NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us
SJC-11513
COMMONWEALTH vs. NELSON MELO.
Bristol. February 6, 2015. - July 23, 2015.
Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.
Homicide. Felony-Murder Rule. Evidence, Admissions and
confessions, Voluntariness of statement. Practice,
Criminal, Capital case, Admissions and confessions,
Voluntariness of statement, Assistance of counsel, Waiver.
Constitutional Law, Admissions and confessions, Waiver of
constitutional rights, Arrest, Probable cause, Assistance
of counsel. Arrest. Telephone. Search and Seizure,
Arrest, Probable cause, Fruits of illegal arrest. Probable
Cause. Attorney at Law, Withdrawal.
Indictment found and returned in the Superior Court
Department on February 9, 2010.
A pretrial motion to suppress evidence was heard by E.
Susan Garsh, J., and the case was tried before Robert J. Kane,
J.
Jeanne M. Kempthorne for the defendant.
Mary O'Neil, Assistant District Attorney, for the
Commonwealth.
HINES, J. On November 3, 2009, Chad Fleming (victim) was
killed during a robbery (or attempted robbery) of drugs that he
2
had planned to sell to the defendant, Nelson Melo. The
defendant and Aaron Morin were charged with murder in the first
degree in the death of the victim. The Commonwealth contended
that the defendant acted as a joint venturer with Morin, who was
tried separately. In November, 2012, a jury convicted the
defendant of murder in the first degree on the theory of felony-
murder.1,2 Represented by new counsel on appeal, the defendant
argues (1) error in the partial denial of his motion to suppress
statements he made to police; (2) error in the denial of defense
counsel's motion to withdraw from the case two days before
trial; and (3) ineffective assistance of trial counsel. We
conclude that the defendant's motion to suppress statements made
after being taken involuntarily to the police station should
have been allowed in its entirety because these statements were
the inadmissible fruits of an unlawful arrest. Because the
defendant did not seek suppression on this ground, however, we
review to determine if the error created a substantial
likelihood of a miscarriage of justice, and conclude that it did
1
The jury did not indicate the predicate felony on which
the verdict was based. The possible predicate felonies were
armed or unarmed robbery, or the attempt to commit armed or
unarmed robbery.
2
The Commonwealth argued also that the murder was
deliberately premeditated and committed with extreme atrocity or
cruelty, but the jury did not find the defendant guilty under
these theories.
3
not. We reject as well the other claims of error and,
therefore, affirm the order denying defense counsel's motion to
withdraw and affirm the defendant's conviction.
Background. We recite the facts the jury could have found.
The victim, who was twenty-five years of age, lived in Florida
and regularly supplied the defendant with Percocet for the
defendant's drug dealing business. On November 3, 2009, the
victim flew to Providence, Rhode Island, rented an automobile,
and drove to Massachusetts to meet with the defendant to supply
him with Percocet. He telephoned his girl friend to let her
know that he had safely landed. She never heard from him again.
The defendant and his wife3 were both involved in the sale
of Percocet and both developed a dependency on the drug. The
defendant supplied pills to his friend Morin, and also to
Michael Stenstream4 and Stenstream's friend Brandon George.5
About one week prior to the murder on November 3, the
defendant's wife and George drove to Florida to purchase pills
from the victim. The defendant's wife gave the victim $42,000
in cash. The victim telephoned the defendant because the amount
3
The defendant's wife testified pursuant to a grant of
immunity.
4
Michael Stenstream testified pursuant to a grant of
immunity.
5
Brandon George testified pursuant to a grant of immunity.
4
was short of what he had expected. Nevertheless, the victim
supplied the defendant's wife with about 4,000 Percocet pills
that she brought home to the defendant.
Before this trip to Florida, Morin told the defendant that
the victim was dealing to other people in Massachusetts. The
defendant expressed disbelief, so Morin, in the defendant's
presence, telephoned a man and put him on speakerphone. The man
confirmed what Morin had stated.
On the morning of November 2, the day before the murder,
Morin visited the defendant at the defendant's wife's home,
where they were then living. The defendant's wife had been
sleeping. She woke up and heard Morin whisper something about
"hitting" someone and something about a black hat. She also
overheard Morin say, "I'll take care of the other two" or "They
will take care of the other two."
During the late afternoon of November 2, Morin met with his
friend Michael Matteson. Matteson owed Morin money, and Morin
offered him an opportunity to repay the debt. Morin told
Matteson that he was going "to rob his connect's connect and
make some money." Morin's "connect," or drug supplier, was the
defendant. Morin explained that the defendant's "connect" would
be arriving to sell Percocet and they were going to rob him;
"they" included Morin, a person named Walter Babcock, and the
defendant. Morin explained further that the defendant's
5
"connect" would be at an apartment owned by the defendant,6 and
Morin would receive a telephone call when he arrived. The
"robbers" would go through the back door, Matteson would take
the money and drugs, Babcock would grab the defendant's
"connect," and Morin would make it look like he was holding down
the defendant. Matteson said he would think about it, but
ultimately decided not to participate.
On November 3, the defendant and his wife expected the
victim to visit them at their apartment. The defendant had his
wife help package between $42,000 and $58,000 in cash. The
defendant's wife heard him ask someone over the telephone
whether he was "going to get it back." Shortly after 8 P.M.,
the defendant left the apartment wearing a black hat.7 He took
the money with him. Approximately thirty minutes later, the
defendant's wife was speaking with the defendant on the house
telephone when the victim telephoned her on her cellular
telephone. After communicating with her husband, the
6
The defendant became a part owner of his parents' two-
family home on Bay Street in Taunton. The defendant's sister,
Lucia Rodriguez, and her husband, Gabriel Rodriguez, lived in
the first-floor apartment of the home. The defendant, in
October, 2009, rented the second-floor apartment to Stenstream.
7
Stenstream had seen the defendant earlier outside his
(Stenstream's) apartment, between 6:30 and 7 P.M. Stenstream
told the defendant that he had dinner plans later with his girl
friend. The defendant remarked, "You should go out to dinner."
Stenstream and his girl friend left for dinner sometime between
8:30 and 8:45 P.M.
6
defendant's wife told the victim that the defendant wanted him
to go to Stenstream's apartment. See note 6, supra.
At the Bay Street residence, the defendant's sister, Lucia
Rodriguez, and her husband, Gabriel Rodriguez,8 were in the
living room of the first-floor apartment. See note 6, supra.
After Gabriel had settled in to watch a television program that
commenced at 9 P.M., the defendant came into the apartment and
spoke with Lucia. The defendant told her that he was going
upstairs to speak with the victim.
Soon thereafter Lucia heard the footsteps of multiple
people heading upstairs. Gabriel heard more than one set of
footsteps coming from above. The defendant came down from the
second-floor apartment and went into the kitchen with Lucia. He
told her to stay downstairs then "bolted" back upstairs. While
the defendant was speaking to her, Lucia heard a "big rumbling."
Gabriel then heard what sounded like multiple people
running down the back stairs of the second-floor apartment.
Looking outside a window, he saw an automobile leave his home
quickly. Lucia heard people run out and saw a gray automobile
departing with two people in the front and one person in the
back. She heard the voice of another person that she did not
recognize upstairs with her brother.
8
Because the defendant's sister and her husband share the
same last name, we shall refer to them by their first names.
7
The defendant came downstairs, took some ice packs from the
refrigerator, told Lucia he would be "right back," and returned
upstairs. After a few minutes the defendant asked Lucia to
check on the victim because he was not responding. From the
kitchen, Gabriel heard something about a fight and heard the
defendant say, "I think he got hurt."
Upstairs, Lucia discovered the victim lying on his back on
a bed in the spare bedroom. There were ice packs on his neck.
