Commonwealth v. Sanchez

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SJC-11360

COMMONWEALTH vs. BENJAMIN SANCHEZ.

Hampden. December 9, 2016. - April 5, 2017.

Present: Gants, C.J., Botsford, Lenk, Hines, & Gaziano, JJ. 1

Homicide. Burning a Dwelling House. Abuse
Prevention. Evidence, Expert opinion, Admissions and
confessions, Voluntariness of statement. Witness,
Expert. Constitutional Law, Confrontation of witnesses,
Waiver of constitutional rights, Admissions and
confessions, Voluntariness of statement. Practice,
Criminal, Capital case, Confrontation of witnesses, Waiver,
Admissions and confessions, Voluntariness of statement,
Postconviction relief.

Indictments found and returned in the Superior Court
Department on August 27, 2009.

The cases were tried before Peter A. Velis, J., and a
motion for a new trial, filed on May 20, 2015, was considered
by Mark D. Mason, J.

Elaine Pourinski for the defendant.
Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.

1
Justice Botsford participated in the deliberation on this
case prior to her retirement.
 2

GAZIANO, J. In the early morning hours of July 12, 2009, a

Springfield fire department rescue squad responded to a house

fire and found the body of the defendant's estranged wife on the

living room floor. She was transported to a hospital where it

was determined that she had been strangled and stabbed. At

trial, the Commonwealth relied on circumstantial evidence to

prove that the defendant had entered the house, assaulted the

victim, and set the building on fire. A Superior Court jury

convicted the defendant of murder in the first degree on

theories of deliberate premeditation and extreme atrocity or

cruelty, arson of a dwelling house, and violating a G. L.

c. 209A abuse prevention order.

On appeal, the defendant claims that the evidence

introduced at trial was insufficient to support his convictions

of murder in the first degree and arson. In addition, he raises

the following claims of error: (1) expert witnesses were

allowed to testify about the substance of forensic testing

results obtained by other analysts, in violation of his right to

confrontation under the Sixth Amendment to the United States

Constitution; (2) his custodial statements to police were

obtained without a valid Miranda waiver and were involuntary;

and (3) the motion judge abused his discretion in denying the

defendant's motion for a new trial without an evidentiary

hearing. The defendant also asks that we grant him a new trial
 3

or reduce the verdicts pursuant to our authority under G. L.

c. 278, § 33E. We affirm the convictions and decline to reduce

the degree of guilt or to order a new trial.

1. Facts. We recite the facts the jury could have found

in the light most favorable to the Commonwealth,

see Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979),

reserving certain facts for our discussion of the issues raised.

The defendant and the victim were married for approximately

fifteen years. They had one son together. The victim also had

three children prior to her marriage to the defendant.

In October, 2008, the defendant and the victim separated,

at least in part because of the defendant's drug use. The

defendant moved from the house they had lived in to a mobile

home park a few miles away. In March, 2009, the victim obtained

an emergency abuse prevention order against the defendant, 2 and

in May, 2009, she filed for divorce At the time of the victim's

death, the defendant and the victim shared physical and legal

custody of Angel. The victim initially had been granted sole

physical custody, but the custody order was modified

approximately one month before her death to provide that Angel

2
Before the defendant and the victim separated, he
repeatedly threatened to kill her if he found out that she was
involved in a relationship with another man. At the time of her
death, the victim indeed was dating another man. The defendant
mentioned to one of the victim's daughters that he was aware of
this relationship.
 4

would spend weekdays with his mother and weekends with his

father.

In June, 2009, the defendant asked to meet with the victim

to discuss their relationship. She agreed to meet with the

defendant on July 9, 2009, despite the abuse prevention order,

so long as he brought his brother with him. The defendant

assented to this condition, but he arrived alone at the meeting.

He asked the victim if she were certain that she wanted to

follow through with the divorce. She said that she was. The

defendant also expressed a desire to move to Puerto Rico with

their son. The victim told the defendant that he would have to

make such a request to the court. Upon hearing this, the

defendant became visibly upset, slamming the door as he left.

On Saturday, July 11, 2009, the victim left a family

gathering around 11 P.M. and was dropped off at her house. At

approximately 11:20 P.M., the son called his half-sister, who

lived with the victim but was staying at a friend's house that

night. The defendant took the telephone from his son and asked

the half-sister where she was. When she replied that she was at

her friend's house, the defendant asked her "if [she] left [her]

mother home alone." She answered, "No." This was a deliberate

lie because she did not want the defendant to know that the

victim was alone in the house.

