Commonwealth v. Thomas

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SJC-10826

COMMONWEALTH vs. CHITEARA M. THOMAS.

Plymouth. February 7, 2014. - September 2, 2014.

Present: Ireland, C.J., Spina, Botsford, Gants, Duffly, & Lenk,
JJ.1

Homicide. Burning a Dwelling House. Attempt. Constitutional
Law, Assistance of counsel, Admissions and confessions,
Voluntariness of statement, Harmless error, Self-
incrimination. Due Process of Law, Assistance of counsel.
Evidence, Admissions and confessions, Voluntariness of
statement. Error, Harmless. Practice, Criminal, Capital
case, Motion to suppress, Assistance of counsel, Admissions
and confessions, Voluntariness of statement, Harmless
error.

Indictments found and returned in the Superior Court
Department on September 22, 2006.

A pretrial motion to suppress evidence was heard by Charles
J. Hely, J., and the cases were tried before Thomas A. Connors,
J.

William S. Smith for the defendant.
Mary E. Lee, Assistant District Attorney, for the
Commonwealth.

1
Chief Justice Ireland participated in the deliberation on
this case prior to his retirement.
 2

GANTS, J. In the early morning of July 6, 2006, the

defendant, Chiteara M. Thomas, used a cigarette lighter to set

fire to a curtain in the first-floor apartment of a three-story

house in Brockton (house). The fire quickly spread from the

first floor to the upstairs apartments. Olinda Calderon, a

resident in the third-floor apartment, died in the fire, and

several residents and guests in the second- and third-floor

apartments were injured. A Superior Court jury convicted the

defendant of murder in the first degree on the theory of

deliberate premeditation, arson of a dwelling house, and the

attempted murder of thirteen persons.

On appeal, the defendant contends that the judge erred in

denying, except in small part, her motion to suppress the

statements she made to police on July 6 and 7, 2006,2 and that a

substantial likelihood of a miscarriage of justice arose from

the admission in evidence of the defendant's invocation of her

right to counsel at the commencement of her July 6 interview.

We conclude that the judge erred in denying the motion to

2
The judge allowed the motion to suppress only with respect
to a four-minute segment of the interrogation on July 7, 2006,
and denied the motion with respect to the remainder of the
interrogation, which continued for over three hours over two
days. Because the defendant contended that it strengthened her
claim that her subsequent confession on July 7 was not made
voluntarily, the trial judge allowed the defendant's request
that the jury hear the suppressed four-minute segment.
 3

suppress the July 6 interview and that part of the July 7

interview that preceded the defendant's booking, but correctly

denied the motion with respect to the defendant's postbooking

confession. We also conclude that the error was not harmless

beyond a reasonable doubt with respect to the convictions of

murder in the first degree and attempted murder, but was

harmless beyond a reasonable doubt with respect to the

conviction of arson of a dwelling house. We therefore vacate

the attempted murder convictions, affirm the conviction of arson

of a dwelling house, and, with respect to the conviction of

murder in the first degree, give the Commonwealth the option of

either accepting a reduction of the verdict to felony-murder in

the second degree or having the conviction vacated and

proceeding with a new trial on the murder indictment.

Background. Because the sufficiency of the evidence is not

at issue, we summarize briefly the evidence at trial. At the

time of the fire, the defendant was a twenty-two year old

homeless woman. Michelle Johnson rented and resided in the

first-floor apartment of the house, which was a "place to buy

['crack' cocaine]" and a known "drug house." The defendant's

boy friend, Cornelius Brown, and the defendant were among the

persons allowed to stay in the apartment with Johnson, but

before the fire, Johnson told the defendant to move out of the

apartment. The defendant was angry with Johnson for preventing
 4

her from living with Brown, and repeatedly threatened to kill

Johnson and burn the house down. The defendant returned to the

house on multiple occasions and broke the windows of the first-

floor apartment by throwing rocks and bricks at the house.

On June 27, 2006, a police officer saw the defendant

walking on the porch of the house while holding a small paring

knife. The police officer directed her to leave, but she

continued to return. On July 3, police officers again saw her

outside the house, where she had been arguing with Brown. A

neighbor who lived across the street and witnessed the argument

observed the defendant break one of the windows of the house and

heard her yell, "I'll be back to torch the place," and, "If I'm

not going to have a home, you're not going to have one." That

day, Johnson threw a bottle at the defendant upon finding her

sitting on the porch of the house, an act that enraged the

defendant, especially when Brown failed to come to her defense.

After that incident, the police warned the defendant not to

return to the house, but she returned later that evening, and

was arrested for trespassing. She was required to appear in

court on July 5 to be arraigned on this charge, but defaulted,

and a warrant issued for her arrest.

On the evening of July 5, the defendant visited the home of

her friend, Veronica Copeland. The defendant was upset and high

from smoking crack cocaine, drinking alcohol, and taking
 5

Klonopin medication. At or around midnight, the defendant drove

Copeland's vehicle to the house without her permission, but

Copeland followed her there and drove her back to Copeland's

home. At 12:30 A.M. on July 6, the defendant telephoned Johnson

and told her that she hated her, that she thought Johnson was

engaging in a sexual relationship with Brown, and that she was

going to "mess [her] up."3 The defendant later took a bicycle

from Copeland's home and rode back to the house.