She tried to see whether he was breathing. The victim was not
moving, and she told the defendant to telephone 911. The
defendant insisted that he wanted his wife.
At about 8:45 or 9 P.M., Morin, out of breath, telephoned
the defendant's wife, asking for the defendant. Morin asked
her, "Do you know what happened?" He added, "Man, that kid was
tough." The defendant's wife told Morin that the defendant was
not there. The defendant's wife asked, "What's going on?" and
Morin replied, "I've got to call [Lucia]." The defendant's wife
then telephoned Lucia, who stated that she did not know where
the defendant was. Soon thereafter Lucia arrived and insisted
that the defendant's wife and their daughter accompany Lucia
back to the Bay Street apartment. The defendant's wife agreed.
Stenstream and his girl friend returned to his apartment at
approximately 9:45 P.M. He sent a text message to the defendant
to confirm whether the defendant was still there. The defendant
8
did not respond. There was an unfamiliar automobile in the
driveway (the victim's rental vehicle). Stenstream's girl
friend waited in his automobile. He then went up to his
apartment and shortly thereafter returned to the automobile.
Stenstream brought his girl friend upstairs to his apartment and
instructed her to go straight to his bedroom, to keep her head
down, and not to look around. As she made her way through the
apartment, she observed blood on the floor and on the couch.
Stenstream found the defendant and the victim in a spare
bedroom. The victim was lying on his back, his eyes and mouth
were open, and he was not moving. The defendant was holding a
package of peas or ice to the victim's head and was telling the
victim to "wake up." Stenstream asked what was going on. The
defendant replied, "Don't worry about it. Close the door."
Stenstream left, but returned shortly thereafter suggesting that
the defendant telephone an ambulance.9 Stenstream asked again
what was going on. The defendant said, "Fucking Ace."10
Stenstream again asked the defendant to arrange for an
9
Stenstream noticed blood on the sofa and carpet in the
living room. He also picked up some zip ties on the living room
floor, one of which appeared to have blood on it, and threw them
in the garbage. He disposed of some clothing in a dumpster
outside. He attempted to use "cleaning solution" to clean the
apartment.
10
"Ace" was Aaron Morin's nickname.
9
ambulance. The defendant said, "I'll take care of it. We
should get him to the hospital."
The defendant lifted the victim and started carrying him
down the stairs. The defendant was struggling and asked
Stenstream for help. Stenstream was reluctant, but agreed.
Gabriel came out of his apartment. He could not find a pulse
and noted that the victim was not moving. Stenstream observed
that the victim's chest was blue and his legs were stiff.
Gabriel opened the door to the back seat of the victim's rental
vehicle, and the defendant and Stenstream put the victim inside.
The defendant went to Lucia's apartment, where he spoke
with his wife, who by then had arrived. After inquiring about
the victim, the defendant's wife went out to the victim's rented
automobile where she saw him in the back seat. She observed
that the victim's eyes were open and he was not moving; his
wrist was by his forehead in a fixed position. She started
crying and screaming, and yelled at the defendant, "He's dead!"
The defendant drove off with the victim.11
The defendant's wife went inside Stenstream's apartment,
and he gave her the victim's jacket, shoes, and wallet. She saw
blood "everywhere" in the living room, including on the walls
11
Stenstream testified that after they moved the victim to
the automobile, the defendant waited twenty to twenty-five
minutes before leaving.
10
and on the floor. After about five to ten minutes, she went to
Morton Hospital in Taunton, where the defendant had taken the
victim.
While in the entrance area to the emergency room, the
defendant attempted to perform chest compressions on the victim.
Medical personnel took over and brought the victim into an
examination room. It became immediately clear to the staff that
the victim was in a state of rigor mortis and was dead. A
physician pronounced the victim dead at 11:05 P.M. The
physician then spoke with the defendant, who provided the
victim's name and stated that he was his friend from Florida.
The defendant also told the doctor that the victim had gone out
for a cigarette and that, when he did not return about fifteen
minutes later, the defendant went to check on him, finding him
outside on the ground. In response to questions posed by the
doctor, the defendant stated that he did not think that the
victim had ingested any drugs. The defendant was visibly upset.
Police arrived shortly thereafter and, after speaking with
the emergency room physician, talked with the defendant in the
family room.12 In summary, the defendant gave two different
accounts of how the victim came to be injured. In his original
12
The details of the defendant's statements to police at
the hospital and subsequently at the police station are set
forth later in this opinion in the discussion of the motion to
suppress.
11
version of events, the defendant stated that the victim had
taken a handful of pills and then went outside to make some
telephone calls. The defendant stated that, when the victim had
not returned thirty minutes later, he went to check on the
victim and found him outside, lying on the ground and bleeding
from the head. The defendant carried the victim upstairs; tried
to revive him with ice cubes; and when that did not work,
decided about ninety minutes later to bring him to the hospital.
In the subsequent version of events, the defendant stated that
he and the victim were visiting in Stenstream's apartment when
three males arrived to make a drug deal. The men pulled out
guns. The defendant escaped downstairs. After the men left,
the defendant returned upstairs and found the victim with zip
ties around his legs. The victim was alive and stated that he
did not want to go to the hospital, but the defendant brought
him anyway.
Police transported the defendant from the hospital to the
police station, where he was interviewed after being given
Miranda warnings. In keeping with the motion judge's ruling on
the defendant's motion to suppress, a redacted version of the
recorded interview was admitted in evidence and played for the
jury. During that portion of the interview, the defendant did
12
not admit to killing the victim himself or to being involved in
the killing, or robbing (or attempting to rob) the victim.13
The medical examiner who conducted the victim's autopsy
opined that he died as a result of asphyxia by strangulation.
She testified that he suffered multiple blunt force injuries to
his head, neck, and extremities. He had a gaping laceration to
his scalp hidden in his hairline and rib fractures that
perforated his lungs. Toxicology screen results revealed that
the victim did not have any drugs or alcohol in his system.
On November 4, the defendant's wife went to Morin's home.
Morin told her that he owed the defendant money and gave her
$5,000. Morin also said he had done a lot for the defendant.
On November 5, Morin asked Matteson to meet him. Morin told him
that he should say "nothing to anybody."
After speaking to the defendant, the police secured
Stenstream's apartment, where they recovered zip ties from the
kitchen trash and various items in a dumpster in the rear of the
building. They took samples of various red-brown stains from
within the apartment, including in the living room and back
stairwell, which tested positive for human blood.
13
The defendant did admit that there was a "drug
transaction" going on in Stenstream's apartment and that the
victim had given the defendant $1,000 for "using the spot." He
stated that the victim was alive, talking and mumbling, after
the three men had departed.
13
Deoxyribonucleic acid (DNA) testing revealed that the victim's
DNA was present on one of the zip ties recovered. Further,
testing showed that the victim's DNA was recovered from a stain
on the defendant's shirt and a stain on the upper right arm of
the defendant.14
Telephone records admitted in evidence at trial established
that, on the afternoon of November 3, the telephones of the
defendant and the victim were in communication with each other.
In addition, between noon and midnight on that day, there were
thirty-six contacts between the telephones of the defendant and
Morin, including several calls made between 8:45 and 11:30 P.M.
The defendant did not testify. His trial counsel argued
that the Commonwealth's witnesses were not to be believed for
various reasons, including the fact that most had entered into
agreements with the Commonwealth providing for their immunity.
Defense counsel also argued that the defendant's statements were
not voluntarily made and that the police investigation had been
inadequate. Defense counsel argued that the defendant had not
been involved and did not share Morin's intent to rob or to kill
the victim.
