lack

of control); Matthews v. Commonwealth, 30 Va. App. 412, 415

(1999) (no reasonable expectation of privacy in separate

treatment room in emergency ward); Rheaume, 2005 VT 106, ¶ 10

(patient's lack of control over trauma room renders expectation

of privacy unreasonable); Wagner v. Hedrick, 181 W. Va. 482, 487

(1989) (no reasonable expectation of privacy in emergency room

in which medical personnel "were constantly moving around" and

that was "freely accessible to law enforcement officers"); State

v. Thompson, 222 Wis. 2d 179, 193 (1998) (no "reasonable

expectation of privacy in either the emergency room or the

operating room"). We conclude that even if the defendant had 17

manifested an expectation of privacy in his ICU room, it would

not have been reasonable.8

c. Miranda rights. The defendant next argues that

statements he made on February 21 while he was in the ICU should

have been suppressed, arguing that his Miranda rights were

violated when officers did not scrupulously honor his invocation

of his right to silence.9 "[I]n circumstances of custodial

interrogation, Miranda requires that the defendant 'be warned

prior to any questioning that he has the right to remain silent,

that anything he says can be used against him in a court of law,

that he has the right to the presence of an attorney, and that

if he cannot afford an attorney one will be appointed for him

prior to any questioning if he so desires'" (footnote omitted).

Clarke, 461 Mass. at 341-342, quoting Miranda, 384 U.S. at 479.

8 This does not mean that donning an ICU gown necessarily strips from a defendant every privacy interest he or she had before being admitted. A defendant may, for example, have a reasonable expectation of privacy in items stored within the possessions he or she brings into the ICU. See, e.g., People v. Wright, 804 P.2d 866, 868 (Co. 1991) (defendant had "reasonable expectation of privacy in the contents of her purse" that police searched while she was being treated at hospital); State v. Loewen, 97 Wash. 2d 562, 564, 569 (1982) (warrantless search of defendant's tote bag left at nurse's station at hospital unreasonable). However, as is clear from the discussion supra, that is not this case.

9 The defendant also appears to argue that statements he made the next day, February 22, were obtained in violation of his Miranda rights. Because the motion judge suppressed the statements made after the defendant was arrested, it is unclear to which other statements the defendant refers. 18

Before determining whether the defendant invoked his right to

silence, however, we must examine whether he was in custody at

the time and thus whether Miranda warnings were necessary. See

Commonwealth v. Jung, 420 Mass. 675, 689 (1995), quoting Oregon

v. Mathiason, 429 U.S. 492, 495 (1977) ("Miranda warnings are

required only where there has been such a restriction on a

person's freedom as to render him 'in custody'"). We determine

that he was not in custody.

An individual is in custody when "a reasonable person in

the suspect's shoes would experience the environment in which

the interrogation took place as coercive." Commonwealth v.

Larkin, 429 Mass. 426, 432 (1999). To determine whether the

environment in which an interrogation was coercive, we examine

four nonexclusive factors, no one of which is dispositive:

"(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest."

Commonwealth v. Tejada, 484 Mass. 1, 8, cert. denied, 141 S. Ct.

441 (2020), quoting Commonwealth v. Groome, 435 Mass. 201, 211-

212 (2001). See Commonwealth v. Bryant, 390 Mass. 729, 737

(1984) ("Rarely is any single factor conclusive"). "Where a 19

defendant challenges the admission of a statement allegedly

resulting from custodial interrogation, the defendant bears the

initial burden of proving custody." Commonwealth v. Newson, 471

Mass. 222, 229 (2015).

A reasonable person in the defendant's position would not

have experienced the environment at issue as coercive. Officers

questioned the defendant in his ICU room, not an interrogation

room. See Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 346

n.12 (2011) (hospital cubicle where defendant was treated for

injuries and where officers and medical personnel entered and

departed multiple times not custodial). Cf. Commonwealth v.

Mejia, 461 Mass. 384, 390 (2012) (conference room in hospital

where defendant was treated for injuries "neutral location" and

noncustodial). The motion judge found that "health care

providers freely came and went through an open door" of the

defendant's room, signifying that officers could not dominate

the setting. See United States v. Infante, 701 F.3d 386, 397

(1st Cir. 2012), cert. denied, 570 U.S. 911 (2013) (defendant

not in custody where "hospital staff came and went freely during

the course of the interviews, suggesting that the officers were

not in a position to dominate [the setting] as they are, for

example, an interrogation room at a jailhouse" [quotation and

citation omitted]). In short, although a person may be in

custody without having set foot into a police station, see, 20

e.g., Commonwealth v. Damiano, 422 Mass. 10, 13 (1996), the

place of interrogation here was not coercive.

