Commonwealth v. Colon

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SJC-11610

COMMONWEALTH vs. DENNIS COLON.

Essex. February 8, 2019. - October 22, 2019.

Present: Gants, C.J., Lenk, Gaziano, Lowy, & Kafker, JJ.

Homicide. Constitutional Law, Admissions and confessions,
Voluntariness of statement, Assistance of counsel.
Evidence, Admissions and confessions, Voluntariness of
statement. Practice, Criminal, Assistance of counsel,
Admissions and confessions, Voluntariness of statement,
Instructions to jury, Capital case.

Indictments found and returned in the Superior Court
Department on May 27, 2010.

The cases were tried before Richard E. Welch, III, J., and
a motion for a new trial, filed on October 24, 2014, was heard
by him.

James W. Rosseel for the defendant.
Catherine Langevin Semel, Assistant District Attorney, for
the Commonwealth.

GAZIANO, J. In June 2012, a Superior Court jury convicted

the defendant of murder in the first degree on a theory of

felony-murder in connection with the May 2009 shooting death of
 2

Juan Caba (victim).1 The defendant's motion for a new trial was

denied after an evidentiary hearing. The matter is before this

court on the defendant's direct appeal, consolidated with his

appeal from the denial of his motion for a new trial.

The defendant argues that a new trial is necessary because

of the ineffective assistance of his trial counsel. He contends

that counsel failed to make use of evidence that the defendant

had engaged in a telephone conversation with his girlfriend,

while in police custody and using a police officer's cellular

telephone, to argue that the defendant's statements to police

the following morning were not voluntarily made. Relatedly, the

defendant also contends that counsel erred in not using

recordings of the defendant's custodial interviews on the

evening of his arrest in challenging the voluntariness of the

inculpatory statements he made the following morning. In

addition, the defendant argues that trial counsel provided

ineffective assistance because he did not properly request a

DiGiambattista instruction. See Commonwealth v. DiGiambattista,

442 Mass. 423, 447-448 (2004). The defendant argues that the

combination of errors likely influenced the jury's decision, and

1 The defendant also was convicted of armed burglary, which
was placed on file at sentencing, and assault and battery by
means of a dangerous weapon on the victim's girlfriend, who was
shot and injured during the same attack.
 3

that, accordingly, a new trial is required. He also seeks

relief under G. L. c. 278, § 33E.

For the reasons that follow, we affirm the defendant's

convictions and the denial of his motion for a new trial, and we

decline to grant relief under G. L. c. 278, § 33E.

1. Background.2 a. The shooting. At approximately

4:30 A.M. on May 22, 2009, intruders broke into the victim's

house while the victim and his girlfriend, Tori,3 were asleep.

Tori awoke to find the victim sitting up in bed and two men

standing at the edge of the bed, pointing guns at her and the

victim. The men wore sunglasses and hats that obscured their

faces. Although Tori did not recognize either man, she thought

that one of them might have been a man she knew as "PS," to whom

the victim twice had sold marijuana. Tori believed the other

man was approximately five feet, six inches tall, roughly the

same height as the defendant.

Tori screamed, "Please, don't shoot, don't shoot." The

victim could not see what was happening, as he was blind, and

2 The facts in this and the following sections are derived
from a combination of (1) trial testimony; (2) the trial judge's
voir dire of the defendant's girlfriend, before the jury were
sworn, in relation to motions to exclude her testimony; (3) an
evidentiary hearing held in conjunction with the defendant's
motion for a new trial; and (4) undisputed documents in the
record.

3 A pseudonym.
 4

began waving his hands. A gun went off, and the victim fell on

top of Tori. The men left. Tori testified that she saw the two

men for a total of approximately five minutes.

A projectile from a .380 semiautomatic weapon had entered

the victim's head on the left side and fragmented in at least

two different directions. The victim was transported to a

hospital, where he was pronounced dead at 11:25 P.M. The cause

of death was a single gunshot wound to the head. A portion of

the bullet passed through the victim's head and into Tori's

chin, breaking her jaw. Two permanent metal plates had to be

installed in Tori's jaw to hold the jaw together.

b. Interrogations. On June 22, 2009, while Lawrence

police were investigating a separate incident involving a

burglary, they encountered the defendant and found a Beretta

firearm on his person.4 The defendant was arrested for

possession of a firearm without a license, and was transported

to the Lawrence police station.

That evening, the defendant was interrogated at the

Lawrence police station in two separate interviews that took

place approximately one hour apart. He said nothing inculpatory

related to this offense during these two interviews, and no

4 The caliber of the Beretta is not clear from the record.
 5

testimony was introduced at trial concerning the defendant's

statements on the evening of his arrest.