14
The statistical significance of the deoxyribonucleic acid
(DNA) testing was presented to the jury. See Commonwealth v.
Ortiz, 463 Mass. 402, 408 & n.10 (2012); Commonwealth v.
Lanigan, 419 Mass. 15, 20 (1994).
14
Discussion. 1. Motion to suppress statements. a.
Background. The defendant filed a motion to suppress statements
he made on November 3 and 4 at the hospital and at the police
station, claiming, on State and Federal constitutional grounds,
that his statements should be suppressed because they were not
preceded by an adequate recitation of the Miranda warnings. He
also argued that he did not make a knowing, intelligent, and
voluntary waiver of the Miranda rights and that his statements
were not voluntary because of his state of exhaustion, drug
ingestion, and drug withdrawal. Last, the defendant asserted
that police failed to honor his invocation of his right to
counsel. After an evidentiary hearing, the motion judge, who
was not the trial judge, 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
recording of the interview of the defendant, which was admitted
in evidence at the motion hearing.15
15
When a defendant's interview is video recorded, we are
"in the same position as the motion judge in viewing the
videotape," Commonwealth v. Hoyt, 461 Mass. 143, 148-149 (2011),
quoting Commonwealth v. Prater, 420 Mass. 569, 578 n.7 (1995),
to determine what occurred therein and therefore independently
make that determination. We have reviewed the video recording
that forms the basis of this appeal.
15
In the late evening of November 3, 2009, Dr. Peter Bosco,
an emergency room physician at Morton Hospital, encountered the
defendant and the victim, who was slumped over in a wheelchair.
The defendant was attempting to perform chest compressions on
the victim. The defendant told Dr. Bosco that he had been at
the same residence with the victim; that the victim went outside
to smoke; and that, when the victim had not returned after
fifteen minutes, the defendant went to check on him, finding him
there. The defendant did not tell the doctor that he had
brought the victim upstairs after finding him. The defendant
was agitated and upset, which the doctor construed as
appropriate for someone who cared about another.
After examining the victim, Dr. Bosco spoke with the
defendant in the family room. He informed the defendant that
his friend was dead and that something did not "add up" because
rigor mortis already had set in, suggesting that the victim had
been dead for several hours. The defendant appeared to be in
disbelief; he was distraught and upset. His speech was clear,
but he was agitated. As the defendant spoke with Dr. Bosco, he
recovered his composure and pleaded with the doctor to do
something to resuscitate the victim. Dr. Bosco brought the
defendant into the examination room to see the victim. Around
this time, shortly after 11 P.M., Taunton police Officer Ralph
Schlageter and Detective Robert Schwartz separately arrived in
16
uniform at the examination room in response to a dispatch of a
report that someone had brought a deceased person to the
hospital's emergency room.
Dr. Bosco escorted the defendant to the family room. He
explained to the defendant that, because the victim's death was
suspicious, it would need to be investigated by the police and a
medical examiner would take over custody of the body. He asked
the defendant to stay so police could speak with him. The
defendant was agreeable. No police officers were in the family
room at this time. Dr. Bosco had not been asked by police to
speak to the defendant.
Dr. Bosco left the family room and informed Schlageter that
the victim had a head wound and was in state of rigor mortis
when he arrived, and that the defendant was the person who had
brought the victim to the hospital. Dr. Bosco did not suspect
the defendant of any involvement in the death and did not
communicate any such suspicion to Schlageter or to any other
officer.
Schlageter then spoke with the defendant in the family
room. No one else was present. The defendant was disheveled
and visibly upset. He was crying, was almost hysterical, and
put his head in his hands. When Schlageter spoke with the
defendant, Schlageter viewed him as a concerned friend, not as
someone who had been involved in the victim's death. The
17
defendant did not appear to have been drinking, but seemed to be
"on something."
After a couple of minutes, the defendant calmed down so
that Schlageter could understand him. They spoke for
approximately five minutes. The defendant was coherent and
clear. He identified himself and provided his date of birth as
well as the victim's full name. The defendant gave Schlageter
the following account. Around 9:30 P.M., the victim had visited
the defendant in Stenstream's apartment. Sometime later, the
victim announced that he wanted to go outside to smoke and to
make telephone calls. About twenty to thirty minutes later, the
defendant went downstairs to check on the victim and found him
on the ground beaten up. The defendant carried the victim
upstairs back to the apartment. Because the defendant knew that
the victim had a history of drug use, the defendant thought that
he may be overdosing, so he laid him on a bed and tried to
revive him with ice. The defendant became concerned when he saw
the victim's skin turn blue. Schlageter did not question the
defendant further. Schlageter left the room, leaving the
defendant alone inside. Schlageter did not give any Miranda
warnings to the defendant before or during their conversation.
Taunton police Detectives Susan Dykas and Shawn Mulhern
arrived at the hospital. They were not in uniform. They viewed
the victim, observing the large cut on his head, and learned
18
that he had been dead for a significant period of time.
Schlageter informed the detectives that the defendant had
brought the victim's dead body to the hospital and was in the
family room. Schlageter also told the detectives the substance
of his conversation with the defendant.
The detectives entered the family room, where they found
the defendant alone and crying. The detectives did not give any
Miranda warnings to the defendant before speaking with him, or
at any time while they spoke with him at the hospital.
Mulhern recognized the defendant from the defendant's
previous employment as a bouncer at a nightclub and asked what
was going on. The defendant gave the following account of what
had occurred earlier that day. The defendant had been
"chilling" at a second-floor apartment with the victim, who was
a friend visiting from Florida. The victim went downstairs to
make a telephone call, and when he did not return, the defendant
went downstairs and found him unconscious and bleeding from the
head. The defendant dragged the victim back upstairs and tried
to revive him with ice packs. The defendant took the victim to
the hospital when he was not doing well.
Mulhern was the primary questioner and expressed disbelief
that the defendant had dragged the victim upstairs. The
defendant then gave a different account of what had occurred.
In this version, the defendant stated that the victim came from
19
Florida to use the apartment for a drug deal. Two white males
and one black male entered the apartment and argued with the
victim and brandished guns, at which point the defendant went
downstairs to his sister's apartment. When the commotion was
over, the defendant returned upstairs, where he discovered that
the victim had been beaten up, his legs bound with zip ties, and
his mouth gagged. The victim initially was conscious, but when
he lost consciousness, the defendant carried him downstairs with
the help of the defendant's sister and brother-in-law, and drove
him to the hospital. The defendant did not make any statements
that suggested in any way that he was responsible for the
victim's death.
The detectives were aware of the defendant's and the
victim's prior involvement with drugs, and suspected that the
defendant had more information, but not that he was responsible
for causing the victim's death. With the defendant's
permission, they searched his cellular telephone and noticed
numerous calls to a single number (Morin's).
The detectives spent thirty to forty minutes with the
defendant in the family room. During this time, he squirmed
quite a bit and appeared visibly nervous and upset. He
alternated between calmness and lucidity, and incoherency. The
defendant's eyes were somewhat bloodshot, and he appeared to be
under the influence of drugs.
20
After they finished speaking with the defendant, Mulhern
told the defendant, "We're going to go back to [the] police
station and finish this interview because we have to sort
through this." Mulhern directed Schlageter to drive the
defendant to the police station. Schlageter escorted the
defendant to the back seat of a marked police cruiser, which
locked and could not be opened from the inside. He did not
handcuff the defendant. He did not give Miranda warnings prior
to or during the transport to the station, he did not ask the
defendant any questions on the way there, and the defendant did
not make any statements along the way or on his arrival at the
police station.