Other factors, too, demonstrate that the defendant was not

in custody on February 21. Although the defendant wrote that he

believed he was a suspect, officers did not communicate this to

him at the time. See Mejia, 461 Mass. at 390 (Miranda warnings

unnecessary where although defendant "knew that police were

seeking an arrest warrant for the defendant and admitted on

cross-examination that there was probable cause to arrest, these

suspicions were never communicated to the defendant"). See also

Commonwealth v. Morse, 427 Mass. 117, 124 (1998), quoting

Stansbury v. California, 511 U.S. 318, 324 (1994) ("an officer's

evolving but unarticulated suspicions do not affect the

objective circumstances of an interrogation or interview, and

thus cannot affect the Miranda custody inquiry"). The officers'

questioning was also not aggressive. On the contrary, each

interview was accompanied with inquiries by officers to the

defendant asking whether he wished to talk to them. Compare

Commonwealth v. Cawthron, 479 Mass. 612, 622 (2018), quoting

Commonwealth v. Coleman, 49 Mass. App. Ct. 150, 155 (2000)

("interrogation was 'aggressive and persistent' where

'defendant's denials were scorned and overridden,' 'substance of

what was said was harsh and intended by the questioner to be

so'"). Nor did the officers exploit the defendant's condition 21

by seeking to extend his stay in the hospital unnecessarily.

See United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985)

("There are no facts to indicate law enforcement officials . . .

did anything to extend [defendant's] hospital stay and

treatment"). Indeed, it was the defendant who initiated most of

the conversations by passing notes either to hospital staff or

to police officers.

In response, the defendant stresses that he was connected

to machines and intravenous lines, rendering his freedom

severely curtailed. It is true that the defendant's medical

condition ensured that he could not leave the room at will. At

the same time, the defendant, not law enforcement, created the

situation in which he found himself. Cf. United States v.

Jamison, 509 F.3d 623, 632 (4th Cir. 2007) (Miranda warnings

unnecessary where defendant "was primarily restrained not by the

might of the police, but by his self-inflicted gunshot wound,

the medical exigencies it created, and the investigation he

initiated"). Given the seriousness of the defendant's injuries,

a "reasonable person would have understood that he was being

held at the hospital by medical personnel for medical purposes,"

not by law enforcement for investigatory purposes. McGrail, 80

Mass. App. Ct. at 346.

More importantly, officers expressly told the defendant

that he could ask them to leave at any time. This is analogous 22

to cases dealing with the Miranda rights of prisoners: the

defendant's ability to leave the room was obviously constrained,

but his ability to change who was in it was not. See, e.g.,

Larkin, 429 Mass. at 434 ("rather than asking whether a prisoner

was free to leave the facility, courts have asked whether he is

subject to some restraint in addition to those normally imposed

on him by virtue of his status as an inmate"). In other words,

had the defendant clearly told the officers to leave, and had

they refused, the analysis would be different. Because he did

not, we discern no error.

Even assuming that the defendant was in custody at the

time, the defendant's statement -- a written note stating "one

more day in ICU before I can talk" -- did not properly invoke

his right to remain silent on February 21. An invocation of the

right must be "unambiguously" stated such that, objectively, "a

reasonable police officer in the circumstances would understand

the statement to be an invocation of the Miranda right."

Clarke, 461 Mass. at 342 (quotation and citations omitted).

Although establishing an invocation is less demanding under art.

12 of the Massachusetts Declaration of Rights than under the

Federal standard set out in Berghuis v. Thompkins, 560 U.S. 370,

381 (2010), statements indicating a willingness to speak with

officers in the future are not sufficient to invoke the right.

See Clarke, supra at 348 (defendant's statement, "Not right now, 23

in a minute. I need to figure some things out," did not invoke

right to be silent). The defendant's statement falls within

this category.

d. Voluntariness. The defendant also contends that the

statements he made while hospitalized were obtained

involuntarily. "Where a defendant makes statements to the

police while not in custody, we focus solely on the question

whether his statements were voluntary" (quotation and citation

omitted). Commonwealth v. Libby, 472 Mass. 37, 48 (2015).

