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SJC-10709
COMMONWEALTH vs. DEREK WOOLLAM.
Bristol. October 6, 2017. - December 13, 2017.
Present: Gants, C.J., Gaziano, Budd, Cypher, & Kafker, JJ.
Homicide. Constitutional Law, Grand jury, Assistance of counsel, Admissions and confessions, Voluntariness of statement. Due Process of Law, Grand jury proceedings, Assistance of counsel. Grand Jury. Cellular Telephone. Evidence, Grand jury proceedings, Authentication, State of mind, Motive, Consciousness of guilt, Bias of government witness, Prior misconduct, Admissions and confessions, Voluntariness of statement. Witness, Bias. Practice, Criminal, Capital case, Grand jury proceedings, Assistance of counsel, Conduct of prosecutor, Admissions and confessions, Voluntariness of statement.
Indictments found and returned in the Superior Court Department on March 29, 2007, and April 17, 2008.
A pretrial motion to suppress evidence was heard by Robert J. Kane, J.; the cases were tried before Barbara A. Dortch- Okara, J.; and a motion for a new trial, filed on May 29, 2013, was heard by Renee P. Dupuis, J.
David H. Mirsky (Joanne Petito also present) for the defendant. Yul-mi Cho, Assistant District Attorney, for the Commonwealth. 2
BUDD, J. In February, 2009, a jury convicted the
defendant, Derek Woollam, of murder in the first degree on a
theory of deliberate premeditation in connection with the
shooting death of John Oliveira in July, 2006.1 In this appeal,
the defendant asserts error in the unauthorized presence of
police officers in the grand jury room during the presentation
of witness testimony in support of the indictments against him,
as well as the admission of certain evidence at trial due to
ineffective assistance of counsel and prosecutorial misconduct.
He also seeks relief under G. L. c. 278, § 33E. After full
consideration of the record and the defendant's arguments, we
affirm his convictions and the denial of his motion for a new
trial, and we decline to grant extraordinary relief pursuant to
G. L. c. 278, § 33E.
Background. We summarize the evidence that the jury could
have found, reserving certain details for discussion of specific
issues.
1. The drug operation. In 2006, John Oliveira ran a
large-scale drug operation out of a studio apartment in a duplex
in Swansea. At the time of his death, he had two "employees":
the defendant, who delivered marijuana to customers and
collected the money; and Dylan Hodgate, who broke down the
1 Derek Woollam was also convicted of trafficking in a controlled substance. 3
larger quantities of marijuana and repackaged them into smaller
bags. Oliveira's girl friend lived in the other apartment in
the duplex.
Oliveira had several rules in connection with his drug
business, all designed to protect the operation and minimize
detection. For instance, the exterior doors were always to be
kept locked, no others could be brought to the house, and one of
the four of them was always to be present at the house.
Further, the defendant, the girl friend, and Hodgate were
prohibited from being under the influence of drugs.
In January or February of 2006, Oliveira's girl friend
discovered that the defendant was using drugs, and began
procuring pills from him. The defendant and Oliveira's girl
friend agreed not to tell Oliveira about their use of pills.
Over the course of several months, the relationship between
Oliveira and the defendant deteriorated. Oliveira complained to
his girl friend that the defendant was "never on time," was "a
slacker," and "wasn't doing what he was supposed to do."
2. The shooting. On July 4, 2006, Oliveira discovered a
text message from his girl friend on the defendant's cellular
telephone (cellphone) asking the defendant for pills. Oliveira
was very upset and told the defendant, "You broke the rules."
When the defendant lied and said that the pills were likely for
the girl friend's cousin, Oliveira said that he would speak to 4
the girl friend that night and would "let [the defendant] know"
after that. Oliveira sent a text message to his girl friend to
let her know that he was "pissed," and that he would be coming
by the apartment to discuss the matter, warning her "not [to]
lie."
Later that night, although Oliveira and his girl friend had
seemingly resolved the matter, he was still angry with the
defendant. At approximately 12:15 A.M., Oliveira received a
telephone call and told his girl friend that he was going to
pick up Hodgate and would be right back. He never returned.