On arrival, at about 12:45 A.M., Schlageter brought the
defendant into the station through the front lobby and to an
interview room. There, Mulhern and State police Trooper Anthony
Spencer spoke with him. The interview was audio and video
recorded, and the defendant was aware that the interview was
being recorded. The interview lasted about two hours and forty-
five minutes, excluding a one-hour break after two and one-half
hours into the interview.
At the beginning of the interview Mulhern read the
defendant the Miranda warnings from a preprinted form. The
defendant nodded that he understood. After, at 12:55 A.M., the
defendant signed a waiver of rights from a notification of
21
rights form, which he did not read. Under the signature line on
the form, the form stated: "Person in Custody."
After signing the form, the following exchange between the
defendant and Mulhern occurred.
Defendant: "I would feel more comfortable if I had a
lawyer right now talking, but if you want to
show me pictures and names, I'll give it to
you. Because, honestly, like obviously I do
not want to get more in a jam than this. I
will show you who did it and everything. I
just want out."
Mulhern: "Okay. So, why do you -- you feel like you
want to -- if you don't want to talk, that's
your right --"
Defendant: "The thing is I don't know."
Mulhern: "-- but if you feel like you need a lawyer,
you know --"
Defendant: "I don't know what to do. Like, honestly,
I'll help you but it seems like what do I
say."
Mulhern: "Okay. Why don't we ask you questions --"
Defendant: "Alright."
Mulhern: "-- and we can go from there. We can find
out the story first."
Defendant: "Alright."
For the first hour of the interview, the defendant did not
appear to be particularly tired, but he was experiencing some
pain in his groin. He told the officers that he had stopped
dealing drugs and went "cold turkey" two or three months earlier
because his marriage and job were being affected. He admitted
22
that if he could "make a quick buck here and there," he would
sell drugs, but that he did not "touch anything."
After about one hour of questioning, the defendant appeared
nervous and jumpy. As Mulhern began to convey a high degree of
skepticism of the defendant's statements, the defendant
increasingly slouched. The defendant remained alert and
consistently resisted suggestions from the officers and
confrontational harangues from Mulhern. He insisted that he was
not part of the drug deal and that he did not personally
struggle with the victim.
Around this time, the tenor of the interview changed.
Mulhern frequently interrupted the defendant and, for a period
of about twenty minutes, screamed at him in an accusatory tone.
The defendant hung his head, but did not buckle. At this point,
now about ninety minutes into the interview, the defendant
appeared to be tired and started answering some questions with
his head down. He adamantly insisted that he did not push or
"tussle" with the victim or put his hands on him accidentally or
during an argument. The defendant was not easily led by the
officers and spontaneously clarified several matters.
At one point the officers left the defendant alone for
several minutes, during which time he sniffled and his legs were
shaking. The defendant rubbed his eyes and looked exhausted.
When the officers returned, the defendant continued to give
23
coherent, exculpatory responses although visibly tired. For
example, when confronted with the fact that bedding (from the
apartment) had been stripped and left in a dumpster, the
defendant denied having done that. He stated that he had not
touched the bedding and that cameras at the location would show
that he "didn't do shit." He also did not let himself be
trapped by Mulhern's mischaracterizations of what he had said.
After about one hour and fifty minutes of questioning had
elapsed, the defendant reiterated his statement that he had
bolted from the apartment. Although his legs were shaking and
he was tired, the defendant was sufficiently alert after two
hours of interrogation to divulge the password on his cellular
telephone and to go through photographs shown to him by police,
indicating what persons he did and did not recognize. He was
also careful to identify one person as "looking like" one of the
men who had been in the apartment fighting with the victim.
The defendant had self-protective explanations for, among
other things, the pain in his groin, the money found in his
pocket ($1,600), the injury to his upper lip, a fresh scratch,
the blood on his clothes, the time discrepancies in his
statements, and his delay in taking the victim to the hospital.
From the defendant's responses, it was clear that he understood
what the officers were asking him and saying to him. He showed
himself to be quick-witted and consistently self-protective.
24
While he added details as the interview proceeded, the defendant
did not at any point admit any involvement in the victim's
death.
After viewing the photographs, the defendant's exhaustion
began to overcome his ability to speak in a fashion such that
his statements could be considered the product of a rational
intellect and free will. The defendant's physical state,
compounded by Mulhern's shouting, made it unlikely that the
defendant's statements from this point onward were the result of
his free and willing act.16 When left alone for two minutes, the
defendant moaned and mumbled. His legs shook badly, and his
head lolled back and forth. When the officers returned, about
two and one-half hours into the interview, the defendant
continued speaking, but his head was usually facing down and
leaning to the side. His legs were constantly shaking. He did
not make much eye contact with the officers, and his responses
were often too inaudible to be coherent. His demeanor was so
indicative of someone who had lost his ability to focus that
Mulhern commented, "I mean you're falling apart . . . doing
drugs and dealing drugs . . . ." The defendant was half-asleep,
and he rubbed his eyes often, yawned, and barely was able to
16
The judge specified the page of the transcript of the
video recording, which had been admitted in two parts at the
evidentiary hearing, and would have been approximately two hours
and six minutes into the first recording.
25
keep his eyes open. The questioning, however, did not stop.
When a few minutes later the defendant asked if they could
finish the interview the next day, he was rebuffed. As the
defendant continued to insist that he was "exhausted out of
[his] mind," Mulhern started to scream at him again.
After about two hours and thirty-six minutes of
questioning, the defendant twice asked for a lawyer, which
Mulhern and Spencer simply ignored. Spencer finally ended the
interview, at which point the defendant was arrested for
misleading a police officer under the witness intimidation
statute. He later was charged with murder in the first degree.
The motion judge concluded that the defendant had not been
in "custody" for purposes of the requirements of Miranda v.
Arizona, 384 U.S. 436, 444 (1966), until Mulhern instructed that
the interview at the hospital would continue at the police
station and directed a uniformed officer to take the defendant
there.17 The judge further determined that the defendant was in
custody at the station when he was given Miranda warnings. The
judge concluded that after the defendant was given the Miranda
warnings, he voluntarily, knowingly, and intelligently waived
17
Although the defendant did not receive Miranda warnings
before being escorted to the police cruiser, the judge noted
that he was not asked any questions and did not make any
statements during the ride or before the Miranda warnings were
given to him at the police station.
26
them. She did not consider his initial statement that he would
"feel more comfortable" with a lawyer as an unambiguous
invocation of the right to counsel.
Noting that the defendant's initial waiver of the Miranda
rights does not irretrievably bind him, the judge pointed out
that the Commonwealth conceded that the defendant unambiguously
invoked his right to counsel when he stated after two hours and
thirty-six minutes of questioning that he needed a lawyer.
While the judge agreed that the defendant had invoked his right
to counsel at this point, she determined that somewhat earlier
in the interrogation (see note 16, supra), the defendant's
statements were no longer voluntary. The judge based her
conclusion on the circumstances of Mulhern's shouting at the
defendant, the defendant's state of exhaustion, and the after-
effects of whatever substance the defendant had ingested during
the day. Suppression of the defendant's statements from that
point of the interview and onward therefore was necessary.
Based on these findings, the motion judge denied in part and
allowed in part the defendant's motion to suppress.
b. Standard of review. "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."
Commonwealth v. Thomas, 469 Mass. 531, 539 (2014). "We accept
other findings that were based on testimony at the evidentiary
27
hearing and do not disturb them where they are not clearly
erroneous." Id. "However, we 'make an independent
determination as to the correctness of the judge's application
of constitutional principles to the facts as found.'" Id.,
quoting Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011).
c. Validity of waiver of Miranda rights. The defendant
argues that his waiver of Miranda rights was invalid because it
was not knowingly and voluntarily made. Because the defendant
was advised of, and waived, the Miranda rights, the issue
becomes whether the Commonwealth has proved "the validity of a
Miranda waiver beyond a reasonable doubt." Commonwealth v.