At 11:24 P.M., a security camera at the mobile home park
 5

where the defendant lived recorded an image of a sport utility

vehicle (SUV), consistent with the defendant's Hyundai Santa Fe,

being driven away. Six minutes later, at approximately 11:30

P.M., one of the victim's neighbors heard a woman scream. The

scream came from the direction of the corner of the street where

the victim lived. The neighbor then heard a man and a woman

arguing. He looked out his window and saw a man and a woman

standing at the door of the victim's house, arguing. He

recognized the woman as his neighbor. The neighbor described

the man as light-skinned, about five feet, eleven inches tall,

and wearing a light-colored or white T-shirt and dark shorts.

The video surveillance recording showed that the SUV returned to

the mobile home park approximately thirty minutes later, at

12:02 A.M. on July 12, 2009.

Also at approximately midnight on July 12, 2009, one of the

victim's neighbors smelled smoke and discovered that it was

coming from the victim's house. Fire fighters responded at

12:46 A.M. A rescue squad found the victim lying unconscious in

the living room, in front of her bedroom door. Emergency

personnel transported her to the hospital, where she was

pronounced dead. In addition to burns, she had multiple blunt

and sharp force injuries to her head, neck, arms, right knee,

chest, back, and hands. Her death was caused by a combination

of sharp force injuries to her left lung, which caused it to
 6

collapse, and inhalation of soot and smoke. Hospital staff

notified police after they discovered bruising and a ligature

mark on the victim's neck.

At 3 A.M. on July 12, 2009, Springfield police officers

went to the defendant's trailer at the mobile home park. He

accompanied them to the police station, where he gave a

statement and provided a buccal swab. The officers noticed that

the defendant had bruises on the back of his right hand and on

his right wrist, and a wound on the webbing between the thumb

and index finger of his left hand.

The fire investigators determined that the fire had been

set intentionally, and began in the victim's bedroom. 3

The defendant provided statements to police on July 12, 17,

and 18, 2009. He said that, after his son went to bed, he drove

his Hyundai Santa Fe SUV to purchase four bags of heroin and

that, after returning home and injecting all four bags, he went

back to purchase two additional bags. Initially, the defendant

said that he had not been inside the victim's house since April.

In a later statement, he said that he and the victim had been

together in the victim's house at approximately 3 or 4 P.M. on

3
This conclusion was based, in part, on the following:
(1) all but one of the smoke detectors and carbon monoxide
detectors had been rendered inoperable at the time of the fire;
(2) the fire originated in the victim's bedroom; and
(3) investigators ruled out cigarettes, candles, or electrical
appliances as causes of the fire.
 7

July 10, 2009, the day before her death. 4

In the early morning hours of July 12, 2009, the front,

back, and side doors of the victim's house were locked. Keys to

the house were found behind it, near the front porch of a

neighboring house; they were "brand new" and were found on top

of leaves and sticks.

At trial, the Commonwealth presented deoxyribonucleic acid

(DNA) evidence linking the defendant to the crimes. This

included evidence from a red-brown stain on the neck of a white

T-shirt discovered in the doorway of the victim's bedroom. That

stain contained a mixture of DNA; short tandem repeat 5 (STR)

testing showed that the major DNA profile matched the victim's

profile, and that the defendant was a potential contributor to

the minor profile. There was also another potential contributor

to the mixture. Another DNA sample was obtained from underneath

4
One of the victim's daughters testified at trial that the
defendant was not at the victim's house on July 10, 2009; the
victim's boy friend testified that the victim went to his house
at about 9 A.M. that day, and was there in the afternoon.
5
Short tandem repeat (STR) testing of deoxyribonucleic acid
(DNA) focuses on specific places (loci) on the human chromosome
where known sequences of DNA base pairs repeat themselves. A
DNA analyst measures the number of times these repeat sequences
occur at particular loci (called alleles), and uses that
measurement to compare known standards against unknown forensic
samples. In Y-STR DNA testing, the analyst separates male DNA
from female DNA, and examines loci found exclusively on the male
Y-chromosome. See Commonwealth v. DiCicco, 470 Mass. 720, 724
n.11 (2015); Commonwealth v. Issa, 466 Mass. 1, 4-5 & n.5
(2013).
 8

one of the fingernails on the victim's right hand. Y-chromosome

STR (Y-STR) testing showed that a the major profile from that

sample matched the Y-STR DNA profile of the defendant and his

paternal relatives. A third sample from the victim's neck

contained the Y-STR DNA profiles of at least three males; the

defendant and his paternal relatives could not be excluded from

this mixture.

2. Discussion. a. Sufficiency of the evidence. The

defendant argues that the trial judge erred in denying his

motions for required findings of not guilty, because the

evidence was insufficient as a matter of law to support his

convictions of murder in the first degree and arson.

