No. 99-1226Commonwealth of Massachusetts Superior Court CRIMINAL ACTION MIDDLESEX, ss.
October 18, 2000
FINDINGS, RULINGS AND ORDER ON DEFENDANT’S MOTION TO SUPPRESS STATEMENTS
FREMONT-SMITH, JUSTICE.
In this case, in which the defendant is accused of murder of his former girlfriend, his counsel moves that the Court suppress as evidence all statements made by him on September 10 and 11, 1999 to the Everett and state police, and to suppress all evidence discovered or seized as a result of such statements (including the gun in question and shells from that gun).
As grounds, defendant asserts that his federal and state constitutional rights were violated because (1) he was not notified of his right to make a telephone call as required by G.L. c. 276, § 33A; (2) his statements were not fairly, fully and accurately recorded; (3) his statements were not voluntary; (4) the police continued to question him after he unequivocally requested an attorney; and (5) he was not notified during his interrogation that his mother and grandmother were at the station seeking to talk to him.
The chronology of events, which was not substantially disputed at the hearing on the motion to suppress, is as follows:
1. September 10, 1999, 8:09 p.m. — radio dispatch about shooting and description of suspect.
2. September 10, 1999, 8:35 p.m. — defendant is brought in custody to the Everett police station.
3. September 10, 1999, 8:50 p.m. — defendant is read his Miranda rights and signs an acknowledgment form.
4. September 10, 1999, 9:00 p.m. — Everett police commence interrogation of defendant in upstairs conference room.
5. September 10, 1999, approximately 9:30 p.m. — state police take over interrogation of defendant in upstairs conference room.
6. September 11, 1999, 12:05 a.m. — audio tape is first activated in conference room. He is again provided Miranda warning.
7. September 11, 1999, 1:00 a.m. — defendant interrupts interrogation to state that he wants to see a lawyer. Interrogation terminated.
8. September 11, 1999, 2:12 a.m. — defendant is returned to the booking area and booking resumes. He is again given Miranda warning and, for the first time, notified of his right to use a telephone and that his mother and grandmother had been to the station requesting to see him. His wet clothing is taken as evidence and he is provided dry clothing.
9. September 11, 1999, 2:18 a.m. — Everett police officer Michael Manchese inquires again as to location of gun. Defendant’s response leads to discovery of gun in cemetery.
Based on all the credible evidence at the hearing, the Court makes the following findings of fact, rulings of law, and order. The Court will discuss each of defendant’s factual and legal contentions in chronological and logical sequence, rather than in the order set forth in defendant’s motion.
1. Whether statements made by the defendant prior to being brought to the Everett police station, are admissible
The Court credits the testimony of the Everett police officers and finds as follows: at about 8:30 p.m., on September 10, 1999, they saw a young, black male who was walking on a nearby street in the pouring rain without any garment over his shirt and who was wearing a baseball cap. After they had confirmed by radio that the suspected shooter would be wearing a hat, they exited their cruiser and walked toward him, without drawing their guns. When he saw them approach, he put up his hands, but the officers told him to “relax”, that there had been a shooting nearby and they wanted to talk with him. When asked his name, he told them it was Derrick Williams. When one of the officers then asked him to remove his hat so that the officer could ascertain whether his hair style conformed to the radio dispatch description, the defendant began to sob and said “You got me. I am the one who did it. But she pulled a gun on me last night.” When asked where the gun was, he said he had dropped it near the scene of the shooting. The officers then placed him under arrest, hand-cuffed him (without, however, giving him any Miranda
warning) and transported him to the Everett police station.
The Court finds that, when the officers approached the defendant, they had a reasonable, articulable suspicion to justify an investigatory stop of the defendant, based upon his appearance, his proximity to the shooting scene, and the radio-dispatch description of the suspect. Accordingly, it was permissible for them to speak with him as they did and to request him to remove his cap so they could observe his hair.Terry v. Ohio, 392 U.S. 1, 21 (1968); Commonwealth v. Barros, 425 Mass. 572, 584-585 (1997); Commonwealth v. Silva 366 Mass. 402, 405
(1974). Nor, until he said “You got me. I’m the one who did it,” did they have more than an articulable suspicion, and had not placed him in custody. Commonwealth v. Jung, 420 Mass. 675, 688 (1995), quotingMiranda v. Arizona, 384 U.S. 436, 444 (1966). Although his response to the inquiry regarding the location of the gun was made after he was in custody, and he had not been “Mirandized”, this inquiry was permissible under the public safety exception to the Miranda rule where, as they testified, the officers were reasonably concerned that the weapon (which turned out to be still loaded) could, if found, pose a risk to children or others in the neighborhood. Commonwealth v. Clark, 432 Mass. 1, 13
(2000), quoting New York v. Quarles 467 U.S. 649, 653 (1984).
