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SJC-11749
COMMONWEALTH vs. JEREMY LIBBY.
Suffolk. February 4, 2015. - June 26, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
& Hines, JJ.
Constitutional Law, Admissions and confessions, Waiver of
constitutional rights. Practice, Criminal, Motion to
suppress, Admissions and confessions, Voluntariness of
statement, Waiver. Waiver. Evidence, Admissions and
confessions, Voluntariness of statement.
Indictments found and returned in the Superior Court
Department on July 31, 2012.
A pretrial motion to suppress evidence was heard by Mary-
Lou Rup, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Lenk, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her.
Jane Davidson Montori, Assistant District Attorney, for the
Commonwealth.
Marissa Elkins for the defendant.
CORDY, J. The Commonwealth appeals from the ruling of a
Superior Court judge suppressing statements made to police
2
officers by the defendant during the course of two interviews:
the first being prearrest and the second following his arrest.
The defendant was advised of the Miranda rights at the
commencement of both interviews, but, in various ways, those
rights were not accurately explained. Among other things, we
are required to consider the effect of the inaccurate
explanation of those rights in a noncustodial setting on the
voluntariness of statements made thereafter, and on the knowing,
voluntary, and intelligent waiver of those rights in a
subsequent custodial interrogation. We reverse the judge's
ruling suppressing the prearrest statement, and affirm her
ruling suppressing the postarrest statement.
Background. On June 27, 2012, members of the Palmer police
department received a complaint regarding the sexual abuse of
K.C., a six year old girl who resided in the home where the
defendant was living. Shortly after police arrived at the home,
the defendant voluntarily1 accompanied them to the Palmer police
station to discuss an allegation that he had inappropriately
touched K.C. Sergeant Scott Haley was the only officer present
during this conversation, and he began the interview by reading
the defendant the Miranda rights. Haley then asked the
1
The record does not state whether the defendant was driven
to the police station or if he drove himself there. Sergeant
Scott Haley's investigative report only notes that the defendant
"willingly" went to the station.
3
defendant whether, with those rights in mind, the defendant was
willing to talk "about these matters of concern." After a
somewhat lengthy colloquy regarding the appointment of counsel
and whether the defendant was under arrest, discussed infra, the
defendant signed a Miranda waiver form and the interview
proceeded. The defendant denied any inappropriate conduct with
K.C. The interview concluded just after 10 P.M., and the
defendant left the police station.
On June 28, 2012, Haley attended a forensic interview of
K.C., during which she alleged that the defendant had sexually
abused her. The defendant was subsequently arrested and brought
to the police station. He was booked, fingerprinted, and
brought back to the same interview room in which he had met with
Haley the day before. Haley again read the defendant the
Miranda rights, which the defendant waived in writing. After
being told that additional evidence had been uncovered, the
defendant again raised the issue of counsel. Ultimately, after
another colloquy with Haley, the defendant said he did not want
a lawyer at that time and the interview continued. The
defendant proceeded to make inculpatory statements and admitted
that the previous day, while he was tickling K.C., she had moved
his hand to her inner thigh near her private parts.
Procedural history. In July, 2012, the defendant was
indicted by a Hampden County grand jury on four counts of
4
forcible rape of a child in violation of G. L. c. 265, § 22A, as
well as four counts of indecent assault and battery on a child
under the age of fourteen in violation of G. L. c. 265, § 13B.
In April, 2013, the defendant filed a motion to suppress
the statements he made to Sergeant Haley during both of his
interviews. The Commonwealth filed a written opposition in
response. At a hearing on the motion, the parties submitted
digital video discs of the defendant's interviews; a stipulation
as to the timeline of events; two signed Miranda waiver forms; a
medical record of the examination of K.C., the complaining
witness; and a police report authored by Haley. No testimony
was taken. After a second, nonevidentiary hearing, the motion
judge granted the defendant's motion to suppress in its
entirety.
In her decision, the judge concluded that the June 27
interview was noncustodial, but expressed some uncertainty
whether Miranda warnings given in a noncustodial interview had
to be scrupulously honored under Massachusetts law. She further
concluded that the Commonwealth failed to prove beyond a
reasonable doubt that the defendant understood the full import
of his right to counsel and that he had voluntarily, knowingly,
and intelligently waived that right. The judge also concluded
that reasonable doubt remained as to the voluntariness of the
defendant's statements on June 27, given interruptions and
5
misstatements made by Haley. With respect to the defendant's
June 28 interview, the judge held that misstatements by Haley
created a fundamental misunderstanding as to the defendant's
right to appointed counsel. This, coupled with repeated
"clarifying" questions that may have dissuaded the defendant
from exercising his right to counsel, hampered the Commonwealth
from establishing, beyond a reasonable doubt, the validity of
the defendant's waiver. Additionally, the motion judge found
that the Commonwealth did not meet its burden of showing that
the defendant's June 28 statements were voluntarily made in
light of Haley's implicit offers of leniency in conjunction with
misstatements about the defendant's right to counsel.
