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SJC-11839
COMMONWEALTH vs. RYAN D. WELCH.
Hampshire. February 5, 2021. - May 14, 2021.
Present: Budd, C.J., Gaziano, Lowy, Kafker, & Wendlandt, JJ.
Homicide. Constitutional Law, Search and seizure, Admissions
and confessions, Voluntariness of statement, Privacy.
Privacy. Search and Seizure, Expectation of privacy,
Hospital. Hospital. Evidence, Admissions and confessions,
Voluntariness of statement, Authentication, Prior
misconduct. Cellular Telephone. Practice, Criminal,
Motion to suppress, Admissions and confessions,
Voluntariness of statement, New trial, Assistance of
counsel, Capital case.
Indictment found and returned in the Superior Court
Department on April 24, 2012.
A pretrial motion to suppress was heard by C. Jeffrey
Kinder, J.; the case was tried before Daniel A. Ford, J.; and a
motion for a new trial, filed on March 20, 2019, was considered
by Ford, J.
Alan Jay Black for the defendant.
Cynthia M. Von Flatern, Assistant District Attorney (Jeremy
C. Bucci, Assistant District Attorney, also present) for the
Commonwealth.
2
LOWY, J. During the early hours of February 20, 2012, the
victim, Jessica Pripstein, foreshadowed her own death. In a
brief and frantic emergency call, she relayed to the dispatcher
that her boyfriend was trying to kill her. Soon after, officers
from the Easthampton police department responding to the call
found the victim dead on the bathroom floor of her apartment,
her throat cut. Her boyfriend, the defendant Ryan D. Welch, was
on the bedroom floor with his throat cut, but alive. The
defendant subsequently was convicted of murder in the first
degree, G. L. c. 265, § 1, on theories of both deliberate
premeditation and extreme atrocity or cruelty. The defendant's
direct appeal from that conviction was consolidated with an
appeal from the trial judge's denial of his motion for a new
trial, and both are now before this court.
On appeal, the defendant argues that the judge who heard
his motion to suppress (motion judge) erred in not suppressing
several statements that he made while hospitalized and that the
trial judge erred in admitting in evidence allegedly
unauthenticated text messages as well as prior bad acts evidence
and in denying his motion for a new trial without first holding
an evidentiary hearing. Finding no reversible error either in
any issue raised by the defendant or in our review under G. L.
c. 278, § 33E, we affirm the defendant's conviction and the
order denying his motion for a new trial.
3
Background. We summarize the facts the jury could have
found, reserving certain details for later discussion.
The defendant and the victim had been dating since the fall
of 2011. As 2012 dawned, signs of unease in their relationship
were apparent. Around early February, the victim told a
coworker that she had "broken things off" with the defendant.
Then, on February 10, one of the victim's neighbors overheard an
argument between the victim and the defendant. This altercation
culminated in the victim slamming a door and yelling at the
defendant to leave, which he did. The victim told her sister on
February 18 that she planned on finding a way to end the
relationship.
On the evening of February 19, the defendant spent several
hours eating and drinking at a local bar. He explained to a
bartender how he had recently both lost his job and been
arrested for operating a motor vehicle while under the influence
of alcohol (OUI). In regard to the OUI, the defendant
complained that the victim had refused to post his forty dollar
bail even though he had just spent seventy dollars on a bouquet
of flowers for her for Valentine's Day. According to the
bartender, the defendant appeared to be "aggravated." The
victim later joined the defendant at the bar. When the bill was
due, the defendant did not have enough money to pay it and the
4
victim paid the difference, appearing to be embarrassed. Then,
at around 11:05 P.M., the defendant and the victim left the bar.
At 12:04 A.M. on February 20, the victim called 911,
screaming that her boyfriend was trying to kill her. By the
time the call was transferred to a public safety dispatcher, the
victim was no longer on the line. The dispatcher's attempts to
call the victim back went unanswered. Officers arrived at the
victim's apartment within three minutes of being dispatched.
After knocking on the apartment's door and receiving no
response, an officer peered through a window and noticed blood
on the floor. Officers then forced their way through the front
door, which was blocked by a futon. Once inside the apartment,
the officers discovered the victim dead on the bathroom floor
with her throat cut and a knife lying on her back. The
defendant was lying nearby on the floor of the bedroom, a knife
in his back pocket. His throat, too, was cut, but he was alive.
Bloody sock prints led from the bathroom toward where he lay.
The defendant's fingerprints were later found on the futon that
had blocked officers' entry through the front door, and a large
amount of his blood was found in front of the futon.
The defendant received emergency medical treatment at the
scene and then was transported to a nearby hospital, where he
underwent surgery. Autopsy results later confirmed that the
victim's throat wound -- which measured two and one-half inches
5
deep and four inches across -- was inconsistent with suicide.