"In reviewing the denial of a motion for a required finding

of not guilty, [this court] must determine whether the evidence,

including inferences that are not too remote according to the

usual course of events, read in the light most favorable to the

Commonwealth, was sufficient to satisfy a rational trier of fact

of each element of the crime beyond a reasonable doubt"

(citation omitted). Commonwealth v. Zanetti, 454 Mass. 449, 454

(2009). "[T]he evidence and the inferences permitted to be

drawn therefrom must be 'of sufficient force to bring minds of

ordinary intelligence and sagacity to the persuasion of [guilt]

beyond a reasonable doubt'" (citation omitted). Latimore, 378

Mass. at 677.
 9

Having carefully reviewed the trial record, we conclude

that the evidence introduced at trial was sufficient to support

the convictions of murder in the first degree on the theories of

deliberate premeditation and extreme atrocity or cruelty and

arson.

We highlight some of the salient facts recited above. The

evidence indicated that the defendant had a motive for the

killing. Four months before the victim's death, the victim

obtained an emergency abuse prevention order against the

defendant after a history of domestic violence. A few days

before the victim's death, the defendant and the victim had a

conversation in which the defendant became visibly "upset" and

slammed a door upon hearing from the victim that she would

proceed with the divorce and would contest his move to Puerto

Rico with their son.

On the night of the stabbing, the defendant asked the

victim's daughter if the victim was alone in her house.

Although the defendant was misinformed that she was not, the

victim indeed was alone in the house at that point, for the

first time since she had obtained the abuse prevention order

four months earlier. Minutes after the conversation informing

the defendant that the victim was at her house, while the son

was asleep in the back room of the defendant's mobile home, an

SUV similar to the defendant's Hyundai Santa Fe left the mobile
 10

home park. See Commonwealth v. Phoenix, 409 Mass. 408, 430

(1991). Six minutes later, a neighbor heard the victim scream,

and then saw her standing at her front door arguing with a man.

Early in the morning of July 12, 2009, police found the

defendant with injuries on both hands. His left hand tested

positive for the presence of blood. DNA evidence on a T-shirt

found in the doorway of the victim's bedroom, and on her body,

contained a mixture of DNA, including a major STR DNA profile

that matched the victim's profile and a minor profile from which

the defendant could not be excluded.

The defendant made contradictory statements to police about

his whereabouts on the day prior to, and the day of, the

killing, that were contrary to testimony from the victim's

daughter and the victim's boy friend. See Commonwealth

v. Robles, 423 Mass. 62, 71 (1996) ("False statements to police

may be considered as consciousness of guilt if there is other

evidence tending to prove the falsity of the statements").

Taken together, the evidence also was sufficient to support

a finding of extreme atrocity or cruelty. The victim had blunt

force injuries to both sides of her head, her right eye, both

arms, and her right knee, and a ligature mark on her neck. She

also was stabbed forty-five times, including stab wounds to her

neck and through her left lung. Her arms and legs were burned,

and she inhaled soot and smoke, which contributed to her death,
 11

indicating that she was alive after having been repeatedly

stabbed and beaten, and while the fire burned around her.

In light of this, the defendant's argument that the

Commonwealth did not meet its burden of proof because the

evidence was circumstantial in nature, or because there was no

blood or soot in the defendant's vehicle, or on his person or

clothing, on the morning after the fire, is unavailing. Viewed

in the light most favorable to the Commonwealth, the evidence

was sufficient to support the convictions. See Commonwealth

v. Lao, 443 Mass. 770, 779-780 (2005), S.C., 450 Mass. 215

(2007) and 460 Mass. 12 (2011) (circumstantial evidence in

prosecution of murder in first degree was sufficient to warrant

jury's conclusion that defendant killed his estranged wife).

Accordingly, we turn to the defendant's other assertions of

error.

b. Right to confront DNA analyst. At trial, the defendant

repeatedly objected to the testimony of Amy Barber, a DNA unit

supervisor at the State police crime laboratory (crime lab), on

the ground that her testimony violated his right to

confrontation. 6 On appeal, he argues that it was error to permit

6
Three DNA analysts from the State police crime laboratory
testified concerning STR and Y-STR DNA testing: Jennifer
Montgomery testified to STR DNA profiles from the known samples
of the victim and the defendant, and the Y-STR profile from the
known sample of the defendant; Amy Barber testified to the STR
DNA profiles that were obtained from twelve questioned samples
 12

Barber to testify about the results of DNA testing performed by

another analyst, Melanie Knasas, and that the Commonwealth

failed to establish that Knasas was unavailable to testify. We

conclude that the testimony did not violate the defendant's

right to confrontation. See Commonwealth v. Greineder, 464

Mass. 580, 603, cert. denied, 134 S. Ct. 166

(2013); Commonwealth v. Barbosa, 457 Mass. 773, 786 (2010),

cert. denied, 563 U.S. 990 (2011).