During the first interview, the defendant asked detectives

if he "could see" his girlfriend, Giana.5 At that point, Giana

was at the police station in a different room. Giana, who was

four months pregnant with twins, had come to the police station

voluntarily to provide police information that she thought would

help the defendant, concerning the gun that police had found on

his person. In response to the defendant's request, one

detective said, "[A]ctually she's not going to be able to come

down. All right? But I'll let you call her. All right?"

According to a police report, while the defendant was in

the booking room after his first interview, a detective asked a

fellow officer to tell Giana, who was upstairs, to call the

officer's cellular telephone. When Giana called, the officer

handed the telephone to the defendant, who spoke with Giana.

Subsequently, the defendant spoke with police for ten minutes,

and the interview then concluded at 5:41 P.M.

The following day, on June 23, 2009, while the defendant

was being held in a cell at the Lawrence Division of the

District Court Department, he requested to speak with a police

officer whom he recognized. At approximately 9:30 A.M., the

5 A pseudonym.
 6

defendant was interviewed by two officers. According to police

testimony, the defendant waived his Miranda rights, consented to

the interview being recorded, and waived his right to prompt

arraignment. The defendant signed forms associated with each of

these waivers, as well as his consent to the recording. The

period during the issuance of the Miranda warnings and the

receipt of the defendant's waivers, however, was not recorded.

In this interview, the defendant told police that he had

participated in the break-in that led to the victim's death.

The defendant admitted to having broken into the victim's

apartment, along with individuals he identified as "Limbe,"

"Smokey," "PS," and "Dezi," with the intent to steal money and

marijuana. The defendant said that he saw a dog in the

apartment;6 as he was afraid of dogs, he stayed in the hallway to

serve as the lookout. He concluded by saying that someone other

than he had fired a shot inside the apartment from a .380

weapon.

6 The victim and his girlfriend owned a dog, which was in
the bedroom at the time of the incident.
 7

In January 2011, the defendant's first attorney7 moved to

suppress the defendant's inculpatory statement to police.8 The

motion was denied after an evidentiary hearing. In his written

findings of fact and rulings of law, the motion judge determined

that the defendant had been questioned by police at the Lawrence

police headquarters on June 22, 2009, shortly after his arrest,

for approximately thirty to forty-five minutes. The judge found

that, the following day, the defendant initiated contact with

police, while being held in the cell block area of the District

Court in Lawrence. An officer read the defendant Miranda

warnings before turning on a tape recorder. The defendant was

"eager" to speak with police. The officer described him as

"clear-headed, and not under the influence of alcohol, drugs, or

mental illness." The judge determined that the emotion the

defendant displayed was "appropriate to the situation," and

7 Prior to trial, the defendant's first counsel was replaced
by a second counsel, who represented the defendant throughout
the trial.

8 The motion to suppress asserted, among other grounds, that
the defendant did not knowingly, intelligently, and voluntarily
waive his right to remain silent or to have an attorney present
during questioning on June 23, 2009; the defendant did not make
any statement voluntarily; and any consent was not voluntarily
obtained. The motion did not explicitly reference the
defendant's concern for his girlfriend.
 8

concluded that the defendant's "statements were voluntary and

preceded by adequate Miranda warnings."9

The defendant's trial counsel filed a motion for

reconsideration, which was denied. After trial began about one

week later, counsel moved in limine to exclude the defendant's

statement of June 23, 2009. The trial judge deferred to the

motion judge's ruling and denied the motion.

c. Trial. Before the jury were sworn, trial counsel moved

to exclude testimony by the defendant's girlfriend, Giana, with

respect to statements she made at the Lawrence police station on

June 22, 2009. The Commonwealth had intended to call Giana as a

corroborating witness, and possibly as a witness to show intent

for the underlying felony. Defense counsel explained that Giana

sought to claim a privilege under the Fifth Amendment to the

United States Constitution, because information that she gave

police that inculpated the defendant purportedly was false.

Counsel also moved to exclude Giana's statements on the ground

of asserted police coercion.

The judge conducted a voir dire of Giana. Giana said that,

while she was being questioned, a police officer threatened her

9 The judge observed, "The failure to record the beginning
of questioning is an issue for the trial judge, and does not
provoke any concerns by this court about the voluntariness of
the statements or the adequacy of the Miranda warnings, given
[the defendant's] obvious desire to speak to police as shown by
the audio recording."
 9

by telling her that if she did not inculpate the defendant, she

would go to prison and give birth there, and that she would

never see her twins again. Giana's son, who had come to the

police station separately, was brought into a room where he met

briefly with his mother, who was crying.