The last call made from Oliveira's cellphone was to
Hodgate's cellphone at 1:28 A.M. At approximately 1:43 A.M., a
Swansea police officer on routine patrol saw a black Mercury
Sable (the make, model, and color of the defendant's automobile)
pull out of the driveway of the house with two people inside.
The next morning, Oliveira's girl friend saw Oliveira's
automobile in the driveway. The interior door to the studio
apartment was locked, and there was no answer when she knocked.
This was unusual because Hodgate was normally supposed to be
there during the day. She was unable to reach Oliveira, the
defendant, or Hodgate by telephone despite many attempts over
the course of the day. When she returned later that afternoon,
Oliveira's automobile was in the same spot. When she knocked on
the studio apartment door, there was still no answer, and she 5
noticed that the television inside was abnormally loud.
Eventually, she discovered that the exterior back door to the
studio apartment was unlocked. When she entered, she found
Oliveira's body lying in a pool of blood. He had been shot
several times and was cold to the touch.
An autopsy revealed that Oliveira had been shot four times.
Two shots to the head were fatal: one bullet entered through
the left cheek, and a second entered through the right forehead.
The location and path of a third bullet, which entered the lower
right side of his torso, was consistent with Oliveira having
been shot while lying on his back. The fourth bullet grazed the
back of his head.
3. The aftermath. Soon after Oliveira's girl friend
discovered the body, the defendant arrived. Before the police
were called, the defendant removed marijuana in large duffel
bags from the studio apartment and left with them in his black
four-door automobile.
Over the next few days, the defendant enlisted help from
others to distribute the marijuana that came from the studio
apartment, and to clear out a storage locker in his name
containing guns and ammunition. He also removed the batteries
and subscriber identity module (SIM) cards from his cellphones
to avoid being tracked. He admitted to one of the people who
assisted him, Michael Pacheco, that he killed the victim because 6
he believed that the victim was going to kill him after learning
about the pills, and that Oliveira suspected that the defendant
was having an affair with Oliveira's girl friend. One to two
weeks later, the defendant and Pacheco went together to burn a
bag containing the sneakers and clothes from the night of the
shooting.
4. The defendant's case. The defendant, who testified at
trial, denied killing the victim. He also attacked the
credibility of the Commonwealth's witnesses and cast doubt on
the thoroughness of the police investigation, as well as the
conclusiveness of the physical evidence, noting that the
Commonwealth did not produce incriminating fingerprint or
deoxyribonucleic acid evidence. Finally, he also raised the
possibility of a third-party culprit, which included Hodgate,
Mexican drug dealers, and a tall, white male who hung around a
local bar.
Discussion. The issues that the defendant raises in his
direct appeal are the same ones he raised in his motion for a
new trial. He argues that the presence of investigating police
officers in the grand jury room during witness testimony
resulted in structural error requiring the reversal of his
convictions, and that it was ineffective assistance for his
counsel to fail to move to dismiss the indictments. He further
claims ineffective assistance in trial counsel's failure to 7
object to the admission of certain cellphone record evidence,
failure to object to the admission of evidence of his bad
character, and failure to rebut the false testimony of a
cooperating witness.2 Finally, the defendant claims that the
admission of statements he made during an interview with police
violated his Miranda rights. We examine each claim in turn.
1. Unauthorized police presence in the grand jury room.
During the Commonwealth's presentation to the grand jury in
support of indictments against the defendant, one or both of two
police officers involved in the investigation were present in
the grand jury room for most, if not all, of the witnesses'
testimony. The defendant contends that the error, conceded by
the Commonwealth, requires not only the vacatur of his
convictions but also the dismissal of the indictments under the
United States Constitution and the Massachusetts Declaration of
Rights.
The presence of an unauthorized person before a grand jury
will void an indictment where a defendant challenges that
indictment prior to trial. See Commonwealth v. Holley, 476
Mass. 114, 119 (2016); Commonwealth v. Pezzano, 387 Mass. 69,
70, 72-73, 76 (1982). However, where, as here, the defendant
failed to raise the issue until after he was convicted, the
2 The defendant additionally claims that it was prosecutorial misconduct for the prosecutor to allow the cooperating witness to testify falsely. 8
indictments will be voided only where he can show that the
"grand jury irregularity caused a substantial likelihood of a
miscarriage of justice in the trial jury's verdict[s]." Holley,
supra at 119-120.