Under the Sixth Amendment to the United States Constitution

and art. 12 of the Massachusetts Declaration of Rights, a

criminal defendant has the right to confront the government's

witnesses. See Bullcoming v. New Mexico, 564 U.S. 647, 657

(2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305, 329

(2009). See also Commonwealth v. Nardi, 452 Mass. 379, 388 n.10

(2008) ("the protection provided by art. 12 is coextensive with

the guarantees of the Sixth Amendment" [citation omitted]). In

addition, our common-law rules of evidence "afford a defendant

more protection than the Sixth Amendment." Commonwealth

v. Tassone, 468 Mass. 391, 399 (2014). Under the common law, we

require that a defendant be provided with a "meaningful

opportunity to cross-examine the expert about her opinion and

and their comparison to the STR DNA profiles obtained from the
known standards; and Kathleen Gould obtained the Y-STR DNA
profiles from four questioned samples and compared them to the
defendant's Y-STR DNA profile.
 13

the reliability of the facts or data that underlie her

opinion." Id.

Barber's expert testimony did not deprive the defendant of

his rights under the confrontation clause. Knasas worked at the

crime lab. She conducted the initial testing on twelve items

(including from the victim's T-shirt, her right-hand

fingernails, and her neck) to develop STR DNA profiles for later

comparison to known DNA samples. At the time of trial, however,

Knasas no longer was employed at the crime lab, and she was

traveling out of State.

Barber was a DNA unit supervisor responsible for the day-

to-day operations within the crime lab's DNA unit; she

supervised five other chemists and was familiar with all of the

crime lab's protocols and procedures. In addition, Barber was

the technical reviewer assigned to review Knasas's analysis in

this case, to ensure that the proper protocols had been followed

and that Knasas's conclusions were scientifically sound.

Barber did not testify to Knasas's testing results. During

direct examination, the prosecutor prefaced his questioning by

instructing Barber, "Now, I want to ask you specifically, Ms.

Barber -- I don't want to ask you about any conclusions that

have been reached by Ms. Knasas. I'm going to ask you to

testify to your own independent opinions based on the data you

just described. All right?" Within those parameters, Barber
 14

testified to a chart that she had prepared describing her

interpretation of the raw data.

Barber did not, as the defendant suggests, "act as a

conduit for" Knasas's test results, opinions, or conclusions.

See Greineder, 464 Mass. at 595. Rather, Barber testified that

she "reviewed the data that came off of the detection software

and was put through the analysis software," formulated her own

opinions after interpreting the raw data produced during the

process, and drew independent conclusions based upon data

produced by the analysis software. Barber also calculated the

population frequency of each DNA profile and testified to her

results. See Commonwealth v. Chappell, 473 Mass. 191, 199-202

(2015) (no confrontation clause violation where testifying

expert independently reviewed raw data and reports produced by

original analyst, made interpretations, and ensured that there

was agreement between her findings and those of original

analyst); Greineder, supra at 595, 601-602 (no confrontation

clause violation where substitute analyst reviewed nontestifying

analyst's work, including six prepared reports, and then

conducted independent evaluation of data); Barbosa, 457 Mass. at

791 (no confrontation clause violation where substitute analyst

conducted full technical review of other analyst's DNA reports

regarding testing that was performed and results of testing).

Moreover, the admission of Barber's testimony did not
 15

violate the defendant's common-law right to confrontation.

See Tassone, 468 Mass. at 399. The defendant had a meaningful

opportunity to cross-examine Barber and, in fact, did challenge

Barber's testimony, extracting, on cross-examination, that there

was a third, unknown potential contributor to the DNA mixture on

the white T-shirt. Defense counsel also asked Barber about

other unknown results from other swabs, the crime lab's testing

procedures and protocols, and why DNA testing was not performed

on particular items.

The defendant contends further that the confrontation

clause requires the Commonwealth to prove Knasas's

unavailability before Barber was permitted to testify. This

argument is without merit. We do not require the Commonwealth

to demonstrate that an analyst is unavailable as a prerequisite

to the admission of substitute expert testimony in order to

comport with a defendant's rights under the confrontation

clause. See Commonwealth v. Williams, 475 Mass. 705, 718-719

(2016) (substitute medical examiner allowed to testify to her

independent understanding of cause of death based on autopsy

report and photographs despite availability of medical examiner

who performed autopsy).

c. Right to confront electrical-fire investigator. The

defendant argues that his Sixth Amendment confrontation clause

rights were violated by the testimony of State police Trooper
 16

David Percy. Percy, an arson investigator, testified that the

fire was set deliberately. In conducting his investigation,

Percy was assisted by fire fighter and licensed electrician

Benjamin Hall. Percy observed Hall examine electrical

appliances, electrical outlets and wall switches for damage.

The defendant argues that the Commonwealth's failure to present

testimony from Hall denied the defendant the right to challenge

the testimony that the fire was not accidental. For reasons

similar to our discussion of the DNA analysis, we conclude that

Percy's testimony did not violate the defendant's rights under

the confrontation clause.