Subsequently, the Commonwealth filed a motion to stay
proceedings in the trial court, with a notice of interlocutory
appeal. The case is now before us pursuant to an order of a
single justice allowing the Commonwealth's application for leave
to pursue an interlocutory appeal.
Discussion. Typically, when "reviewing a ruling on a
motion to suppress, we accept the judge's subsidiary findings of
fact absent clear error, 'but conduct an independent review of
[her] ultimate findings and conclusions of law.'" Commonwealth
v. Clarke, 461 Mass. 336, 340 (2012), quoting Commonwealth v.
Scott, 440 Mass. 642, 646 (2004). "A judge who has seen and
heard the witnesses is in a better position to determine their
6
credibility than is a court which is confined to the printed
record." Commonwealth v. Novo, 442 Mass. 262, 266 (2004).
However, "whenever the evidence before the trial court is
reduced to a tangible form, and is therefore available to the
appellate court in the same form as it was reviewed by the trial
court," id., "the case for deference to the [motion] judge's
findings of fact is weakened." Clarke, supra at 340. In such
circumstances, "this court stands in the same position as did
the [motion] judge, and reaches its own conclusion unaffected by
the findings made by the [motion] judge" (citation omitted).
Novo, supra at 266. Accordingly, we take "an independent view
of the evidence and analyze[] its significance without
deference" (citation and quotation omitted). Clarke, supra at
341.
We have previously held that "[t]he requirements of Miranda
v. Arizona, 384 U.S. 436, 444 (1966), are not triggered unless
the interrogation is custodial, and a defendant's failure to
receive or understand Miranda warnings, or police failure to
honor Miranda rights, does not result in suppression of a
voluntary statement made in a noncustodial setting."
Commonwealth v. Hilton, 443 Mass. 597, 608-609 (2005), S.C., 450
Mass. 173 (2007). "[T]he premise of Miranda [is] that the
danger of coercion results from the interaction of custody and
official interrogation." Illinois v. Perkins, 496 U.S. 292, 297
7
(1990). Accordingly, "[t]he safeguards prescribed by Miranda
become applicable as soon as a suspect's freedom of action is
curtailed to a degree associated with formal arrest" (citation
and quotation omitted). Commonwealth v. Kirwan, 448 Mass. 304,
309 (2007).
"Custodial interrogation is 'questioning initiated by law
enforcement officers after a person has been taken into custody
or otherwise deprived of his freedom of action in any
significant way.'" Id., quoting Commonwealth v. Jung, 420 Mass.
675, 688 (1995). "The determination of custody depends
primarily on the objective circumstances of the interrogation,
and not on the subjective views of either the interrogating
officers or the person being questioned." Commonwealth v.
Sneed, 440 Mass. 216, 220 (2003). Accordingly, "'[t]he crucial
question' . . . is whether 'a reasonable person in the
defendant's position would have believed that he was in
custody.'" Commonwealth v. Molina, 467 Mass. 65, 73 (2014),
quoting Commonwealth v. Baye, 462 Mass. 246, 253 (2012).
Therefore, "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" (citation
omitted). Commonwealth v. Groome, 435 Mass. 201, 211 (2001).
Whether made in a custodial or noncustodial setting, and
even where there has been a valid waiver of Miranda rights, we
8
must consider the voluntariness of a defendant's statement, as
"a confession or an admission is admissible in evidence only if
it is made voluntarily." Commonwealth v. Tremblay, 460 Mass
199, 206 (2011). "[T]he Commonwealth must prove beyond a
reasonable doubt that 'in light of the totality of the
circumstances surrounding the making of the statement, the will
of the defendant was [not] overborne,' but rather that the
statement was 'the result of a free and voluntary act.'" Baye,
462 Mass. at 256, quoting Commonwealth v. Durand, 457 Mass. 574,
595-596 (2010). "A voluntary statement is one that is the
product of a rational intellect and a free will, and not induced
by physical or psychological coercion." Molina, 467 Mass. at
75, quoting Tremblay, supra at 207.
The issue of voluntariness necessarily "turns on 'all the
surrounding circumstances -- both the characteristics of the
accused and the details of the interrogation.'" Baye, 462 Mass.
at 256, quoting Dickerson v. United States, 530 U.S. 428, 434
(2000). "This is not an area of the law that is governed by
bright-line rules, but is one that requires a fact-intensive
analysis." Tremblay, 460 Mass. at 210. "Relevant factors [to
this inquiry] include, but are not limited to, 'promises or
other inducements, conduct of the defendant, the defendant's
age, education, intelligence and emotional stability, experience
with and in the criminal justice system, physical and mental
9
condition, the initiator of the discussion of a deal or leniency
(whether the defendant or the police), and the details of the
interrogation, including the recitation of Miranda warnings.'"
