State v. Josue Morillo

• Court: Supreme Court of Rhode Island
• Decided: December 16, 2022
• Docket: 20-4
• Status: Published

Opinion

December 16, 2022

Supreme Court

No. 2020-4-C.A. (K1/16-369C)

Concurrence begins on page 35

State :

v. :

Josue Morillo. :

NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court

Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.

OPINION

Justice Goldberg, for the Court. In the early morning hours of March 26,

2016, Michael Rogers and David Rogers were stabbed in their home in Warwick,

Rhode Island, as they slept in their beds. Michael died.1 The state appeals from a

Superior Court order that granted a motion to suppress two statements given by the

defendant, Josue Morillo (defendant or Morillo), to Warwick police detectives in

the course of their investigation. The state argues that the trial justice erred in

suppressing statements based on his findings that (1) the defendant was in custody

when he voluntarily accompanied the detectives in an unmarked vehicle to search

1 We refer to Michael Rogers and David Rogers by their first names for the sake of clarity because they share the same surname. We intend no disrespect by doing so.

-1- for evidence; (2) the defendant did not knowingly, intelligently, and voluntarily

waive his Miranda rights; and (3) the defendant’s video-recorded statement, made

after his arrest and additional Miranda warnings, was inadmissible in accordance

with Missouri v. Seibert, 542 U.S. 600 (2004).

For the reasons set forth in this opinion, we vacate the order of the Superior

Court and remand this case for limited factual determination by the trial justice

consistent with this decision.

Facts and Travel

On the morning of March 26, 2016, Detective Gilda Fortier of the Warwick

Police Department was called into work and learned that two people were stabbed

at 149 Haswill Street, one of whom suffered life-threatening injuries. The sole

suspect at the time—Jared Rogers (Rogers), a family member—was taken into

custody that afternoon.

On March 29, 2016, Warwick detectives learned of three potential witnesses,

Andrew Soben (Soben), John Ingram (Ingram), and defendant. Detective Fortier

and Detective Thomas DiGregorio2 were assigned to locate and interview Morillo.

The detectives stopped at defendant’s residence and, after speaking with his sister,

were able to connect with Morillo by telephone. The detectives informed Morillo

that, in the course of their investigation, he was identified as a potential witness to

2 Thomas DiGregorio had been promoted to Detective Sergeant by the time of the suppression hearing.

-2- the incident at 149 Haswill Street. Morillo was asked to come to the police

headquarters to speak with them. Morillo agreed.

After waiting a half-hour or so, Det. Fortier called Morillo again to check on

his expected arrival; however, Morillo had already been located at Ingram’s house

in Cranston by Sergeant Falcofsky, who was tasked with locating Ingram. Morillo

and Soben followed Sgt. Falcofsky to police headquarters in Soben’s car, arriving

at approximately 1:35 p.m. Detectives Fortier and DiGregorio conducted a series

of interviews with Morillo throughout the afternoon.3 The facts as relayed by

Morillo changed in each iteration, culminating in a full confession of his

participation in this homicide.

The First Statement

Detective Fortier testified that the first interview commenced around 2

p.m.—approximately twenty-five minutes after Morillo arrived at the station.

Morillo was taken into an interview room, where he was asked how he was

acquainted with Rogers and what he knew about the incident that took place on

March 26. During this initial interview, the detectives learned that Morillo was

with Soben and Ingram in Soben’s car on the night of the stabbing, when they

received a telephone call from Jake Cabral (Cabral). Cabral asked them to pick

3 We recount the evidence concerning four statements from the entire record, including the transcripts from two recorded interviews that took place at the Warwick Police Headquarters, which were played during the evidentiary hearing and admitted as full exhibits.

-3- him up in North Providence, pick Rogers up from Kent Hospital, and give Rogers

a ride home to 149 Haswill Street. According to defendant, upon arriving at

Haswill Street, Soben boosted Rogers through his bedroom window and returned

to the car, at which point Soben, with Morillo, Ingram, and Cabral, drove away—

only to receive a telephone call moments later from Rogers asking them to pick

him up from the parking lot at Warwick Veterans Memorial High School. Morillo

indicated that they complied, and the group then headed towards North Providence

to drop off Cabral and Rogers. Morillo told the detectives that, while driving to

North Providence, Rogers may have thrown some knives out of the vehicle’s

window.

Detective Fortier testified that upon learning that knives may have been

discarded and realizing that Morillo appeared to know more about the incident than

they originally thought, the detectives explained that they were going to conduct a

second interview with an audio recording device.

The Second Statement

Approximately one hour after the first interview began, at 2:58 p.m., Det.

DiGregorio commenced an audio-recorded interview by asking Morillo whether he

(1) came to the police station voluntarily; (2) was giving a statement “freely of

[his] own accord”; and (3) realized that he was free to leave at any time. Morillo

answered each question in the affirmative. Detective DiGregorio also stated to

-4- Morillo: “You realize * * * you’re not gonna be charged with this as long as you

provide * * * correct, accurate information.” Morillo recounted many of the same

details from the first interview; however, he added that at Rogers’s request, Soben

went into the house with Rogers at 149 Haswill Street to pick a lock to an inside

door and came out after six to eight minutes, followed by a “worked-up” Rogers

minutes later. In this second iteration, the group left Haswill Street together and

headed towards North Providence.

Morillo also disclosed that, approximately a quarter-mile to a half-mile

down Airport Connector Road from Post Road, he saw Rogers pull two kitchen

knives out of his sweatshirt pocket and throw the knives toward the side of the

roadway. Morillo described the two knives; one was only the handle of a knife,

with a “wooden tip” and “two stainless steel dots on it[,]” and “the blade was

completely off”; the other was a smaller black kitchen knife, with the blade still

intact. Morillo also believed that Rogers threw a cell phone out of the window of

the car on Interstate 95 in the proximity of the Providence Place Mall. When asked

by Det. DiGregorio whether Morillo would be willing to go with the detectives to

show them where the knives might be located, Morillo agreed. The recorded

interview concluded at 3:32 p.m.

-5- The Third Statement

Immediately after the second interview ended, Morillo, without handcuffs,

along with Dets. Fortier and DiGregorio and Sergeant Scott Robillard, exited

through the rear of police headquarters to an unmarked detective’s car. Morillo

opened the rear door and let himself into the vehicle. Detective Fortier sat in the

back seat next to Morillo; Det. DiGregorio sat in the front passenger’s seat; and,

Sgt. Robillard drove. Morillo told the officers where to stop to search for the

knives; he exited the unlocked door, and walked alongside the road, searching for

the knives. Unsuccessful, the group returned to the vehicle and headed toward the

Providence Place Mall in another futile attempt to locate Rogers’s cell phone in or

on the side of the interstate.

Detective Fortier testified that Morillo began to appear nervous and unsure

of himself and that the detectives began to notice inconsistencies in his story, at

which point Det. DiGregorio advised Morillo of his rights as required by Miranda

v. Arizona, 384 U.S. 436 (1966).4 Detective Fortier documented the time as 5:10

4 Detective Fortier described the circumstances giving rise to the reading of the Miranda warnings as follows:

“A. * * * We took the state office exit going into downtown Providence. And it was at that point, as he’s telling us or recanting the story, there was some inconsistencies to his story. “* * *

-6- p.m., as reflected in her police narrative. According to Det. DiGregorio’s

testimony, because of the inconsistencies in Morillo’s statements and the inability

to corroborate his story about knives or a cell phone, at 5:10 p.m., while the vehicle

was in Providence, he decided to advise Morillo of his rights.5 Detective

“So, * * * he was now coming across as unsure, not as positive as he was in the first place. His demeanor was a little bit more nervous.