The defendant subsequently was arrested and charged with the
victim's murder.
Discussion. 1. Motion to suppress. Prior to trial, the
defendant moved to suppress handwritten notes and oral
statements he made to officers while he was hospitalized on
February 21 and February 22, 2012.1 The motion judge allowed the
motion as to the statements the defendant made to officers after
he had been arrested on February 22, but otherwise denied it.
On appeal, the defendant makes three arguments pertaining to the
motion to suppress: (1) that his handwritten notes should have
been suppressed as the product of an illegal search; (2) that
his statements were obtained in violation of his Miranda rights,
see Miranda v. Arizona, 384 U.S. 436, 444-445 (1966); and (3)
that even if these statements were not obtained in violation of
Miranda, they were made involuntarily.2
1 The defendant also argued below that the notes were seized
illegally, but he does not renew this argument on appeal.
2 The defendant further argues that suppression of several
notes to hospital personnel, as well as statements he made to a
nurse at the Hampshire County house of correction, is required
because these communications were provided to officers,
resulting in violations of both the Federal Health Insurance
Portability and Accountability Act of 1996 (HIPAA), 42 U.S.C.
§ 1320d-6, and the Massachusetts Patient's Bill of Rights, G. L.
c. 111, § 70E. Yet even if the notes are covered by it, "HIPAA
does not provide any private right of action, much less a
suppression remedy." United States v. Streich, 560 F.3d 926,
935 (9th Cir.) (Kleinfeld, J., concurring), cert. denied, 558
6
"In general, in reviewing a ruling on a motion to suppress,
we accept the judge's subsidiary findings of fact absent clear
error but conduct an independent review of his ultimate findings
and conclusions of law." Commonwealth v. Tremblay, 480 Mass.
645, 652 (2018), quoting Commonwealth v. Clarke, 461 Mass. 336,
340 (2012). As is noted infra, some of the interactions between
the officers and the defendant were video recorded. When a
judge's findings are based solely on documentary evidence such
as a video recording, we review those findings de novo.
Tremblay, supra at 654-655. "By contrast, findings drawn partly
or wholly from testimonial evidence are accorded deference and
are not set aside unless clearly erroneous." Id. at 655.
a. Facts. Before considering each of the defendant's
arguments in turn, we set out the relevant facts that the motion
judge found following an evidentiary hearing. The facts are
supplemented with uncontroverted facts in the record.
Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015).
U.S. 920 (2009). See, e.g., State v. Yenzer, 40 Kan. App. 2d
710, 712-713 (2008) (HIPAA does not provide suppression remedy);
State v. Straehler, 2008 WI App 14, ¶ 13 ("HIPAA does not
provide for suppression of the evidence as a remedy for a HIPAA
violation"). See also United States v. Zamora, 408 F. Supp. 2d
295, 298 (S.D. Tex. 2006) ("HIPAA was passed to ensure an
individual's right to privacy over medical records, it was not
intended to be a means for evading prosecution in criminal
proceedings"). A breach of G. L. c. 111, § 70, also "does not
require exclusion at trial." Commonwealth v. Senior, 433 Mass.
453, 457 n.5 (2001).
7
After officers discovered the defendant at the victim's
apartment on February 20, he was transported to a nearby
hospital. Following surgery on his neck, the defendant was
moved to the intensive care unit (ICU) for recovery. Officer
Timothy Rogers accompanied the defendant into the ICU but did
not have contact with him or communicate with him. The
defendant was sedated, as hospital staff believed he might pose
a suicide risk.
At around 11:45 A.M. on February 20, Rogers was relieved by
Sergeant Bruce Nichol, who entered through the ICU's door, which
remained open throughout the officer's stay. Nicol sat against
a wall in the defendant's ICU room and observed him, although at
no point did Nicol have any contact with him or communicate with
him. Over the next twelve hours, the defendant began to regain
consciousness and started to communicate with nurses by
gesturing. Because the defendant was intubated with breathing
and feeding tubes, he was unable to speak. The defendant also
was connected to an intravenous line. Nichol observed that the
defendant responded appropriately to questions asked by a nurse
to assess his mental cognition.
Officer Dennis Scribner relieved Nichol at around
11:40 P.M. on February 20. Scribner mostly monitored the
defendant from a position in the hallway outside the defendant's
ICU room by looking into the room through its door, which
8
remained open. Scribner observed hospital staff members
entering and leaving the defendant's room freely. At around
5:30 A.M. on February 21, a nurse offered Scribner a note
written by the defendant that the defendant had given to the
nurse. In the note, the defendant asked if he would recover and
be able to speak again, what would happen to him when he left,
why there were police officers in his room, and about his
girlfriend's condition. After Scribner read the note, it
remained on a table in the hallway outside the defendant's room
until one of Scribner's replacements eventually took it into
custody.