Molina, 467 Mass. at 76, quoting Commonwealth v. Selby, 420
Mass. 656, 663 (1995). While the "use of false information by
police during an interrogation is deceptive and is a relevant
factor indicating a possibility that the defendant's statements
were made involuntarily," Novo, 442 Mass. at 267, quoting Selby,
420 Mass. at 664, "[m]isinformation by the police does not
necessarily render a confession involuntary." Commonwealth v.
Raymond, 424 Mass. 382, 395 (1997). "The presence of one or
more factors suggesting a statement may have been made
involuntarily is not always sufficient to render the statements
involuntary." Tremblay, 460 Mass. at 207, quoting Selby, supra.
With these standards delineated, we turn to assessing the
statements at issue and the judge's ruling.
1. June 27 statements. As noted, the defendant
voluntarily accompanied the police to the police station on June
27, 2012, to discuss an allegation that he had inappropriately
touched K.C. The defendant, who was not under arrest, sat with
Haley in an office furnished with two chairs and a desk with a
computer. The interview was videotaped with the defendant's
knowledge and assent.
10
Haley began the defendant's interview by reading him the
Miranda rights. Haley then asked the defendant whether, with
these rights in mind, he wanted to discuss the "matters of
concern." The following exchange ensued:
Defendant: "I'm thinking with the circumstances I might
need to get a lawyer."
Haley: "Well, we can stop this right now if you want a
lawyer."
Defendant: "But where does that put me today? Am I
arrested? Am I under arrest?"
Haley: "Well, right now you're not under arrest."
Defendant: "I understand that, but if -- I'm not refusing
to answer, but I'm thinking. I'm just thinking
to myself underneath the circumstances, with
what's being alleged right now."
Haley: "Well, we haven't alleged anything with you
right now."
Defendant: "Well, the officer said that there was
allegations against me for inappropriately
touching my six year old daughter.[2] That's
what he said."
. . .
Haley: "That's why you're in here. That's what I'm
here to interview you about, okay?"
Defendant: "Okay."
Haley: "So if you want a lawyer, we will stop the
process right now and the interview ends, okay?
If you don't want a lawyer and you want to tell
me your side of the story, then we'll continue
2
Although the defendant and K.C. are not biologically
related, the defendant considered K.C. to be his daughter given
his past relationship with K.C.'s mother.
11
with the interview. So that's the decision you
have to make. Whether or not you want to --"
Defendant: "But if I stop, am I under arrest?"
Haley: "You're not under arrest right now. I'm going
to talk to the sergeant as to the status of the
investigation, and then we'll make a decision on
that, okay? But as of right now you're not
under arrest, okay?"
Defendant: "Okay. Now, if I need the court to appoint me a
lawyer because I do not have the funds?"
Haley: "If we get to that point, okay, then the court
will appoint you a lawyer at arraignment,
okay?[3] If we get to that point, but we're not
to that point yet."
Defendant: "Okay."
Haley: "Okay?"
Defendant: "I just --"
Haley: "We're at the point of we're investigating these
allegations, and you willingly came in here to
talk to us about what happened --"
Defendant: "Yes."
Haley: "-- on your side, okay?"
3
This was not a completely accurate statement of law under
Miranda v. Arizona, 384 U.S. 436 (1966). "[W]hile arraignment
is one procedural step in criminal proceedings that will trigger
the . . . right to counsel [under the Sixth Amendment to the
United States Constitution], other steps occurring prior to
arraignment may operate to initiate criminal proceedings and
trigger those rights at an earlier stage," Commonwealth v.
Torres, 442 Mass. 554, 570-571 (2004), including, of course, a
custodial interrogation. Nevertheless, as discussed infra, this
statement was not directly material, as the defendant did not
have a right to appointed counsel during his June 27, 2012,
noncustodial interview.
12
Defendant: "I'll waive the right, and if I need a lawyer
afterwards then I'll just have to somehow -- I
just don't want to -- I have a tendency, if
something comes out the wrong way, I don't need
that getting used."
Haley: "Well, what we're going to do here now is we're
going to put a written statement. . . . It's
going to be your statement, okay? And in that
we're going to take the facts down, your side of
the story about what happened here, alright?"
Defendant: "Okay."
Haley: "And then before we're done here, we read that
statement back, and we correct anything that is
not correct. . . . It's your side, your
statement, your side of the story. I'm just
recording the facts as you give them to me,
okay? So there isn't going to be stuff on here
that you don't want to be on there, you know
what I'm saying? This is your statement of
facts that you have to sign at the end.