Edwards, 420 Mass. 666, 669 (1995). See Commonwealth v. LeBeau,
451 Mass. 244, 254-255 (2008). "To be valid the waiver must be
made voluntarily, knowingly, and intelligently." Edwards, supra
at 670. "In determining whether a waiver was made voluntarily,
the court must examine the totality of the circumstances
surrounding the making of the waiver." Id. "Relevant factors
to consider 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
condition, the initiator of a deal or leniency (whether the
defendant or police), and the details of the interrogation,
including the recitation of Miranda warnings.'" Commonwealth v.
28
Jackson, 432 Mass. 82, 86 (2000), quoting Commonwealth v.
Mandile, 397 Mass. 410, 413 (1986).
The defendant challenges the judge's conclusion that his
waiver was valid for several factual reasons, including that he
had not been asked whether he wished to waive his rights; he had
not been asked whether he wished to speak with police; and the
fact that his signature on the notification of rights form
indicated only that he was advised of the Miranda warnings, not
that he had waived them. The defendant also argues that he
"obviously" was undergoing drug withdrawal. We conclude that
the judge's findings and conclusions are supported by the
evidence.
The defendant signed the notification of rights form, which
expressly indicates that the person signing understands the
Miranda rights and "knowingly waive[s]" those rights; heard the
recitation of the Miranda warnings; and nodded, which reasonably
could be inferred as indicating that he understood them.
Thereafter, he engaged in discussion with the officers. "This
conduct hardly expressed an unwillingness to continue speaking
with police that could be 'considered tantamount to the exercise
of the right to remain silent.'" Commonwealth v. Garcia, 443
Mass. 824, 833 (2005), quoting Commonwealth v. Selby, 420 Mass.
656, 662 (1995). Further, during the admitted portion of the
interview, the defendant appeared alert, coherent, calm for the
29
most part, and appropriately responsive, and appeared to
understand the situation and what was asked of him. He was
drinking a beverage, and the interview was conducted in an
interview room as opposed to a cell. Although the defendant
very well may have been under the influence of drugs, there was
no evidence that the defendant's resulting physical condition
was so disabling as to render his waiver invalid. The judge
thoroughly considered the evidence concerning the defendant's
likely drug use, which does not compel a conclusion that his
Miranda waiver was invalid. See Commonwealth v. Howard, 469
Mass. 721, 728 n.7 (2014), and cases cited; Commonwealth v.
Walker, 466 Mass. 268, 274-275 (2013). See also Commonwealth v.
Brown, 462 Mass. 620, 625-627 (2012). The evidence supports the
judge's conclusion that the defendant's Miranda waiver was
valid.18
d. Invocation of right to counsel. The defendant contends
that the motion judge erred in concluding that his statement,
made after he was given the Miranda warnings, "I would feel more
comfortable if I had a lawyer right now talking, but if you want
18
Based on our independent review of the video recording of
the interview, the judge was warranted in concluding beyond a
reasonable doubt that the defendant's statements, made up until
the point where she suppressed them, were made voluntarily. See
Commonwealth v. Medeiros, 395 Mass. 336, 343 (1985) (although
voluntariness and Miranda waiver and voluntariness of statement
are distinct inquiries, totality of circumstances test under
each analysis is same).
30
to show me pictures and names, I'll give it to you," was an
ambiguous and therefore ineffective invocation of the right to
counsel. We reject the defendant's contention.
During a custodial interrogation, "[i]f 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." Commonwealth v. Santos,
463 Mass. 273, 285 (2012), quoting Edwards v. Arizona, 451 U.S.
477, 481 (1981). The request or invocation of counsel must be
"a sufficiently clear statement such 'that a reasonable police
officer in the circumstances would understand the statement to
be a request for an attorney.'" Commonwealth v. Hoyt, 461 Mass.
143, 150 (2011), quoting Davis v. United States, 512 U.S. 452,
459 (1994).
Here, the defendant's statement, when viewed in context,
was not an unambiguous request for counsel and reflected a
desire ultimately to go forward with questioning without an
attorney. "When a suspect's statement . . . simply reflects his
musing about the possibility of stopping the questioning until
he has spoken with an attorney, we have consistently found the
statement to be too ambiguous to constitute an unequivocal
invocation of the right to counsel." Commonwealth v. Morganti,
455 Mass. 388, 398 (2009), S.C., 467 Mass. 96, cert. denied, 135
31
S. Ct. 356 (2014). We conclude that the defendant's statement
falls into this category.
The defendant further argues that, even if his invocation
of the right to counsel had been ambiguous, the police were
required under art. 12 of the Massachusetts Declaration of
Rights to clarify the defendant's intent before proceeding with
questioning. In support of this contention, he cites to
Commonwealth v. Clarke, 461 Mass. 336, 349 (2012), and Santos,
463 Mass. at 286. Those cases, however, do not support the
defendant's argument that such a clarification was required
here. In Santos, supra at 285-286, we suggested clarification
as the better practice because the defendant initially had
unequivocally invoked his right to counsel but then continued,
without any intervening comment or question by police, to speak.
We concluded that, in those circumstances, the police could have
been uncertain concerning the nature and scope of the
defendant's invocation, and before recommencing questioning
would be "entitled to ask a question to clarify the defendant's
intent." Id. at 286. In Clarke, supra at 343, we dealt with a
defendant's unequivocal invocation of his right to remain
silent, not an invocation of a right to counsel. No
clarification is required where, as the judge found here, the
defendant equivocated, stating only that he would "feel more
comfortable with an attorney."
32
e. Statutory right to a telephone call. We reject the
defendant's argument that his statements during the interview
should be suppressed because the police did not afford him his
statutory right under G. L. c. 276, § 33A, to use the telephone
when he arrived at the police station or after questioning had
exceeded one hour. This right "did not accrue until he was
formally arrested." Commonwealth v. Hampton, 457 Mass. 152, 159
(2010). See Commonwealth v. Dagley, 442 Mass. 713, 719 (2004),
cert. denied, 544 U.S. 930 (2005); Commonwealth v. Rivera, 441
Mass. 358, 374-375 (2004).
f. Detention of the defendant. For the first time on
appeal the defendant argues that his involuntary transport to
the police station for questioning amounted to an unlawful
arrest under the Fourth and Fourteenth Amendments to the United
States Constitution and art. 14 of the Massachusetts Declaration
of Rights because it was not supported by probable cause.19 He
asserts that the entirety of his interview with police therefore
should be suppressed as the fruit of the illegal arrest. Last,
the recitation of the Miranda warnings, he contends, did not
purge the taint of the illegal arrest. Because the defendant
did not raise this claim below, we review for error and, if so,
19
The defendant does not argue that art. 14 of the
Massachusetts Declaration of Rights affords him any greater
protection than that afforded by the Fourth and Fourteenth
Amendments to the United States Constitution.
33
whether the error caused a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Tu Trinh, 458 Mass.
776, 782-783 (2011).
Generally speaking, there are three categories of police-
citizen encounters: "(1) consensual encounters which do not
implicate the Fourth Amendment;[20] (2) investigative detentions
which are Fourth Amendment seizures of limited scope and
duration which must be supported by a reasonable suspicion of
criminal activity[,21 Terry v. Ohio, 392 U.S. 1 (1968);] and (3)
arrests, the most intrusive of Fourth Amendment seizures and
reasonable only if supported by probable cause." United States
v. Madden, 682 F.3d 920, 925 (10th Cir. 2012). Here, the
judge's decision did not address the issue (because the
20
Submission to a claim of authority is not synonymous with
voluntary consent. See Kaupp v. Texas, 538 U.S. 626, 631
(2003); United States v. Perez-Montanez, 202 F.3d 434, 438 (1st
Cir.), cert. denied, 531 U.S. 886 (2000). There was no evidence
that the officers told the defendant that he was free not to
enter the cruiser to go to the police station.