At roughly 7:45 A.M. on February 21, Scribner was relieved
by State police Trooper William McMillan. At around 9:50 A.M.,
a nurse invited McMillan to approach the defendant's bedside to
answer the defendant's question. The defendant wrote a note to
McMillan that asked about whether he could be evicted because he
was behind on rent. After telling the defendant that he would
investigate the situation, McMillan had no more interaction with
him during this shift.
State police Trooper John Riley, the lead investigator for
the case, arrived at the ICU at around 1:35 P.M. on February 21.
Upon entering the defendant's ICU room, Riley explained who he
was and that he was there to investigate the circumstances
surrounding the defendant's injury. The defendant was still
9
unable to speak, so he nodded his head. After Riley suggested
that the defendant might have information that would be helpful,
the defendant nodded his head again. After an unclear gesture
by the defendant, Riley asked if the defendant was not yet ready
to speak because of his neck injury. The defendant nodded his
head, and Riley left the defendant's room.
Later, a nurse informed Riley that they would be reducing
the defendant's pain management medication, fentanyl, and begin
administering oxycodone so that the defendant could be moved out
of the ICU. The same nurse also informed Riley that the
defendant scored perfectly on a cognitive test. Shortly
afterward, a nurse told Riley that the defendant had given the
nurse a note. The note stated: "Bleeding from neck then
vaguely remember paramedics police? Before passing out.
Girlfriend unconscious completely. Don't know why her or me."
Riley left the defendant's room and noticed more notes on a
table in the hallway. Eventually, these notes were taken into
custody when a nurse asked another officer whether he wanted
them.
At 4 P.M., Riley introduced State police Trooper Gary
Darling, who had arrived for a shift, to the defendant. Riley
told the defendant that if he wanted to talk, he should let
Darling know. The defendant responded by writing "one more day
in ICU before I can talk." Riley then departed but returned two
10
hours later and learned that the medical staff would soon be
administering another cognitive test. Riley informed the
defendant that if he wanted to speak with the officers, this
would be a good time. The defendant responded in writing:
"We can talk briefly, but I am still terrified about the
situation, I also know that you will most likel[y] be
considering me a suspect. Until I can speak, I can't have
a reasonable conversation with anyone, but believe me, I am
trying my best to get this moving. I Just [sic] lost
someone very important to me, and I am not sure why."
With the defendant's consent, Riley and Darling videotaped
the cognitive test. After the defendant passed the test, Riley
interviewed the defendant. While Riley was explaining the
interview's purpose, the defendant wrote that he "was at her
house," "She was in the bathroom," and "Hygiene/makeup." Riley
then asked the defendant to stop and listen, and Riley explained
that the defendant was not under arrest and verbally advised the
defendant with an incomplete set of Miranda warnings.3 When
asked whether he was familiar with Miranda warnings, the
defendant nodded affirmatively. The defendant then wrote:
"What I will say for now is that when I opened the bathroom
door, I found her in a pool of blood unconscious."
At this point, Riley paused the interview again and
explained to the defendant that everything he wrote became part
3 Riley failed to advise the defendant that an attorney
would be appointed for him if he could not afford one.
11
of the record and asked the defendant if he wished to continue.
The defendant replied in writing, "I was in a total state of
panic[] when I saw her and didn't know what to do. I think this
would be better discussed when I am more capable. ASAP I want
to talk to you all the same." The defendant added, "It's too
serious to discuss right now. I will accept a lawyer maybe,"
then crossed out the words "I will accept a lawyer maybe" and
wrote, "I will do my best. I'm sorry."4 Nearly an hour into the
interview, Riley terminated it after the defendant wrote, "At
this point I would like to see a lawyer. You k[n]ow w[h]ere to
look now."
Riley returned the following day, February 22, and arrested
the defendant at around 10:38 A.M. This occurred in a non-ICU
hospital room where the defendant had been moved sometime during
either the evening of February 21 or the early morning of
February 22. Riley explained to the defendant that he would be
seizing the defendant's notepad and seeking a warrant to search
it. The defendant replied by writing, "[A]m I somehow waiving
my right to an attorney by doing this?" He added, "[A]t this
4The defendant also offered the following in notes: "Is
she still alive? Prior injuries. Also longstanding psychiatric
issues as well, and as I do to some extent"; "I injured myself
only. I couldn't deal with having to be in this position for no
fault of my own. Sorry"; and "With the knife I picked up from
next to her. There is much more to this story beyond that, but
both wounds were self inflicted, as far as I can tell."