Alright? . . . So this is your chance to tell
me, okay, what happened here. So you're okay
with that?"
Defendant: "I'm fine with that. But like I said, I
honestly don't know what."
Haley: "Well, you can stop talking at any time you
want, okay?"
Defendant: "Yes."
Haley: "We can end the interview. It says right here
in your Miranda, right?"
Defendant: "Yeah."
Haley: "Alright. So do you understand this Miranda?"
Defendant: "Yes, I do."
Haley: "Okay. Do you want to talk to me now and waive
your Fifth Amendment right?"
13
Defendant: "Yes."
Haley: "Yes, okay. And you may -- and when you want to
stop talking and you want to have a lawyer, then
you can do that. Is that what you're telling
me?"
Defendant: "Yes, yeah. I just, like I said, I don't know."
The defendant then signed a waiver of the Miranda rights, and
the interview proceeded.
After discussing some background information, Haley again
mentioned, and the defendant acknowledged, that the defendant
had received and understood the Miranda rights and that he was
not under arrest. When Haley asked the defendant, again, if he
had waived the right to an attorney, the defendant responded, "I
just don't exactly know. Like I said, I don't know exactly
what's being alleged here. I don't know how to go about it.
I'm not -- I don't want to put myself in any -- get myself in
any trouble because of the way that I word something." Haley
responded, "Well, it's in a written statement form that we're
going to read back, so there's like no trickery here. You know
what I'm saying?" The defendant said he understood, and Haley
repeated that if the defendant wanted an attorney present he
could stop answering questions at any point. The defendant
acknowledged that he was not requesting a lawyer at that time.
Haley asked the defendant if he was voluntarily giving his
statement, to which the defendant replied in the affirmative.
14
The interview continued, and Haley and the defendant
discussed the substance of the allegations. Throughout the
conversation, after typing a sentence or phrase, Haley would
confirm with the defendant that he had accurately typed what the
defendant said. The defendant admitted he had spent brief
periods of time alone with K.C., but denied any inappropriate
conduct. The defendant was given bottled water and took two
unaccompanied bathroom breaks. Throughout the interview, the
defendant was articulate and responded appropriately to all
questions. Haley used a conversational tone and never raised
his voice. The interview lasted approximately one and one-half
hours, and after it concluded the defendant left the police
station.
a. Custody. The defendant argues that he was in custody
during his June 27 interview and accordingly the statements he
made were obtained in violation of the Fifth Amendment to the
United States Constitution, art. 12 of the Massachusetts
Declaration of Rights, and Miranda, 384 U.S. at 476. He also
argues that his statements on this date were, as the judge
concluded, not voluntary. In response, the Commonwealth
contends that the defendant's June 27 statements should not be
suppressed because Miranda does not apply to noncustodial
interviews, the defendant only made an equivocal request for
counsel, and his statements were made voluntarily.
15
We begin our analysis by agreeing with the motion judge
that the defendant was not in custody on June 27. While some
factors in the custody analysis weigh against the Commonwealth,
they are not conclusive. For example, "the fact that the focus
of the investigation was on the defendant," Commonwealth v.
Barnes, 20 Mass. App. Ct. 748, 752 (1985), and "[t]he fact that
the defendant's interview occurred at the police station [are]
not, by [themselves], dispositive." Hilton, 443 Mass. at 609-
610. While a police station is not an entirely neutral setting,
the defendant went there voluntarily and was expressly told
several times that he was not under arrest. Moreover, while
Haley explained to the defendant the focus of his questioning
and revealed some degree of suspicion, on that date his general
demeanor indicated that the "exchange was explanatory rather
than accusatory." Molina, 467 Mass. at 74. See Hilton, 443
Mass. at 608-611 (noncustodial interrogation where officers
"stopped short of an outright accusation"). Whether an
investigation has begun to focus on a suspect is "material to
the custody inquiry only to the extent that an officer's
suspicions influence the objective conditions of an
interrogation, such that a reasonable person in the position of
the person being questioned would not feel free to leave the
place of questioning." Commonwealth v. Morse, 427 Mass. 117,
124-125 (1998). To whatever extent the interview may have led a
16
reasonable person to think he or she was not free to leave, "any
such mistaken impression was dispelled by [Haley's] correct
explanation of the defendant's actual status." Groome, 435
Mass. at 215.
Of chief significance here is that the defendant went to
the police station voluntarily, see Molina, 467 Mass. at 73,
and, once there, was told numerous times that he was not in
custody. Both Haley and the defendant sat in a relaxed fashion.