“So, at that point, based on not finding any evidence, his inconsistency, his demeanor, it was decided upon [Det.] DiGregorio to read him his Miranda rights at that point.

“Q. Okay. And did he read those rights verbally?

“A. He did. “Q. And in their entirety?

“A. Yes.” 5 Detective DiGregorio testified that, when the vehicle was “right near the Providence Place Mall[,]” he advised Morillo of his rights. The detective testified as follows:

“A. And based on -- he had some inconsistent statements that he made to us during the first and the second interview which were on audiotape. And then I combined that with the fact that we weren’t able to corroborate anything that he was saying in terms of locating evidence.

“So at that point, out of an abundance of caution, what I did was I advised Mr. Morillo of his rights. “Q. Okay. And those were his Miranda rights?

-7- DiGregorio turned around in the vehicle and advised Morillo of his Miranda rights

in their entirety. According to the testimony of both Det. Fortier and Det.

DiGregorio, when asked if he understood those rights, Morillo answered, “Yes.”

The defendant, on the other hand, testified that he had no memory that Det.

DiGregorio was present in the police vehicle and no memory of having been

advised of his rights.

Detective Fortier testified that the detectives then expressed their belief to

Morillo that he was being untruthful and that “he was coming across as [if] he was

obstructing.” Detective Fortier further testified that, until the point when Morillo

was advised of his Miranda rights, she would have permitted him to leave if he

wished to do so, because he was thought to be a witness.

On the way back to headquarters the detectives learned that Morillo might

have thrown a knife from Soben’s car onto Main Avenue in Warwick after the

stabbing. Thus, the group proceeded to Main Avenue, where a patrol vehicle was

“A. Yes.

“Q. And did you read them to him in their entirety?

“A. I did.

“Q. Okay. And did you ask him whether or not he understood those rights?

“A. I did. It was 5:10 [p].[m]. We were in the car. I advised him of his rights verbally. And I asked him if he understood. And he stated that he did.”

-8- already on the scene. According to Det. DiGregorio, the drive from Providence to

Main Avenue took approximately ten to fifteen minutes. Sergeant Robillard and

Det. DiGregorio exited the vehicle to look for a knife, and Det. Fortier and Morillo

remained in the back seat. Detective Fortier testified that while in the back seat

with Morillo she stated, “Everything’s going to be okay. When we get back into

the station, we will have this formal interview. And everything’s going to be all

right. You understand we are talking to all of your other friends as well. So we

will get to the story.” According to Det. Fortier, Morillo then stated: “I know” and

“I stabbed David.”6 At this point, Morillo was arrested, placed in the patrol

vehicle, and transported back to police headquarters, arriving at approximately

6:00 p.m.

The Fourth Statement

At around 6:30 p.m., approximately thirty minutes after arriving at police

headquarters, the detectives commenced an audio-video recorded interview with

Morillo. Detective DiGregorio began by asking Morillo (1) whether he came to

the station earlier that afternoon of his own free will; (2) when he arrived at the

station that day, whether he understood he was free to leave; and (3) if he came

6 It was Morillo’s testimony that, on the way to Main Avenue from Providence, Det. Fortier informed Morillo of what she believed to have occurred, including that “[the detectives] kn[e]w that [Morillo] stabbed David Rogers”; and, after they arrived at Main Avenue, in response to a second assertion from Det. Fortier to Morillo that “[he] stabbed David Rogers[,]” Morillo stated “I stabbed him.” The trial justice did not address this evidentiary conflict.

-9- voluntarily. Morillo answered each question with an affirmative reply. This was

the second time that Morillo acknowledged knowing that he was free to leave.

Significantly, Det. DiGregorio asked Morillo if he remembered being advised of

his Miranda rights at 5:10 p.m., when the detectives began to think that Morillo

was being untruthful and had more involvement than originally suspected; Morillo

answered, “Yeah.” When Morillo was asked if he told the detectives that he

understood those rights, Morillo responded, “Yes, Sir.” The defendant asked no

questions at that time. Detective DiGregorio then asked whether, after being

advised of his rights, Morillo told the officers that he had discarded a knife on

Main Avenue; Morillo stated, “Yeah.”

In response to Det. DiGregorio’s next inquiries, Morillo stated that his

highest level of education was eleventh grade when he dropped out, but that he

participated in online schooling, and that he could read and write in English. Then,

Det. DiGregorio asked, “[s]o when I asked you did you understand your rights, you

can intelligently say yes”; Morillo answered, “Yes.” At this point, Morillo had

verified that he understood the Miranda warnings on three occasions. The

detectives then gave Morillo an “Advisement of Rights” form and asked him to

read the first two rights in the list aloud.7 Morillo did so without difficulty.

7 The Advisement of Rights form listed the following rights:

“You have the right to remain silent.

- 10 - Detective DiGregorio explained that he was going to have Morillo read the

remainder of the rights silently and, “[i]f [he] underst[oo]d them all, [to] initial

next to each one[.]” Before Morillo continued to review the form, Det. DiGregorio

stated: “If you have any questions, ask me.” As he read the form, the only question

Morillo asked was “what am I being charged with?”; to which Det. DiGregorio

responded, “[r]ight now, it looks like you might be charged with assault[.]”

Morillo read and initialed each of the remaining rights and checked off “yes”

to the question: “Do you understand these rights explained to you?” Before

Morillo signed the form, Det. DiGregorio stated: “If you understand your rights

and you want to talk to us, then I’ll go forward and we can talk.” Morillo signed

the form. At the suppression hearing, Morillo testified that he understood his

rights, but that “I only understood the words. I didn’t really understand what they

really meant.” When asked by the prosecutor why he did not tell the detectives

“Anything you say can and will be used against you in a court of law.

“You have the right to talk to a lawyer and have him present with you while you are being questioned.

“If you cannot afford to hire a lawyer, one will be appointed to represent you before any questioning, if you wish.

“You have the right to use a telephone to contact a lawyer at any time. “You can decide at any time to exercise these rights and not answer any questions or make any statements.”

- 11 - that he did not understand the rights, Morillo stated, “I understood what was going

on. I just didn’t understand the severity of the whole scenario.”

Because of the inconsistencies in Morillo’s story concerning his involvement

in the events of March 26, 2016, which evolved from his remaining in the car, to

his active participation in these offenses, the detectives asked Morillo for a

“detailed statement” of what took place from “beginning to end.”

In the final rendition, Morillo explained that, after picking Rogers up from

the hospital and bringing him to 149 Haswill Street, Rogers was expecting to

encounter hostility from persons inside the house; so Soben, Ingram, and Morillo

went inside with Rogers, while Cabral stayed in the car. Prior to entering the

house, Rogers asked Morillo if he had a gun—in Morillo’s opinion, this question

was based on his recent gun charge. Soben boosted Rogers through the window,

and Rogers opened the back door for Soben, Ingram, and Morillo.

According to Morillo, the house was quiet; everyone was sleeping, including

Rogers’s mother, sister, brother, and nephew. Rogers handed everyone a knife and

gave Morillo two knives. Soben went upstairs with Rogers to pick the lock to

Michael’s bedroom door; then, Rogers came downstairs alone and led Morillo and

Ingram to Rogers’s brother David’s bedroom in the basement, where he was

sleeping. Morillo admitted to stabbing David in the stomach, but explained that

the blade snapped. Morillo and Ingram ran upstairs and out the back door, and

- 12 - Rogers remained in the basement struggling with his brother. After Ingram and

Morillo entered the car, followed by Rogers and then Soben, Cabral drove off. As

they approached the intersection of West Shore Road and Main Avenue, three

police vehicles with lights and sirens were heading in the direction of Haswill

Street, prompting Morillo to discard two knives that were in his possession—

neither of which he used to stab David.8 Morillo recanted his earlier statement that

Rogers had thrown a broken knife out the window on Airport Connector Road and

now admitted that he discarded the broken knife as he exited the basement.