Later that morning, the neighbor who lived across the

street from the house was awakened by a traffic accident that

occurred outside the house at approximately 4:50 A.M. At

daybreak, the neighbor saw the defendant approach the house on

foot and reach her hand into the second window on the first

floor of the left side of the house. The neighbor then saw a

reddish-orange glow from the first-floor windows, went outside,

and saw the defendant running away from the house.4

The fire spread quickly through the three apartments. All

who were on the first floor escaped without injury, but the

family on the second floor and their two guests were trapped by

3
Michelle Johnson had earlier taunted the defendant by
suggesting that Cornelius Brown was engaging in a sexual
relationship with Johnson's friend.
4
The police officer who responded to the traffic accident
outside the house left the area between 5:20 A.M. and 5:30 A.M.
The first report of the fire occurred at approximately 5:41 A.M.
 6

the flames. The adults threw the children out of a window into

the waiting arms of a good Samaritan who stopped to provide

assistance, and later jumped out of the window themselves,

sustaining serious injuries when they hit the ground. The four

residents of the third-floor apartment also were trapped. Three

people, including a one month old baby girl, were rescued by

fire fighters and survived; the fourth, Calderon, the mother of

the baby, was pulled by a fire fighter from the bathroom where

she had sought refuge but died at the hospital from smoke

inhalation.

The police questioned the defendant on July 6 and 7, 2006,

and arrested her during the interrogation on July 7. The video

recordings of these interviews were admitted in evidence and

played in their entirety at trial. On July 6 and initially on

July 7, the defendant denied setting the fire, but after she was

arrested and booked on the charges of murder and arson of a

dwelling house, she admitted that she had "set the fire" with

"just a lighter" by placing the flame on the curtain in "the

second window." The defendant said that she did not know why

she did it, but that her "intentions were never to hurt

anybody." Her description of her conduct was consistent with

the observations of the neighbor who had seen her reach her hand

into a window of the house, and with the fire investigation,

which determined that the cause of the fire was incendiary, that
 7

the origin of the fire was the rear bedroom of the house, and

that no accelerant had been used.

Discussion. 1. Motion to suppress. The defendant moved

to suppress the statements she made on July 6 and 7, claiming

violation of her right against self-incrimination and her right

to counsel under the Fifth and Fourteenth Amendments to the

United States Constitution and art. 12 of the Massachusetts

Declaration of Rights. A judge in the Superior Court, who was

not the trial judge, conducted an evidentiary hearing on the

motion, and made the following relevant findings of fact, which

we supplement where necessary with evidence in the record that

is uncontroverted and that was implicitly credited by the motion

judge, see Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007),

S.C., 450 Mass. 818 (2008), and with the video recordings of the

interviews of the defendant, which were admitted in evidence at

the motion hearing.5

On the morning of July 6, the Brockton police department

and the State police began investigating the fire as a possible

arson. They soon learned that the defendant had been in a feud

with a resident of the house. Brockton police Detective Michael

5
Where a defendant's interview is video recorded, we are in
the same position as the motion judge to determine what occurred
during the interview and therefore independently make that
determination. See Commonwealth v. Hoyt, 461 Mass. 143, 148-149
(2011).
 8

Schaaf, who was assigned that day to "warrant apprehension," was

asked to locate her. Detective Schaaf knew the defendant, and

had arrested her for outstanding warrants on seven prior

occasions.

The defendant knew she had an outstanding default warrant

arising from her arrest for trespassing at the house on July 3,

because she had failed to appear for her arraignment on July 5.

She also believed that the police were looking for her as a

suspect in connection with the fire that morning. Accompanied

by Copeland, she went to the Brockton District Court to clear up

her warrant and obtain an attorney. At approximately 12:50 P.M.

on July 6, she was in the court house lobby near the Department

of Probation office when Detective Schaaf approached her and

told her that detectives wanted to speak with her at the police

station about the fire. The defendant told him that she had an

arrest warrant she was trying to clear up, and the detective

replied that the police would "take care of" the warrant for

her. The defendant agreed to go to the station with him. He

did not place the defendant under arrest, handcuff her, or frisk

her for weapons.

a. July 6 interview. The defendant was taken to an

interview room at the police station, where she was met by State

Trooper John Sylva and Brockton police Detective Dominic

Persampieri at 1:53 P.M. The defendant agreed to have her
 9

interview recorded, and a video recording was made of the

interview. Trooper Sylva read the Miranda warnings form to the

defendant and showed her the printed warnings as he read them.

After asking her if she understood these rights, the defendant

replied, "I don't understand . . . . If I said anything, 'okay,

don't want to talk to you guys,' 'cause that wouldn't happen,

right?" Trooper Sylva replied, "Well, that's your right. If

you want to contact a lawyer, you can always have a lawyer

present when you talk to us." The defendant then asked, "And

I'd have to sit here and wait for a lawyer, and probably be held

and all that, right?" Trooper Sylva said, "Well, I don't know.

You do have . . . an outstanding warrant." The defendant said,

"That's what I mean." Trooper Sylva replied, "[T]hat's a

separate matter. You were arrested because you had a warrant."

The defendant told him that she had not been arrested, stating,

"I didn't come here in cuffs." She said, "Schaaf came to get

me."

The following conversation then ensued:

Trooper Sylva: "[B]efore we proceed any further, I just
want you to decide whether you want to speak with us
regarding an incident."

Defendant: "I'd rather have a lawyer, because . . . I'm
accused [of] starting a fire . . . [a] major fire."

Trooper Sylva: "[W]e didn't bring anything up to you."
 10

Defendant: "No, I'm bringing it up, 'cause I know what I'm
here for. . . . And I know what I done, but . . . I'm not
a fire-starter. I did not do that, man."

Trooper Sylva: "So what you're saying to me is that you do
not want to . . . talk to us, is that correct?"

Defendant: "I want to talk, but I don't wanna talk unless
I got somebody present who . . . ."