The judge determined that "the police may have played upon

[Giana's] emotions -- to a certain extent -- but I do not find

that all of [Giana's] testimony is credible." The judge

explained that Giana had provided a "demonstratively false"

statement that she had been given Miranda warnings only as she

was walking out the door. The judge also noted that the police

report describing Giana's interview "doesn't even go into a fair

amount of what she claims was asked her at the police station."

The judge denied the motion to exclude Giana's statements. He

observed that, "plainly, the defense is entitled to bring these

matters up to the jury," and left "it to the Commonwealth as to

whether they want to open up this can of worms before the

jury."10 Neither the Commonwealth nor the defense ultimately

10Overall, the judge did "not find that the Lawrence
[p]olice had been sufficiently shown to have so invaded
[Giana's] personal security or in a way that would likely
produce false testimony." The judge's findings on this point,
however, are not entirely clear. The previous day, the judge
had ruled that if Giana testified at trial that she had relayed
false statements to the police, she would have no need to invoke
the Fifth Amendment because "her testimony . . . would indicate
that she did not willfully provide the false information, if
 10

called Giana to testify at trial. As a result, any information

inculpatory to the defendant that Giana might have provided to

police was not presented to the jury.

The defendant's statements from the morning of June 23,

2009, were the heart of the Commonwealth's case. In addition,

the Commonwealth presented testimony of an inmate, Alvin Rivera,

who testified against the defendant pursuant to a cooperation

agreement. Rivera's testimony suggested that the defendant

actually shot the victim, rather than serving as lookout.

Rivera testified that, while detained at the Middleton

house of correction in the summer of 2009, the defendant told

him that the defendant and others, known as "Smokey," "Limbe,"

and "PS," went to the victim's house on the night of the

shooting in search of marijuana and money. Rivera testified

that Smokey handed the defendant a .380 weapon and PS a Beretta.

According to Rivera, the defendant told him that Smokey stood in

the hallway as lookout while the defendant and PS went into the

apartment and made their way to the bedroom where the victim and

Tori were sleeping. Rivera testified that, when the defendant

noticed the victim moving, the defendant got "nervous" and fired

a single shot before running from the apartment. The defendant

told Rivera that he had sold the .380 but not the Beretta. The

indeed, it was false. If it is false, it was done due to
intimidation, coercion, not willful activity on her part."
 11

defendant said that if anyone questioned him about the shooting,

he would say that he had been the person who stood outside as a

lookout. The defendant told Rivera that the defendant and three

other individuals previously had broken into the victim's

apartment, and had stolen marijuana.

The defendant was convicted of all charges. Because the

felony-murder conviction was predicated on the burglary charge,

that charge was placed on file. The defendant's timely appeal

was entered in this court in January 2014.

d. Motion for new trial. Approximately ten months later,

the defendant filed a motion for a new trial, and his appeal in

this court was stayed. In his motion, the defendant argued that

he had received ineffective assistance of counsel as a result of

both of his attorneys' failure adequately to investigate Giana's

purported role in, and effect on, the police interrogation and

the defendant's statements to police, as well as both attorneys'

failure to mention the defendant's concern for Giana in

challenging the voluntariness of the defendant's waivers of his

Miranda rights and subsequent statements to police. The

defendant also argued that his counsel had been ineffective

because counsel did not request a DiGiambattista instruction on

the ground that the beginning of the defendant's June 23, 2009

interrogation had not been recorded, including the portion where
 12

the defendant assertedly was given Miranda warnings and waived

his Miranda rights.11 See DiGiambattista, 442 Mass. at 447.

The defendant argued that, during his interrogation on the

night of his arrest, police officers orchestrated a "cell[ular]

[tele]phone ruse" in which they instructed Giana to call him

using a detective's cellular telephone. The defendant asserted

that he was "surprised" to hear Giana on the telephone. He said

that, during this call, Giana told him about police threats to

take away her children and charge her with murder. Because of

this call, the defendant maintained, he told the officers

whatever he thought they wanted to hear.

The trial judge conducted a three-day evidentiary hearing

on the motion for a new trial. Witnesses included the

defendant's two prior attorneys; five police officers; the

defendant; his girlfriend, Giana; and one of her sons.

Ultimately, the judge denied the motion. The judge found

that numerous "facts alleged by the defendant never occurred."

Specifically, the judge did "not credit, in the slightest, the

defendant's assertion that the Lawrence police created a 'cell

11The defendant argued, additionally, that trial counsel
was ineffective because he failed adequately to investigate
whether the defendant knowingly waived his right to prompt
arraignment before his interview the morning after his arrest;
to seek suppression of an identification made using a
photographic array; and to object to that witness's in-court
identification of the defendant on the basis of the prior
identification.
 13

phone ruse'" on June 22, 2009. The judge found that "[w]hile

there is no doubt that the defendant spoke briefly with [Giana]

before he made his June 23rd statement to the police, that phone

call conversation was brief and did not contain the sort of

detailed description of police threats or coercion that the

defendant now claims." Accordingly, the judge concluded that

"there was no basis to argue the phone call as one of the

grounds for lack of voluntariness," and "[t]hus . . . no

ineffective assistance of counsel." The judge also determined

that absence of a request for a DiGiambattista instruction based

on the nonrecording of initial warnings and waivers "might well

be considered an oversight," but that such oversight "did not

deprive the defendant of a substantial basis for a defense."