12
point, I do reserve my right to remain silent, and the right to
any private conversations with medical providers."
b. Search. The defendant first argues that officers
violated his rights under the Fourth Amendment to the United
States Constitution and art. 14 of the Massachusetts Declaration
of Rights when they read handwritten notes that the defendant
passed to both hospital staff and law enforcement while he was
recovering in the ICU.5 The motion judge found that no search
occurred. We agree.
"The Fourth Amendment and art. 14 protect individuals from
unreasonable searches and seizures. For these constitutional
protections to apply, however, the Commonwealth's conduct must
constitute a search in the constitutional sense." Commonwealth
v. Almonor, 482 Mass. 35, 40 (2019). Whether such a search
occurred "turns on whether the police conduct has intruded on a
constitutionally protected reasonable expectation of privacy."
Commonwealth v. Porter P., 456 Mass. 254, 259 (2010), quoting
Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). "The
measure of the defendant's expectation of privacy is (1) whether
5 Although the thrust of the defendant's argument focuses on
whether a search of his ICU room occurred, he references in
passing multiple hospital rooms in which a search may have
occurred. Insofar as the defendant refers to the non-ICU
hospital room where officers arrested him on February 22, we
have reviewed the record, and it is at best unclear whether
officers even entered this room before arresting the defendant.
13
the defendant has manifested a subjective expectation of privacy
in the object of the search, and (2) whether society is willing
to recognize that expectation as reasonable." Porter P., supra,
quoting Montanez, supra. "The defendant bears the burden of
establishing both elements." Porter P., supra, quoting
Montanez, supra.
The motion judge correctly found that the defendant lacked
a subjective expectation of privacy in his ICU room. The door
to the room remained open throughout the defendant's stay there.
Hospital staff entered and left the room freely. Various
officers also entered the room to speak with the defendant.
Significantly, the defendant never asked the officers to leave.
On the contrary, on at least one occasion the defendant appears
to have invited an officer to enter the ICU room in order to
communicate with him.
The defendant also made no effort to maintain the privacy
of the notes themselves until after he was arrested on February
22, 2012, at which point he expressed concern over their legal
ramifications. Compare State v. Stott, 171 N.J. 343, 350, 354-
358 (2002) (defendant manifested expectation of privacy by
hiding pills in hospital room's curtain), with State v. Rheaume,
2005 VT 106, ¶ 9 (no subjective expectation of privacy in part
of emergency room where door was open, defendant did not ask
officer to leave, and defendant voluntarily communicated with
14
officer). Instead, the defendant voluntarily shared the notes
with both hospital staff and police to communicate with them.
Some of the notes that the defendant gave to hospital staff were
left by staff on a table outside the ICU for indeterminate
lengths of time. The defendant also passed notes to officers to
communicate with them multiple times. In this regard, "[o]ur
conclusion that [the defendant] had no subjective expectation of
privacy is compelled not by a finding that he legally abandoned
[the notes] as much as it is by his wholesale failure to
manifest any expectation of privacy in the items whatsoever."6
Commonwealth v. Bly, 448 Mass. 473, 491 (2007).
Although this settles whether a search occurred in this
case, we nonetheless discuss whether there is an objectively
reasonable expectation of privacy in an ICU room.7 When
determining whether society is willing to recognize an
expectation of privacy as reasonable, we consider the following
nonexclusive factors: (1) the nature of the place searched, (2)
whether the defendant owned the place searched, (3) whether the
defendant controlled access to the place searched, (4) whether
the defendant owned the item seized or inspected, and (5)
6 Because no search in the constitutional sense occurred, we
do not consider the defendant's argument that nurses at the
hospital operated as agents of law enforcement.
7 We have never ruled on whether there is an objectively
reasonable expectation of privacy in such a space.
15
whether the defendant took "normal precautions to protect his
privacy." Porter P., 456 Mass. at 259, quoting Commonwealth v.
Pina, 406 Mass. 540, 545, cert. denied, 498 U.S. 832 (1990).
Much like in an emergency room, a patient's privacy
interests are greatly diminished in the ICU. See Flannery,
First, Do No Harm: The Use of Covert Video Surveillance to
Detect Munchausen Syndrome by Proxy -- An Unethical Means of
"Preventing" Child Abuse, 32 U. Mich. J.L. Reform 105, 155
(1998) ("The emergency room, by its very nature, functions as a
freely accessible area over which a patient has no control and
where his privacy is diminished"). Although "the public at
large may not freely access" the ICU, "medical personnel,
hospital staff, patients and their families, and emergency
workers . . . are, as a matter of course, frequently, and not
unexpectedly, moving through the area." Rheaume, 2005 VT 106,
¶ 10 (detailing lack of reasonable expectation of privacy in
curtained off area of emergency room).
Such is true in this case. Not only did several officers
enter the defendant's ICU room unhindered, but a steady stream
of hospital personnel also freely flowed through it in order to
keep watch over him. Given the severity of the defendant's
injuries, and the potential suicide risk that he posed, the
constant attention paid to him by medical staff is unsurprising.