Percy, unlike Hall, was not a licensed electrician. Percy

was, however, able to respond directly to the defendant's

questions about the decision to rule out an accidental fire

based on an electrical source. 7 Percy had personally inspected

the various electrical outlets and electrical appliances in the

victim's house, and had formed his own independent opinion

concerning the origin of the fire. Percy did not repeat Hall's

opinion. See Barbosa, 457 Mass. at 783-784. Having been able

to cross-examine Percy concerning the investigation into causes

7
Percy had completed training courses in basic and advanced
electrical investigation;, and the failures of appliances and
electricity. He had inspected electrical switches and
electrical outlets in the course of investigating approximately
1,000 fires.
 17

of the fire, 8 the defendant was not deprived of his right to

confrontation on this issue. See Barbosa, supra at 784.

d. Defendant's statements. The defendant challenges the

validity of his waiver of the Miranda rights, see Miranda

v. Arizona, 384 U.S. 436 (1966), and the voluntariness of the

statements that he gave to Springfield police officers on July

12, 17, and 18, 2009.

The Commonwealth "bears the burden of proving beyond a

reasonable doubt, in the totality of the circumstances, that a

defendant's [Miranda] waiver was voluntary, knowing, and

intelligent." Commonwealth v. Auclair, 444 Mass. 348, 353

(2005). "Absent clear error, we accept a . . . judge's findings

of fact . . . , and a finding of voluntary waiver is given

substantial deference" (citation omitted). Id.

In reviewing a judge's denial of a motion to suppress, we

accept the judge's findings of fact and will not disturb them

absent clear error. See Commonwealth v. Smith, 456 Mass. 476,

478 (2010). We conduct an independent inquiry as to whether the

defendant's statements were made voluntarily and without

coercion. See Commonwealth v. Carnes, 457 Mass. 812, 818-819

8
On appeal, the defendant claimed that his confrontation
clause rights also were violated by the Commonwealth's failure
to call Springfield police Officer Kenneth Jones as a witness at
the hearing on the defendant's motion to suppress. The
defendant is mistaken. Jones testified on the fourth day of the
hearing, and he was subject to cross-examination.
 18

(2010). "A statement is voluntary if, in the totality of the

circumstances surrounding the making of the statement, the

defendant's will is not overborne, so that the statement is the

result of a free and voluntary act." Id. at 819. "In looking

at the totality of the circumstances to determine the

voluntariness of a statement, the judge may consider, among

other things, the defendant's age, education, intelligence,

physical and mental stability, and experience with and in the

criminal justice system." Commonwealth v. Andersen, 445 Mass.

195, 203 (2005).

Here, we discern no error in the judge's decision to deny

the defendant's motion to suppress his statements.

i. Statement on July 12. To begin, we consider whether

the defendant was subjected to custodial interrogation

triggering Miranda protections. "[T]he safeguards prescribed

by Miranda become applicable as soon as a suspect's freedom of

action is curtailed to a 'degree associated with a formal

arrest.'" Berkemer v. McCarty, 468 U.S. 420, 440 (1984),

quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per

curiam). See Commonwealth v. Martinez, 458 Mass. 684, 695 n.12

(2011). It is the defendant's burden to establish that he was

subject to custodial interrogation. Commonwealth v. Kirwan, 448

Mass. 304, 309 (2007). "The test is an objective one: would a

reasonable person in the circumstances of the defendant's
 19

interrogation have perceived the environment as coercive?" 9 Id.

The judge concluded, and we agree, that the defendant

failed to establish that the interrogation was custodial. The

defendant voluntarily accompanied the officers from his home to

an interview room at the police department. That the interview

occurred at the police station is not, by itself, controlling.

See Commonwealth v. Gil, 393 Mass. 204, 212 (1984). Once in the

interview room, the detectives informed the defendant that he

was not required to be there. He was told a number of times

that he was not under arrest and that he could leave at any

time. At the end of the two-hour interview, the defendant was

not arrested, and was driven home by an officer.

See Commonwealth v. Clemente, 452 Mass. 295, 327-328 (2008),

cert. denied, 555 U.S. 1181 (2009).

9
The factors relevant to determining whether a suspect is
in custody for Miranda purposes include:

"(1) the place of the interrogation; (2) whether the
officers have conveyed to the person being questioned any
belief or opinion that that person is a suspect; (3) the
nature of the interrogation, including whether the
interview was aggressive or, instead, informal and
influenced in its contours by the person being interviewed;
and (4) whether, at the time the incriminating statement
was made, the person was free to end the interview by
leaving the locus of the interrogation or by asking the
interrogator to leave, as evidenced by whether the
interview terminated with an arrest."

Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). "Rarely
is any single factor conclusive." Commonwealth v. Bryant, 390
Mass. 729, 737 (1984).
 20

The defendant also challenges the voluntariness of his

statement on July 12. He maintains that any statements were not

the product of rational thought, because he was under the

influence of heroin and alcohol, had not taken his medications

for mental illness, and suffers from a learning disability. The

judge found these arguments to be without merit. We conclude

that this finding was not clearly erroneous.

Here, "[t]he atmosphere surrounding the officer's questions

was neither coercive nor intimidating." Commonwealth

v. Burbine, 74 Mass. App. Ct. 148, 151-152 (2009). The judge

found that the officers' comments, at this point at the

beginning of their investigation, were "investigatory rather

than accusatory." Kirwan, 448 Mass. at 311. The officers spoke

to the defendant in English, his second language, in an

interview room. The detectives did not have difficulty

understanding the defendant, and he did not appear to have

difficulty understanding them. The detectives simplified the

manner of their questioning in order to accommodate the

defendant's learning disability. They did not challenge the

defendant's answers to questions. The defendant was cooperative

and answered questions readily. The detectives neither

threatened the defendant nor made any promises in order to

induce him to speak. The defendant was alert and did not appear

to be under the influence of drugs or alcohol. He remained calm
 21

until the detectives notified him of the victim's death. After

the interview, one of the detectives read a typed statement to

the defendant because he had indicated that he was not able to

read or write, and the defendant then signed it. 10

We note that, during the July 12 interview, a detective

falsely informed the defendant that the victim had been pregnant

when she died. The judge did not accept the detective's

explanation that he passed along this upsetting information to

the defendant because he "must have been told by somebody that

she may have been [pregnant]." The judge found that "[t]his

news did upset the defendant, but even if it were intended to

elicit incriminating statements regarding [the victim's] death,

such a tactic was unsuccessful. . . . [I]t did not have any

impact on the defendant's statement." The judge's findings

regarding the impact of the detective's false statement are not

clearly erroneous.

ii. Statement on July 17. The defendant contends also

that, because he was under the influence of alcohol and heroin,

and had not taken his medications for his mental illness at the

10
We note that the judge incorrectly stated in his findings
of fact that the defendant had requested a correction to this
statement before signing it, and referenced that as further
indication that, when he made the statement, the defendant had
been alert, unimpaired by drugs or alcohol, and able to
understand the detectives' spoken English. This error is of no
moment, however, as our review of the course of conduct of the
interview persuades us that the defendant was alert, unimpaired
by alcohol or drugs, and able to understand the detectives.
 22

time of his arrest, his Miranda waiver and subsequent statements

were not voluntary, and his recorded statement on July 17 should

have been suppressed. In light of the totality of the

circumstances, we conclude that the judge properly determined

that the defendant knowingly and voluntarily waived his Miranda

rights, and voluntarily provided the statement to police.

After he was arrested on July 17, the defendant was

transported to the police station and brought to an interview

room. The detectives asked the defendant if he wanted a

Spanish-speaking officer to translate. The defendant accepted

this offer, and a Spanish-speaking detective joined them. This

detective spoke to the defendant in Spanish. The defendant

agreed to speak English during the interview, and to have

portions of the interview interpreted as needed. During the

interview, the Spanish-speaking detective clarified a few terms,

but the vast majority of the interview was conducted in English,

without apparent difficulties.

The detectives began the recorded interview by advising the

defendant of his Miranda rights, his telephone rights, and his

right to a prompt arraignment. The detective read each right to

the defendant, who indicated his understanding of each right

orally and by initialing each line on the form. In response to

line eight on the form, "[h]aving these rights in mind do you

wish to talk to me now?" the defendant wrote his initials and
 23

said, "I don't have a problem." When the detective asked the

defendant if he wanted to use a telephone, the defendant

replied, "In a little while," and the detective told the

defendant to let him know when the defendant wanted to use it.

While, as the judge noted, it would have been better

practice to inquire into the defendant's need for medication,

once the defendant alluded to his medications for mental

illness, the judge found that "the defendant was coherent, [and]

able to understand the questions put to him . . . , and that the

defendant's responses to the questions were generally

appropriate and evidenced his comprehension of the questions." 11

The judge found that defendant's demeanor indicated that he was

not impaired by alcohol, heroin, or the lack of medication.

About ten minutes into the interrogation, the defendant

handed a detective a criminal defense attorney's business card

and said, "Call him." The detective considered the defendant's

act and remark as an invocation of his right to counsel and,

accordingly, ended the interview. The detective informed the

defendant that he would be booked and processed, and that he

would be able to make a telephone call.