2. Discussion. a. Standard of review. "Where, as here,

an appeal from the denial of a defendant's motion for a new

trial has been consolidated with a direct appeal from a

conviction of murder in the first degree, we review both under

G. L. c. 278, § 33E." Commonwealth v. Moore, 480 Mass. 799, 805

(2018). "[W]e examine the denial of a motion for a new trial to

determine whether there was error, and, if so, whether the error

created a substantial likelihood of a miscarriage of justice."

Commonwealth v. Ferreira, 481 Mass. 641, 649 (2019), citing

Commonwealth v. Vargas, 475 Mass. 338, 355 (2016), and "afford

particular deference to factual determinations made by a motion
 14

judge who was also the trial judge." Ferreira, supra. "[W]e

make our own independent determination on the correctness of the

judge's 'application of constitutional principles to the facts

as found.'" Commonwealth v. Haas, 373 Mass. 545, 550 (1977),

S.C., 398 Mass. 806 (1986), quoting Brewer v. Williams, 430 U.S.

387, 403 (1977).

b. Telephone call and interviews on evening of defendant's

arrest. Although both initial and successor counsel had access

to the recordings of the interviews on June 22, 2009, the

evening of the defendant's arrest, as well as to information

concerning the existence of the telephone call that took place

between the defendant and Giana while the defendant was in the

booking area, neither attorney relied on the recordings of the

interviews or the existence of the telephone call in their

motions to suppress the statements the defendant made the

following morning.12 Trial counsel did not realize that pretrial

counsel had given him recordings of the June 22, 2009

interviews, which had been obtained through discovery;

accordingly, he did not listen to the recordings. The

nonreliance on the call or recordings by each of the defendant's

12As appellate counsel acknowledges, the defendant's
initial and successor counsel received copies of a police
report, dated June 22, 2009, before trial. The report explained
that the call had taken place.
 15

trial counsel was not a conscious, strategic, or tactical

decision.

Before this court, the defendant presses his argument that

he received ineffective assistance because counsel did not rely

on the recordings of his statements to police on the night of

his arrest, or the telephone call between the defendant and his

girlfriend, in challenging the voluntariness of the defendant's

statements to police the following day.

In reviewing claims of ineffective assistance of counsel

under G. L. c. 278, § 33E, "[w]e focus more broadly on whether

there was error and, if so, whether any such error 'was likely

to have influenced the jury's conclusion.'" Commonwealth v.

Fulgiam, 477 Mass. 20, 29, cert. denied, 138 S. Ct. 330 (2017),

quoting Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C.,

469 Mass. 447 (2014). Where a motion for a new trial is

premised on a claim of ineffective assistance of counsel, "the

burden of proving ineffectiveness rests with the defendant"

(citation omitted). Commonwealth v. Kolenovic, 471 Mass. 664,

673 (2015), S.C., 478 Mass. 189 (2017).

A defendant's statements are admissible against him at

trial only if they were made voluntarily. See Commonwealth v.

Magee, 423 Mass. 381, 387 (1996) ("Due process requires a

separate inquiry into the voluntariness of the statement

. . ."). To establish voluntariness, the Commonwealth must
 16

prove beyond a reasonable doubt that "'in light of the totality

of the circumstances surrounding the making of the statement,

the will of the defendant was [not] overborne,' but rather that

the statement was 'the result of a free and voluntary act.'"

Commonwealth v. Baye, 462 Mass. 246, 256 (2012), quoting

Commonwealth v. Durand, 457 Mass. 574, 595-596 (2010), S.C., 475

Mass. 657 (2016), cert. denied, 138 S. Ct. 259 (2017). The

Commonwealth also must establish beyond a reasonable doubt that

police interrogation practices "were not 'so manipulative . . .

that they deprived [the defendant] of his ability to make an

unconstrained, autonomous decision to confess.'" Baye, supra,

quoting United States v. Walton, 10 F.3d 1024, 1030 (3d Cir.

1993). "Absent some indication that the defendant was

particularly vulnerable to suggestion, the focus of our inquiry

has been on whether incriminating statements were 'the result of

coercion or intimidation." Baye, supra, quoting Durand, supra

at 595.