The grand jury returned an indictment charging defendant with murder,

conspiracy to commit murder, assault with intent to commit murder, and

conspiracy to commit assault with intent to commit murder. The defendant moved

to suppress all statements he made to the Warwick detectives on the grounds that

“his statements to the police were not freely and voluntarily made after waiving his

Miranda rights[.]”

A four-day suppression hearing ensued, and the trial justice denied the

motion with respect to the first two statements and granted the motion with respect

to the third and fourth statements. The state filed a timely appeal. Additional facts

will be set forth as necessary to the issues before us.

8 According to Morillo, one of the knives he discarded out the car window was a knife he kept in “the side console [of the car] just in case.”

- 13 - Standard of Review

“When reviewing a trial justice’s decision granting or denying a motion to

suppress, we defer to the factual findings of the trial justice[.]” State v. Storey, 8

A.3d 454, 459-60 (R.I. 2010) (quoting State v. Flores, 996 A.2d 156, 160 (R.I.

2010)). This Court “will not overturn a trial justice’s factual findings unless they

are clearly erroneous.” State v. Gonzalez, 254 A.3d 813, 817 (R.I. 2021) (quoting

State v. Tejeda, 171 A.3d 983, 994-95 (R.I. 2017)). “A finding is clearly erroneous

when, although there is evidence to support it, the reviewing court on the basis of

the entire evidence is left with the definite and firm conviction that a mistake has

been committed.” State v. Grayhurst, 852 A.2d 491, 513 (R.I. 2004) (quoting State

v. Briggs, 756 A.2d 731, 736 (R.I. 2000)). “With respect to questions of law and

mixed questions of law and fact involving constitutional issues, however, this

Court engages in a de novo review[.]” State v. Jimenez, 33 A.3d 724, 732 (R.I.

2011) (deletion omitted) (quoting State v. Linde, 876 A.2d 1115, 1124 (R.I. 2005)).

Whether a defendant was in custody and whether a waiver of constitutional rights

was voluntary are questions that are reviewed de novo. See id.; see also State v.

Dumas, 750 A.2d 420, 423 (R.I. 2000).

Analysis

The United States Constitution guarantees that: “No person * * * shall be

compelled in any criminal case to be a witness against himself[.]” U.S. Const.,

- 14 - Amend. V. As such, procedural safeguards designed to protect one’s constitutional

right against self-incrimination have evolved since the landmark holding in

Miranda. See State v. Perez, 422 A.2d 913, 914-15 (R.I. 1980). For instance, in

accordance with Miranda, “prior to custodial interrogation a suspect must receive

explicit warnings concerning his constitutional privilege against self-incrimination

and his right to counsel.” Grayhurst, 852 A.2d at 513 (quoting State v. Amado, 424

A.2d 1057, 1061 (R.I. 1981)). In addition, “before a confession can be used at

trial, the state must establish, by clear and convincing evidence, that the defendant

knowingly and intelligently waived his or her right against self-incrimination and

that the statement was voluntary.” State v. Monteiro, 924 A.2d 784, 790 (R.I.

2007).

In a bench decision, the trial justice found that (1) Morillo was in custody at

the point the officers “placed” him in the unmarked detective’s vehicle; (2) Morillo

“did not knowingly, intelligently, and voluntarily waive his rights” that were given

in the detective’s vehicle; and (3) viewing the fourth statement “in the context of

[Morillo’s third] statement[,]” the Miranda rights preceding the fourth statement

were ineffective in apprising Morillo of his constitutional rights in accordance with

Seibert. The state assigns error to each of these findings, which we address

seriatim.

- 15 - Custody

It is well established that the warnings under Miranda and the application of

the exclusionary rule to statements made in violation thereof arise only when a

suspect is in custody and undergoing police interrogation. See, e.g., State v.

Edwards, 810 A.2d 226, 239 (R.I. 2002). In the absence of a formal arrest,

however, a person is in custody “if, in view of all the circumstances, a reasonable

person would believe that he or she was not free to leave.” Jimenez, 33 A.3d at 732

(quoting State v. Vieira, 913 A.2d 1015, 1020 (R.I. 2007)). In determining

whether a person is in custody, “a court may consider * * *: (1) the extent to which

the person’s freedom is curtailed; (2) the degree of force employed by the police;

(3) the belief of a reasonable, innocent person in identical circumstances; and (4)

whether the person had the option of not accompanying the police.” Briggs, 756

A.2d at 737 (quoting State v. Diaz, 654 A.2d 1195, 1204 (R.I. 1995)).

Although the trial justice found that Morillo was in police custody when he

was “placed” in the detective’s vehicle, he also found, despite defendant’s failure

of memory on this point, that defendant was advised of his Miranda rights while

the vehicle was in Providence and before he admitted that he stabbed David.

Detective Fortier testified that until defendant was advised of his rights, he was

free to leave.

- 16 - The state argues that the custody of defendant commenced at the point when

Det. DiGregorio advised him of his Miranda rights in the police vehicle.9 It is

undisputed, as found by the trial justice, that at the time he admitted to stabbing

David, an admission that triggered his arrest, defendant had been advised of his

rights by Det. DiGregorio. Because both custodial statements that were suppressed

by the trial justice were obtained after the rights as required by Miranda were

administered, we deem it unnecessary to address the issue of custody or when

custody commenced.

We emphasize however, that we take no position on the correctness of the

trial justice’s findings that defendant was in custody at the time he voluntarily

accompanied the detectives in the police vehicle, or the factors that were relied

upon by the trial justice to reach this conclusion, because it is simply irrelevant to

our analysis.

The trial justice did find, however, that the third statement, “I stabbed

David” was not a knowing, intelligent, and voluntary waiver of defendant’s

privilege against self-incrimination. This finding served as the basis for what we

consider to be the erroneous decision by the trial justice to suppress the fourth

statement, based on Seibert, as discussed infra.

9 We note that in response to the Court’s inquiry and to his credit, defense counsel agreed that a custodial interrogation commenced when defendant was advised of his rights.

- 17 - We thus turn to the question of whether the state met its burden of

establishing that the third statement was a knowing, intelligent, and voluntary

waiver of defendant’s constitutional rights.

“I stabbed David.”

After Morillo was advised of his Miranda rights in the vehicle, the

detectives expressed their belief that he was untruthful and that he was obstructing

the investigation. The trial justice set forth several reasons for his conclusion that

defendant’s third statement was not voluntary, but coerced, such that defendant did

not make a knowing and intelligent waiver of the constitutional privilege against

self-incrimination.

We note there is some overlap in the trial justice’s findings concerning the

voluntariness of the third statement. The trial justice focused on what he

characterized as a “forbidden” promise by Det. DiGregorio that defendant would

not “be charged with this as long as [he] provide[d] * * * correct, accurate

information.” Although the trial justice recognized that an investigating officer’s

admonishment to a suspect to tell the truth and a suggestion that cooperation may

be helpful is allowable under the law and does not render a subsequent confession

involuntary, he declared that “a statement that rises to a promise or an unlawful

inducement that could bend an individual’s will” can render a confession

- 18 - involuntary. (Emphasis added.) He failed to specifically find that the “forbidden”

promise did in fact overcome Morillo’s will.