There is no evidence to suggest that the defendant's freedom to
leave the interview was restricted at any time, and he took two
unaccompanied bathroom breaks. Haley asked all questions in a
conversational tone and never raised his voice. Moreover, the
flow of the exchange was predominantly influenced by the
defendant's own remarks. When the interview was over, the
defendant left the police station without hindrance. While a
reasonable person in the defendant's position may have believed
that he was a suspect in the investigation, these circumstances
do not demonstrate an environment "so dominated by the police
that a reasonable person would perceive that his liberty was
restrained to a degree associated with a formal arrest."
Kirwan, 448 Mass. at 312.
Given our conclusion that the defendant was not in custody
on June 27, his interview on this date was simply not governed
by Miranda. Therefore, because his "inquiry about an attorney
17
occurred at a point well prior to the commencement of any
custodial interrogation," Groome, 435 Mass. at 216, he did not
effectively invoke a "right" to counsel. "The fact that the
defendant was read his Miranda rights when he arrived at the
station may be understood to be only a step taken in an
abundance of caution." Barnes, 20 Mass. App. Ct. at 752. While
"[w]e have 'encouraged police to give Miranda warnings prior to
the point at which an encounter becomes custodial,'" Baye, 462
Mass. at 263, quoting Hilton, 443 Mass. at 610 n.7, "[t]he
requirements of [Miranda] are not triggered unless the
interrogation is custodial." Baye, supra at 253, quoting
Hilton, supra at 608. See generally Groome, 435 Mass. at 215-
216. Therefore, the interview not being custodial, the
defendant's musings about perhaps needing a lawyer, and his
inquiry about how to get the court to appoint him a lawyer if he
could not afford one, did not require the officer to cease all
questioning, and did not render his June 27 statements
inadmissible under Miranda. See Barnes, supra.4
4
Many other States have similarly held that a suspect's
expressed desire to consult with an attorney, when voiced in a
noncustodial setting, does not entitle the suspect to the
protections of Miranda or require that police officers cease
questioning, even when the suspect has been given Miranda
warnings. See, e.g., State v. Middleton, 220 W. Va. 89, 98-99
(2006), overruled on other grounds by State v. Eilola, 226 W.
Va. 698 (2010) (request for counsel during noncustodial
interview did not invoke protections of Miranda so as to
preclude further questioning even though Miranda rights given).
18
b. Voluntariness of the statements. "Where a defendant
makes statements to the police while 'not in custody, we focus
solely on the question whether his statements were voluntary.'"
Molina, 467 Mass. at 75, quoting Durand, 457 Mass. at 595. The
defendant argues that his statements on June 27 were not made
freely or voluntarily and should therefore be suppressed. The
Commonwealth counters that, given the totality of the
interview's circumstances, the defendant's statements were
voluntary and we should reverse the motion judge's order of
suppression. We conclude that the Commonwealth has met its
burden of establishing that the defendant's June 27 statements
were voluntary beyond a reasonable doubt.
"[W]here the police provide precustodial warnings but then
ignore the defendant's attempts to avail himself of those
rights, the 'coercive effect of continued interrogation [is]
greatly increased because the suspect [could] believe that the
police "promises" to provide the suspect's constitutional rights
were untrustworthy, and that the police would continue to'
See also State v. Stanley, 167 Ariz. 519, 525, cert. denied, 502
U.S. 1014 (1991) (same); Zook v. State, 513 N.E.2d 1217, 1218-
1221 (Ind. 1987) (same); Hunt v. State, 687 So. 2d 1154, 1158-
1160 (Miss. 1996) (same); State v. Carpentier, 132 N.H. 123,
127-128 (1989) (same). Accord State v. Haddock, 257 Kan. 964,
976-977 (1995), abrogated on other grounds by State v. James,
276 Kan. 737, 750-751 (2003). Quite simply, the constitutional
rights that Miranda safeguards do not exist outside the context
of custodial interrogation, and providing a suspect with Miranda
warnings "does not transform a noncustodial interrogation into a
custodial interrogation." Haddock, 257 Kan. at 976-977.
19
ignore subsequent invocations, rendering such invocations
futile." Baye, 462 Mass. at 263, quoting Tukes v. Dugger, 911
F.2d 508, 516 n.11 (11th Cir. 1990), cert. denied sub nom.
Singletary v. Tukes, 502 U.S. 898 (1991). However, the totality
of the circumstances of the defendant's June 27 statement was
not sufficiently coercive to render his statements involuntary.
Put another way, based on the record before us we cannot say
that the will of the defendant was overborne.