21
The parameter of an investigatory stop is exceeded if it
"continues indefinitely[;] at some point it can no longer be
justified as an investigative stop." United States v. Sharpe,
470 U.S. 675, 685 (1985). While "the brevity of the invasion of
the individual's Fourth Amendment interests is an important
factor in determining whether the seizure is so minimally
intrusive as to be justifiable on reasonable suspicion," United
States v. Place, 462 U.S. 696, 709 (1983), the Supreme Court has
emphasized "the need to consider the law enforcement purposes to
be served by the stop as well as the time reasonably needed to
effectuate those purposes," Sharpe, supra.
34
defendant did not make the argument below), but her findings
instruct our conclusion.
The judge found that once Mulhern determined that further
questioning would continue at the police station and directed an
officer to transport the defendant there, the defendant was in
custody, albeit for purposes of Miranda. She further found,
based on the notification of rights form designating the
defendant as a "person in custody," and statements made by the
interviewing officers, that a reasonable person in the
defendant's position would not have felt free to leave. We
agree with the defendant that, in these circumstances, his
involuntary transport and detention for interrogation purposes
amounted to a "seizure" for Fourth Amendment purposes and became
the functional equivalent of an arrest.22
In Kaupp v. Texas, 538 U.S. 626, 629 (2003), the United
States Supreme Court stated the settled rule that "involuntary
22
The judge expressly discredited Taunton police Detective
Shawn Mulhern's testimony that the defendant acquiesced or
actually agreed to go to the police station for questioning.
Cf. Commonwealth v. Cruz, 373 Mass. 676, 683 (1977) (no illegal
detention of defendant where defendant consented to enter police
cruiser and go to station for questioning). We add that there
was no evidence that Mulhern sought to relocate the defendant to
the police station for safety or security issues. Cf. Florida
v. Royer, 460 U.S. 491, 504-505 (1983) ("there are undoubtedly
reasons of safety and security that would justify moving a
suspect from one location to another during an investigatory
detention, such as from an airport concourse to a more private
area").
35
transport to a police station for questioning is 'sufficiently
like arres[t] to invoke the traditional rule that arrests may
constitutionally be made only on probable cause.'" Id. at 630,
quoting Hayes v. Florida, 470 U.S. 811, 816 (1985). See Florida
v. Royer, 460 U.S. 491, 503 (1983) (concluding that airport
detention exceeded limits of investigatory stop and amounted to
de facto arrest); Dunaway v. New York, 442 U.S. 200, 212 (1979)
(concluding that where petitioner was taken from neighbor's home
to police vehicle, transported to police station, and placed in
interrogation room, detention was "indistinguishable" from
traditional arrest and required probable cause or judicial
authorization); United States v. Ryan, 729 F. Supp. 2d 479, 487
(D. Mass. 2010) (stating that limitation on valid investigatory
stop is that suspect may not be removed to police station
without his or her consent). Indeed, "the line is crossed when
the police, without probable cause or a warrant, forcibly remove
a person from his home or other place in which he is entitled to
be and transport him to the police station, where he is
detained, although briefly, for investigative purposes." Hayes,
supra. "In the name of investigating a person who is no more
than suspected of criminal activity, the police may not . . .
seek to verify their suspicions by means that approach the
conditions of an arrest." Royer, 460 U.S. at 499. "Nothing is
more clear than that the Fourth Amendment was meant to prevent
36
wholesale intrusions upon the personal security of our
citizenry, whether these intrusions be termed 'arrests' or
'investigatory detentions.'" Davis v. Mississippi, 394 U.S.
721, 726-727 (1969). See 2 W.E. Ringel, Searches and Seizures,
Arrests and Confessions § 23:5, at 23-18 (2d ed. 2014) (Supreme
Court has held that when police take suspect involuntarily for
station house questioning, such custodial detention requires
probable cause as it is equivalent to formal arrest;
investigatory detentions not requiring probable cause must be
brief in duration and not lengthy investigation to develop
probable cause). Many United Stated Circuit Courts of Appeals
have followed this precedent.23
23
See, e.g., Centanni v. Eight Unknown Officers, 15 F.3d
587, 591 (6th Cir.), cert. denied, 512 U.S. 1236 (1994) (removal
of suspect from scene of stop generally marks point at which
Fourth Amendment demands probable cause; "there is no such thing
as a Terry 'transportation'"); United States v. Parr, 843 F.2d
1228, 1231 (9th Cir. 1988) (line between investigatory stops and
arrests may be drawn on point of transporting defendant to
police station); United States v. Hernandez, 825 F.2d 846, 851
(5th Cir. 1987), cert. denied, 484 U.S. 1068 (1988) (removal of
suspect from scene of stop to police headquarters usually marks
point when investigative stop becomes de facto arrest); United
States v. Ceballos, 812 F.2d 42, 49 (2d Cir. 1987) (transporting
suspect to police station exceeds limits of Terry-type stop and
becomes unlawful arrest); United States v. Gonzalez, 763 F.2d
1127, 1133 (10th Cir. 1985) (forcing suspect to go to police
station crosses line into de facto arrest).
37
Because there was no probable cause to arrest the
defendant24 or judicial authorization to do so, "well-established
precedent requires suppression of the [statement] unless that
[statement] was 'an act of free will [sufficient] to purge the
primary taint of the unlawful invasion.'" Kaupp, 538 U.S. at
632-633, quoting Wong Sun v. United States, 371 U.S. 471, 486
(1963). See Commonwealth v. Damiano, 444 Mass. 444, 453 (2005).
Demonstrating that the underlying illegality is purged from
taint falls on the Commonwealth. See Kaupp, supra at 633;
Damiano, supra at 454. Relevant considerations include "(1) the
temporal proximity of the admission to the arrest; (2) the
presence of intervening circumstances between the arrest and the
admission; (3) the observance of the Miranda rule subsequent to
the unlawful arrest; and (4) the purpose and flagrancy of the
official misconduct." Damiano, supra at 455. The observance of
the Miranda rule standing alone is insufficient to remove the
taint of an unlawful detention. See Kaupp, supra; Commonwealth
v. Bradshaw, 385 Mass. 244, 258 (1982).
Although the officers recited the Miranda warnings to the
defendant, consideration of the remaining factors reveals little
to no attenuation between the arrest and interrogation. The
defendant was questioned within ten minutes of arriving at the
24
The Commonwealth concedes this point, and the judge's
findings warrant it, as the officers testified that the
defendant had not yet become a suspect in the victim's killing.
38
police station, and no intervening circumstances occurred before
the interview commenced. Further, in transporting the defendant
to the police station for interrogation, the police sought
expediently to confirm or to dispel whether the defendant had
involvement in the victim's death. On balance of the factors,
we conclude that the Commonwealth has not satisfied its burden
here.
Our conclusion that the defendant's statement resulted from
an unlawful arrest does not end our inquiry. We must determine,
under the circumstances, whether the erroneous admission of the
defendant's interview with police (the portion that the motion
judge did not suppress) created a substantial likelihood of a
miscarriage of justice. See Commonwealth v. Gonzalez, 469 Mass.
410, 417 (2014). The relevant inquiry is whether the jury's
verdict finding that the defendant was guilty of felony-murder
would likely have been the same had the interview been
suppressed. Id.