Defendant’s counsel urges that, regardless of whether Miranda was applicable, the above statements of the defendant should be suppressed because they were not rational and voluntary. The Court credits the officers’ testimony that he was not under the influence of alcohol or drugs and that he appeared rational and oriented. See Commonwealth v.Pine, 430 Mass. 66, 71 (1999); Commonwealth v. Parham, 390 Mass. 833, 839
(1984); Commonwealth v. Lanoue, 392 Mass. 583, 589 (1984). It is true that, as testified by the officers and as shown on the video tape of the defendant’s initial booking at the police station, the defendant was sobbing and emotionally distraught, and his statements could certainly be characterized as having been excited utterances. In this respect, however, defendant’s condition was similar to that of the defendant inCommonwealth v. Look, 379 Mass. 893, 906-907 (1980), where his statements were deemed voluntary even though the Court found that he was in a “highly upset emotional state” and was “filled with remorse” from having just killed his wife. See also Commonwealth v. Fernette, 398 Mass. 658, 663-664 (1986) in which the Court found that, despite two days deprivation of sleep and food, a defendant’s statements were rational and voluntary beyond a reasonable doubt where, as here, the defendant had not been threatened or mistreated by the police and was not under the influence of alcohol or drugs. Similarly here, the Court concludes beyond a reasonable doubt that defendant’s pre-Miranda statements were voluntary and were the product of a rational intellect.
2. Interrogation of the defendant at the Everett police station
Defendant was brought in custody to the Everett police station at 8:35 p.m., on September 10, 1999, and at 8:50 p.m., he was read his Miranda
rights and signed a Miranda acknowledgment form. It is undisputed, however, that he was not informed of his right to make a telephone call, as required by G.L. c. 276, § 33A, until 2:12 a.m. the next morning, 5 hours and twelve minutes after he had commenced his interrogation, one hour and twelve minutes after he terminated it by asking for an attorney and 5 hours, 22 minutes after he had arrived at the station. As Chapter 276, § 33A requires that a defendant be notified of his telephone rights “forthwith upon arrival at such station or place of detention,” it is clear that all statements made by him in the interim must be suppressed if the failure to immediately notify him of such right was “intentional”. Commonwealth v. Alicea, 428 Mass. 711, 716 (1999);Commonwealth v. Caze, 426 Mass. 309, 311 (1997); Commonwealth v.Rosario, 422 Mass. 48, 53 (1996); Commonwealth v. Johnson, 422 Mass. 420, 429 (1996) (two hour delay in booking the defendant and informing him of his telephone rights was not intentional where delay was not designed to gain inculpatory information, but was to allow officers to arrive, and defendant was not questioned in the interim, but voluntarily exclaimed “I think I screwed up” when he saw the lieutenant arrive).
With respect to whether the failure to so notify him immediately was intentional in this case, Lieutenant Flammia, who was the person in charge of the station at the time, admitted that the failure to inform him of his telephone rights was not just an oversight, but that it was both a conscious decision and regular practice of the Everett police department, when a suspect waived his Miranda rights by indicating a willingness to talk to detectives, to take the suspect immediately upstairs for interrogation, without informing him of his telephone rights until the interrogation had been completed. Moreover, Lieutenant Balfe, who came on duty at 11:00 p.m. when defendant was already upstairs being interrogated, testified that the Everett Police Department is cognizant of a defendant’s right immediately to be informed of his telephone rights, but that, because the defendant was already upstairs when he arrived, he was unable to do so. Not until the defendant had been brought down at 2:00 a.m. was Lieutenant Balfe able to complete defendant’s booking and inform his of his telephone rights. Balfe further admitted that the normal procedure of the Police Department was to book a suspect as soon as the suspect had arrived at the station, and it was unusual for there to be a delay of over five hours before this was done.
Under these circumstances, the Court concludes that the failure to notify defendant of his right to use a telephone was not a mere accident or due to exceptional circumstances, but was a conscious decision to commence interrogation before defendant had been informed of his telephone rights. It was therefore “intentional” under the criteria set forth in the above cases.