The defendant's June 27 statements appear to be the result
of free and voluntary acts, as the interview techniques employed
by Haley were not so unfair or oppressive as to deprive the
defendant of his rational intellect. The interview was
reasonable in length, lasting approximately one and one-half
hours. See Commonwealth v. O'Brian, 445 Mass. 720, 728, cert.
denied, 549 U.S. 898 (2006). Haley neither minimized the
seriousness of the allegations the defendant faced nor made the
defendant any promises. See, e.g., Baye, 462 Mass. at 257;
Tremblay, 460 Mass. at 208-210; Sneed, 440 Mass. at 222. Haley
did not engage in any trickery and this was not a case in which
the police obtained a confession by materially misrepresenting
the defendant's fundamental constitutional rights. Contrast
Baye, 462 Mass. at 246, 256-260 (statement involuntary where
officers engaged in "multiple improprieties" and employed
deceptive tactics during ten-hour interrogation). Nor did he
20
tell the defendant that this conversation was his sole
opportunity to tell his story, that the strength of the evidence
against the defendant was stronger than it was, or that he would
charge the defendant with more serious crimes if the defendant
did not confess. Contrast Novo, 442 Mass. at 264-270 (statement
involuntary where police officers repeatedly said interview was
only chance for defendant to tell story).
The defendant was twenty-eight years of age, and while he
appeared upset and nervous at points, there was no reason to
question his mental capacity. Throughout the interview, the
defendant appeared sober, alert, and lucid. He was coherent and
articulate, and he consistently demonstrated his understanding
of the nature of the interview. See Molina, 467 Mass. at 77.
Given the defendant's reference to a prior charge of operating
while under the influence of alcohol, it was reasonable to infer
that he had some prior experience with law enforcement officers
and the court system. Significantly, the defendant's statements
appeared to be the product of his own free will. He directly
answered all questions and provided "exculpatory explanation[s]
of events . . . indicating an awareness of the consequences of
. . . speaking to the police." Commonwealth v. Beland, 436
Mass. 273, 281 (2002). See Durand, 457 Mass. at 597
(defendant's statement voluntary where "able to decide what to
tell the officers").
21
It is true that Haley provided the defendant with seemingly
conflicting information with regard to obtaining appointed
counsel. First, in the Miranda warnings, Haley advised the
defendant that he had the right to an attorney (inferably at the
interview), and that if he could not afford an attorney, one
would be appointed for him. And, later, when the defendant
asked whether if he needed a lawyer the court would appoint him
one because he did not have the funds, Haley told him, "the
court will appoint you a lawyer at arraignment" "if we get to
that point." However, it does not appear that this conflicting
advice coerced the defendant into making a statement. The
defendant was consistently told that he did not have to say
anything and could stop speaking at any time. Haley never
suggested that he did not need a lawyer, and the defendant never
unequivocally declared that he wanted one, only to be told that
he could not have one.
Where the defendant had no right to appointed counsel
because his interview was noncustodial and no legal proceedings
had been initiated against him, Haley's statements cannot be
construed to be "so manipulative . . . that they deprived [the
defendant] of his ability to make an unconstrained, autonomous
decision to [speak]" (citation omitted). Baye, 462 Mass. at
256. As "there is simply nothing about the interview . . . that
suggests the defendant's will was overborne in any way," Molina,
22
467 Mass. at 76, the totality of the circumstances supports the
conclusion that the defendant's June 27 statements were
voluntary.
2. June 28 statements. On June 28, 2012, at approximately
12 P.M., Haley attended the forensic interview of K.C. at the
Family Advocacy Center in Springfield, in which she alleged that
the defendant had sexually abused her. Thereafter, at
approximately 1:30 P.M., the defendant was arrested at the
Palmer Division of the District Court Department where he was
attending a restraining order hearing.
At the police station, the defendant was booked and
fingerprinted. He met with Haley in the same room as the day
prior. At the start of the interview, Haley read the defendant
the Miranda rights, which the defendant waived in writing.
Appearing disheveled and tired, the defendant said he had spent
the prior night "in [his] truck" and later said he had not
slept.
Haley then told the defendant that the police had uncovered
additional evidence since the prior day and now knew that
information the defendant had recounted was not true. He told
the defendant that the police were positive "some stuff" had
been going on with K.C., and that the defendant was the one
doing "these things." Haley asked the defendant to describe a
"tickle game" that he played with his daughter. Regarding the
23
defendant's previous denials, Haley said, "[w]e're way beyond
that now," and explained that he wanted to know what the
defendant was "going to take ownership of."
At this point, the following exchange took place:
Defendant: "I think with these questions I might need a
lawyer. I don't know exactly what to say."
Haley: "Well, I'll stop any minute for a lawyer for
you, okay? If that's what you want me to do.
This is your opportunity to say what's going on
here, okay? This is your opportunity to say
what you want. I'll stop. If you want a
lawyer, I will shut this thing off right now and
leave. Okay. You tell me what you want to do.
You tell me."
Defendant: "Nothing's happened with the tickle thing.
Nothing's progressed. Nothing -- I haven't done
anything to her."