Here, as in Holley, the defendant has not demonstrated that
the presence of unauthorized parties in the grand jury room led
to a substantial likelihood of a miscarriage of justice. Id. at
120. He has not alleged that the presence of the police
officers caused grand jury witnesses to feel "coerced or
intimidated." Id. Many of the witnesses before the grand jury
were also witnesses at trial, where they were subject to the
defendant's cross-examination, and none of the grand jury
testimony was admitted substantively at trial. Finally, the
petit jury convicted the defendant based on the standard of
beyond a reasonable doubt -- a much more stringent standard than
the probable cause standard required for an indictment. See
United States v. Mechanik, 475 U.S. 66, 67 (1986). Assuming
that it was error for the defendant's counsel not to challenge
the indictments by way of a motion to dismiss, his claim for
ineffective assistance of counsel on this aspect of his appeal
must also fail because he failed to demonstrate a substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014)
(under § 33E review, ineffective assistance of counsel claim is 9
reviewed under substantial likelihood of miscarriage of justice
standard).
2. Cellphone records. The defendant claims that his trial
counsel was ineffective for failing to object to the admission
of a variety of cellphone records, including records of call
metadata,3 text messages, and a summary chart. The defendant
cannot show that his counsel's failure to object led to a
substantial likelihood of a miscarriage of justice because the
records were admissible. See Wright, 411 Mass. at 681-682.
First, the cellphone call logs were introduced at trial to
show that the defendant did not make calls to the victim after
his death. These call logs constitute computer-generated
records. See Commonwealth v. Thissell, 457 Mass. 191, 197 n.13
(2010) (differentiating between "computer-generated records,"
which are generated solely by electrical or mechanical operation
of computer, and "computer-stored records," which are generated
by humans and contain statements implicating hearsay rule). As
a matter of evidence law, the computer-generated records at
issue here do not contain a statement from a person, and
therefore, they do not raise hearsay concerns. See id.; Mass.
G. Evid. § 801(a) (2017) (defining "[s]tatement" as "a person's
3 "Metadata" refers to information about telephone calls other than the actual content of the calls, such as the numbers of the callers and the times and dates of calls placed and received. 10
oral assertion, written assertion, or nonverbal conduct, if the
person intended it as an assertion"). Accordingly, there was no
legal basis to object to the call logs on hearsay grounds.
Given that the call logs at issue do not present hearsay
concerns, their admissibility depends on whether those records
were properly authenticated. See Mass. G. Evid. § 901(a) (2017)
("[t]o 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"). See also Thissell, 457 Mass. at 197
n.13 (reliability concerns are resolved by "authentication of
the generative process that created the records"). An objection
to the authentication of these records, however, would have been
futile at trial, as it simply would have caused the Commonwealth
to call witnesses who would have been able to authenticate them.
See Commonwealth v. Housen, 458 Mass. 702, 712 (2011).
Second, the text messages, which were offered to show proof
of motive for the killing, were admissible under the state of
mind exception to the hearsay rule, which "calls for admission
of evidence of a murder victim's state of mind as proof of the
defendant's motive to kill the victim when . . . there also is
evidence that the defendant was aware of that state of mind at
the time of the crime and would be likely to respond to it."
Commonwealth v. Tassinari, 466 Mass. 340, 347 (2013), quoting 11
Commonwealth v. Qualls, 425 Mass. 163, 167 (1997), S.C., 440
Mass. 576 (2003). In this case, text messages from Oliveira to
his girl friend indicated his anger upon learning about her
request for pills from the defendant.4 Because there was
evidence that the defendant was aware that Oliveira was angry
that he apparently was supplying pills to Oliveira's girl
friend, Oliveira's state of mind was relevant. See Tassinari,
supra, quoting Qualls, supra. Here, too, there was no viable
authentication argument to be made, because a State police
trooper testified to how he had extracted the messages from
Oliveira's girl friend's cellphone. Thus, it was not error for
trial counsel to fail to object to the text messages.
Finally, the summary chart was admissible as an accurate
compilation of underlying records that had been admitted in
evidence. See Commonwealth v. Carnes, 457 Mass. 812, 825
(2010). As we explained supra, each of the exhibits from which
the summary chart was created was properly admitted. A hearsay
objection would have been unavailing.