The trial justice also drew an inference that the statement was not voluntary,

based on the duration of the interrogation, defendant’s age and eleventh-grade

education, and the timing of the third statement, which he characterized as “almost

immediately” after the Miranda warnings which, he declared “demonstrate[d] that

the defendant did not truly understand or comprehend the rights that were being

provided to him,” such that he could not reasonably believe he had a right to

remain silent. Because this latter finding is more closely connected with the

question of whether defendant’s admission was knowing, intelligent, and

voluntary—rather than compelled—we first address the so-called promise made by

Det. DiGregorio, which the trial justice relied upon in finding that the statement

was coerced.

A

“The Promise”

The state bears the burden of establishing, by clear and convincing evidence,

that a “defendant knowingly and intelligently waived his or her right against

self-incrimination and that the statement was voluntary.” Monteiro, 924 A.2d at

790. “This inquiry ‘requires an analysis of the totality of the circumstances

- 19 - surrounding the interrogation.’” State v. Bojang, 83 A.3d 526, 533 (R.I. 2014)

(quoting Jimenez, 33 A.3d at 734).

“A voluntary statement is a product of free will and rational choice, whereas

a statement is deemed involuntary when the defendant’s will [i]s overcome by

coercion, threats, violence, or undue influence.” Bojang, 83 A.3d at 533 (quoting

Monteiro, 924 A.2d at 790). “A determination of voluntariness must be made on

the basis of all facts and circumstances, including the behavior of the defendant

and the behavior of the interrogators, and the ultimate test is whether the

defendant’s statements were the product of his free and rational choice * * * or the

result of coercion that had overcome the defendant’s will at the time he confessed.”

Briggs, 756 A.2d at 738 (quoting State v. Griffith, 612 A.2d 21, 25 (R.I. 1992)).

The law concerning the issue of coercion, threats, or undue influence is well

settled; for a statement to be suppressed, the defendant’s free will and rational

choice must have been overborne.

It is equally clear that “cases in which a defendant can make a colorable

argument that a self-incriminating statement was ‘compelled’ despite the fact that

the law enforcement authorities adhered to the dictates of Miranda are rare.”

Dickerson v. United States, 530 U.S. 428, 444 (2000) (quoting Berkemer v.

McCarty, 468 U.S. 420, 433 n.20 (1984)). A finding of compulsion should be

based on a carefully scrutinized record that considers the evidence in the record

- 20 - and the totality of the circumstances. Because the trial justice concluded that the

officers “adhered to the dictates of Miranda,” see id., we look for objective facts,

as set forth in the record, demonstrating that the statement “I stabbed David” was

coerced or compelled, in violation of the Fifth and Fourteenth Amendments. The

record before us is devoid of any evidence that Det. DiGregorio’s statement

overcame defendant’s free will and rational choice, nor did the trial justice find

otherwise.

In order for an officer’s direct or implied promise to have any bearing on

whether an accused’s post-Miranda statement was involuntary, the confession

must have been obtained as a result of that promise—namely, there must be a

causal nexus between the promise made and the involuntary statement. Cf. State v.

Leuthavone, 640 A.2d 515, 518-19 (R.I. 1994) (considering, for purpose of a

finding of voluntariness, that the defendant presented no evidence that the officer

“manipulated him in any way”); see Griffith, 612 A.2d at 25 (considering that the

police statements “did not contribute to make defendant’s confession coerced”);

see also State v. Pacheco, 481 A.2d 1009, 1025-26 (R.I. 1984) (discussing

Miranda’s effect on confessions induced by promises and considering that “a

promise, standing alone, was insufficient to render the confession involuntary”).

- 21 - In support of his conclusion that the statement, “I stabbed David” was

involuntarily compelled, the trial justice looked to the statement of the officer and

not its effect, if any, on the accused. He stated:

“[T]his [c]ourt is troubled by the promise Detective * * * DiGregorio made to the defendant earlier in the day * * *: ‘You’re not going to [be] charged with this as long as you provide correct and accurate information.’ * * * [D]irect promises are forbidden and render a subsequent statement involuntary.” (Emphasis added.)

We note at the outset that defendant offered no testimony that Det.

DiGregorio’s statement pressured or compelled him to confess. The statement was

made at the start of the audio-recorded second statement, in advance of the vehicle

trip and hours before defendant admitted that he stabbed David. Despite being

“troubled” by Det. DiGregorio’s so-called “promise,” the trial justice made no

findings that this statement overcame Morillo’s will, caused Morillo to confess, or

influenced him in any way. There simply is no evidence in the record before us

that Det. DiGregorio’s statement manipulated Morillo’s decision to admit to

stabbing David. The defendant offered no evidence to support this finding.

Indeed, Morillo testified that the officers “were insinuating that the truth [would]

- 22 - be my best option” while acknowledging that he was not truthful and that he lied to

the detectives when he disclosed that Rogers tossed the knives from the vehicle.10

The trial justice’s conclusion that “direct promises are forbidden and render

a subsequent statement involuntary” is incorrect. The trial justice erroneously

cited this Court’s holdings in State v. Marini, 638 A.2d 507 (R.I. 1994), and State

v. Hall, 940 A.2d 645 (R.I. 2008), as “illustrative of factual situations where

promises made a statement involuntary.” The trial justice misconstrued the

holdings in these cases which served as the basis for finding that the third

statement was involuntary. In Marini, and again in Hall, this Court held that

statements made after assurances or promises to the accused were nonetheless

voluntary and admissible.

In Marini, this Court determined that, based upon the totality of the

circumstances, officers’ promises of “help” to an accused in exchange for a

confession did not cause the accused to make a statement against his will. Marini,

638 A.2d at 513. “It is well-established that admonitions by the police to tell the

truth do not render a subsequent confession involuntary.” Id. We also recognized

that law enforcement officers may tell an accused that his or her cooperation may

be helpful. Id. This Court reaffirmed these principles in Hall, where an officer

10 The defendant also admitted that he lied to Det. Fortier during the initial telephone call when he told her he was at work, when in fact he was in a hotel in Seekonk, Massachusetts, with a co-defendant.

- 23 - advised the defendant of his rights and then stated that if he was cooperative and

truthful, the officer would advise the prosecutor and judge of the defendant’s

cooperation. Hall, 940 A.2d at 651. The defendant provided a recorded statement

that was later transcribed for the jury. Id. Before this Court, the defendant argued

that his statement was involuntary because the officer advised him that if he

cooperated and gave a true statement, he would advise the prosecutor and trial

judge. Id. at 656. We held, based on the totality of the circumstances, that the

officer’s statement encouraging truthfulness and cooperation did not constitute a

promise or unlawful inducement “that could bend a man’s will, causing him to

wrongly confess.” Id. The facts in Hall are quite similar to the case at bar. To the

extent that the trial justice’s finding that defendant’s statement was involuntary

rests upon what he characterized as a “forbidden” promise, we deem this clear

error. We turn to the issue of whether the defendant’s statement “I stabbed David”

was knowing, intelligent, and voluntary.

B

Knowing and Intelligent Waiver

In order for a waiver of one’s rights to be knowing and intelligent, this Court

has determined that:

“If a suspect has been advised of Miranda rights and thereby comprehends that there is a right to counsel and a right to remain silent and that any statements made may be used against the suspect in subsequent criminal

- 24 - proceedings, the suspect—for purposes of the Constitution—has been made fully aware of the nature of his or her rights and the possible consequences of abandoning those rights. In such a case any subsequent waiver of those rights would be found to be knowing and intelligent.” Leuthavone, 640 A.2d at 520 (emphasis omitted).

Importantly, even “[i]f, after being apprised of the Miranda warnings, a suspect

‘nonetheless lacks a full and complete appreciation of all [of] the consequences

flowing from a waiver, it does not defeat a showing that the information * * *

provided to him satisfied the constitutional minimum.’” Id. (emphasis added)

(brackets omitted) (quoting Patterson v. Illinois, 487 U.S. 285, 294 (1988)).