Clearly, it was poor performance for the defendant's

initial and successor counsel not to listen to the recordings of

interrogations of his client by police, which each counsel had

in his possession as part of mandated discovery. Our review of

these recordings, and the judge's findings about the call,

however, lead us to conclude that they were not likely to have

made a difference in counsels' efforts to suppress the
 17

defendant's confession on the following day. See Kolenovic, 471

Mass. at 672-673, quoting Commonwealth v. Walker, 443 Mass. 213,

224 (2005) ("[A] judge's findings of fact after an evidentiary

hearing on a motion for a new trial will be accepted if

supported by the record. . . . Where, as here, the motion judge

is also the trial judge, we give 'special deference' to the

judge's findings of fact . . .").13

First, the trial judge, who conducted the hearing on the

motion for a new trial, was warranted in finding that the

telephone call between the defendant and Giana was not the

product of a police-orchestrated ruse. Transcripts of the

defendant's interrogation on the night of his arrest support the

judge's determination that the defendant could not have been

"surprised" to find Giana speaking to him on the telephone, as

the defendant contended. The transcript of the interview states

13Contrary to his suggestion, the defendant is not entitled
to de novo review of all the evidence to determine if it
supports his claim that his statement on June 23, 2009, was
involuntary. While the defendant is correct that this court may
review documentary evidence, including transcripts,
independently, see Commonwealth v. Novo, 442 Mass. 262, 266
(2004), determinations of witness credibility were central to
the resolution of the defendant's claims of ineffective
assistance in his motion for a new trial. See Commonwealth v.
Mosher, 455 Mass. 811, 818 (2010), citing Commonwealth v.
Sparks, 433 Mass. 654, 656 (2001) ("We accept as true the
subsidiary findings of fact made by the motion judge absent
clear error, deferring to the credibility findings of the judge,
who had the opportunity to observe and evaluate the witnesses as
they testified").
 18

clearly that the defendant requested to see Giana; subsequently,

a police officer told the defendant that the officer would allow

them to speak over the telephone. It was, accordingly, not

inaccurate for the judge to characterize the call as the result

of the officers' allowance of the defendant's request to speak

with Giana.

Second, the judge was not unwarranted in finding that

neither Giana nor the defendant provided the defendant's initial

or successor counsel with any indication that Giana had

communicated police threats to the defendant during their

telephone call. This finding was based on the fact that both

counsel several times had attempted to have suppressed the

defendant's inculpatory statements, and testimony by both

counsel, which the judge credited. The defendant's first

counsel testified, "If there was something that impacted [the

defendant's] voluntariness that he had revealed to me, . . . I

would have hoped I would have included it in the affidavit [as]

a ground for the suppression." Successor counsel testified that

he interviewed Giana in his efforts to obtain suppression of the

defendant's confession, and that "[i]f [information about police

threats was] not in [his] motion [to suppress], then it wasn't

discussed."

Based on this, the judge drew a permissible inference that

the reason that the defendant did not disclose to counsel any
 19

knowledge of alleged police pressure placed on Giana was that

she did not communicate police threats to the defendant during

their telephone call. Because the call itself was not recorded,

the judge's factual determinations concerning the call rested

largely on assessments of witness credibility. The judge found

portions of the defendant's and Giana's testimony with respect

to the contents of the call not credible, and explained his

reasoning. Cf. Commonwealth v. Rakes, 478 Mass. 22, 36 (2017).

The judge noted that Giana provided "plainly false"

testimony at the motion hearing, in that she asserted that she

had spoken about the call "out loud in a court setting just like

this." This statement is refuted by the transcript of her prior

voir dire testimony before the same judge. In addition, as was

his prerogative, see Rakes, 478 Mass. at 36, the judge did not

credit Giana's testimony that she told the defendant's trial

counsel about the call "the moment [they] spoke." This

determination is particularly apt in light of the testimony by

trial counsel indicating that he had no memory of such

statements, and that he would have relied on them in support of

motions to suppress if he had heard such assertions at the time.

The judge also was not required to credit the defendant's

testimony that his telephone conversation with Giana included

discussion of specific police threats toward her. See Rakes,

478 Mass. at 36. Like Giana, the defendant provided
 20

contradictory information relative to his interactions with the

police on the evening of his arrest and the following day. For

instance, in a written affidavit in support of his motion to

suppress his June 23, 2009 statement, the defendant attested,

"Prior to being arrested I had taken some [K]lonopin tablets.

. . . I was under the influence of the pills when the police

interrogated me." At the hearing on his motion for a new trial,

the defendant testified that he had not been under the influence

of drugs during any of his interviews with police, and that the

affidavit he signed under the penalty of perjury was "not true."