After the defendant invoked his right to counsel, however,

11
The defendant denied any involvement in the victim's
death. See Commonwealth v. Fournier, 372 Mass. 346, 348–349
(1977) (fact that statement is exculpatory may be taken into
account in determining whether it is voluntary).
 24

the detective told the defendant, "I am disappointed because I

thought you'd step up and take [your son] out of this." This

comment was highly inappropriate, as the detective did not

scrupulously honor the defendant's right to speak through

counsel. Once Miranda warnings have been given, if a defendant

states that he or she wants an attorney, the interrogation must

cease until an attorney is present. See Commonwealth v. Brant,

380 Mass. 876, 882, cert. denied, 449 U.S. 1004 (1980).

Interrogation refers "not only to express questioning, but also

to any words or actions on the part of the police (other than

those normally attendant to arrest and custody) that the police

should know are reasonably likely to elicit an incriminating

response from the suspect" (footnote omitted). Rhode Island

v. Innis, 446 U.S. 291, 300-301 (1980). See Commonwealth

v. Mejia, 461 Mass. 384, 390 (2012). The detective's comment,

which was designed to induce the defendant to make incriminating

statements in an effort to protect his son, constituted the

functional equivalent of interrogation after the defendant had

invoked his right to counsel and to silence.

The judge found that the defendant "did not . . . take the

bait, and he remained silent." After carefully weighing the

circumstances, the judge determined that the effect of the

officer's comment had dissipated by the time the defendant

recanted his invocation of his Miranda rights on the following
 25

day, and we do not disturb this finding. See Commonwealth

v. Bradshaw, 385 Mass. 244, 258-259 (1982) (taint of police

misconduct had dissipated, and defendant's subsequent statement

was not fruit of poisonous tree where defendant was provided

Miranda warnings at least twice before he made statement,

interrogation began approximately two hours after police

misconduct, and there was no insistent questioning or brutality

on part of police).

iii. Statement on July 18. The defendant argues that the

police questioning on July 18 was improper because he had

invoked his right to counsel on the previous day, and also that

his statements were involuntary because he was experiencing

heroin withdrawal, was without his medication for his mental

illness, and was disadvantaged by a learning disability. Based

on these factors, the defendant argues that his statements were

"not a product of rational thought." The judge rejected these

arguments. We discern no error in the judge's assessment.

Once a defendant invokes his or her right to counsel, the

defendant may not be questioned until counsel has been made

available, unless the defendant himself or herself initiates

further communication with police. See Commonwealth v. Judge,

420 Mass. 433, 450 (1995). Here, the judge concluded that the

defendant "subsequently decided independently" to speak with

police without an attorney, and initiated his further contact
 26

with police following his invocation of his right to counsel on

July 17. See id. at 450-451. See also Edwards v. Arizona, 451

U.S. 477, 484-485 (1981).

On July 18, Springfield police Officer Kenneth Jones was

walking by the defendant's cell at 9 A.M., during a routine cell

check, when the defendant indicated to Jones that he wanted to

speak to the detectives. Jones did not initiate the

conversation. The detectives asked the defendant if he wished

to speak without a lawyer present, and the defendant indicated

that he did.

In response to the defendant's request, the detectives

brought the defendant to an interview room in the detective

bureau. The interview was recorded. The detectives spoke to

the defendant in English after he indicated that he understood

English. They had no difficulty communicating with the

defendant over the course of an interview lasting two hours and

twenty minutes. The officers reviewed what had occurred on the

previous day and earlier that morning. They again read each

line of the Miranda rights form to the defendant, he initialed

each line indicating his understanding, and he indicated that he

would speak without an attorney present.

In light of all the circumstances, we conclude that there

was no violation of the defendant's Miranda rights at the July

18 interview, because he himself initiated contact with the
 27

police, a significant period of time had elapsed between his

invocation of the right to counsel on July 17 and his election

to speak without a lawyer present on July 18, and, before he

spoke, he was provided, and again waived, his Miranda rights.

See Commonwealth v. Rankins, 429 Mass. 470, 472-473 (1999).

Police may not badger a defendant into waiving his or her

previously asserted Miranda rights. See Michigan v. Harvey, 494

U.S. 344, 350 (1990). The detective's statement on the previous

day concerning "tak[ing] [the defendant's son] out of this" did

not, however, constitute postinvocation badgering, where

approximately eighteen hours separated the defendant's

invocation of his right to counsel and the defendant's

initiation of further dialogue with the police. See Rankins,

429 Mass. at 473.

The judge properly found the defendant's July 18 statement

to be voluntary. The defendant did not request an interpreter,

as he had the previous day, and the detectives were able to

communicate with the defendant without difficulty. The

defendant was alert and did not appear to be experiencing

withdrawal symptoms. He did not clearly tell the detectives

that he took medication for a mental illness. The defendant

answered the officers' questions and often provided more

information than what was requested. He recounted his

activities the day of and the day preceding the murder. He
 28

never sought an end to the interview and never requested a

lawyer, a request he clearly knew how to make given that he had

asked for a lawyer the previous day. Although the defendant

told police that he was "high" twenty-four hours a day, and that

he had a daily heroin habit, the evidence does not show that the

defendant was impaired due to withdrawal from heroin. 12

A detective typed a written statement for the defendant,

printed it, and another detective read it out loud. The

defendant did not agree with the statement. He insisted that

the detectives delete words referring to the victim's death from

the paragraph describing the purpose of the detectives'

interrogation, insisting that he had had nothing to do with her

death. Once that change was made, and the defendant was read

the revised version, he signed the statement.