Although the trial justice found that Det. DiGregorio was present in the

detective’s vehicle and did in fact advise Morillo of the rights required by

Miranda—contrary to Morillo’s testimony that he had no memory that Det.

DiGregorio was in the vehicle or that he administered the rights—the trial justice,

nonetheless, found that defendant’s statement “I stabbed David” was not a

knowing and intelligent waiver of his rights. The trial justice found:

“[T]his [c]ourt is troubled by the manner of administration of these rights. This [c]ourt finds that the manner in which defendant was given his rights was surprisingly casual.” (Emphasis added.)

The trial justice faulted Det. DiGregorio because he “told the defendant his rights

‘as a whole,’ and then asked if he understood them[]” but he “did not explain each

right individually[.]” The trial justice also faulted this procedure because “there

- 25 - was no audio or video recording of the administration of these rights, nor was there

an attempt to immediately access the proper equipment or forms to do so.” He also

found “[t]here were no rights forms in the car, nor was there an attempt to have

them promptly brought to the scene.” The trial justice failed to cite to any

authority to support the existence of such requirements, nor are we aware of any

such mandate to that effect.

The trial justice also declared that his task was to consider these facts “in

light of defendant’s background, experience, conduct, as well as level of

education.” He went on to find that “[t]he totality of these facts and circumstances

leads this [c]ourt to believe that the defendant did not knowingly, intelligently, and

voluntarily waive his rights.” He concluded that “[n]o person with the education,

or limited education and limited experience with law enforcement, * * * who was

casually given their rights in the back of a moving police vehicle, surrounded by

three detectives, after hours of questioning, could have reasonably believed that he

had a right to silence.” (Emphasis added.)

Our review of the record discloses no testimony that defendant’s level of

education, limited experience with law enforcement, or his presence in the police

vehicle, prevented him from comprehending his rights. This finding also

overlooks the undisputed fact that he consistently stated that he did comprehend

his rights.

- 26 - The trial justice also declared the following:

“Further, this [c]ourt finds it highly unusual that the defendant who did not make any incriminating statements all afternoon during continuous questioning decided to admit his guilt * * * almost immediately after being administered his Miranda warnings[.] * * * While it is factually possible that this happened, the [c]ourt finds it peculiar, and, if anything, actually is evidence that demonstrates that the defendant did not truly understand or comprehend the rights that were being provided to him[.]” (Emphasis added.)

In our opinion, the trial justice did not properly perform his fact-finding

function in concluding that Morillo’s admission was not knowingly and

intelligently made. The trial justice failed to make findings of fact and conclusions

of law to support his conclusions. He stated that he was “troubled” and of the

belief that Morillo’s admission was “highly unusual” and “peculiar,” without

resolving the conflicting evidence before him and failed to make credibility

determinations that supported his conclusion that defendant did not comprehend

his rights while in the police vehicle.

Bearing in mind that there was no testimony from defendant about Miranda

warnings in the police vehicle, the trial justice’s ad hoc statements of belief,

without more, do not satisfy his role as a factfinder and are not sufficient to support

a conclusion that Morillo’s waiver of rights was not knowing or intelligent.

Moreover, the trial justice viewed Morillo’s admission of guilt, “almost

immediately after being administered his Miranda warnings * * * [as] evidence

- 27 - that demonstrates that the defendant did not truly understand or comprehend the

rights[.]” (Emphasis added.) Simply put, the trial justice drew an inference that

defendant did not “truly understand or comprehend” his rights based on the timing

of his admission, while overlooking the clear testimony of both detectives that the

statement was not made “almost immediately” after the Miranda warnings. We

are of the opinion that this is not a reasonable inference based on the evidence and

lacks a factual foundation.

First, the trial justice overlooked the gap in time between the reading of the

Miranda rights at 5:10 p.m., in Providence, and when Morillo admitted that he

stabbed David, which was after the vehicle arrived at Main Avenue in Warwick

and after Det. DiGregorio and Sgt. Robillard embarked on yet another futile hunt

for evidence.11 There was, at a minimum, a ten- to fifteen-minute span between

the reading of the Miranda rights in Providence and the arrival in Warwick—a

calculation that does not account for Det. Fortier’s conversation with Morillo that

led to his admission. Also, in response to the trial justice’s own examination of

Det. Fortier, she unequivocally responded, “[i]t wasn’t within minutes.” There was

11 Detective DiGregorio not only testified to advising Morillo of his rights at 5:10 p.m., while still in Providence, Det. DiGregorio also stated in the fourth audio-video recorded statement that: “* * * I read you your rights at 5:10 p.m. when I realized that I felt that you were lying to us and that you had more involvement than what you were saying. Do you agree with that?” Morillo answered, “Yeah.”

- 28 - no evidence to the contrary. The trial justice ignored this colloquy and failed to

address this testimony.

Apart from the issue of timing, the trial justice ignored the testimony from

both detectives that Morillo acknowledged that he understood his rights and that he

re-confirmed his understanding several times, including the audio-video recorded

fourth statement. The trial justice failed to set forth his reasoning as to why the

officers were not entitled to rely on defendant’s numerous assurances that he

understood his rights. The trial justice also failed to pass on the credibility of these

witnesses, including defendant, who testified that he had no memory of Det.

DiGregorio giving him Miranda warnings in the police vehicle, despite his video

recorded acknowledgment that he understood those rights.

As noted, the trial justice engaged in a lengthy colloquy with Det. Fortier, at

the conclusion of her testimony as the state’s first witness. The trial justice

expressed his opinion that defendant may have been “feeling pressure, like he was

in a jam” when he “blurts out” that he “stabbed one of the individuals in that

house.” He also expressed concern about what defendant was thinking, “in his

mind when he is being questioned by police officers.”

“[TRIAL JUSTICE]: So -- would it be fair to infer that he may have heard the Miranda words spoken to him but didn’t understand? Why would he have fear or be feeling anxiety if he knew he could be 100 percent quiet, not say another word, and have a lawyer? Why would he feel that

- 29 - way if he understood those Miranda warnings that the officer turned around from the front seat and read to him? “[DET. FORTIER]: I believe that every single time he was given information of, like, what had transpired, he’d always say, ‘Okay. I’m going to tell you the truth.’ ‘I want to tell you the truth.’ I think within him he wanted to tell the truth. “[TRIAL JUSTICE]: Okay.

“[DET. FORTIER]: And it wasn’t until the end when the two other detectives got out of the vehicle where -- I don’t know if he felt something heavy. But I can only describe his demeanor and the way he looked was something heavy was on him.

“[TRIAL JUSTICE]: Okay. “[DET. FORTIER]: And he stated to me that he stabbed David. “So, at that point, I was shocked. I didn’t expect him to tell me that. Um, I saw his demeanor change. I thought it would be something different. But I was shocked.

“And I could have continued questioning him at that point because his Miranda rights were given. But I opted to stop. Because at that point I knew there would be a preservation of evidence that would be better if it was under recording.” “[TRIAL JUSTICE]: Okay.” (Emphasis added.)

The trial justice failed to address this colloquy.

As discussed infra, the Miranda warnings administered in the vehicle and

the admissibility of the third statement (“I stabbed David”) have no bearing on the

use of the fourth statement by the state at trial. However, should the state elect to

- 30 - pursue the admissibility of the third statement, appropriate factual findings are

required. In that event, the trial justice shall, based on the existing record, make

factual findings and conclusions of law concerning whether defendant made a

knowing, intelligent, and voluntary waiver of his rights in the police vehicle,

including findings concerning the timing of the third statement, the credibility of

the witnesses, including defendant, and shall set forth the evidence upon which he

relies in making these findings. However, should the state decide to proceed to

trial without resort to the third statement, no further factfinding is necessary. The

third statement shall be excluded. Neither circumstance shall have any bearing on

the admissibility of the fourth statement.