"[T]he Commonwealth must prove beyond a reasonable doubt that in

light of the totality of the circumstances surrounding the

making of the statement, the will of the defendant was [not]

overborne, but rather that the statement was the result of a

free and voluntary act" (quotations and citation omitted).

Commonwealth v. Baye, 462 Mass. 246, 256 (2012). Because of the

pain and confusion that he felt, as well as the effects of the

medications with which he was being treated, the defendant

argues that the Commonwealth cannot carry its burden. We

disagree.

"Only voluntary confessions or admissions are admissible

regardless of whether they are made to police or civilians."

Commonwealth v. Kolenovic, 478 Mass. 189, 198 (2017). To

determine whether a statement was voluntarily made, we consider

several factors, including (1) the "conduct of the defendant," 24

(2) "the defendant's age, education, intelligence and emotional

stability," (3) the defendant's "physical and mental condition,"

and (4) "the details of the interrogation, including the

recitation of Miranda warnings." Commonwealth v. Bell, 473

Mass. 131, 142 (2015), cert. denied, 136 S. Ct. 2467 (2016),

quoting Commonwealth v. Hilton, 450 Mass. 173, 177 (2007).

Although statements "attributable in large measure" to

debilitating conditions are "not the product of a rational

intellect or free will," the mere influence of drugs or alcohol

on the defendant will not transform otherwise voluntary

statements into involuntary ones. Bell, 473 Mass. at 141,

quoting Commonwealth v. Allen, 395 Mass. 448, 455 (1985).

Additionally, "[t]hat a defendant is suffering from a serious

and painful injury, such as a bullet or knife wound, does not

necessarily preclude a statement being made voluntarily." Bell,

supra. Nor does "[t]he fact that a defendant may have been in a

disturbed emotional state, or even suicidal, . . . automatically

make statements involuntary." Commonwealth v. Richards, 485

Mass. 896, 910 (2020), quoting Commonwealth v. LeBlanc, 433

Mass. 549, 555 (2001).

Review of the record confirms that the defendant's

statements were voluntary. Despite being hospitalized with a

serious medical condition, having just undergone surgery, and

being treated with pain medication, the defendant understood and 25

was responsive to questions by hospital staff and police

officers. See Bell, 473 Mass. at 142 (despite suffering from

serious injury, experiencing pain, and consuming intoxicants,

defendant's coherent responses to medical providers and police

officers rendered statements voluntary); Commonwealth v.

Stroyny, 435 Mass. 635, 646-647 (2002) (defendant's statement to

hospital staff and law enforcement made while in pain from

slashed wrists was voluntary).

In particular, the defendant was awake and alert and passed

the cognitive tests administered by hospital staff.10 See, e.g.,

Commonwealth v. Clark, 432 Mass. 1, 12-13 (2000) ("alert and

oriented" defendant's statements to police voluntary despite

recovering from gunshot wound to his head and arm); Allen, 395

Mass. at 457 ("rational and alert" defendant's statements to

nurse after brain surgery were voluntary). Cf. Commonwealth v.

Rivera, 482 Mass. 259, 267 (2019) (defendant who was "not

demonstrating confusion" voluntarily waived Miranda rights

despite being medicated to treat pain from attempted suicide).

The defendant could manipulate his surroundings to make himself

more comfortable and could communicate his needs by writing

10The motion judge also reviewed video recordings of the delirium test and the questioning, as well as credited expert testimony by a psychiatrist that the defendant's conduct and his medical records supported finding that his statements were voluntary. 26

notes to hospital staff. Indeed, the defendant not only

appeared to be aware of his immediate surroundings, but also

inquired into the victim's medical condition and his own

financial circumstances. The defendant even had the presence of

mind to provide exculpatory statements, such as claiming that

the victim's wounds were self-inflicted. See Commonwealth v.

Sneed, 440 Mass. 216, 222 (2003) (defendant's effort to

exculpate herself supported finding her statements to be

voluntary).

Considering his OUI arrest the week before, the defendant

"had some prior experience with law enforcement officers and the

court system." Libby, 472 Mass. at 49. Even without this

familiarity, the motion judge found that the officers'

questioning was neither psychologically nor physically coercive.