Haley: "My question is do you want a lawyer or do you
want to stop right now?"
Defendant: "How long would it take to get a lawyer here or
an attorney?"
Haley: "Well, they don't just come running out and sit
in an interview, okay? If you want a lawyer,
then I'll stop the interview and you'll have a
right to call an attorney all you want. I'll go
on my merry way and do other things."
Defendant: "What happens to me at that point? Am I locked
up?"
Haley: "I'm going to be up front with you. You're
locked up right now, okay? When you're
fingerprinted and booked and told you're under
arrest, you're locked up, okay?"
Defendant: "I understand that."
24
Haley: "I'm up in the air right now as to what criminal
charges I'm going to be bringing against you,
okay? Those are some of the reasons why I
wanted to talk to you and get your side of the
story, okay? As to what actual criminal charges
I'm going to be bringing against you, you know.
There's things here that you can do for
yourself. But the first issue we have to get by
here right now is whether you want to continue
to talk to me or whether you want a lawyer. If
you want a lawyer, I'll stop, okay? But you've
got to make your mind up for me."
Defendant: "I want to get this straightened up and I want
to do it the right way, but I don't -- I don't
know exactly."
Haley: "Well, I've been fair with you. . . . But my
protocol is I'm right up front with you. I'm
not here to talk you out of a lawyer. I'm here
to advise you to have a lawyer, you have the
right to a lawyer, and if you want if you want
to stop the interview and have a lawyer, I will
do that right now. But you've got [to] make
your mind up for me . . . , okay?"
Defendant: "I need -- can you tell me what's going to
happen to me after this? Do I get bailed? Do I
go -- I mean, what measures do I need to take
to, you know, find out, to make arrangements to
figure out, you know, how I'm?"
Haley: "Well, I think I just mentioned to you that
you're already under arrest."
Defendant: "Yes."
Haley: "And I'm still -- it's still pending with me on
what criminal charges I'm going to bring against
you. That's like one of the main reasons why
you're here today for me to interview you, okay?
. . . You are already under arrest, okay?
Already under arrest. You know, we have a
protocol which is when you clearly, distinctly
say, 'I want a lawyer, and don't want to go any
further,' that we stop. But see, you don't
really say that. You say, well, is this the
25
point where I might want a lawyer if this is
happening. If that's what you want, then I will
just shut it down and leave, okay? That's not a
problem either . . . ."
Defendant: "This is not what -- I'm not trying to be an
ass."
Haley: "I know that. I know you're not trying to be an
ass. . . . Very simply and equitably, right
now, okay, we're on an interview here with the
thing showing. Do you want to stop the
interview and have a lawyer or do you want to
talk to me for a while longer?"
Defendant: "I'll try to talk to you for a little while
longer."
Haley: "So right now you do not want a lawyer?"
Defendant: "No."
During the ensuing interview that lasted less than one
hour, Haley told the defendant, "we have clear-cut evidence that
certain things happened here with this six year old, with you."
Haley also told the defendant a few times that the police either
knew K.C. had "been penetrated" or that they had "some
indication that she's been getting penetrated." The defendant
made several incriminating statements, and admitted that while
tickling K.C. on the previous day, she moved his hands to her
inner thigh near her private parts.
In contrast to his June 27 interview, the defendant's June
28 interview was clearly custodial. He had been arrested,
booked, and fingerprinted. Additionally, Haley explained to the
26
defendant several times that he was under arrest and "locked
up."
The defendant argues that his June 28 statements should be
suppressed because his Miranda waiver was invalid and Haley
failed to cease questioning after the defendant invoked his
right to counsel. The Commonwealth contends that the defendant
validly waived the Miranda rights on June 28 and that Haley was
entitled to continue questioning where the defendant did not
unequivocally invoke his right to counsel.
"[A]fter a knowing and voluntary waiver of the Miranda
rights, law enforcement officers may continue questioning until
and unless the suspect clearly requests an attorney."
Commonwealth v. Santos, 463 Mass. 273, 285 (2012), quoting Davis
v. United States, 512 U.S. 452, 461 (1994). "To invoke the
right to counsel, 'the suspect must unambiguously request
counsel.'" Commonwealth v. Morganti, 455 Mass. 388, 396-397
(2009), S.C., 467 Mass. 96 (2014), quoting Davis, 512 U.S. at
459. If a suspect makes reference to counsel in an ambiguous or
equivocal manner such that "'a reasonable officer in light of
the circumstances would have understood only that the suspect
might be invoking the right to counsel,' the police questioning
need not cease" (emphasis in original). Id. at 397, quoting
Davis, supra. Our precedent requires police to "'honor a
decision of a person in custody to cut off questioning,' and
27
prohibits such practices as 'refusing to discontinue the
interrogation upon request' or 'persisting in repeated efforts
to wear down [the defendant's] resistance and make him change
his mind.'" Commonwealth v. Brum, 438 Mass. 103, 111 (2002),
quoting Michigan v. Mosley, 423 U.S. 96, 105-106 (1975).