The Seibert Effect

We now turn to the fourth statement. The state argues that the trial justice’s

reliance on Seibert was erroneous because there was no evidence of a

question-first, Mirandize-later interrogation tactic by the detectives, particularly

because Morillo made his admission after Det. DiGregorio advised him of his

rights. See Seibert, 542 U.S. 600. We agree.

We note at the outset that the trial justice declared that, but for his finding

that the third statement was not a knowing, intelligent, and voluntary waiver of

defendant’s right to remain silent, the fourth statement would be admissible:

“[S]tanding alone, the defendant’s confession during this fourth period of questioning would be admissible. The

- 31 - audio and video recording establishes that the defendant was presented with a rights form, guided through it by the detectives, he voluntarily signed the form, and he placed his initials next to each right on the form.”

The Supreme Court’s pronouncements in Seibert and Oregon v. Elstad, 470

U.S. 298 (1985), upon which the trial justice rested his decision suppressing the

fourth statement, have no bearing on the facts of this case because the custodial

statements were made after the requirements of Miranda were met. See Seibert,

542 U.S. at 604, 616; see also Elstad, 470 U.S. at 314-15. Because Elstad and

Seibert concerned the admissibility of custodial statements obtained in the absence

of Miranda warnings, their holdings are unrelated to the circumstances of this case.

See Seibert, 542 U.S. at 604, 616 (condemning a police tactic to intentionally

withhold Miranda and first produce a confession, leaving “little, if anything, of

incriminating potential left unsaid”); see also Elstad, 470 U.S. at 314-15 (assessing

the effect of an initial unwarned statement on a second statement given after

Miranda). Importantly, neither Elstad nor Seibert, nor their progeny, concerned

whether a suspect’s statement was knowing and voluntary when Miranda warnings

had been administered before the first statement.

In Seibert, the United States Supreme Court was confronted with an

established police protocol, designed to deliberately withhold Miranda warnings,

interrogate a suspect until a confession was obtained, then administer Miranda

- 32 - warnings, and “cover the same ground a second time.” Seibert, 542 U.S. at 604.

The Supreme Court held this practice rendered the Miranda warnings ineffective

and the later statement inadmissible. See id. at 604, 617.

Elstad also concerned an incriminating statement by the accused without the

benefit of Miranda, but, in contrast to Seibert, the officer’s failure to advise the

defendant of his rights in Elstad was considered an oversight and not a police

practice. Elstad, 470 U.S. at 315-16. In Elstad, after being advised of Miranda

warnings, which were “undeniably complete[,]” the issue became “whether, in

fact, the second statement was also voluntarily made.” Id. at 314, 318. There being

“no question that[,] [in the second statement, the defendant] knowingly and

voluntarily waived his right to remain silent before he described his participation in

the [crime,]” the second statement did not violate the defendant’s Fifth

Amendment right against the use of compelled testimony. Id. at 315, 318.

In contrasting the facts of Seibert with those of Elstad, the Supreme Court

set forth several factors relevant to whether a midstream recitation of warnings

could be effective in accomplishing their objective, which was to “reasonably

convey to a suspect his rights as required by Miranda.” Seibert, 542 U.S. at 611,

615 (brackets omitted) (quoting Duckworth v. Eagan, 492 U.S. 195, 203 (1989)).

These factors include:

“the completeness and detail of the questions and answers in the first round of interrogation, the

- 33 - overlapping content of the two statements, the timing and setting of the first and the second, the continuity of police personnel, and the degree to which the interrogator’s questions treated the second round as continuous with the first.” Id. at 615.

In the case at bar, the first incriminating statement consisted of three words.

All further questioning ceased; defendant was arrested and transported to police

headquarters in a separate vehicle. There was a change of setting between the third

and fourth statements; and more than a thirty-minute break between the statements.

Additionally, Morillo acknowledged at the hearing that “the information in the

videotaped interview * * * is different from the other interviews[.]”

We are of the opinion that the circumstances leading to Morillo’s confession

are not governed by the holdings in Seibert or Elstad. In this case, the trial justice

found that Det. DiGregorio administered Miranda warnings to the defendant while

in the police vehicle, in Providence. Therefore, there was neither an unwarned

statement, as in Elstad, 470 U.S. at 314, nor a deliberate question-first warn-later

investigative tactic that was designed to produce a full confession, leaving “little, if

anything, of incriminating potential * * * unsaid[,]” as in Seibert, 542 U.S. at 604,

616. Thus, Seibert and Elstad are wholly inapplicable, and the trial justice’s

reliance on Seibert to order suppression of the fourth statement was clearly

erroneous. Accordingly, we vacate that portion of the order that suppressed the

fourth statement.

- 34 - Conclusion

For the reasons set forth in this opinion, we vacate the order of the Superior

Court and hold that the fourth statement is admissible in evidence. However,

should the state elect to pursue the admissibility of the third statement, “I stabbed

David[,]” further factfinding, within sixty days of the date of this opinion, on the

basis of the existing record, is required on the issue of whether this admission was

a knowing, intelligent, and voluntary waiver of the defendant’s Fifth Amendment

rights. Therefore, we remand this case to the Superior Court for further factfinding

or trial in accordance with this opinion. The papers may be remanded to the

Superior Court.

Justice Long, with whom Justice Lynch Prata joins, concurring. We

agree with the majority’s holding with respect to both Seibert and the need to

remand this matter for additional factfinding regarding Mr. Morillo’s failure to

waive his Miranda rights. However, our reading of the record reveals a more

nuanced view of the events of March 29, 2016, as well as the testimony elicited

from Detectives Fortier and DiGregorio, and Mr. Morillo, during the three-day

suppression hearing in the trial court. We believe this more nuanced view of the

testimony is significant for two reasons. First, Mr. Morillo has not been tried and

- 35 - convicted of the four charges in the indictment. It is imperative that this Court not

characterize the evidence in the record in a way that potentially prejudices his right

to a fair trial. Second, our view of the record leads to a different evaluation of the

state’s assignments of error concerning the third statement. Therefore, we draw

distinctions in our analysis of the third statement with respect to both custody and

waiver.

In discussing the events of March 29, the majority opinion highlights that

Mr. Morillo’s narrative varied over the course of the afternoon and evening when

he spoke with Dets. Fortier and DiGregorio. However, the majority opinion does

not acknowledge the problematic, confusing, and conflicting testimony of the

detectives themselves. Moreover, although the majority opinion discloses Mr.

Morillo’s testimony about his incriminating statement in a footnote, it does not

describe the context of the statement as he did in his testimony. Additionally, the

majority opinion recounts Dets. Fortier and DiGregorio’s testimony about their

perception of Mr. Morillo, but it does not relate Mr. Morillo’s testimony about how

he perceived their interactions.

From our review of the testimony of Dets. Fortier and DiGregorio, it appears

that their preparation for the hearing was problematic. For example, Det. Fortier

testified that she took notes during the events in question, which served as the basis

of her report narrative. However, she admitted that her notes of the interviews no

- 37 - longer existed at the time of the hearing and further conceded that she may have

forgotten additional information contained in the notes. Moreover, Det.

DiGregorio testified that he took no notes of his own, but relied on Det. Fortier’s

report narrative in preparing for the hearing.