Officers made no improper promises or inducements. See

Commonwealth v. Colon, 483 Mass. 378, 390 (2019) (absence of

either express or implied assurances by officers why, in part,

defendant's statements were voluntary); LeBlanc, 433 Mass. at

555-556 (same). Furthermore, officers repeatedly told the

defendant that he could ask them to leave. Considering the

totality of the circumstances, we hold that the defendant's

statements were voluntary.

2. Evidentiary issues. In addition to the suppression

issues, the defendant challenges several evidentiary matters 27

from the trial. "We review a judge's evidentiary rulings for an

abuse of discretion." Commonwealth v. Andre, 484 Mass. 403, 414

(2020).

a. Text messages. At trial, the Commonwealth elicited

testimony from State police Trooper David Swan regarding text

message exchanges between the cell phones associated with the

defendant and the victim. Swan read aloud text messages that

highlighted, among other things, the defendant's problems with

alcohol, money, his job, and tensions and arguments between the

defendant and the victim. These text messages were exchanged

between February 10 and February 18, 2012, the week leading up

to the killing. The defendant argues that the text messages

were not authenticated, and thus the trial judge erred in

allowing them in evidence. We disagree.

"To satisfy the requirement of authenticating or

identifying an item of evidence, the proponent must produce

evidence sufficient to support a finding that the item is what

the proponent claims it is." Mass. G. Evid. § 901(a) (2021).

"Where the Commonwealth seeks to introduce evidence of cell

phone communications, 'the judge [is] required to determine

whether the evidence was sufficient for a reasonable jury to

find by a preponderance of the evidence that the [individual]

authored' the communications." Commonwealth v. Webster, 480 28

Mass. 161, 170 (2018), quoting Commonwealth v. Purdy, 459 Mass.

442, 447 (2011).

As with other types of communication, the authentication of

text messages "may be accomplished by way of direct or

circumstantial evidence, including its [a]ppearance, contents,

substance, internal patterns, or other distinctive

characteristics" (quotations and citation omitted).

Commonwealth v. Lopez, 485 Mass. 471, 477 (2020). See Mass. G.

Evid. § 901(b)(4). Other "confirming circumstances" that may

authenticate text messages include acknowledgement that the

defendant uses the cell phone, acknowledged ownership by a

defendant of the cell phone containing the messages, and whether

the defendant knows or supplies the passwords protecting the

cell phone. See Purdy, 459 Mass. at 450–451. See also Mass. G.

Evid. § 901(b)(11).

Abundant confirming circumstances are present here.

Focusing first on the cell phones from which the text messages

were sent and received, each was registered to the defendant's

and the victim's e-mail accounts, respectively. Cf. Lopez, 485

Mass. at 478 (fact that defendant lived with victim who owned

cell phone from which text messages were sent confirming

circumstance of defendant's authorship of messages). Both were

password protected. Indeed, Swan testified that he had to use

specialized software to break into the cell phones. Compare 29

Commonwealth v. Williams, 456 Mass. 857, 869 (2010) (messages

sent from social media webpage unauthenticated where "no

testimony . . . regarding how secure such a Web page is, who can

access a Myspace Web page, [or] whether codes are needed for

such access"). Finally, officers found the cell phones with the

defendant and the victim on the night of the killing.

Testimony about the text messages' contents further linked

them to the defendant. See Purdy, 459 Mass. at 450-451 (e-mail

account's secure nature combined with its contents authenticated

messages). The messages were replete with details of the

defendant's and the victim's lives, including the tensions

within their relationship, aspects of their living arrangements,

and the suspension of the defendant's driver's license from his

OUI charge. See Commonwealth v. Alden, 93 Mass. App. Ct. 438,

441 (2018), cert. denied, 139 S. Ct. 2010 (2019) ("In addition

to the content of the text messages, [victim's] prior

relationship with the defendant and her use of the telephone

number to communicate with him over a significant period of time

provided the necessary link").

Various text messages from the victim's cell phone to the

defendant's cell phone, for example, referenced the defendant's

distinctive nickname. Circumstances beyond the text messages

tie this name to the defendant. Specifically, one message from

the defendant describes how he intended to deliver the victim 30

flowers on Valentine's Day. The defendant later remarked to a

bartender how he had bought the victim flowers for the holiday.