See Flannery, 32 U. Mich. J.L. Reform at 155-156 (whereas "it is
16
possible for the hospital to respect a patient's request for
privacy in the room for a certain time period[,] such a request
would be unreasonable in an emergency room setting" where
constant attention is inherent to treatment).
As other courts have reasoned, it is difficult, if not
impossible, in these conditions for a patient to control access
to the area he or she wishes to safeguard. See, e.g., State v.
Cromb, 220 Or. App. 315, 325 (2008) ("social norms do not treat
a hospital emergency room, even curtained areas within it, as
space in which privacy rights inhere" because of patient's lack
of control); Matthews v. Commonwealth, 30 Va. App. 412, 415
(1999) (no reasonable expectation of privacy in separate
treatment room in emergency ward); Rheaume, 2005 VT 106, ¶ 10
(patient's lack of control over trauma room renders expectation
of privacy unreasonable); Wagner v. Hedrick, 181 W. Va. 482, 487
(1989) (no reasonable expectation of privacy in emergency room
in which medical personnel "were constantly moving around" and
that was "freely accessible to law enforcement officers"); State
v. Thompson, 222 Wis. 2d 179, 193 (1998) (no "reasonable
expectation of privacy in either the emergency room or the
operating room"). We conclude that even if the defendant had
17
manifested an expectation of privacy in his ICU room, it would
not have been reasonable.8
c. Miranda rights. The defendant next argues that
statements he made on February 21 while he was in the ICU should
have been suppressed, arguing that his Miranda rights were
violated when officers did not scrupulously honor his invocation
of his right to silence.9 "[I]n circumstances of custodial
interrogation, Miranda requires that the defendant 'be warned
prior to any questioning that he has the right to remain silent,
that anything he says can be used against him in a court of law,
that he has the right to the presence of an attorney, and that
if he cannot afford an attorney one will be appointed for him
prior to any questioning if he so desires'" (footnote omitted).
Clarke, 461 Mass. at 341-342, quoting Miranda, 384 U.S. at 479.
8 This does not mean that donning an ICU gown necessarily
strips from a defendant every privacy interest he or she had
before being admitted. A defendant may, for example, have a
reasonable expectation of privacy in items stored within the
possessions he or she brings into the ICU. See, e.g., People v.
Wright, 804 P.2d 866, 868 (Co. 1991) (defendant had "reasonable
expectation of privacy in the contents of her purse" that police
searched while she was being treated at hospital); State v.
Loewen, 97 Wash. 2d 562, 564, 569 (1982) (warrantless search of
defendant's tote bag left at nurse's station at hospital
unreasonable). However, as is clear from the discussion supra,
that is not this case.
9 The defendant also appears to argue that statements he
made the next day, February 22, were obtained in violation of
his Miranda rights. Because the motion judge suppressed the
statements made after the defendant was arrested, it is unclear
to which other statements the defendant refers.
18
Before determining whether the defendant invoked his right to
silence, however, we must examine whether he was in custody at
the time and thus whether Miranda warnings were necessary. See
Commonwealth v. Jung, 420 Mass. 675, 689 (1995), quoting Oregon
v. Mathiason, 429 U.S. 492, 495 (1977) ("Miranda warnings are
required only where there has been such a restriction on a
person's freedom as to render him 'in custody'"). We determine
that he was not in custody.
An individual is in custody when "a reasonable person in
the suspect's shoes would experience the environment in which
the interrogation took place as coercive." Commonwealth v.
Larkin, 429 Mass. 426, 432 (1999). To determine whether the
environment in which an interrogation was coercive, we examine
four nonexclusive factors, no one of which is dispositive:
"(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. Tejada, 484 Mass. 1, 8, cert. denied, 141 S. Ct.
441 (2020), quoting Commonwealth v. Groome, 435 Mass. 201, 211-
212 (2001). See Commonwealth v. Bryant, 390 Mass. 729, 737
(1984) ("Rarely is any single factor conclusive"). "Where a
19
defendant challenges the admission of a statement allegedly
resulting from custodial interrogation, the defendant bears the
initial burden of proving custody." Commonwealth v. Newson, 471
Mass. 222, 229 (2015).
A reasonable person in the defendant's position would not
have experienced the environment at issue as coercive. Officers
questioned the defendant in his ICU room, not an interrogation
room. See Commonwealth v. McGrail, 80 Mass. App. Ct. 339, 346
n.12 (2011) (hospital cubicle where defendant was treated for
injuries and where officers and medical personnel entered and
departed multiple times not custodial). Cf. Commonwealth v.