In addition to relying on Det. Fortier’s report narrative, Det. DiGregorio

impermissibly communicated with Det. Fortier during the suppression hearing. On

his second day of testimony, Det. DiGregorio explained that Det. Fortier escorted

Mr. Morillo to the interview room at about 6:00 p.m. on March 29. However, this

deviated from his previous testimony. Regarding this inconsistency, Det.

DiGregorio acknowledged that he spoke to Det. Fortier about a lapse in time

between Mr. Morillo’s arrival at the police station and the beginning of Mr.

Morillo’s final interview; he also admitted that he knew it was impermissible to

communicate with others about his testimony. Detective Fortier also

acknowledged having spoken to Det. DiGregorio in violation of the trial court’s

sequestration order.

Our review of the transcripts also reveals not insignificant conflicts in the

detectives’ testimony. For example, Det. Fortier described the group making one

stop, for fifteen to twenty minutes, on the right side of the Airport Connector to

search for knives near a marsh in the vicinity of the Welcome Beautiful Rhode

Island sign. However, Det. DiGregorio testified that the group stopped at a

- 38 - “number of locations” on the Airport Connector. Additionally, Det. Fortier

testified that, once Mirandized, Mr. Morillo said that he understood that it seemed

as though he was obstructing, at which point he said that he might have discarded a

single knife near Main Avenue. By contrast, Det. DiGregorio testified that, upon

being Mirandized, Mr. Morillo told the detectives that he had discarded two knives

at that location. Finally, Det. Fortier provided conflicting testimony regarding Mr.

Morillo’s arrival at the Warwick Police Department before his final interview. She

initially testified that it was “[n]ot possible” for her to have communicated with

him between leaving Main Avenue and when he arrived in the interview room for

the fourth interview. However, after reviewing video footage on the final morning

of Det. DiGregorio’s testimony, Det. Fortier conceded that she in fact had walked

Mr. Morillo upstairs and directed him into the interview room.

We also wish to highlight confusing testimony by the detectives regarding

Mr. Morillo’s third statement. Both detectives testified that Mr. Morillo might

have repeated the incriminating statement to Det. DiGregorio after saying it to Det.

Fortier alone. However, Det. DiGregorio further testified that he could not recall

whether he heard Mr. Morillo’s admission from Det. Fortier or from Mr. Morillo

directly. This equivocation, in addition to the problematic and conflicting

testimony previously described, contributes to our nuanced view of the testimony

elicited from the detectives during the three-day suppression hearing.

- 39 - Additionally, our view of Mr. Morillo’s divergent testimony differs from

that of our colleagues. Mr. Morillo testified that he did not remember being read

his Miranda rights in the vehicle, and he provided a conflicting account of the

events leading up to the third statement. Specifically, Mr. Morillo testified that,

during the drive, Det. Fortier was “kind of consoling, telling [him] that [he] was

going to be okay[,]” and that they just needed to find the items that Mr. Rogers had

discarded. However, once they were unable to locate any knives near the Airport

Connector, or the cell phone near Providence Place Mall, Det. Fortier’s demeanor

changed. Mr. Morillo stated that she became “a little more aggressive” and was no

longer consoling or “telling [him] that [he] was going to be okay[.]” He explained

that she stated that his friends were being interrogated and that the detectives

would find out what happened. Mr. Morillo testified that she told him that he was

not being truthful, and that he was obstructing the investigation. She further stated

that she knew what happened and did not believe what Mr. Morillo had said. Mr.

Morillo recounted that Det. Fortier received a phone call during the drive and then

began “basically running down renditions of what * * * they th[ought] happened.”

Detective Fortier explained to Mr. Morillo that the detectives believed Mr. Morillo

and his friends went to Mr. Rogers’s house and “that they know that [he] stabbed

David Rogers.”

- 40 - Then, while the vehicle was parked on Main Avenue, Det. Fortier received

another phone call. After the call ended, Det. Fortier told Mr. Morillo that she

thought he was hiding something and not telling the truth. She also stated that he

would be returning to the police station in a marked police car. She told Mr.

Morillo: “You stabbed David Rogers. I know you did.” To which Mr. Morillo

responded, “I stabbed him.”

Mr. Morillo also testified about his interaction with the detectives while at

the police station. Specifically, Mr. Morillo testified that when the detectives

asked him questions, he “felt like [he] had to answer them” because “[he] was

going to be arrested anyways.” Further, Mr. Morillo explained that he changed his

story to the detectives because he “felt as though when they were telling [him] to

tell the truth, they meant what information they were giving [him].” Mr. Morillo

also testified that he thought if he did not comply, he would be arrested and

charged.

After hearing all of the testimony about the events of March 29, the trial

justice remarked on the lack of clarity regarding the interactions between Mr.

Morillo and the detectives. Specifically, the trial justice characterized Mr.

Morillo’s meetings with the police as “confusing” and sought clarification from the

attorneys during their argument on the motion to suppress.

- 41 - Our similarly equivocal view of the testimony shapes our approach to the

state’s assignments of error related to the custody and waiver rulings.

When this Court reviews a decision regarding a motion to suppress a

confession, we conduct “a two-step analysis.” State v. Musterd, 56 A.3d 931, 938

(R.I. 2012) (quoting State v. Barros, 24 A.3d 1158, 1179 (R.I. 2011)). We first

review the trial court’s findings of fact with deference. See State v. Munir, 209

A.3d 545, 550 (R.I. 2019). We then apply the historical facts and review de novo

any “mixed questions of law and fact involving constitutional issues,” State v.

Jimenez, 33 A.3d 724, 732 (R.I. 2011), including whether and when a defendant is

in custody, see State v. Corcoran, 274 A.3d 808, 813 (R.I. 2022), as well as

whether a waiver of rights is valid. Jimenez, 33 A.3d at 734.

Given this standard of review, the trial justice’s failure to resolve conflicting

testimony or to make credibility determinations complicates this Court’s review of

the errors specified in the instant appeal. The absence of clarity regarding what the

trial justice found happened during the car ride, how he made sense of the

“confusing series of meetings between the defendant and the Warwick Police

Department,” and whom he believed, stymies this Court in conducting a de novo

review of when Mr. Morillo was in custody and whether his waiver was knowing,

intelligent, and voluntary.

- 42 - However, because neither party disputes that Mr. Morillo was in custody

prior to the crucial incriminating statement, we do not believe it is necessary to

address the merits of the state’s assignment of error on this issue. More

specifically, we do not believe that this Court should offer a statement in support of

the state’s contention that custody commenced at any particular moment. Our

prior caselaw counsels against discussing the merits of a claim when our

discussion would amount to nothing more than dicta. See Tempest v. State, 141

A.3d 677, 687 n.15 (R.I. 2016) (“‘[T]he cardinal principle of judicial restraint’ is

that ‘if it is not necessary to decide more, it is necessary not to decide more[.]’”)

(quoting PDK Laboratories, Inc. v. United States Drug Enforcement

Administration, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J. concurring in part

and concurring in judgment)).

By contrast, the equivocal state of the record presents a greater obstacle for

this Court’s analysis of whether the state met its burden of establishing that Mr.

Morillo’s incriminating statement was a knowing, intelligent, and voluntary waiver

of his constitutional rights.

Once an accused has received Miranda warnings, their incriminating

statement “is inadmissible at trial unless the prosecution can establish that the

accused ‘in fact knowingly and voluntarily waived [Miranda] rights’ when making

the statement.” Berghuis v. Thompkins, 560 U.S. 370, 382 (2010) (quoting North

- 43 - Carolina v. Butler, 441 U.S. 369, 373 (1979)); see also Miranda v. Arizona, 384

U.S. 436, 475 (1966). The state must meet its burden by clear and convincing

evidence. See State v. Monteiro, 924 A.2d 784, 790 (R.I. 2007). A waiver of one’s

right against self-incrimination need not be an express waiver for the resulting

statement to be admissible at trial. Berghuis, 560 U.S. at 384. “Where the

prosecution shows that a Miranda warning was given and that it was understood by

the accused, an accused’s uncoerced statement establishes an implied waiver of the

right to remain silent.” Id.