Detective Persampieri: "Do you want an attorney? Yes or
no?"

Defendant: "Yes."

Detective Persampieri: "Okay. End . . . of conversation."

After this invocation of her right to an attorney, Detective

Persampieri left the room, leaving the door open, and the

defendant asked, "Am I being held, or do I have bail?" Trooper

Sylva replied that that would be decided by the courts because

the warrant had to be addressed.

Detective Persampieri then reentered the room. He stood at

the table where the defendant was seated and, facing the camera,

asked, "Is that off?"6 He then looked down at the defendant and

told her, "[U]nderstand one thing. Once you leave here, . . .

[w]e're gonna do our investigation, and it's gonna get a lot

hotter. . . . [W]hat we're trying to tell you, we're gonna give

you the opportunity to tell us your side of the story. Okay?"

The defendant said, "[T]hat's why I wanted to stay here," but,

6
The video recording was not off and recorded all that
transpired thereafter.
 11

before leaving the room again, the detective interrupted her and

said, "Sorry. You already lawyered up."

The defendant remained seated at the table and stated, "I'm

real confused here." Brockton police Detective Jackie Congdon,

who was nearby but off camera, asked her why she was confused.

The defendant became visibly upset and said that she had never

been in this position before, where she was being accused of

starting a fire. The detective asked, "If you're not an

arsonist, then you'd have no problem with us taking that shirt

from you?" The defendant became visibly upset and said that she

had no problem with giving her shirt to the police, adding, "You

can have anything. You can touch anything on me." Detective

Congdon then said, "You had your chance, you just lawyered up."

The conversation continued as follows:

Defendant: "But I didn't . . . well, but I don't . . . I,
I mean that if I could go back so there's no way I can say
no at all? There's no way I can say, 'Yeah, I'm gonna give
my story?' '[C]ause I'm confused."

Detective Congdon: "Is that what you want to do?"

Defendant: "I want to tell my story, but I'm not sure, do
you understand what I'm trying to say . . . . I've never
been in this position."

Detective Congdon: "Well, we can't talk."

Defendant: "So I don't know if I need lawyer help or not.
And now that he . . . what did he, he just said now, I have
my chance to tell my story. I, I would rather do it like
that."
 12

Detective Congdon: "That's what we're asking. . . So you
want to give up your right to have a lawyer?"

Defendant: Yes. 'Cause I don't know what . . . . All
this confusion . . . . I'm confused."

Detective Congdon asked if the defendant would rather have

her (Detective Congdon) in the interview, and the defendant said

she would. Off camera, Detective Congdon then told Trooper

Sylva and Detective Persampieri that the defendant wanted to

talk with her. Detective Persampieri asked, "She just wants

you?" referring to Detective Congdon. The defendant stated, "I

just said I would feel comfortable with her being around," and

added, "When you said I had my chance, though, when you said

that I had my . . . ." Detective Persampieri interrupted her

and asked, "Do you want to talk with us?" She answered, "Yes."

Trooper Sylva and Detective Persampieri then returned to

the room, and Detective Congdon told the defendant that she

would be outside the room if the defendant needed anything.

Trooper Sylva again read her the Miranda rights, and the

defendant signed the waiver form. In the ensuing conversation,

the defendant denied setting the fire, but made many

incriminating admissions regarding her whereabouts in the hours

before and immediately after the fire, the details of her feud

with Johnson (including her admission that she smashed the

windows of the house), the intensity of her animosity toward

Johnson, her tumultuous romantic relationship with Brown and her
 13

jealousy regarding his purported sexual infidelity, and her

disappointment that he had not sided with her in the feud with

Johnson.

The interview continued until 4:40 P.M. When the interview

ended, Trooper Sylva stated, "We gotta put you through the

system." The defendant asked, "I should be able to go right

back to the court house right now, right?" Trooper Sylva told

her the court house was closing, and he did not know if there

was time to get her back there. The defendant was held in

custody at the police station overnight on the default warrant

for the July 3 trespass charge, and was not brought to court

until the next morning, at which time she was released on

personal recognizance.

We review de novo any findings of the motion judge that

were based entirely on the documentary evidence, i.e., the

recorded interviews of the defendant. See note 5, supra. We

accept other findings that were based on testimony at the

evidentiary hearing and do not disturb them where they are not

clearly erroneous. See Commonwealth v. Tremblay, 460 Mass. 199,

205 (2011). However, we "make an independent determination as

to the correctness of the judge's application of constitutional

principles to the facts as found." Id.

The defendant clearly and unequivocally invoked her right

to counsel at the beginning of the interview, when she declared
 14

that she did not want to answer questions without an attorney

present. The United States Supreme Court explained in Edwards

v. Arizona, 451 U.S. 477, 481-482 (1981):

"In Miranda v. Arizona, the Court determined that the Fifth
and Fourteenth Amendments' prohibition against compelled
self-incrimination required that custodial interrogation be
preceded by advice to the putative defendant that he has
the right to remain silent and also the right to the
presence of an attorney. [384 U.S. 436, 479 (1966)]. The
Court also indicated the procedures to be followed
subsequent to the warnings. If the accused indicates that
he wishes to remain silent, 'the interrogation must cease.'
If he requests counsel, 'the interrogation must cease until
an attorney is present.' Id. at 474."

The Court held that "when an accused has invoked his right to

have counsel present during custodial interrogation, a valid

waiver of that right cannot be established by showing only that

he responded to further police-initiated custodial interrogation

even if he has been advised of his rights." Edwards, supra at

484. "[A]n accused, . . . having expressed his desire to deal

with the police only through counsel, is not subject to further

interrogation by the authorities until counsel has been made

available to him, unless the accused himself initiates further

communication, exchanges, or conversations with the police."