Mejia, 461 Mass. 384, 390 (2012) (conference room in hospital
where defendant was treated for injuries "neutral location" and
noncustodial). The motion judge found that "health care
providers freely came and went through an open door" of the
defendant's room, signifying that officers could not dominate
the setting. See United States v. Infante, 701 F.3d 386, 397
(1st Cir. 2012), cert. denied, 570 U.S. 911 (2013) (defendant
not in custody where "hospital staff came and went freely during
the course of the interviews, suggesting that the officers were
not in a position to dominate [the setting] as they are, for
example, an interrogation room at a jailhouse" [quotation and
citation omitted]). In short, although a person may be in
custody without having set foot into a police station, see,
20
e.g., Commonwealth v. Damiano, 422 Mass. 10, 13 (1996), the
place of interrogation here was not coercive.
Other factors, too, demonstrate that the defendant was not
in custody on February 21. Although the defendant wrote that he
believed he was a suspect, officers did not communicate this to
him at the time. See Mejia, 461 Mass. at 390 (Miranda warnings
unnecessary where although defendant "knew that police were
seeking an arrest warrant for the defendant and admitted on
cross-examination that there was probable cause to arrest, these
suspicions were never communicated to the defendant"). See also
Commonwealth v. Morse, 427 Mass. 117, 124 (1998), quoting
Stansbury v. California, 511 U.S. 318, 324 (1994) ("an officer's
evolving but unarticulated suspicions do not affect the
objective circumstances of an interrogation or interview, and
thus cannot affect the Miranda custody inquiry"). The officers'
questioning was also not aggressive. On the contrary, each
interview was accompanied with inquiries by officers to the
defendant asking whether he wished to talk to them. Compare
Commonwealth v. Cawthron, 479 Mass. 612, 622 (2018), quoting
Commonwealth v. Coleman, 49 Mass. App. Ct. 150, 155 (2000)
("interrogation was 'aggressive and persistent' where
'defendant's denials were scorned and overridden,' 'substance of
what was said was harsh and intended by the questioner to be
so'"). Nor did the officers exploit the defendant's condition
21
by seeking to extend his stay in the hospital unnecessarily.
See United States v. Martin, 781 F.2d 671, 673 (9th Cir. 1985)
("There are no facts to indicate law enforcement officials . . .
did anything to extend [defendant's] hospital stay and
treatment"). Indeed, it was the defendant who initiated most of
the conversations by passing notes either to hospital staff or
to police officers.
In response, the defendant stresses that he was connected
to machines and intravenous lines, rendering his freedom
severely curtailed. It is true that the defendant's medical
condition ensured that he could not leave the room at will. At
the same time, the defendant, not law enforcement, created the
situation in which he found himself. Cf. United States v.
Jamison, 509 F.3d 623, 632 (4th Cir. 2007) (Miranda warnings
unnecessary where defendant "was primarily restrained not by the
might of the police, but by his self-inflicted gunshot wound,
the medical exigencies it created, and the investigation he
initiated"). Given the seriousness of the defendant's injuries,
a "reasonable person would have understood that he was being
held at the hospital by medical personnel for medical purposes,"
not by law enforcement for investigatory purposes. McGrail, 80
Mass. App. Ct. at 346.
More importantly, officers expressly told the defendant
that he could ask them to leave at any time. This is analogous
22
to cases dealing with the Miranda rights of prisoners: the
defendant's ability to leave the room was obviously constrained,
but his ability to change who was in it was not. See, e.g.,
Larkin, 429 Mass. at 434 ("rather than asking whether a prisoner
was free to leave the facility, courts have asked whether he is
subject to some restraint in addition to those normally imposed
on him by virtue of his status as an inmate"). In other words,
had the defendant clearly told the officers to leave, and had
they refused, the analysis would be different. Because he did
not, we discern no error.
Even assuming that the defendant was in custody at the
time, the defendant's statement -- a written note stating "one
more day in ICU before I can talk" -- did not properly invoke
his right to remain silent on February 21. An invocation of the
right must be "unambiguously" stated such that, objectively, "a
reasonable police officer in the circumstances would understand
the statement to be an invocation of the Miranda right."
Clarke, 461 Mass. at 342 (quotation and citations omitted).
Although establishing an invocation is less demanding under art.
12 of the Massachusetts Declaration of Rights than under the
Federal standard set out in Berghuis v. Thompkins, 560 U.S. 370,
381 (2010), statements indicating a willingness to speak with
officers in the future are not sufficient to invoke the right.
See Clarke, supra at 348 (defendant's statement, "Not right now,
23
in a minute. I need to figure some things out," did not invoke
right to be silent). The defendant's statement falls within
this category.
d. Voluntariness. The defendant also contends that the
statements he made while hospitalized were obtained
involuntarily. "Where a defendant makes statements to the
police while not in custody, we focus solely on the question
whether his statements were voluntary" (quotation and citation
omitted). Commonwealth v. Libby, 472 Mass. 37, 48 (2015).