3. Character evidence. The defendant argues that his
trial counsel was ineffective for failing to object to improper
"bad character" evidence presented via Oliveira's girl friend,
4 The messages stated in part: "I will be by later. Make sure you dont leave cause i have to talk to you. And i want you to answer my questions truthfully"; "Do not lie to me when we talk"; and "I am pissed." 12
who testified about the change in the defendant's demeanor when
he was abusing pills:
Q.: "Now, did you notice some change in [the defendant's] behavior in the months prior to John Oliveira's death?"
. . .
A.: "He seemed to have a different demeanor. I always knew Derek as being very laid back, very friendly, very polite, very respectful. After a little while of him using I noticed he seemed to be a little more aggressive, not as laid-back as he used to be. He wouldn't keep up with himself like he used to, he used to always look nice, kind of almost let himself go, for lack of better words. So it was definitely a change in his demeanor and appearance."
Q.: "Okay. And what about in his behavior?"
A.: "Yes, he had become more aggressive, a little more violent. He just -- he just -- he wasn't Derek, he wasn't the Derek I had met."
The defendant claims that trial counsel should have objected to
the testimony that he became "more aggressive, a little more
violent," and "wasn't the Derek [she] had met."
"It is well settled that the prosecution may not introduce
evidence that a defendant previously has misbehaved, indictably
or not, for the purposes of showing his bad character or
propensity to commit the crime charged, but such evidence may be
admissible if relevant for some other purpose." Commonwealth v.
Helfant, 398 Mass. 214, 224 (1986), and cases cited. See also
Mass. G. Evid. § 404(b) (2010). Such evidence may be
admissible, however, to show, for example, "a common scheme,
pattern of operation, absence of accident or mistake, identity, 13
intent, or motive." Helfant, supra.
The Commonwealth argues that the testimony regarding the
changes in the defendant once he began using drugs helped to
demonstrate his motive for the killing.5 Upon review, we
conclude that the point that the defendant's appearance and
demeanor deteriorated over time was amply made without the
additional testimony that he had become "a little more violent,"
which, while relevant, was more prejudicial than probative.6 See
Commonwealth v. Montrond, 477 Mass. 127, 136-137 (2017).
Nevertheless, we conclude that there was no substantial
likelihood of a miscarriage of justice because we are
"substantially confident" that defense counsel's failure to
object did not "alter the jury's verdict," given the
considerable evidence of the defendant's guilt, as detailed
below. See id. at 137, quoting Commonwealth v. Alcide, 472 Mass.
150, 157 (2015).
a. Motive. The Commonwealth presented evidence that by
the time Oliveira was killed, the relationship between Oliveira
and the defendant had soured considerably. Oliveira, who was
already unhappy with the defendant's work habits, learned that
5 The testimony about the defendant's change in appearance and demeanor once he started to abuse pills provided a potential explanation for why his drug dealing performance slipped and the corresponding deterioration of his relationship with Oliveira. 6 We see nothing wrong with the testimony that the defendant was "more aggressive" and "wasn't the Derek [she] had met." 14
the defendant was giving Oliveira's girl friend pills. The
defendant knew that breaking this rule crossed a line and could
cause him to lose his position in the drug dealing operation or
worse. Oliveira's girl friend testified that the defendant told
her that, if Oliveira ever found out that the defendant was
using drugs, Oliveira would "kill" him. The defendant himself
testified that he and Oliveira argued in the early evening of
July 4 about the pills, and again later that night before
Oliveira was killed. The Commonwealth posited that the
defendant killed Oliveira because he wanted to avoid losing his
position or other negative consequences, and because he was
tired of following Oliveira's rules. The defendant's feelings
were laid bare when, upon telling one witness that Oliveira was
dead, he told her that he hoped Oliveira would "rot[] in hell."
b. Opportunity and means. The jury also could have found
that the defendant had both the opportunity and the means to
commit the crime. Oliveira was shot and killed in the studio
apartment, and there were no signs of a break-in. Only three
people had keys to that apartment where the marijuana was kept:
Oliveira, the defendant, and Hodgate. The location of the
studio apartment, which was used as a stash house, was secret.