We accordingly conclude that the defendant reinitiated

contact with the police, knowingly and voluntarily waived his

Miranda rights for a second time, and voluntarily gave a second

statement.

e. Evidentiary hearing on motion for postconviction

12
The judge found that "for the first few minutes of the
. . . interview, the defendant's legs were shaking, his hands
were fidgeting, and . . . he repeatedly requested cigarettes.
Once he smoked the first cigarette and was told that he would
have to wait for the second . . . cigarette, the defendant
calmed down considerably for approximately [thirty] minutes,
during which time he focused on answering the detectives'
questions. The defendant did not seem confused or disoriented."
 29

relief. The defendant filed a motion for a new trial based on a

claim of ineffective assistance of counsel, which was denied

without an evidentiary hearing. 13 The defendant contends that,

because his motion for a new trial raised a constitutional claim

of ineffective assistance, and was supported by affidavits, it

was error to deny the motion without an evidentiary hearing. In

his motion for a new trial, the defendant claimed that he heard

voices during the trial, and that he was deprived of the

effective assistance of counsel due to counsel's failure to

bring his mental state to the court's attention. The defendant

submitted his own affidavit and the affidavits of his two

sisters as evidence. An affidavit by trial counsel contradicted

the defendant's claims. 14

We typically review the grant or denial of a motion for a

new trial under the abuse of discretion or other error of law

standard. See Commonwealth v. Lykus, 451 Mass. 310, 325–326

(2008). However, where the motion judge is not the trial judge,

13
The trial judge had retired.
14
In his affidavit, the defendant's trial counsel
represented, inter alia, that the defendant had been deemed
competent by a doctor before trial, and that counsel had agreed
with that evaluation at the time; that the defendant did not
appear to have difficulty understanding the trial proceedings;
and that counsel was "very sensitive" to the defendant's
struggles with mental illness and asked the defendant "several
times every day during the trial whether he was okay and whether
he understood what was going on," and the defendant always
replied in the affirmative.
 30

and no evidence is taken, we are able to assess the trial record

and conduct a de novo review. See Commonwealth v. Grace, 397

Mass. 303, 307 (1986).

"A judge is required to conduct an evidentiary hearing on a

motion for a new trial only if a substantial issue is raised by

the motion or affidavits." Commonwealth v. Torres, 469 Mass.

398, 402 (2014). See Commonwealth v. Wallis, 440 Mass. 589, 596

(2003); Mass. R. Crim. P. 30 (c) (3), as appearing in 435 Mass.

1501 (2001). In deciding whether to hold an evidentiary

hearing, "a judge considers the seriousness of the issues raised

and the adequacy of the defendant's showing on those

issues." Torres, supra at 402-403. During this inquiry, a

judge may consider the affiant's self-interest or bias.

See Commonwealth v. Leng, 463 Mass. 779, 787 (2012) (motion

judge did not abuse her discretion when she refused to credit

defendant's uncontroverted affidavit).

In his written decision, the motion judge weighed the

competing affidavits and found, "Because I credit trial

counsel's affidavit [that he monitored the defendant's mental

state in light of the defendant's potential incompetence], I do

not credit the countervailing representations set forth in the

other affidavits." The motion judge denied the motion for new

trial without a hearing.

Based on the defendant's failure to raise a substantial
 31

issue by affidavit, we conclude that the motion judge's denial

of the defendant's motion for postconviction relief without a

hearing did not constitute an abuse of discretion.

See Commonwealth v. Tucceri, 412 Mass. 401, 409, 414 (1992).

f. Review under G. L. c. 278, § 33E. The defendant argues

also that there were mitigating facts in this case that warrant

exercise of our authority under G. L. c. 278, § 33E, to reduce

the degree of guilt to manslaughter or, in the alternative,

murder in the second degree. We have carefully reviewed the

entire record pursuant to our duty under G. L. c. 278, § 33E,

and discern no reason to order a new trial or to reduce the

conviction to a lesser degree of guilt. See Lao, 443 Mass. at

781.

Judgments affirmed.

Order denying motion for a
new trial affirmed.