When officers arrived at the victim's apartment on February 20,

they found flowers with a card inscribed with the defendant's

distinctive nickname. Cf. Commonwealth v. Johnson, 470 Mass.

300, 317-318 (2014) (e-mail messages authenticated "given the

long-standing relationship between [the joint venturer] and the

defendants, the defendants' prior use of the e-mail address at

the time of the scheme, and the referencing of the harassing

acts in the e-mails," which were independently observed). See

Commonwealth v. Nardi, 452 Mass. 379, 396 (2008), quoting

Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977)

(authentication may be established through testimony "that

circumstances exist which imply that the thing is what its

proponent represents it to be"). Taking all these confirming

circumstances together, the evidence authenticating the text

messages was overwhelming.

Against this conclusion, the defendant suggests that the

text messages could have been authored by someone else, pointing

to the lack of evidence about how regularly he may have needed

to enter his password to use the cell phone, that there was no

evidence about who else may have had access to the password, and

that the card on the flowers may have been authored by an

unidentified party. Maybe that is so. The defendant's claim, 31

however, that another person may have authored either the text

messages or the card is relevant to their weight, not their

admissibility. Purdy, 459 Mass. at 451. The Commonwealth

presented more than an ample foundation for the judge to

determine that a reasonable jury could find by a preponderance

of the evidence that the defendant authored the text messages.

b. Prior bad acts. The defendant next argues that the

trial judge erred in allowing in evidence certain prior bad acts

evidence. "We have long held that '[e]vidence of prior bad acts

is not admissible to show that the defendant has a criminal

propensity or is of bad character.'" Andre, 484 Mass. at 414,

quoting Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991). See

Mass. G. Evid. § 404(b)(1). "However, such evidence is

admissible when offered for another purpose, such as motive,

opportunity, intent, preparation, plan, knowledge, identity, or

pattern of operation, so long as its probative value for that

purpose is not outweighed by its prejudicial effect."

Commonwealth v. Hall, 485 Mass. 145, 163 (2020), citing

Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). "[T]he

application of [limiting] instructions ordinarily renders any

potentially prejudicial evidence harmless." Crayton, supra at

251, quoting Commonwealth v. Donahue, 430 Mass. 710, 718 (2000).

i. OUI charge. At trial, the Commonwealth introduced

evidence that the defendant had been arrested for OUI the week 32

before the killing, arguing that the victim's unwillingness to

post bail was a motivating factor in the defendant's decision to

kill her. On appeal, the defendant argues that any relationship

between the OUI and an alleged motive is slight, and that its

introduction served only to tarnish his reputation. Because the

defendant preserved the issue, we review for prejudicial error.

See Commonwealth v. McDonagh, 480 Mass. 131, 142 (2018). We

find none.

Evidence concerning the OUI charge was relevant to show the

deterioration of the defendant and the victim's relationship and

thus provide a motive for why he killed her. See, e.g.,

Commonwealth v. Mason, 485 Mass. 520, 532 (2020) (prior bad acts

evidence "provided context for the defendant's hostility toward"

victim); Commonwealth v. Sharpe, 454 Mass. 135, 144-145 (2009)

(prior bad acts evidence "relevant to show the existence of a

hostile relationship"); Commonwealth v. Mendes, 441 Mass. 459,

464-465 (2004) ("Evidence of the hostile relationship between

the defendant and his wife was not offered as improper

propensity evidence, as the defendant contends, but also as

evidence of his motive to kill her"). At trial, the officer who

arrested the defendant for the OUI testified that, during the

arrest, the defendant explained that he had just been in a fight

with his girlfriend. Text messages between the victim and the

defendant, as well as witness testimony, established that he had 33

recently been fired from his job, was financially strapped, and

was increasingly anxious. For example, one witness testified

that on the evening leading up to the killing, the defendant was

aggravated by the victim's refusal to post his bail for the OUI

charge.