The judge's determination that "[t]he conversation, as was

true of most phone conversations of a similar sort in the

booking area, did not last [ten] to [fifteen] minutes as the

defendant alleges," and instead was "quite a brief conversation"

is supported by the record. As the judge noted, Giana testified

at the hearing that the telephone conversation lasted only "[a]

few seconds, a few minutes." The judge observed that the

defendant gave contradictory estimates concerning the length of

the call; while the defendant's affidavit in support of his

motion for a new trial stated that the call lasted ten to

fifteen minutes, the defendant testified at the hearing that the

call lasted "six or seven minutes or a little bit -- a little

bit longer, a little bit." In addition, the police officer who

had been in the room during the telephone call testified that
 21

the call must have been short, because he would not have allowed

the defendant to talk on the cellular telephone for ten minutes.

The judge was warranted in concluding that, "if the defendant

was unaware of the alleged inappropriate police pressure, it

could not have affected his voluntariness."

Undoubtedly, if made to a defendant, "threats concerning a

person's loved one . . . may impinge on the voluntariness of a

defendant's confession." Commonwealth v. Monroe, 472 Mass. 461,

469 (2015), citing Lynumn v. Illinois, 372 U.S. 528, 534 (1963).

Police threats directed at an individual other than the

defendant, however, and which are not communicated to the

defendant, cannot reasonably be said to constitute coercion of

the defendant. Compare Monroe, supra ("Here, . . . detectives

threatened the defendant with the loss of contact with his child

by repeatedly and falsely claiming that if he did not tell them

what happened, the child could be taken away and raised by

strangers").

After reviewing the record and the judge's conclusions, we

are not "left with the firm conviction that a mistake has been

committed." Commonwealth v. Tavares, 385 Mass. 140, 156, cert.

denied, 457 U.S. 1137 (1982), quoting New England Canteen Serv.,

Inc. v. Ashley, 372 Mass. 671, 675 (1977).

The defendant argues, in the alternative, that "[e]ven if

the call did not include mention of the [alleged] coercion, the
 22

circumstances surrounding the call would still have been

admissible on the question of how 'upset and dismay[ed]' [Giana]

was during the call, and how 'concern[ed]' [the defendant] was

as a result." The defendant contends that he should receive a

new trial because "the call still would have been a real factor

in the jury's voluntariness decision, had it been developed at

trial." We do not agree.

Factors relevant to assessing voluntariness "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 the

discussion of a deal or leniency (whether the defendant or the

police), and the details of the interrogation, including the

recitation of Miranda warnings.'" Commonwealth v. Selby, 420

Mass. 656, 663 (1995), quoting Commonwealth v. Mandile, 397

Mass. 410, 413 (1986).

Based on the totality of the circumstances, there was

sufficient evidence to establish beyond a reasonable doubt that

the defendant's statement on June 23, 2009, was "the product of

a 'rational intellect' and a 'free will,' and not induced by

physical or psychological coercion," Commonwealth v. LeBlanc,

433 Mass. 549, 554 (2001), even given the defendant's knowledge

of Giana's "upset and dismay" on June 22, 2009.
 23

At no time on June 22 or 23, 2009, did the officers

interrogating the defendant improperly provide "an assurance,

express or implied, that [a confession would] aid the defense or

result in a lesser sentence." See Commonwealth v. Meehan, 377

Mass. 552, 564 (1979). Indeed, at the defendant's first

interview, an officer made clear that "it's going to be up to

the DA. Whatever happens. OK? We . . . won't make any

promises at all."14 During the interview on the following day,

initiated by the defendant, an officer stopped to reread the

defendant the Miranda warnings; the defendant's waiver of those

rights was recorded.15 The emotion the defendant displayed

14An interrogating officer did tell the defendant, in
response to the defendant's concerns for the safety of his
family, that "if you do cooperate with us and continue to
cooperate with us I'm going to talk to Section 8. . . .
[T]hat's something I can do." "[F]alse 'promises . . . as might
excite hopes in the mind of [an interviewee] that he should be
materially benefitted by making disclosures' can undermine a
defendant's ability to make an autonomous decision to confess,
and are therefore properly regarded as coercive." Commonwealth
v. Baye, 462 Mass. 246, 257-258 (2012), quoting Commonwealth v.
Taylor, 5 Cush. 605, 610 (1850). Here, however, the officer's
statement was phrased as explaining that he would make an
inquiry, and did not promise a result. Furthermore, the
statement was made in response to security concerns raised by
the defendant, regarding subjects apart from prospective
punishment or leniency. See Commonwealth v. Mandile, 397 Mass.
410, 413 (1986). In addition, the officer explicitly repeated
that he could not make promises of any kind to the defendant.