No one was allowed to be there except the three above-mentioned 15
men and Oliveira's girl friend.7
The defendant told a witness that he was at the studio
apartment arguing with Oliveira sometime between midnight and 1
A.M. on July 5. His automobile was seen leaving the premises at
1:43 A.M. When Oliveira's girl friend attempted to enter the
studio apartment from the common hallway of the duplex the next
morning, she found it locked, despite the fact that the interior
door was usually left unlocked. A witness who owned the
business next door to the duplex observed a black four-door
automobile parked in the driveway for a few minutes at
approximately 1 P.M. When Oliveira's girl friend returned later
in the afternoon, the volume on the television inside the studio
apartment was turned up unusually high, and, while the interior
door was still locked, the exterior door to the studio apartment
had been left unlocked, which was unusual given the rules about
securing the stash house location.
Finally, there was evidence that the defendant had access
to firearms. He asked one acquaintance to remove the firearms
from a storage unit in his name. The defendant told an
acquaintance that he owned two nine millimeter firearms.
7 Although the defendant pressed the theory of a third-party culprit throughout the trial, the odds of a third-party culprit other than Hodgate knowing about the location of, and being able to access, the studio apartment to shoot Oliveira are negligible. Hodgate was tried and acquitted of the killing in 2011. 16
Investigators recovered from the scene of the shooting nine
millimeter bullet casings and both a bullet and two casings from
a .22 caliber handgun.
c. Consciousness of guilt. The Commonwealth also
presented evidence to show the defendant's consciousness of
guilt.
The defendant's behavior indicated that he knew that
Oliveira was dead well before he claimed to have discovered the
body. The defendant testified that he discovered Oliveira's
body at approximately 3:15 P.M. on July 5. Despite this, the
defendant did not attempt to telephone Oliveira after 1:28 A.M.,
even after Oliveira's brother telephoned the defendant looking
for Oliveira. Nor did the defendant answer calls from
Oliveira's girl friend that day.
Once Oliveira's body was discovered, the defendant's
primary concern was moving the marijuana and firearms and
disabling his telephones so that he could not be located.
Finally, the defendant told different stories to different
parties in the aftermath of the shooting, including, but not
limited to, telling Oliveira's girl friend that he did not know
what happened and telling another associate that he and Oliveira
got into an altercation with two men at a club in Providence,
Rhode Island, in which shots were fired, and that Oliveira never 17
came home.8
d. The admission of guilt and other incriminating
evidence. Perhaps the strongest evidence of the defendant's
guilt was Pacheco's corroborated testimony that the defendant
confessed to the killing. The defendant told Pacheco that he
shot Oliveira in the head, and again in the chest because
Oliveira would not die. This account was corroborated by the
testimony of the medical examiner who testified that (1)
Oliveira was shot both in the head and in the torso; (2) the
shot in the torso was consistent with Oliveira lying on his back
at the time; and (3) when a person is shot in the head, he or
she would lose consciousness but might have involuntary movement
of the extremities, consistent with the defendant's account of
how the victim "wouldn't die."
Further, Pacheco's testimony that the defendant burned
items he wore on the night of the shooting was corroborated by
the fact that, months later, investigators found the burned
remains of sneakers and a zipper fly and, separately, a
weathered gasoline can in the areas indicated by Pacheco.
In addition, the defendant knew or appeared to know
information that only one who was present during the shooting
would know. This included the fact that Oliveira was shot in
8 Although clearly not dispositive, the defendant did not attend either Oliveira's wake or funeral despite claiming Oliveira was his "best friend." 18
the back of the head, which was a detail that the medical
examiner was able to ascertain only upon shaving Oliveira's head
in preparation for the autopsy. The defendant also indicated to
two people that he thought that two different types of firearms
were used in the shooting, including a nine millimeter and a
higher-powered firearm, based on the size of the bullet holes.
The medical examiner was not able to conclude that two different
caliber firearms were used merely by examining the body;
however, he recovered a small caliber projectile consistent with
a bullet from a .22 caliber firearm from Oliveira's head, and
two projectiles consistent with a nine millimeter firearm from
underneath and beside Oliveira's body.
Given the significant evidence of guilt, we conclude that
the admission in evidence of the testimony of Oliveira's girl
friend that the defendant had become "a little more violent" did
not cause a substantial likelihood of a miscarriage of justice.9
See Wright, 411 Mass. at 682.