The defendant argues that his recorded interview was the
"clearest and least equivocal evidence that any robbery or
attempted robbery actually took place in the apartment." We
disagree. The evidence, apart from the defendant's statements
to the police during the recorded interview, was strongly
supportive of the Commonwealth's theory that the defendant had
participated in a joint venture to rob the victim on the night
39
of the murder. We recount the relevant evidence below to
illustrate the point.
The defendant had already told police at the hospital that
the victim was at the apartment for a drug deal; that three men
entered, some of whom had guns; that the defendant escaped
downstairs to his sister's apartment; and that, after the men
left, the defendant found the victim alive, but badly beaten.
Thus, the purpose of the encounter with the victim did not
derive solely from the defendant's recorded interview.
Although the defendant denied any involvement in the crime,
it was the defendant's wife who firmly placed the defendant in
the midst of the scheme to rob the victim. Her testimony that
the defendant instructed the victim to meet at Stenstream's
apartment instead of his wife's apartment as originally planned;
that the defendant packaged between $42,000 and $58,000 in cash
and took it with him when he left to meet the victim; and that
the defendant questioned someone on the telephone before he left
for Stenstream's apartment as to whether he was "going to get it
back" established the defendant as a willing and necessary
participant in the plot to rob the victim. Also, Matteson's
testimony that Morin, the day before the killing, had informed
him of a plot involving Morin, the defendant, and others to rob
the victim at an apartment owned by the defendant further
corroborated the defendant's wife's extremely damaging
40
testimony. From this testimony, the jury reasonably could have
inferred that the defendant was involved in a robbery or
attempted robbery of the victim.
To be sure, some of the defendant's statements in his
recorded interview added information that the jury did not hear
or learn elsewhere at trial. For instance, in the recorded
interview the defendant stated that the victim told the three
men that they owed him money and that the victim had a large
plastic bag in his pocket that contained drugs. This
information, however, did not implicate the defendant in the
robbery or attempted robbery.
While the defendant's recorded interrogation added for the
first time that one of the men hit the victim with a gun, that
detail did not add anything of significant value, as the
defendant kept to his story that he "bolted" as soon as he had
the opportunity and that he did not have any involvement with
the three men and the incident that occurred.
Also, the defendant's admission in his recorded interview
that $1,000, from the $1,600 discovered on his person that
night, was payment from the victim for use of the apartment was
not relevant to the defendant's participation in a robbery or
attempted robbery of the victim. Rather, the admission
concerning the money only strengthened the Commonwealth's
existing evidence that the defendant was at that time, contrary
41
to his statements, still involved in drug dealing and perhaps
even this particular drug deal. None of the defendant's
statements suggested that the drug deal was a ruse for a robbery
or attempted robbery. That suggestion came from Matteson during
his trial testimony.
We turn now to the information obtained from the
defendant's cellular telephone, which the defendant argues
derived from the illegal interrogation. While at the hospital
when he was not in custody, the defendant granted permission to
police to look at his cellular telephone. From this
examination, police learned that the defendant's cellular
telephone recently had been in communication with Morin's
telephone numerous times. Further, as we have already noted,
the defendant's wife testified about communications between
Morin and the defendant on the day before the victim's death,
and a telephone call from Morin looking for the defendant after
something had "happened" with "that kid" who was "tough." Also,
telephone records of Morin's cellular telephone independently
supported the prosecutor's suggestion that the telephones of the
two men had been in frequent communication before and after the
victim's death. The defendant's telephone records were
cumulative of Morin's records and other evidence, and any effect
on the jury from their admission thus was minimal.
42
A close examination of the defendant's statements in the
recording shows that his statements strengthened the
Commonwealth's claim that the defendant was involved in drugs
and drug dealing, but not in a robbery or attempted robbery of
the victim. Concerning the robbery or attempted robbery, the
interview bore little on the jury's determination that the
defendant was a joint venturer in the robbery or attempted
robbery of the victim. The significant evidence, which the
defendant overlooks, was the testimony of his sister and her
husband regarding what they heard that night above them; his
wife's testimony regarding the events of the night; and
Matteson's testimony that Morin had revealed to Matteson what
had been planned and who was involved the day before the
victim's death. In these circumstances, we conclude that no
substantial likelihood of a miscarriage occurred by the
erroneous admission of the defendant's statements made during
his interview with police.
2. Motion to withdraw. The defendant argues that the
judge erred in "forcing" him to trial with defense counsel who
unsuccessfully had sought to withdraw his representation of the
defendant just two days before trial. He further contends that
he was deprived of the effective assistance of trial counsel
because he was forced to stand trial with defense counsel who
43
did not want to represent him and who purportedly had admitted
to preparing his defense at a "low level."
On October 29, 2012, which was two days prior to trial,
defense counsel, who was retained by the defendant and his
family, filed a motion to withdraw. In support of that motion,
defense counsel filed an affidavit stating the following.
Communication between defense counsel and the defendant had
"broken down." Defense counsel had learned that the defendant
recently had accused him of "jamming him up," not preparing his
case, and forcing him to accept a plea to murder in the second
degree. The defendant had telephoned his office on October 25
and had told an associate that he was dissatisfied with defense
counsel's representation and no longer wished for him to serve
as his trial counsel. Defense counsel indicated that the
defendant felt that counsel was not acting in the defendant's
best interests; that he had not properly prepared the
defendant's case; and that, by advising the defendant to take a
plea, he had abandoned the defendant's case. Defense counsel
stated that the defendant wanted to be heard by the court and
that he had advised the defendant and his family that they
needed to arrange for successor counsel. Defense counsel went
on to state that, notwithstanding the defendant's position, he
was continuing to prepare the case for trial. Defense counsel
also represented that, with several exceptions regarding some
44
specific pretrial preparation (preparing a witness list, for
example), he had been fully prepared for trial prior to the
defendant's telephone call on October 25.
The judge, who was also the trial judge, held a hearing on
October 29. The defendant explained:
"I no longer trust [defense counsel], I lost all my
faith in him. I feel [that he] hasn't taken my best
interest, fifteen to life, when I'm one hundred per cent
innocent. He also told me he'll put no more effort into my
case. I'm indigent. And I have lawyers that state that,
your Honor. On top of that, writing letters that you're
going to proceed on my trial at a low level."
The defendant added that he was dissatisfied because he
requested, but was not afforded, either an expert to review the
medical examiner's autopsy report or a private investigator to
speak with "a few people." The defendant also wanted "some
motions in" after he "lost" the suppression motion.
The letters to which the defendant referred included one
dated October 15, 2012, from defense counsel to the defendant,
which the defendant submitted to the judge. In the one-page
letter, defense counsel expressed concern regarding the large
amount owed for his services and expenditures. Defense counsel
also wrote, "Much work remains on your case although I am ready
on a low level. I feel however you want additional work and I
am willing to provide it subject to me getting paid."
Defense counsel confirmed at the hearing that he had sent
the defendant the October 15 letter. He explained what he meant
45
by the phrase "low level," which included preparing indexes for
every police report, every grand jury hearing, and every other
hearing, including the extensive suppression hearing. "Low
level" preparation, according to defense counsel, did not
constitute extensive trial preparation, which involves working
"day and night" and weekends in order to try the case when the
trial date is firm. When defense counsel authored the letter,
he was not yet conducting actual trial preparation.
Defense counsel told the judge that communication between
him and the defendant deteriorated for several reasons,
including that the defendant refused to accept the impact of our
decision in Commonwealth v. Zanetti, 454 Mass. 449, 466-468
(2009), which effectively erased the distinction between
principal and joint liability with regard to joint venture
liability. In addition, defense counsel informed the judge that
he had consulted at least two doctors to review the autopsy
report, and the defendant did not want to accept their opinions
that there was no basis to dispute the victim's cause of death.