"[T]he Commonwealth must prove beyond a reasonable doubt that in
light of the totality of the circumstances surrounding the
making of the statement, the will of the defendant was [not]
overborne, but rather that the statement was the result of a
free and voluntary act" (quotations and citation omitted).
Commonwealth v. Baye, 462 Mass. 246, 256 (2012). Because of the
pain and confusion that he felt, as well as the effects of the
medications with which he was being treated, the defendant
argues that the Commonwealth cannot carry its burden. We
disagree.
"Only voluntary confessions or admissions are admissible
regardless of whether they are made to police or civilians."
Commonwealth v. Kolenovic, 478 Mass. 189, 198 (2017). To
determine whether a statement was voluntarily made, we consider
several factors, including (1) the "conduct of the defendant,"
24
(2) "the defendant's age, education, intelligence and emotional
stability," (3) the defendant's "physical and mental condition,"
and (4) "the details of the interrogation, including the
recitation of Miranda warnings." Commonwealth v. Bell, 473
Mass. 131, 142 (2015), cert. denied, 136 S. Ct. 2467 (2016),
quoting Commonwealth v. Hilton, 450 Mass. 173, 177 (2007).
Although statements "attributable in large measure" to
debilitating conditions are "not the product of a rational
intellect or free will," the mere influence of drugs or alcohol
on the defendant will not transform otherwise voluntary
statements into involuntary ones. Bell, 473 Mass. at 141,
quoting Commonwealth v. Allen, 395 Mass. 448, 455 (1985).
Additionally, "[t]hat a defendant is suffering from a serious
and painful injury, such as a bullet or knife wound, does not
necessarily preclude a statement being made voluntarily." Bell,
supra. Nor does "[t]he fact that a defendant may have been in a
disturbed emotional state, or even suicidal, . . . automatically
make statements involuntary." Commonwealth v. Richards, 485
Mass. 896, 910 (2020), quoting Commonwealth v. LeBlanc, 433
Mass. 549, 555 (2001).
Review of the record confirms that the defendant's
statements were voluntary. Despite being hospitalized with a
serious medical condition, having just undergone surgery, and
being treated with pain medication, the defendant understood and
25
was responsive to questions by hospital staff and police
officers. See Bell, 473 Mass. at 142 (despite suffering from
serious injury, experiencing pain, and consuming intoxicants,
defendant's coherent responses to medical providers and police
officers rendered statements voluntary); Commonwealth v.
Stroyny, 435 Mass. 635, 646-647 (2002) (defendant's statement to
hospital staff and law enforcement made while in pain from
slashed wrists was voluntary).
In particular, the defendant was awake and alert and passed
the cognitive tests administered by hospital staff.10 See, e.g.,
Commonwealth v. Clark, 432 Mass. 1, 12-13 (2000) ("alert and
oriented" defendant's statements to police voluntary despite
recovering from gunshot wound to his head and arm); Allen, 395
Mass. at 457 ("rational and alert" defendant's statements to
nurse after brain surgery were voluntary). Cf. Commonwealth v.
Rivera, 482 Mass. 259, 267 (2019) (defendant who was "not
demonstrating confusion" voluntarily waived Miranda rights
despite being medicated to treat pain from attempted suicide).
The defendant could manipulate his surroundings to make himself
more comfortable and could communicate his needs by writing
10The motion judge also reviewed video recordings of the
delirium test and the questioning, as well as credited expert
testimony by a psychiatrist that the defendant's conduct and his
medical records supported finding that his statements were
voluntary.
26
notes to hospital staff. Indeed, the defendant not only
appeared to be aware of his immediate surroundings, but also
inquired into the victim's medical condition and his own
financial circumstances. The defendant even had the presence of
mind to provide exculpatory statements, such as claiming that
the victim's wounds were self-inflicted. See Commonwealth v.
Sneed, 440 Mass. 216, 222 (2003) (defendant's effort to
exculpate herself supported finding her statements to be
voluntary).
Considering his OUI arrest the week before, the defendant
"had some prior experience with law enforcement officers and the
court system." Libby, 472 Mass. at 49. Even without this
familiarity, the motion judge found that the officers'
questioning was neither psychologically nor physically coercive.
Officers made no improper promises or inducements. See
Commonwealth v. Colon, 483 Mass. 378, 390 (2019) (absence of
either express or implied assurances by officers why, in part,
defendant's statements were voluntary); LeBlanc, 433 Mass. at
555-556 (same). Furthermore, officers repeatedly told the
defendant that he could ask them to leave. Considering the
totality of the circumstances, we hold that the defendant's
statements were voluntary.