4. Cooperating witness testimony. One of the
Commonwealth's witnesses, Pacheco, testified that the defendant
admitted to shooting Oliveira. During cross-examination,
9 The prosecutor repeated the "bad character" testimony in his closing argument by stating that the defendant had "become violent." However, the prosecutor did not argue that the defendant killed Oliveira because he had become violent. Instead, he raised it in connection with the defendant's motive. It was by no means a principal point of his argument, and he did not dwell on it. 19
Pacheco testified that he had pleaded guilty to thirteen
criminal charges when, in fact, all but one had been dismissed
or placed on file, and the remaining one had been continued
without a finding. The defendant blames both his counsel and
the prosecutor for this error, and argues that ineffective
assistance and prosecutorial misconduct in failing to correct
the record cost him a fair trial. We review both aspects of the
defendant's claim for a substantial likelihood of a miscarriage
of justice, Commonwealth v. Burgos, 462 Mass. 53, 60, cert.
denied, 568 U.S. 1072 (2012), and we find no such substantial
likelihood.
A criminal defendant has a right "to reasonable cross-
examination of a witness for the purpose of showing bias,
particularly where that witness may have a motivation to seek
favor with the government." Commonwealth v. Haywood, 377 Mass.
755, 760 (1979), quoting Commonwealth v. Dougan, 377 Mass. 303,
310 (1979). Here, the defendant received the benefit of a
thorough cross-examination of Pacheco.
First, it is important to note that there was no quid pro
quo agreement involving open cases.10 The consideration Pacheco
10 After Pacheco's grand jury testimony, the Commonwealth relocated him to an undisclosed address and paid his rent for a period of time as a result of a credible threat in connection with his cooperation in this case. In exchange for the relocation benefits, Pacheco agreed that, if called, he would testify truthfully at any future hearings or trial. 20
received on his then-open criminal cases was in exchange for his
testimony in an unrelated drug case. On cross-examination, the
defendant's trial counsel outlined each of Pacheco's thirteen
charges and elicited from Pacheco that he was guilty of each
one. The fact that Pacheco mistakenly testified that he pleaded
guilty rather than having all but one of the charges dismissed
or placed on file was unlikely materially to affect the jury's
evaluation whether he had reason "to seek favor with the
government." See Haywood, 377 Mass. at 760. Trial counsel made
the point that Pacheco received two years of probation in
exchange for information he provided to police on an unrelated
case. There was no substantial likelihood of a miscarriage of
justice. See Commonwealth v. Fisher, 433 Mass. 340, 357 (2001)
("absent counsel's failure to pursue some obviously powerful
form of impeachment available at trial, it is speculative to
conclude that a different approach to impeachment would likely
have affected the jury's conclusion").
Nor was there prosecutorial misconduct. This was not a
situation in which the prosecution allowed a witness to lie
outright, or withheld information about an arrangement from the
defense. See Burgos, 462 Mass. at 62. Instead, there was an
extensive discussion at sidebar regarding Pacheco's criminal
record and arrangements with the Commonwealth. As discussed
above, the jury were made aware of both. "Any equivocation 21
. . . concerning the terms of [the] cooperation agreement
appeared to reflect the witness's uncertainty regarding the
exact contours of the consideration he would receive." Id. at
63. Because the jury were aware that Pacheco was receiving
favorable treatment from the Commonwealth, there was no
substantial likelihood of a miscarriage of justice.
5. Statements to law enforcement. The defendant claims
statements he made during an interview with law enforcement were
improperly admitted at trial, violating his rights under the
Fifth and Fourteenth Amendments to the United States
Constitution and art. 12 of the Massachusetts Declaration of
A defendant's exercise of his or her constitutional right
to the assistance of counsel imposes on the police a duty to
ensure that the defendant's right "to cut off questioning [is]
scrupulously honored." Commonwealth v. Torres, 424 Mass. 792,
795-796 (1997). However, this duty only pertains to custodial
interrogations. Commonwealth v. Groome, 435 Mass. 201, 215-216
(2001). The motion judge ruled that the defendant was not in
custody during the police interview and thus denied the
defendant's motion to suppress the statements he made to police.