The defendant also "reject[ed] entirely" the fact that his wife,
who apparently was not going to testify against him, had changed
her mind and would be testifying "to some major things that are
very problematic." Another damaging fact that the defendant
refused to accept was his sister Lucia's expected testimony
that, on the night of the killing, after the group had run out
46
of Stenstream's apartment, she heard the defendant and another
voice from Stenstream's apartment, which was significant because
the testimony supported an inference that the victim had been
alive and alone with the defendant. Defense counsel stated that
his plea recommendation had nothing to do with "the payment of
fees, but an evaluation of the evidence."25
Defense counsel sought to withdraw, but stated he would "do
[his] best" were the judge to order him to proceed. The judge
ruled that the defendant had the right to bring in new counsel
"provided new counsel is prepared to impanel this case [in two
days]." The judge noted that the case commenced in "the early
portion of 2010" and that the Commonwealth "can be prejudiced by
the denial of a speedy trial as its witnesses' memories may dull
and wane by the passage of time." The judge added that the
motion judge had actually agreed with defense counsel regarding
a portion of the motion to suppress, so that it was not fair to
25
Without citation to any authority, the defendant's
appellate counsel suggests that the defendant's trial counsel
revealed communications that were protected by the attorney-
client privilege. We have stated, however, where a defendant
"essentially accuse[s] trial counsel of incompetence in
circumstances covered by the attorney-client privilege and to
which the only witnesses were the defendant and trial counsel,
the privilege must be deemed waived, in part, to permit counsel
to disclose only those confidences necessary and relevant to the
defense of the charge of ineffective assistance of counsel."
Commonwealth v. Silva, 455 Mass. 503, 529 (2009), and cases
cited. Here, defense counsel acted appropriately, revealing
communications that were responsive and relevant to the
defendant's claims of ineffective assistance.
47
state that the motion had been lost. The judge stated that an
attorney is not to "operate simply as an accommodating party"
and is required to be effective in plea negotiations in addition
to a trial. He validated the challenges defense counsel faced
based on the circumstances and facts of the case. Last, the
judge rejected the accusation that defense counsel had abandoned
the defendant, pointing to his voir dire questions and motions
in limine that had been filed.
The judge declined to continue the case to permit the
defendant to obtain new counsel. The defendant stated that he
did not see how it could be possible to try the case in two days
with new counsel. The judge denied the motion to withdraw.
We review the denial of a motion to withdraw counsel for
abuse of discretion. Commonwealth v. Rice, 441 Mass. 291, 297
(2004). We also review the denial of a request for a
continuance for abuse of discretion. Commonwealth v. Ray, 467
Mass. 115, 128 (2014).
"The Sixth Amendment [to the United States Constitution]
guarantees the right to effective assistance of counsel, but it
'does not invariably require a "meaningful attorney-client
relationship."'" Commonwealth v. Britto, 433 Mass. 596, 600
(2001), quoting Commonwealth v. Tuitt, 393 Mass. 801, 806
(1985). "Freedom to change counsel . . . is restricted on the
commencement of trial." Commonwealth v. Chavis, 415 Mass. 703,
48
711 (1993). "A motion to discharge counsel, when made on the
eve of trial, or on the day on which trial is scheduled to
begin, 'is a matter left to the sound discretion of the trial
judge.'" Tuitt, supra at 804, quoting Commonwealth v. Moran,
388 Mass. 655, 659 (1983). There is no "mechanical test" that
applies. Chavis, supra. A trial judge is to "balance the
movant's need for additional time against the possible
inconvenience, increased costs, and prejudice which may be
incurred by the opposing party if the motion is granted. He
must also give due weight to the interest in the judicial system
in avoiding delays which would not measurably contribute to the
resolution of a particular controversy." Id., quoting
Commonwealth v. Cavanaugh, 371 Mass. 46, 51 (1976).
Turning to requests for continuances, we have explained
that "there is no 'mechanical test' for determining whether the
denial of a continuance constitutes an abuse of discretion
because we must examine the unique circumstances of each case,
particularly the reasons underlying the request." Commonwealth
v. Pena, 462 Mass. 183, 190 (2012). "A judge should grant a
continuance only when justice so requires, balancing the
requesting party's need for additional time against concerns
about inconvenience, cost, potential prejudice, and the burden
of the delay on both the parties and the judicial system." Ray,
467 Mass. at 128. "[C]ognizant of a criminal defendant's
49
constitutional entitlement to assistance of counsel, who 'must
be afforded "a reasonable opportunity to prepare and to present
the defence,"'" id. at 128-129, quoting Cavanaugh, 371 Mass. at
50, we have cautioned that "a trial judge may not exercise his
discretion in such a way as to impair" this right. Ray, supra
at 129, quoting Commonwealth v. Miles, 420 Mass. 67, 85 (1995).
Here, the judge gave the defendant the opportunity to
explain his reasons for his dissatisfaction with defense counsel
and acted within his discretion in denying both the motion to
withdraw and the request for a continuance. See Chavis, 415
Mass. at 712 (judge gave defendant "fair opportunity to explain
the reasons for his dissatisfaction with trial counsel"). The
judge appropriately gave consideration to the facts that the
case was scheduled for trial in two days, the defendant had been
indicted some two years earlier, and he had not engaged
successor counsel. The judge did not misstate the law
concerning a defendant's right to a speedy trial, but rather, in
context, properly considered the defendant's needs against the
legitimate needs of judicial administration, including the need
for witness testimony to be unhindered due to the passage of
time. See Commonwealth v. Gilchrest, 364 Mass. 272, 276 (1973).
The judge could properly take such matters into account even in
the absence of evidence of a calculated effort made by the
defendant to postpone the trial.
50
The judge considered the nature and seriousness of the
conflict between the defendant and his counsel. See Rice, 441
Mass. at 297. Implicit in the judge's conclusion was that he
credited defense counsel's explanation of what he meant by using
the phrase "low level." Further, the judge credited defense
counsel's statements that he was prepared for trial, noting his
extensive trial preparation efforts, namely the motions he had
filed on the defendant's behalf and the filings submitted in
preparation of jury empanelment. Cf. Cavanaugh, 371 Mass. at
48, 57 (error to deny continuance where defense counsel stated
he was not prepared). The judge explored the allegations that
defense counsel had not met all of the defendant's demands,
finding them unreasonable or unsupported in the circumstances.
For these reasons, there is no basis for the defendant's
argument that the judge abused his discretion in failing to
reach a different conclusion, namely, that defense counsel had
"washed his hands" of the defendant and was willing to put in
only minimal effort for trial. See Britto, 433 Mass. at 601
(stating that counsel's failure to meet all of defendant's
demands does not equate with "an irreconcilable breakdown of
communication").
Last, concerning the defendant's claim that he was deprived
of the effective assistance of trial counsel because he was
forced to stand trial with defense counsel who did not want to
51
represent him and who purportedly had admitted to preparing his
defense at a "low level," the "ultimate question is whether the
defendant likely would be denied the effective assistance of
counsel if counsel is not removed." Id. Based on the record
before us, we conclude that the defendant has failed to make the
requisite showing.
3. Ineffective assistance of counsel. The defendant's
ineffective assistance of counsel argument is predicated on the
claims of error we have already addressed and, thus, lacks
merit.
4. Relief pursuant to G. L. c. 278, § 33E. Pursuant to
our statutory duty, we discern no basis to reduce the verdict or
to order a new trial pursuant to G. L. c. 278, § 33E.
Conclusion. We reverse the order denying in part the
defendant's motion to suppress statements. We affirm the order
denying defense counsel's motion to withdraw. We affirm the
defendant's conviction.
So ordered.