Id. at 484-485.

The motion judge concluded that the prohibition in Edwards

did not apply because the defendant was not in custody when she
 15

invoked her right to counsel.7 We disagree. "In assessing

whether a defendant was in 'custody' for purposes of the Miranda

requirements, '[t]he crucial question is whether, considering

all the circumstances, a reasonable person in the defendant's

position would have believed that he was in custody. . . .

Thus, if the defendant reasonably believed that he was not free

to leave, the interrogation occurred while the defendant was in

custody, and Miranda warnings were required.'" Commonwealth v.

Hilton, 443 Mass. 597, 609 (2005), S.C., 450 Mass. 173 (2007),

quoting Commonwealth v. Damiano, 422 Mass. 10, 13 (1996). See

Commonwealth v. Kirwan, 448 Mass. 304, 309 (2007) ("The test is

an objective one: would a reasonable person in the

circumstances of the defendant's interrogation have perceived

the environment as coercive?").

When the defendant was taken from the court house to the

police station for questioning, the defendant knew that a

default warrant had issued for her arrest because she had failed

to appear at her arraignment. She informed Detective Schaaf

that she was trying to address the outstanding warrant. A

7
The motion judge found that custody commenced after State
police Trooper John Sylva and Brockton police Detective Dominic
Persampieri resumed their interrogation following the
defendant's conversation with Brockton police Detective Congdon.8
Although Brockton police Detective Michael Schaaf had told the
defendant that the police would "take care of" the warrant for
her, there was no evidence that the police had taken any action
regarding the warrant, or had told the defendant that they had.
 16

reasonable person in that position would recognize that, when

there is an outstanding warrant for a person's arrest, and when

the person named in the warrant is at a police station in the

company of detectives who know there is such a warrant, that

person is not free to leave until she is brought before a

judicial officer and released on bail or personal recognizance.

The motion judge found that the defendant was not in custody

until Trooper Sylva told her after she invoked her right to

counsel that her warrant had to be addressed. But we conclude

that a reasonable person in that position would have known that

the warrant had to be addressed without being told so by a

police officer, and would also have known that she could not be

released until it had. Although the determination of custody

rests on what a reasonable person in that position would

believe, rather than on the subjective understanding of the

interrogating police officer or the person being questioned, see

Kirwan, 448 Mass. at 309, it is noteworthy that the police

officers who were questioning the defendant and the defendant

herself understood that she was not free to leave until the

warrant had been addressed.8

8
Although Brockton police Detective Michael Schaaf had told
the defendant that the police would "take care of" the warrant
for her, there was no evidence that the police had taken any
action regarding the warrant, or had told the defendant that
they had.
 17

The motion judge appears to have rested his finding that

the defendant was not in custody in large part on her insistence

that she had not been arrested by Detective Schaaf and her

statement, "I didn't come here in cuffs." However, this does

not suggest that she believed (or, more importantly, that a

reasonable person in her position would believe) that she was

free to leave or that the police would not arrest her if she

attempted to leave. Nor does it suggest that she went to the

police station voluntarily. In fact, when Trooper Sylva asked

her, "You came voluntarily?" she replied, "No, Schaaf came to

get me."9

The motion judge also found that, "[e]ven if the defendant

was in custody at the time she asked to speak with a lawyer, the

Edwards rule was not violated," because "[t]he defendant

initiated her conversation with Detective Congdon after the

other detectives had terminated the interview and left the

9
The motion judge correctly rejected the Commonwealth's
argument that, even if the defendant was in custody because of
the outstanding arrest warrant, she was not in custody because
of the arson investigation and therefore was not in custody for
purposes of applying the rule of Edwards v. Arizona, 451 U.S.
477, 484-485 (1981). The judge noted that the "exception to the
usual Miranda custody principles is limited to the questioning
of a prisoner who is already in the 'confines of ordinary prison
life,'" quoting Commonwealth v. Larkin, 429 Mass. 426, 434-435
(1999). See id. at 435, quoting People v. Margolies, 125 Misc.
2d 1033, 1041 (N.Y. Sup. Ct. 1984) ("The precise question is
thus 'whether the prisoner would reasonably believe himself to
be in custody beyond that imposed by the confines of ordinary
prison life'").
 18

room." While it is true that the defendant initiated a

conversation with Detective Congdon by saying, "I'm real

confused here," it is also true that the defendant stated her

confusion only after Detective Persampieri told her, "Once you

leave here, . . . [w]e're gonna do our investigation, and it's

gonna get a lot hotter. . . . [W]e're 'gonna give you the

opportunity to tell us your side of the story," but, "Sorry.

You . . . lawyered up."

Detective Persampieri's statements were improper for two

reasons.10 First, they were an attempt to persuade her to change

her mind about her decision to invoke her right to counsel

seconds after she had made that invocation. The invocation of

the right to counsel, like the invocation of the right to

silence, is part of the "right to cut off questioning" that must

be "scrupulously honored" by law enforcement. Michigan v.

Mosley, 423 U.S. 96, 103-104 (1975), quoting Miranda, 384 U.S.

at 474, 479. The police may not fail to honor the right of a

person in custody to cut off questioning "by persisting in

repeated efforts to wear down his resistance and make him change

his mind." Mosley, supra at 102, 105-106. See Commonwealth v.