"'When reviewing the denial of a motion to suppress, we accept
the [motion] judge's findings of fact . . . absent clear error,'
but we independently determine 'the correctness of the judge's 22
application of constitutional principles to the facts as
found.'" Commonwealth v. Molina, 467 Mass. 65, 72 (2014),
quoting Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011).
We summarize the facts as the motion judge found them. Two
days after Oliveira's death, after consultation with his
attorney, the defendant voluntarily went to the Swansea police
station to be interviewed by a Swansea police detective and
police officer and a State police trooper. At the beginning of
the interview, the detective, who conducted the questioning,
informed the defendant of his Miranda rights, which he indicated
that he understood. The defendant told the investigators that
he would talk about "[s]ome things . . . but not everything."
In response, the detective told him that he could refuse to
answer any question. During the interview, which lasted for
approximately forty-five minutes, the detective spoke in a calm
and even manner. The defendant exhibited neither distress nor
excitement. At one point the defendant told the detective that
he trusted the detective "100 percent." The defendant answered
some open-ended questions, and indicated that he wanted his
lawyer present for others. At a couple of points during the
interview, the defendant invoked the Fifth Amendment, but
continued to speak voluntarily with the investigators. The
questioning stopped when the defendant stated, "Before we go any
further, I would like my lawyer present." The defendant was not 23
arrested and was free to leave at the end of the interview.
A person is in custody whenever he is "deprived of his
freedom of action in any significant way" (citation omitted).
Groome, 435 Mass. at 211. "The determination of custody depends
primarily on the objective circumstances of the interrogation,"
Commonwealth v. Sneed, 440 Mass. 216, 220 (2003), that is,
"whether, considering all the circumstances, a reasonable person
in the defendant's position would have believed that he was in
custody." id., quoting Commonwealth v. Brum, 438 Mass. 103, 111
(2002). In assessing the circumstances, we consider the
following factors:
"(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."
Groome, supra at 211-212.
Here, three of the four factors militate in favor of the
defendant not being subjected to a custodial interrogation.
Throughout the interview, which was investigatory rather than
accusatory, the officers did not suggest to the defendant that
he was a suspect. The officers did not tell him that the police
had any incriminating evidence against him, or even that he was 24
under suspicion. See Brum, 438 Mass. at 112. The interview was
informal: the defendant arrived voluntarily, and during the
course of the relatively short interview, both he and the
detective spoke in calm, even tones. Sneed, 440 Mass. at 221.
Further, the defendant controlled the parameters of the
interview, indicating which questions he would answer and which
he would not. See Groome, 435 Mass. at 213. Finally, the
questioning ended when the detective stated, "Before we go any
further, I would like my lawyer present." He then freely left
the interview, as opposed to being arrested. See Sneed, supra
at 220; Brum, supra.
Although the interview took place at the police station, a
location that could be considered coercive, Commonwealth v.
Bookman, 386 Mass. 657, 660 (1982), given the above, this factor
is not dispositive. Commonwealth v. Sparks, 433 Mass. 654, 657
(2001). See Brum, 438 Mass. at 112.
We agree with the motion judge that the defendant was not
in custody during the questioning, and thus, the question
whether the investigators scrupulously honored his invocation of
his right to counsel goes to voluntariness, an issue which the
defendant waived at trial and did not attempt to resurrect in
his motion for a new trial or his appeal.11 At any rate, in
11 Regardless of whether an individual is determined to have been in custody, his or her statements must have been made 25
reviewing the totality of the circumstances, we agree with the
motion judge's assessment that the defendant's statements were
voluntary. See Commonwealth v. Mandile, 397 Mass. 410, 413
(1986).
6. Review under G. L. c. 278, § 33E. We have reviewed the
briefs and the entire record and discern no reason to reduce the
degree of guilt or grant a new trial pursuant to our powers
under G. L. c. 278, § 33E.
Judgment affirmed.
Order denying motion for a new trial affirmed.
voluntarily to be admissible. Commonwealth v. Brady, 380 Mass. 44, 48 (1980). "A statement is voluntary if it is the product of a 'rational intellect' and a 'free will,' and not induced by physical or psychological coercion." Commonwealth v. LeBlanc, 433 Mass. 549, 554 (2001).