Whatever prejudicial effect this evidence had on the

defendant was slight when considered in the context of the rest

of the evidence that the Commonwealth presented and the crime

for which the defendant was on trial. In any event, the judge

instructed the jury not to consider the OUI as evidence of the

defendant's propensity to commit the crime charged in the

indictment. See Commonwealth v. Bryant, 482 Mass. 731, 737

(2019) (jury presumed to follow judge's limiting instructions

concerning prior bad act evidence). Therefore, the judge did

not abuse his discretion.

ii. Text messages about a work-related dispute. The

Commonwealth also presented text messages between the defendant

and the victim concerning a dispute that the defendant had with

former coworkers, arguing that the exchange was relevant to

prove motive. The dispute, which led to the defendant being

fired, involved a physical altercation between the defendant and

his coworkers. On appeal, the defendant contends that the text

messages about the dispute bore only a "very tenuous" connection

to the crime with which he was charged. Because the defendant 34

did not preserve this issue, we review "for a substantial

likelihood of a miscarriage of justice."11 Commonwealth v.

Upton, 484 Mass. 155, 160 (2020). A brief description of these

exchanges demonstrates that their link to the crime was far from

tenuous.

At the time of the killing, the defendant recently had been

fired from his job at a local restaurant. The victim also

worked there and continued to do so after the defendant had been

terminated. Through a series of text messages to the victim in

the days leading up to the killing, the defendant ranted about

perceived wrongs done to him by former coworkers. The victim's

answers varied from seeking to change the subject to trying to

calm the defendant down. Yet in response to the victim's

attempts to extricate herself from the exchanges, the defendant

turned his ire on her, alleging that the victim was like his

former coworkers: aloof to his struggles. Several instances of

this pattern occur in the exchanges.12 After further analogous

11The defendant claims that the issue is preserved because of the motion in limine he filed to exclude the text messages. However, the only motion concerning the text messages filed by the defendant dealt with the authentication issue and did not raise the prior bad acts issue. A different motion in limine did object to prior bad act evidence, but that referenced only the OUI testimony.

12For example, in response to the victim telling the defendant to "calm down," the defendant wrote: "You don't care about me either apparently. That makes it easier for me to just say fuck you too. You'd be better off working at something you 35

back-and-forth exchanges, the victim appears to have grown weary

not only of the dialogue, but also of the defendant, telling

him, "Whatever. Evacuate my house immediately." As the

defendant continued to complain about work-related problems, the

victim repeated that she wanted him to leave her apartment.

Although the impetus for these exchanges is a work-related

dispute, their connection to the defendant and the victim's

relationship is not "tenuous." Like the OUI, the text messages

demonstrated motive. Throughout the exchanges, the defendant

connected his complaints about his former coworkers and employer

to the victim, eventually blaming the latter for his

misfortunes. In doing so, the text messages showcased the

defendant's palpable anger with the victim. Whatever

prejudicial effect the text messages had did not outweigh their

significant probative value. We discern no error.

3. Motion for a new trial. After being convicted, the

defendant moved for a new trial, claiming that his trial counsel

had been ineffective. Specifically, the defendant argued that

he and his trial counsel had been unable to communicate

want to do." The defendant quickly followed up this message with another one stating: "I have less problem destroying [the defendant's former employer] now." In another instance, after the victim told the defendant to leave her apartment, he wrote to her: "Talk to me when either you or [a former coworker] grows a conscience. You would have done what I'm doing now long ago if you were me. I would bet my life on it." 36

effectively. The judge, who had also been the trial judge,

denied the motion without holding an evidentiary hearing. On

appeal, the defendant argues that the judge erred in denying the

defendant's motion without holding an evidentiary hearing.

A judge may rule on a motion for a new trial, without an

evidentiary hearing, if no substantial issue is raised in the

motion or affidavits. Upton, 484 Mass. at 161. "In determining

whether a substantial issue exists, 'a judge considers the

seriousness of the issues raised and the adequacy of the

defendant's showing on those issues.'" Id. at 162, quoting

Commonwealth v. Barry, 481 Mass. 388, 401, cert. denied, 140

S. Ct. 51 (2019). In terms of the first prong, there is no

dispute. "A claim of ineffective assistance of counsel . . .

readily qualifies as a serious issue." Commonwealth v. Lys, 481

Mass. 1, 6 (2018), quoting Commonwealth v. Denis, 442 Mass. 617,

629 (2004).

Turning next to the adequacy of the showing, "the

defendant's submissions 'need not prove the [motion's] factual

premise . . . but they must contain sufficient credible

information to cast doubt on the issue.'" Upton, 484 Mass. at

162, quoting Commonwealth v. Goodreau, 442 Mass. 341, 348

(2004). "Where, as here, the motion judge is also the trial

judge, he may use his 'knowledge and evaluation of the evidence

at trial in determining whether to decide the motion for a new 37

trial without an evidentiary hearing.'" Commonwealth v. Riley,

467 Mass. 799, 826 (2014), quoting Commonwealth v. Wallis, 440

Mass. 589, 596 (2003). "We review a judge's decision to deny a

motion for a new trial without holding an evidentiary hearing

'for a significant error of law or other abuse of discretion'"

(citation omitted). Upton, supra.