Brum, 438 Mass. 103, 112 (2002). Cf. Commonwealth v. Clarke,

10
Detective Persampieri's query whether the video recording
was "off" suggests that he recognized the impropriety of what he
was about to say.
 19

461 Mass. 336, 352 (2012), quoting Connecticut v. Barrett, 479

U.S. 523, 534 n.5 (1987) (Brennan, J., concurring in the

judgment) ("where the initial request to invoke the right to

remain silent is clear . . . , 'the police may not create

ambiguity in a defendant's desire by continuing to question him

or her about it'").

Second, Detective Persampieri's failure scrupulously to

honor the defendant's invocation of her right to counsel was

aggravated by his statements suggesting that, by invoking her

right to counsel and thereby ending the interview, she was

losing her opportunity to tell her side of the story. In

Commonwealth v. Novo, 442 Mass. 262, 267 (2004), we criticized

an interrogation technique in which the police told the

defendant that this would be his "only opportunity" to offer an

explanation as to why he hit the victim. In Novo, the police

persisted in "this now-or-never theme," and went on to tell the

defendant that, if he did not give them a reason for his

conduct, "a jury [were] never going to hear a reason." Id. at

267, 268. We concluded that this misrepresentation of the

defendant's right to testify at trial was an "egregious

intrusion on rights that art. 12 declares to be fundamental."

Id. at 268-269. See Commonwealth v. Ortiz, 84 Mass. App. Ct.

258, 268 (2013) ("detectives' message that this was the

defendant's 'last chance' to tell his story was a plain
 20

misstatement of the defendant's rights to present a defense").

Here, the detective did not expressly tell the defendant that,

by having "lawyered up," she was losing her chance to tell her

story to the jury. But we conclude that the message he

implicitly communicated to her was unfair and misleading even if

she understood him to mean that she was losing her chance to

tell her story to law enforcement officers. We recognize that

we stated in Novo, supra at 269 n.5, that the "officers in

[that] case might have properly (and truthfully) told [the

defendant], 'This is your only chance to talk to us,' or, 'This

is your only opportunity to tell your story to us so that we can

help you.'" On further reflection, we declare now that these

statements, too, are neither proper nor truthful, especially

where a suspect has invoked her right to counsel. There is

nothing that would bar a suspect, after consulting with counsel,

from deciding to speak with the police, and there is no sound

reason why the police would refuse such a request.

Detective Congdon's conversation with the defendant added

to the defendant's confusion that Detective Persampieri's words

had elicited. After the defendant told her she did not start

fires and agreed to the detective's request to hand over her

shirt, Detective Congdon said, "You had your chance, you just

lawyered up," reiterating Detective Persampieri's warning that

she had lost her "chance" to explain what happened by invoking
 21

her right to counsel. The potency of Detective Persampieri's

improper persuasion was apparent from the words the defendant

spoke as she decided whether to revisit her invocation of

counsel: "I want to tell my story," but "I don't know if I need

lawyer help or not," and "he just said now, "I have my chance to

tell my story," so "I would rather do it like that." In other

words, she reasoned that she knew she wanted to tell her story

but she was not sure whether she needed the assistance of a

lawyer, so she decided to tell her story without counsel lest

she lose her opportunity to do so. Contrast Commonwealth v.

Chipman, 418 Mass. 262, 273 (1994) (police did not engage in

"any type of prodding designed to elicit inculpatory

statements").

"When a defendant invokes his right to counsel, all

subsequent statements are inadmissible unless counsel is

provided or the Commonwealth can prove beyond a reasonable doubt

that the defendant "initiate[d] further communication,

exchanges, or conversations with the police. . . and thereby

waived his right to counsel." Commonwealth v. Hoyt, 461 Mass.

143, 151 (2011), quoting Edwards, 451 U.S. at 485. Where, as

here, the defendant's initiation of conversation with a

detective was triggered by another detective's attempt to

persuade her that she was making a mistake by "lawyer[ing] up,"

and that, by doing so, she was losing her chance to tell her
 22

version of what happened, the Commonwealth cannot meet its

burden of proving beyond a reasonable doubt that the defendant

waived her right to counsel. Because the police officers here

did not scrupulously honor the defendant's right to cut off

questioning until she had the benefit of counsel, and instead

sought to persuade her to change her mind by suggesting that

"lawyering up" was costing her the opportunity to tell her side

of the story, we conclude that the continuation of the

questioning on July 6 violated the Edwards rule and that the

statements the defendant made that day in response to that

questioning should have been suppressed. See Hoyt, supra.

b. July 7 interviews. The motion judge found that, at the

arraignment on the trespass charge on the morning of July 7,

counsel was appointed for the defendant on that charge and she

was released on personal recognizance.11 That day, the police

learned that Calderon had died from her injuries in the fire and

that a neighbor had identified the defendant as the person the

neighbor saw putting a hand into a broken window at the house.

Detective Schaaf was again directed to find the defendant, and

he located her in Brockton at approximately 3 P.M. He told the

defendant that the police wanted to speak with her again at the

station. The defendant was "a little upset" and "annoyed" about

11
The record is silent as to whether she conferred with
appointed counsel.
 23

returning to the station, but she was "compliant" and allowed

Detective Schaaf to drive her there. The defendant waited

nearly three hours at the station with officers by her side

before she was interviewed again by Trooper Sylva and Detective

Persampieri at approximately 6 P.M. There, she was again given

the Miranda warnings and again waived her rights.