15The interrogating officer said, "Let's stop. We read
your Miranda." After beginning to recite the Miranda rights
again, the officer asked, "Remember I read you this before? I
want to go over it again to make sure you understand it because
it's important. . . . You heard this before, right? Yes, no?"
 24

during the June 23, 2009 interrogation was, according to the

judge who ruled on the defendant's motion to suppress,

"appropriate to the situation; [the defendant] confessed to

involvement in a killing." The judge found that the defendant

was "not under the influence of alcohol, drugs, or mental

illness." This finding is supported implicitly by the absence

of any indication in the record that the defendant had been

under the influence of drugs or alcohol. Moreover, the

defendant now concedes that he was not under the influence of

drugs during any of the interrogations.

c. DiGiambattista instruction. The defendant also argues

that trial counsel provided ineffective assistance because he

did not rely on the telephone call between the defendant and

Giana in seeking a DiGiambattista instruction, and because

counsel did not request the instruction based on the incomplete

recording of the defendant's June 23, 2009 interrogation.16 As

The defendant replied, "Yes." The officer then finished the
recitation.

16Trial counsel requested a DiGiambattista instruction on
the ground that a police officer failed to record interviews of
the defendant prior to his interrogation on June 23, 2009. See
Commonwealth v. DiGiambattista, 442 Mass. 423, 447-448 (2004).
This assertion was inaccurate. Indeed, at the time he sought
the instruction, trial counsel was in possession of the
recordings, but was unaware of that fact. In any event, the
judge denied the defendant's request for a DiGiambattista
instruction on the ground that it was not necessary to give such
an instruction with respect to "other [unrecorded] discussions
at other times [by police officers] . . . with the defendant,"
 25

discussed, the interrogations of the defendant on the evening of

his arrest and the following day were recorded. The telephone

call with Giana on the night of the defendant's arrest was not

recorded. The initial discussion on June 23, 2009, between the

defendant and the interrogating officer, regarding Miranda

rights, the right to prompt arraignment, and consent to

electronic recording, was not recorded.

In DiGiambattista, 442 Mass. at 447, we held that "when the

prosecution introduces evidence of a defendant's confession or

statement that is the product of a custodial interrogation or an

interrogation conducted at a place of detention . . . and there

is not at least an audiotape recording of the complete

interrogation, the defendant is entitled (on request) to a jury

instruction." This instruction advises the jury "that the

State's highest court has expressed a preference that such

interrogations be recorded whenever practicable, and caution[s]

the jury that, because of the absence of any recording of the

interrogation in the case before them, they should weigh

evidence of the defendant's alleged statement with great caution

and care." Id. at 447-448. Further, where, as here,

"voluntariness is a live issue and the humane practice

instruction is given, the jury should also be advised that the

where the Commonwealth was not seeking to introduce evidence
from those conversations.
 26

absence of a recording permits (but does not compel) them to

conclude that the Commonwealth has failed to prove voluntariness

beyond a reasonable doubt." Id. at 448.17

The defendant would not have been entitled to a

DiGiambattista instruction on the basis of any putative

incomplete recordings of the June 22, 2009 interrogations,

because those interrogations were distinct from the June 23,

2009 interrogation; at trial, the Commonwealth relied only on

statements that the defendant made on June 23, 2009.18 This

defendant's circumstances differ from those of Commonwealth v.

Woodbine, 461 Mass. 720, 726, 739-740 (2012), in which we

explained that a defendant should have received a DiGiambattista

instruction when an interrogating officer capitalized on a

strategic decision to record only one part of a "two-stage

interrogation," and the recorded portion was suppressed. We

described the interrogation as a "two-stage interrogation"

because the interrogating officer began questioning a defendant

alone, then summoned another detective into the room after the

defendant began talking, and only recorded statements the

defendant provided to both officers. Id. at 725-726, 739-740.

17 The judge gave a humane practice instruction.

18The fact that, on June 22, 2009, the officers asked the
defendant about the shooting on May 22 does not alter our
analysis.
 27

By contrast, here the defendant's third interview occurred only

because he requested to speak with police, after police

indisputably had ceased questioning him more than fifteen hours

earlier, the day before.19

Moreover, the fact that the defendant's telephone call with

Giana was unrecorded would not have entitled him to a

DiGiambattista instruction, because the call did not comprise

part of the interrogation. Police would not reasonably have

known, and the defendant could not reasonably have expected,

that facilitating the call in response to the defendant's

request would be reasonably likely to elicit an incriminating

response from the defendant. See Rhode Island v. Innis, 446

U.S. 291, 301-302 (1980); Commonwealth v. Torres, 424 Mass. 792,

798 (1997). See also Arizona v. Mauro, 481 U.S. 520, 527 (1987)

(tape recorded conversation between defendant and his wife was

not "functional equivalent" of interrogation, where detective

asked no questions about crime or conduct during call, and

evidence did not suggest call was psychological ploy).