The defendant's reference to counsel during his
noncustodial June 27 interview did not preclude the resumption
of questioning on June 28. Contrast Maryland v. Shatzer, 559
U.S. 98, 110 (2010) (custodial invocation of right to counsel
followed by break in custody requires period of fourteen days
before police may resume questioning); Commonwealth v. Thomas,
469 Mass. 531, 545-548 (2014). Moreover, the defendant's two
direct references to counsel during the June 28 interview, after
signing the Miranda waiver form, were equivocal. First, he
said, "I think with these questions I might need a lawyer. I
don't know exactly what to say." Then, after being told by
Haley, "This is your opportunity to say what's going on here
. . . . If you want a lawyer I will shut this thing off right
now and leave," the defendant subsequently asked, "How long
would it take to get a lawyer here or an attorney?" These
remarks, as well as the defendant's ambiguous responses to
Haley's direct lawyer-related questions, were not unequivocal
refusals to speak until the defendant had an opportunity to
confer with counsel. See, e.g., Commonwealth v. Vincent, 469
28
Mass. 786, 793, 796-797 (2014) (statement not suppressed where
defendant asked officers whether he "should get a lawyer" and
said, "I think I might need [a lawyer]," and continued
volunteering information about incident); Morganti, 455 Mass. at
397-398 (defendant's statement, "thinking I might need a lawyer
and want to talk with him before talking to you," ruled too
ambiguous to constitute unequivocal invocation of right to
counsel).5
The motion judge concluded, however, that when coupled with
Haley's suggestion the day before that the defendant could only
have a lawyer appointed for him by the court "at arraignment,"
Haley's response to the defendant's question about "[h]ow long"
it would take to "get a lawyer here," specifically that the
defendant had "a right to call an attorney all you want," and
"they don't just come running out and sit in an interview,"
"effectively precluded [the defendant] from understanding his
5
See also Commonwealth v. Dubois, 451 Mass. 20, 25-26
(2008) ("[m]aybe I better get a lawyer" not unequivocal
request); Commonwealth v. Jones, 439 Mass. 249, 258 (2003)
("going to need a lawyer sometime" not affirmative request for
counsel); Commonwealth v. Peixoto, 430 Mass. 654, 657-658 (2000)
(statements not suppressed where defendant only expressed
uncertainty whether he wanted to speak to police without
attorney); Commonwealth v. Todd, 408 Mass. 724, 726 (1990) (not
affirmative request for counsel where defendant "wondered aloud
about the advisability of having a lawyer"); Commonwealth v.
Corriveau, 396 Mass. 319, 331 (1985) ("[i]t's beginning to sound
like I need a lawyer" not affirmative request for counsel);
Commonwealth v. Pennellatore, 392 Mass. 382, 387 (1984) ("I
guess I'll have to have a lawyer for this" not affirmative
request for counsel).
29
ability to exercise his right to counsel" at the custodial
interview and, further, raised serious doubt that the
defendant's waiver of his right to counsel was done knowingly,
voluntarily, and intelligently.
We agree. "In order for a waiver to be 'knowing' and
'intelligent,' the defendant must understand 'the [Miranda]
warnings themselves.'" Hilton, 443 Mass. at 606, quoting
Raymond, 424 Mass. at 393. Where "the defendant manifestly did
not understand the meaning of one or more of the rights
described in the Miranda warnings, the Commonwealth cannot meet
its burden of proving a valid waiver beyond a reasonable doubt."
Commonwealth v. Hoyt, 461 Mass. 143, 153 (2011). Haley's
statements that the right to appointed counsel does not attach
until arraignment, that lawyers "don't just come running out and
sit in an interview," and that the defendant would have to
"call" a lawyer puts into question whether, having no funds to
hire counsel, the defendant believed speaking with an attorney
before speaking to the police was an actual possibility. That
this fundamental misunderstanding went uncorrected hampers the
Commonwealth in establishing, beyond a reasonable doubt, the
validity of the defendant's waiver of his right to consult with
counsel. See Clarke, 461 Mass. at 351 n.12. Therefore, the
30
motion judge properly suppressed the defendant's June 28
statements.6
Conclusion. The suppression of the defendant's June 27
statements is reversed, and the suppression of the defendant's
June 28 statements is affirmed. The case is remanded to the
Superior Court for further proceedings consistent with this
opinion.
So ordered.
6
Having concluded that the judge properly suppressed the
defendant's statements because the Commonwealth had not
established a valid waiver, we need not consider whether the
statements made were also involuntary.