Trooper Sylva told the defendant that "[s]omebody died in

that fire" and that they had "eyewitness accounts of what

happened." He told her about "mitigating circumstances," and

urged her to present her side of the story. When Detective

Persampieri asked her to tell them what happened, she said she

had already told them what happened, and stated, "I'm not

changing nothing." When asked by Trooper Sylva, "You're going

stick with the same story you told us yesterday . . . ?" she

answered, "Yeah." In the approximately thirty minutes before

she was arrested and booked on the charges of murder and arson

of a dwelling house, she did not change her story and continued

to deny setting the fire.12

12
Shortly after the defendant was told she was under arrest
for murder and arson of a dwelling house, the defendant got onto
the floor and began praying, temporarily stopping the
interrogation. The motion judge suppressed this four-minute
segment, finding that the defendant's statements during this
highly emotional period were not made voluntarily. The
defendant later regained her composure, and the interrogation
continued for a few minutes before she was escorted out of the
room for booking.
 24

State police Trooper Scott McGrath was present with the

defendant during part of the booking procedure. While the

defendant was being booked, she turned to the trooper and told

him, "I'm not a bad person." The judge found that this was a

spontaneous statement by the defendant. The trooper replied

that he did not think she was a bad person, and told her that,

if she wanted to return upstairs and speak with Trooper Sylva

and Detective Persampieri, she could. He asked her if she

wanted to explain to them what happened, and the defendant said,

"I do want to speak with them again."

At 6:49 P.M., the defendant returned to the interview room

and met again with Trooper Sylva and Detective Persampieri.

After she again was read her Miranda rights and waived them,

Trooper Sylva asked, "Let's hear the real story. What

happened?" The defendant then admitted that she set the fire at

the house. She explained that she set fire to a curtain in the

window on the left side of the house, using "[j]ust a lighter"

and then went to a friend's house to tell her the house was

burning. She said she had no "intentions of it getting that

big," and that she never meant to hurt anybody.

The motion judge found that the entirety of the July 7

interview was custodial, and that the defendant made a knowing,

intelligent, and voluntary waiver of her Miranda rights. He

also found that, apart from the four-minute segment of the
 25

interview during which she was praying, her statements were

voluntary beyond a reasonable doubt. The motion judge also

found that, even if there had been an Edwards violation in the

July 6 interview, there was no such violation in the July 7

interview. To reach this conclusion, the motion judge

determined, first, that the Edwards rule did not bar the police

from initiating the July 7 interview, and, second, that any

Edwards violation on July 6 did not taint any part of the July 7

interview. We review each of these determinations and, for

reasons we shall articulate, conclude that, because the

defendant had been appointed counsel during her arraignment on

the trespass charge on the morning of July 7 and had had the

opportunity to confer with counsel, the police were not barred

from subsequently initiating another interview of her after her

release from custody, but only her July 7 postbooking confession

was free from taint arising from the Edwards violation on July

6.

As to the first determination, the judge noted that, after

a defendant invokes her right to counsel, the Edwards rule

requires suppression of a subsequent, police-initiated statement

only where the defendant was in continuous custody from the time

of the invocation to the time of the police initiation of

interrogation. See Commonwealth v. Galford, 413 Mass. 364, 370-

371 (1992), cert. denied, 506 U.S. 1065 (1993) (under Federal
 26

law, "where there is a break in custody, Edwards does not

require that a subsequent statement be excluded," because

"[w]hen a defendant is released from custody, the coercive

effect of custody disappears"). The motion judge determined

that the Edwards rule did not apply because there was a break in

the defendant's custody between her release by the District

Court on the morning of July 7 and her return to the police

station with Detective Schaaf later that day at approximately 3

P.M. We agree with the motion judge that, because of the break

in custody, the defendant's invocation of her right to counsel

did not bar the police under Federal law from initiating

questioning of her after her release on July 7. See Galford,

supra.

In Galford, however, we noted that the defendant's

arguments were based on his rights pursuant to the Fifth and

Fourteenth Amendments, and we therefore did not address whether,

under State constitutional law, the police may initiate

questioning of a suspect once the suspect is released from

custody where that suspect earlier had invoked her right to

counsel. Id. at 369 n.7. We address that issue here.13 We need

13
In this case, the defendant claimed a violation of her
right to counsel under art. 12 of the Massachusetts Declaration
of Rights, but even if she had not, we properly consider the
question under our State constitutional law because in an appeal
from a conviction of murder in the first degree, pursuant to our
 27

not decide here whether to adopt under our State constitutional

law the Federal rule regarding break in custody; we need only

decide whether to adopt it in the rather unusual circumstances

presented in this case, especially where this issue was not

briefed by the parties.

Here, the defendant went to court on July 6, not only to

clear up her warrant, but to have an attorney appointed at the

arraignment to represent her. We infer that she wished to have

the advice of counsel because she recognized that she was

suspected of having set the fire at the house earlier that

morning. Her invocation of the right to counsel at the

beginning of her interview on July 6 supports that inference.

On the morning of July 7, the defendant appeared in court and

had counsel appointed to represent her in a case alleging

trespass of the same house that she was suspected of having

burned. Although the record does not shed light on whether she

actually conferred with appointed counsel, she had the

opportunity to do so that morning. In these circumstances,

where the defendant invoked her right to counsel, counsel was

appointed to represent her in a related case the next day, and

interrogation resumed several hours thereafter, following her

statutory duty under G. L. c. 278, § 33E, we review all
potential claims to determine whether there was a substantial
likelihood of a miscarriage of justice. See Commonwealth v.
Randolph, 438 Mass. 290, 294 (2002).
 28

release from custody, we conclude that the reinitiation of

custodial interrogation, standing alone, did not violate art.

12. We leave for another day whether police reinitiation of

questioning following a defendant's release from custody might

violate art. 12 where the defendant had earlier invoked her

right to counsel and had not had the opportunity to confer with

counsel appointed for her in a related case.