The judge did not abuse his discretion. Because the judge

also had presided over the trial, he was able to observe how the

defendant and his trial counsel interacted. What he observed

indicates that any communication issues were likely of the

defendant's own making.13 For example, during a status

conference, the defendant's trial counsel informed the judge

that he had just learned, by receipt of a package from the

Office of Bar Counsel, that the defendant had filed a complaint

against him. Trial counsel was unaware whether the defendant

wanted to continue being represented by him. When asked by the

judge about this issue, the defendant expressed his interest in

continuing to be represented because, since he had submitted his

complaint, he had witnessed the effectiveness of his counsel.

The defendant then opted to withdraw the complaint,

13By the conclusion of his trial, the defendant had been represented by two attorneys (one as full trial counsel and another initially as standby counsel and then also as full trial counsel), each attorney had moved to withdraw, and the defendant had moved pro se to dismiss his counsel. 38

acknowledging that his own stubbornness likely factored into the

friction between him and his attorney.

Although the defendant stated in an affidavit in support of

his motion for a new trial that he had felt anxious and fearful

toward his trial counsel, the judge did not credit these

assertions. Nor, for that matter, did the judge have to credit

them. See Commonwealth v. Marrero, 459 Mass. 235, 241 (2011),

quoting Commonwealth v. Lucien, 440 Mass. 658, 672–673 (2004)

("The judge was entitled to reject summarily any claim supported

only by the defendant's self-serving affidavits, and infer from

his own observation of the defendant and counsel at trial that

they were conferring over precisely the matter the defendant now

claims was never discussed"). We thus discern no error.

4. Review under G. L. c. 278, § 33E. Finally, the

defendant asks this court to exercise its discretion under G. L.

c. 278, § 33E, either to "order a new trial" or to "direct the

entry of a verdict of a lesser degree of guilt, and remand the

case to the superior court for the imposition of sentence." To

this end, the defendant argues that a combination of mental

illnesses, substance use disorders, and trauma indicate that the

killing reflected spontaneity, not premeditation.14 We disagree.

14Specifically, the defendant has a history of obsessive compulsive disorder, posttraumatic stress disorder, dysthymic disorder, alcohol dependence, and narcissistic, borderline, and passive aggressive personality traits. He has a history of 39

The defendant's mental illnesses, although serious, do not

demonstrate that he was "driven by [his] mental condition" alone

to kill the victim. Commonwealth v. Colleran, 452 Mass. 417,

434 (2008). See Commonwealth v. Concepcion, 487 Mass. 77, 95

(2021) ("Mental illness alone is generally insufficient to

support a verdict reduction under G. L. c. 278, § 33E"). On the

contrary, rather than a "bolt from the blue," the victim's death

was preceded by growing hostilities between her and the

defendant. Compare Colleran, supra at 433 ("There appears to

have been no hostile relationship between the defendant and the

victim"); Commonwealth v. Dalton, 385 Mass. 190, 196-197 (1982)

(verdict reduced to murder in second degree where defendant and

victim had good relationship and no motive was apparent). These

tensions culminated in a frantic emergency telephone call from

the victim followed by her throat being slashed and her death.

Amidst these developments, a jury could have found that the

defendant formed the intent to cause the victim's death. See

Commonwealth v. Robinson, 482 Mass. 741, 746 (2019), quoting

Commonwealth v. Chipman, 418 Mass. 262, 269 (1994) ("The law

recognizes that a plan to murder may be formed within a few

seconds").

suicidal ideations and attempts to commit suicide, and had been prescribed four medications to help manage his mental health. The defendant also reported a history of homelessness and being the victim of two rapes that went unprosecuted. 40

We have reviewed the entire record of this case pursuant to

our responsibilities under G. L. c. 278, § 33E. We conclude

that there is no basis for reducing the defendant's sentence on

the murder conviction or ordering a new trial.

Judgment affirmed.

Order denying motion for a new trial affirmed.