Accordingly, all statements made by the defendant between the time when defendant arrived at the station (8:35 p.m. on September 10) and 2:12 a.m. September 11, 1999 when he was first informed of his right to use a telephone, are suppressed.[1]
3. Statements made by defendant leading to discovery of the weapon
The interrogation of the defendant was immediately terminated when, at about 1:00 a.m. on September 11, defendant stated that he wished to consult an attorney. He was returned to the booking area at about 2 a.m. Almost immediately after defendant had been brought back to the booking area and been notified of his right to use a telephone (and was again given his Miranda warnings at 2:12 a.m.), one of the arresting officers, Officer Michael Marchese, approached him and initiated a colloquy with him as to the fact the gun had not been located where defendant had previously indicated, and as to the danger posed to a child who might discover it. Although the tape is inaudible, the officer admitted that he told defendant, over the course of a five minute conversation, of his fruitless efforts to locate the gun and told the defendant that he “couldn’t get himself in any more trouble,” but “could only help himself” if he indicated its location, as the officer would “put it in [his] report”. The defendant finally said that the gun would pose no danger to the public because he had put it down a sewer in a near-by cemetery. Based on this information, the gun and shell casings were immediately retrieved.
At the time of the conversation (2:18 to 2:23 a.m.), defendant was calm and collected (as indicated by the tape recording of his interrogation from 12:05 to 1:00 a.m. on September 11, which the Court has suppressed), had been just advised again of his Miranda rights and, at 2:12 a.m., had just been advised of his right to use a telephone. However, as the defendant had earlier (at 1:00 a.m.) asserted his desire to consult counsel, resulting in the immediate termination of his (now-suppressed) interrogation, the question arises whether the statement by defendant as to the location of the gun, and the gun and shells themselves, should be suppressed, in view of his earlier unequivocal exercise of his Miranda rights.
It is well settled that when a defendant asserts his right to counsel, the police cannot attempt to continue the interrogation. Edwards v.Arizona, 451 U.S. 477 (1981). Resuming interrogation is strictly forbidden unless the defendant himself initiates further communications. See Commonwealth v. Judge, 420 Mass. 433, 448 (1995).
The Commonwealth contends that the defendant’s statements to Officer Marchese should be admissible under two different exceptions to this established rule: waiver and the so-called “public safety exception”.
A. Waiver
A properly Mirandized defendant may waive his previously invoked right to counsel and reinterrogation may commence if the defendant himself initiates further communication, exchanges or conversations with the police. See Commonwealth v. Rankins, 429 Mass. 470, 473 (1999). The Commonwealth, however, bears the burden to show beyond a reasonable doubt that subsequent events indicate a voluntary, knowing and intelligent waiver of the right to have counsel present before police may recommence interrogation. As noted above, it was Officer Marchese who initiated further conversation with defendant.[2] Here the Commonwealth has not shown beyond a reasonable doubt that defendant spontaneously and independently renewed conversations with the police about the whereabouts of the gun.
B.The Public Safety Exception
The Commonwealth argues that even if Officer Marchese initiated the conversation with defendant after defendant had requested to consult with counsel, the officer was merely inquiring as to the location of the still-missing gun; and that such questioning is allowed under the so-called “public safety exception” to Miranda.
The public safety exception has been recognized in cases where officers have attempted to ascertain the location of a gun before Mirandizing a defendant who has just been placed in custody; in circumstances where “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” New York v.Quarles, 467 U.S. at 657.
Although this may be a close case, the Court concludes that the statement and the fruits thereof (the retrieval of the gun and shells) must be excluded. Here, unlike in the above cases which invoke the public safety exception, defendant had unequivocally asserted his right to counsel, and did not thereafter spontaneously volunteer the information. In Commonwealth v. Watkins, 375 Mass. 472 (1978) the Court found a confession subsequent to defendant’s demand for counsel to be admissible, but stressed (at 484-485):
The detectives did not resume interrogation of the defendant before he indicated to them that he wanted to give the further statement. They did not solicit him or apply any coercion or pressure on him. We hold that in these circumstances the defendant’s spontaneous declaration of his desire to make a further statement constituted an implied, if not an express waiver of his previously asserted desire to speak with counsel, which waiver is permitted under the Miranda and the Mosley decisions.
Here, to be contrary, the incriminating statement was elicited from this eighteen year old, who had a poor educational background,[3] only after 5-6 minutes of cajolery by Officer Marchese, which included misinforming him that he could “only help himself” by disclosing the location of the gun.[4]
ORDER
Accordingly, defendant’s motion to suppress is DENIED with respect to all statements attributed to the defendant made to the police prior to his having been brought to the Everett police station; defendant’s motion to suppress is ALLOWED with respect to all statements attributed to the defendant made to the police at the police station prior to his having been provided notification of his telephone rights (2:12 a.m. on September 11, 1999); defendant’s motion to suppress is ALLOWED with regard to his subsequent statement to the police at the station as to the location of the gun, and as to the gun and shells discovered as a result thereof.[5]
______________________________ Thayer Fremont-Smith Justice of the Superior Court