The second determination, as the judge correctly noted,

addresses whether any Edwards violation on July 6 tainted the

statements made on July 7. An Edwards violation is also a

Miranda violation. See Edwards, 451 U.S. at 482 ("Miranda . . .

declared that an accused has a Fifth and Fourteenth Amendment

right to have counsel present during custodial interrogation").

In contrast with Federal constitutional law, under our State

constitutional law, we "presume that a statement made following

the violation of a suspect's Miranda rights is tainted," and

require the prosecution to "show more than the belated

administration of Miranda warnings in order to dispel that

taint." Commonwealth v. Smith, 412 Mass. 823, 836 (1992). A

statement obtained in violation of Edwards, and thus also in

violation of Miranda, is "by definition 'coerced.'" Smith,

supra, quoting State v. Lavaris, 99 Wash. 2d 851, 857 (1983).

The presumption of taint under our State constitutional law

arises from the recognition that, where the police procure a
 29

statement from a suspect in violation of Miranda, a subsequent

statement may be the product of the initial coercion even where

the suspect knowingly and voluntarily waives her right to

silence and to counsel, if the custodial interrogation was

essentially continuous or if the suspect believes that it would

be futile to invoke her rights because she incriminated herself

in the first statement. See Hoyt, 461 Mass. at 153;

Commonwealth v. Prater, 420 Mass. 569, 581, 583-584 (1995).

"This presumption may be overcome by showing that either: (1)

after the illegally obtained statement, there was a break in the

stream of events that sufficiently insulated the post-Miranda

statement from the tainted one; or (2) the illegally obtained

statement did not incriminate the defendant, or, as it is more

colloquially put, the cat was not out of the bag." Prater,

supra at 580, quoting Commonwealth v. Osachuk, 418 Mass. 229,

235 (1994). "[W]hether one or both lines of analysis is

required before a confession is admitted turns on the facts of

the case." Commonwealth v. Torres, 424 Mass. 792, 799-800

(1997), quoting Prater, supra at 580 n.10.

The motion judge found that, where over twenty-two hours

had elapsed between the end of the interview on July 6 and the

beginning of the interview the next day, and where the defendant

had been released from custody during that time period, there

was a "significant break in the stream of events" between the
 30

July 6 and July 7 statements that "weigh[ed] in favor of the

voluntariness of the defendant's Miranda waivers and statements

on July 7." The motion judge also found that the incriminating

July 6 admissions "did not cause the defendant to feel a sense

of futility that would pressure her into making admissions on

July 7."

We agree with the judge's finding of a material break in

time, but we conclude that, in the circumstances of this case,

the taint from the Edwards violation was not dispelled in the

interrogation that occurred on July 7 before the defendant's

booking, where she essentially related the same story she told

on July 6. As to this part of the interrogation, the invocation

of rights would have appeared futile to the defendant because

she intended to tell the officers only what she had told them

the previous day, and that proverbial cat was already out of the

bag. See Commonwealth v. Mahnke, 368 Mass. 662, 686 (1975),

cert. denied, 425 U.S. 959 (1976) ("The cat-out-of-the-bag line

of analysis requires the exclusion of a statement if, in giving

the statement, the defendant was motivated by the belief that,

after a prior coerced statement, his effort to withhold further

information would be futile and he had nothing to lose by

repetition or amplification of the earlier statements. Such a

statement would be inadmissible as the direct product of the

earlier coerced statement"). However, the cat was not out of
 31

the bag when she returned to the interview room after her

booking with the intent to reveal that she had set the fire.

See Commonwealth v. Watkins, 375 Mass. 472, 478, 482 (1978) (cat

was not out of bag where defendant only admitted in initial

suppressed statement that he had been in Boston with another

suspect but, after being allowed to use telephone to call

attorney, admitted in subsequent statement to his involvement in

murder). Concerning this part of the interrogation, we credit

the motion judge's finding that the defendant's Miranda waiver

was voluntary and was not tainted by the July 6 violations of

Miranda and Edwards. Therefore, we conclude that the statements

made by the defendant during the prebooking interview of July 7

should have been suppressed, but that the statements she made

during the postbooking interview were properly admitted in

evidence.

2. Harmless error analysis. Having determined that all

but the postbooking interview should have been suppressed, we

turn to whether the erroneous admission of these statements was

harmless beyond a reasonable doubt. See Commonwealth v. Santos,

463 Mass. 273, 287 (2012). In making this determination, "we

consider 'the importance of the evidence in the prosecution's

case; the relationship between the evidence and the premise of

the defense; who introduced the issue at trial; the frequency of

the reference; whether the erroneously admitted evidence was
 32

merely cumulative of properly admitted evidence; the

availability or effect of curative instructions; and the weight

or quantum of evidence of guilt.'" Id., quoting Commonwealth v.

Dagraca, 447 Mass. 546, 553 (2006).

Essential to the jury's verdict was determining whether

(1) the defendant intentionally set the fire; (2) the setting of

the fire caused the death of Calderon; and (3) the defendant

intended by setting the fire to kill Johnson.14 The jury,

through their guilty verdicts, necessarily concluded beyond a

reasonable doubt that the defendant intentionally set the fire

and that the fire caused Calderon's death. In view of the

evidence at trial, especially the defendant's confession to

setting the fire during the postbooking interview, which was

consistent with the neighbor's observations of the defendant

moments before the house went up in flames and the fire

investigator's opinion regarding the cause and origin of the

fire, the erroneous admission of the defendant's July 6 and July

7 prebooking statements could not reasonably have affected these

two conclusions. These findings alone (along with the

undisputed fact that the house was a dwelling) were sufficient

to support a guilty verdict of arson of a dwelling house and,

14
We do not suggest that the jury were asked these three
questions, only that they effectively had to answer them to
reach their verdicts.
 33

with respect to the indictment charging murder, of the lesser

crime of felony-murder in the second degree, with arson of a

dwelling house as the predicate felony.15,16 The erroneous

admission of the statements, therefore, was harmless as to these

convictions.