19We are satisfied that interrogation of the defendant
ceased until "the accused himself initiate[d] further
communication, exchanges, or conversations with the police."
Edwards v. Arizona, 451 U.S. 477, 484-485 (1981). We conclude
that the defendant's subsequent waiver of his Miranda rights was
knowing, intelligent, and voluntary, see discussion supra.
Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983), quoting Edwards,
supra at 486 n. 9. See Commonwealth v. Thomas, 469 Mass. 531,
549-550 (2014). Contrast Commonwealth v. Hoyt, 461 Mass. 143,
153 (2011).
 28

Nonetheless, it was error for defense counsel not to

request a DiGiambattista instruction on the basis of an

incomplete recording of the defendant's interrogation on

June 23, 2009. As we explained in DiGiambattista, 442 Mass.

at 448, an "instruction is appropriate for any custodial

interrogation, or interrogation conducted in a place of

detention, without regard to the alleged reasons for not

recording that interrogation." Accordingly, counsel erred in

not requesting a DiGiambattista instruction as a result of the

nonrecording of the defendant's initial acknowledgment and

waiver of his rights. The absence of a DiGiambattista

instruction in this case, however, was not likely to have

influenced the jury's conclusion, see Wright, 411 Mass. at 682,

and did not result in a substantial likelihood of a miscarriage

of justice.

The fact that a brief, introductory portion of the

defendant's interrogation on June 23, 2009, was not recorded did

not prejudice the defendant. A very short period of time passed

between the start of discussions about the defendant's rights

and his waiver of them, and the initiation of the recording.

"The defendant does not contest the interviewing State police

[officer's] testimony as to the introductory nature of the first

[few] minutes of the interview, and nothing in the record

suggests that any substantive exchange took place during that
 29

time." Commonwealth v. Vacher, 469 Mass. 425, 444 (2014).20

Significantly, the recording does capture a police officer

rereading the defendant his Miranda rights, after which the

defendant confirmed that he had heard the reading of those

rights before, and continued to talk. In addition, the

defendant's signed waiver and consent forms were introduced in

evidence, and nearly all the interrogation was recorded and

entered as an exhibit. The jury "accordingly were well situated

to determine the voluntariness of the defendant's statements"

made on that date. Vacher, 469 Mass. at 444. The fact that the

defendant initiated the June 23, 2009 interrogation, coupled

with the interrogating officer's testimony that the reading of

the defendant's rights was unrecorded only because that was

standard practice at the time,21 present no indicia of

20Before this court, the defendant argues that on June 22,
2009, "marked differences in [the defendant's] affect and
demeanor" before and after his call with Giana illustrate that a
"substantive exchange" occurred during an unrecorded portion of
the interrogation. As stated, we do not consider the unrecorded
telephone call with Giana to comprise part of the interrogation.

21The officer explained that it was standard practice at
the time to read an individual his or her rights "off the
record," get permission to record, and then review on record
that the officer had read the individual his or her rights and
the individual had agreed to waive them.
 30

intimidation or coercion in relation to the lack of recording.

See Baye, 462 Mass. at 256, quoting Durand, 457 Mass. at 595.22

d. Relief pursuant to G. L. c. 278, § 33E. The defendant

argues that we should order a new trial or reduce the verdict of

murder in the first degree because his role in the underlying

felony was limited. We do not agree. This case is not one

where the defendant's conviction "appear[s] out of proportion to

[the] defendant's culpability." Commonwealth v. Brown, 477

Mass. 805, 824 (2017), cert. denied, 139 S. Ct. 54 (2018),

quoting Commonwealth v. Rolon, 438 Mass. 808, 824 (2003). The

jury would have been warranted in finding that the defendant had

been involved in more than the "remote outer fringes" of the

crime that led to the victim's death. The defendant told police

that he had acted as the lookout -- which entails standing guard

at the scene. See Commonwealth v. Zanetti, 454 Mass. 449, 468

(2009) ("knowing[] participat[ion] in the commission of the

crime charged, alone or with others, with the intent required

for that offense"). Compare Brown, supra (verdict reduced where

defendant supplied materials used by others to commit crime

while defendant stayed home).

The defendant also argues that we should reduce the murder

verdict because other individuals involved in the crime were not

22An unrelated confession, to Rivera, was also before the
jury, through Rivera's testimony.
 31

charged. It is irrelevant to the defendant's culpability,

however, whether other actors were prosecuted for their own

involvement in the crime. See Zanetti, 454 Mass. at 468.

3. Conclusion. We have reviewed the record in its

entirety, in accordance with our duty under G. L. c. 278, § 33E,

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

verdict of murder in the first degree. The defendant's

convictions and the order denying his motion for a new trial are

affirmed.

So ordered.