Courts may find an individual’s waiver to be both knowing and intelligent if

the prosecution demonstrates that “a suspect has ‘full awareness of both the nature

of the right being abandoned and the consequences of the decision to abandon.’”

United States v. Carpentino, 948 F.3d 10, 26 (1st Cir. 2020) (quoting United States

v. Sweeney, 887 F.3d 529, 535-36 (1st Cir. 2018)). In order to find voluntariness,

courts must first determine that the suspect’s waiver was the product of both “a

free and deliberate choice.” United States v. Simpkins, 978 F.3d 1, 11 (1st Cir.

2020) (quoting United States v. Rang, 919 F.3d 113, 118 (1st Cir. 2019)).

While Berghuis and its progeny articulate a dichotomy between a suspect

waiving their rights knowingly and intelligently, and whether their ultimate

confession is voluntary under Miranda, courts must nevertheless consider the

totality of the circumstances surrounding the interrogation for both inquiries. See

- 44 - Moran v. Burbine, 475 U.S. 412, 421 (1986) (“Only if the ‘totality of the

circumstances surrounding the interrogation’ reveal both an uncoerced choice and

the requisite level of comprehension may a court properly conclude that

the Miranda rights have been waived.”) (quoting Fare v. Michael C., 442 U.S.

707, 725 (1979)); see also State v. Amado, 424 A.2d 1057, 1062 (R.I. 1981) (“A

review of all the ‘attendant circumstances’ is as important to a consideration of the

voluntariness of a confession as it is to the determination of whether a knowing

and intelligent waiver was made.”).

The assessment of the totality of the circumstances may include

consideration of “both the characteristics of the accused and the details of the

interrogation[.]” United States v. Rojas-Tapia, 446 F.3d 1, 7 (1st Cir. 2006)

(quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Thus, when

analyzing whether a waiver was knowing and intelligent, courts look to whether

the totality of the circumstances demonstrates that the accused understood that they

had the right to counsel and the right to remain silent, and that the accused’s

statements could be used against them in subsequent criminal proceedings. E.g.,

State v. Leuthavone, 640 A.2d 515, 520 (R.I. 1994) (analyzing when a waiver

becomes knowing and intelligent under the totality of circumstances); see also

Colorado v. Spring, 479 U.S. 564, 574 (1987) (“The Miranda warnings protect

[the Fifth Amendment] privilege by ensuring that a suspect knows that he may

- 45 - choose not to talk to law enforcement officers, to talk only with counsel present, or

to discontinue talking at any time.”). Similarly, when evaluating voluntariness,

courts view the totality of the circumstances to determine whether the defendant’s

“will has been overborne and his capacity for self-determination critically

impaired[.]” Schneckloth, 412 U.S. at 225-26 (quoting Culombe v. Connecticut,

367 U.S. 568, 602 (1961)); see also State v. Hall, 940 A.2d 645, 656 (R.I. 2008).1

Additionally, for purposes of this Court’s review of a decision concerning a

motion to suppress an incriminating statement, the trial court’s “[d]etermination of

what happened requires assessments of the relative credibility of witnesses whose

stories, * * *, are frequently, if indeed not almost invariably, contradictory. That

1 Promises and inducements on the part of law enforcement are among the factors that courts may consider in reviewing the totality of the circumstances. See Arizona v. Fulminante, 499 U.S. 279, 285-87 (1991); United States v. Hughes, 640 F.3d 428, 438 (1st Cir. 2011). We do not agree with the following statement in the majority opinion: “In order for an officer’s direct or implied promise to have any bearing on whether an accused’s post-Miranda statement was involuntary, the confession must have been obtained as a result of that promise—namely, there must be a causal nexus between the promise made and the involuntary statement.” (Slip op. at 21) (additional emphasis supplied). In making the statement, the majority cites and compares Leuthavone, Griffith, and Pacheco as analogous to and supportive of this assertion. However, we do not believe that those cases can be reasonably read as a basis for a requirement that departs from Rhode Island and federal law on this subject. Each case involves promises that were found not to be coercive, and none discuss, mention, or imply the need for a causal nexus between the promise and an incriminating statement. Cf. Amado, 424 A.2d at 1063 (examining a promise found to be coercive and explaining that subtle pressures and improper influences, when considered as a whole, may deprive a defendant of the right to knowingly and voluntarily waive their constitutional rights). - 46 - ascertainment belongs to the trier of facts before whom those witnesses actually

appear[.]” State v. Humphrey, 715 A.2d 1265, 1273 (R.I. 1998) (quoting Culombe,

376 U.S. at 603) (emphasis added). Here, after reciting testimony heard at the

suppression hearing, the trial justice made some findings of fact regarding the

events and circumstances of March 29, 2016. However, the trial justice did not

rule on key factual and credibility determinations required for this Court to conduct

its de novo review of the conclusions drawn from the historical facts relating to the

“totality of the circumstances surrounding the interrogation.” Jimenez, 33 A.3d at

732, 734 (quoting Fare, 442 U.S. at 725).

Critically, on the issue of whether Mr. Morillo knowingly waived his right to

silence, the trial justice noted, but failed to resolve, conflicting testimony by the

detectives and Mr. Morillo that spoke directly to the issue. For example, the trial

justice acknowledged the testimony by Det. DiGregorio that, when asked whether

he understood his rights, Mr. Morillo stated that he did. The trial justice also

acknowledged Mr. Morillo’s inconsistent testimony that he did not recall being

read his rights in the car at all. Although the trial justice recognized the

inconsistencies in testimony given by both detectives and Mr. Morillo, he did not

make credibility determinations concerning their testimony or indicate the basis for

finding that Mr. Morillo did not comprehend his rights while in the police vehicle.

- 47 - The trial justice’s decision similarly included broad statements of belief

related to the voluntariness of Mr. Morillo’s confession, but failed to provide

sufficient findings of fact and credibility determinations to resolve key questions

related to the totality of the circumstances.

In the absence of clear findings of fact, and considering the equivocal state

of the testimony in this case, we submit that we cannot infer key factual issues

related to Mr. Morillo’s knowledge and understanding of his Miranda rights at the

time Det. DiGregorio read them to him. Quite simply, this Court cannot gauge

what testimony, if any, the trial justice found to be clear and convincing. Because

of this Court’s “longstanding reluctance to engage in factfinding or to make

credibility determinations in the first instance[,]” “the appropriate procedure in this

circumstance is to remand the case to the Superior Court so that the trial justice can

make the appropriate findings of fact and conclusions of law.” State v. Bojang, 83

A.3d 526, 535, 536 (R.I. 2014).

For these reasons, we concur with the majority’s opinion remanding the trial

justice’s decision to suppress the third statement for further findings of fact.

- 48 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903

OPINION COVER SHEET

Title of Case State v. Josue Morillo.

No. 2020-4-C.A. Case Number (K1/16-369C)

Date Opinion Filed December 16, 2022

Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.

Written By Associate Justice Maureen McKenna Goldberg

Source of Appeal Kent County Superior Court

Judicial Officer from Lower Court Associate Justice Daniel A. Procaccini

For State:

Christopher R. Bush Attorney(s) on Appeal Department of Attorney General For Defendant:

Michael S. Pezzullo, Esq.

SU-CMS-02A (revised November 2022)