We are not persuaded, however, that the erroneous admission

of the statements was harmless beyond a reasonable doubt as to

the third question: whether the defendant intended to kill

15
The elements of felony-murder in the second degree are as
follows:
"1. The defendant committed or attempted to commit a
felony with a maximum sentence of less than imprisonment
for life.
"2. The death occurred during the commission or
attempted commission of the underlying felony.
"3. The underlying felony was inherently dangerous
(or) the defendant acted with a conscious disregard for the
risk to human life."
Model Instructions on Homicide 60 (2013). As the judge here
explained to the jury, arson of a dwelling house is an
inherently dangerous felony. Commonwealth v. Bell, 460 Mass.
294, 308 (2011).
16
Because the jury found the defendant guilty of murder in
the first degree on a theory of deliberate premeditation, the
jury, in accordance with the judge's instructions, did not reach
a verdict as to felony-murder, which would have been murder in
the second degree because the predicate felony, arson of a
dwelling house, in violation of G. L. c. 266, § 1, is not a life
felony. However, there can be no doubt that the jury found the
defendant guilty of this offense because they found her guilty
on the indictment charging arson of a dwelling house and
necessarily found that the death arose from the commission of
the arson.
 34

Johnson. The jury's finding that the defendant intended to kill

Johnson was necessary to its guilty finding of murder on the

theory of deliberate premeditation17 and its guilty findings on

the thirteen indictments charging attempted murder, all of which

rested on a finding of a transferred intent to kill. There was

sufficient evidence, apart from the erroneously admitted

statements of the defendant, to permit a reasonable jury to make

this finding, based largely on the defendant's earlier threats

to kill Johnson and the persistent feud between them. But the

evidence supporting a finding of an intent to kill was not

overwhelming, and the defendant's manner of setting the fire

(using a cigarette lighter to set fire to the curtain in one

window of the house, without adding any accelerant and without

making any apparent effort to block egress from the first-floor

apartment) was not reasonably likely to result in Johnson's

death. In these circumstances, we cannot conclude with the

required confidence that admission of the defendant's

statements, made over the course of more than three hours of

interrogation, where she spoke of her hatred of Johnson, her

breaking of the windows in the house, her anger at Johnson for

taunting her with Brown's supposed sexual infidelity, and her

17
The judge instructed the jury on the elements of murder
in the first degree on the theory of extreme atrocity or
cruelty, but the jury did not find the defendant guilty on this
theory.
 35

failure to use her cellular telephone to call 911 for assistance

even after she heard the screams of those trapped by the fire,

was harmless to the jury's finding that the defendant intended

to kill Johnson, and therefore harmless to their guilty verdicts

on the indictments charging murder and attempted murder.

Contrast Commonwealth v. Contos, 435 Mass. 19, 27-32 (2001).

Conclusion. The convictions of murder in the first degree

and of attempted murder cannot stand for the reasons we have

explained. We vacate the attempted murder convictions and

remand them for a new trial. We affirm the verdict of arson of

a dwelling house. Because the jury necessarily found the

required elements of felony-murder in the second degree, based

on their verdicts of murder and of arson of a dwelling house,

and because the erroneous admission of the defendant's

statements was harmless beyond a reasonable doubt as to these

required elements, the Commonwealth shall have the option of

either having the conviction of murder in the first degree

vacated and proceeding with a new trial on the murder

indictment, or accepting a reduction of the verdict to felony-

murder in the second degree.18 Within fourteen days of the

18
We have considered and rejected the defendant's argument
that the admission of that part of the July 6 recording where
the police officers chastised the defendant for having "lawyered
up," and the prosecutor's reference to this characterization in
closing argument, created a substantial likelihood of a
 36

issuance of this opinion, the Commonwealth shall inform this

court whether it will move to have the defendant sentenced on

the lesser offense of felony-murder in the second degree or

whether it will retry the defendant for murder in the first

degree. See Commonwealth v. Rutkowski, 459 Mass. 794, 800

(2011), and cases cited. We will issue an appropriate rescript

to the Superior Court after the Commonwealth informs us of its

decision. If the Commonwealth opts to move for sentencing on

the lesser offense of felony-murder in the second degree, the

conviction of arson of a dwelling house would of course have to

be dismissed as duplicative. See Commonwealth v. Gunter, 427

Mass. 259, 275-276 (1998), S.C., 459 Mass. 480, cert. denied,

132 S. Ct. 218 (2011).

So ordered.

miscarriage of justice. The defendant chose to admit the
entirety of the video recordings in the hope of persuading the
jury that her statements were not made voluntarily, and
therefore should not have been considered by them. This
strategy may have been unwise in retrospect, but it was not
"manifestly unreasonable when made." Commonwealth v. Housen,
458 Mass. 702, 711 (2011). Nor was it an error "likely to have
influenced the jury's conclusion." Commonwealth v. Wright, 411
Mass. 678, 682 & n.1 (1992). Viewing the references to the
defendant having "lawyered up" in the context of the totality of
the evidence, we conclude that it did not create a substantial
likelihood of a miscarriage of justice as to any of the verdicts
that we affirm in this opinion.