2. Evidentiary issues. In addition to the suppression
issues, the defendant challenges several evidentiary matters
27
from the trial. "We review a judge's evidentiary rulings for an
abuse of discretion." Commonwealth v. Andre, 484 Mass. 403, 414
(2020).
a. Text messages. At trial, the Commonwealth elicited
testimony from State police Trooper David Swan regarding text
message exchanges between the cell phones associated with the
defendant and the victim. Swan read aloud text messages that
highlighted, among other things, the defendant's problems with
alcohol, money, his job, and tensions and arguments between the
defendant and the victim. These text messages were exchanged
between February 10 and February 18, 2012, the week leading up
to the killing. The defendant argues that the text messages
were not authenticated, and thus the trial judge erred in
allowing them in evidence. We disagree.
"To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent must produce
evidence sufficient to support a finding that the item is what
the proponent claims it is." Mass. G. Evid. § 901(a) (2021).
"Where the Commonwealth seeks to introduce evidence of cell
phone communications, 'the judge [is] required to determine
whether the evidence was sufficient for a reasonable jury to
find by a preponderance of the evidence that the [individual]
authored' the communications." Commonwealth v. Webster, 480
28
Mass. 161, 170 (2018), quoting Commonwealth v. Purdy, 459 Mass.
442, 447 (2011).
As with other types of communication, the authentication of
text messages "may be accomplished by way of direct or
circumstantial evidence, including its [a]ppearance, contents,
substance, internal patterns, or other distinctive
characteristics" (quotations and citation omitted).
Commonwealth v. Lopez, 485 Mass. 471, 477 (2020). See Mass. G.
Evid. § 901(b)(4). Other "confirming circumstances" that may
authenticate text messages include acknowledgement that the
defendant uses the cell phone, acknowledged ownership by a
defendant of the cell phone containing the messages, and whether
the defendant knows or supplies the passwords protecting the
cell phone. See Purdy, 459 Mass. at 450–451. See also Mass. G.
Evid. § 901(b)(11).
Abundant confirming circumstances are present here.
Focusing first on the cell phones from which the text messages
were sent and received, each was registered to the defendant's
and the victim's e-mail accounts, respectively. Cf. Lopez, 485
Mass. at 478 (fact that defendant lived with victim who owned
cell phone from which text messages were sent confirming
circumstance of defendant's authorship of messages). Both were
password protected. Indeed, Swan testified that he had to use
specialized software to break into the cell phones. Compare
29
Commonwealth v. Williams, 456 Mass. 857, 869 (2010) (messages
sent from social media webpage unauthenticated where "no
testimony . . . regarding how secure such a Web page is, who can
access a Myspace Web page, [or] whether codes are needed for
such access"). Finally, officers found the cell phones with the
defendant and the victim on the night of the killing.
Testimony about the text messages' contents further linked
them to the defendant. See Purdy, 459 Mass. at 450-451 (e-mail
account's secure nature combined with its contents authenticated
messages). The messages were replete with details of the
defendant's and the victim's lives, including the tensions
within their relationship, aspects of their living arrangements,
and the suspension of the defendant's driver's license from his
OUI charge. See Commonwealth v. Alden, 93 Mass. App. Ct. 438,
441 (2018), cert. denied, 139 S. Ct. 2010 (2019) ("In addition
to the content of the text messages, [victim's] prior
relationship with the defendant and her use of the telephone
number to communicate with him over a significant period of time
provided the necessary link").
Various text messages from the victim's cell phone to the
defendant's cell phone, for example, referenced the defendant's
distinctive nickname. Circumstances beyond the text messages
tie this name to the defendant. Specifically, one message from
the defendant describes how he intended to deliver the victim
30
flowers on Valentine's Day. The defendant later remarked to a
bartender how he had bought the victim flowers for the holiday.
When officers arrived at the victim's apartment on February 20,
they found flowers with a card inscribed with the defendant's
distinctive nickname. Cf. Commonwealth v. Johnson, 470 Mass.
300, 317-318 (2014) (e-mail messages authenticated "given the
long-standing relationship between [the joint venturer] and the
defendants, the defendants' prior use of the e-mail address at
the time of the scheme, and the referencing of the harassing
acts in the e-mails," which were independently observed). See
Commonwealth v. Nardi, 452 Mass. 379, 396 (2008), quoting
Commonwealth v. LaCorte, 373 Mass. 700, 704 (1977)
(authentication may be established through testimony "that
circumstances exist which imply that the thing is what its
proponent represents it to be"). Taking all these confirming
circumstances together, the evidence authenticating the text
messages was overwhelming.
Against this conclusion, the defendant suggests that the
text messages could have been authored by someone else, pointing
to the lack of evidence about how regularly he may have needed
to enter his password to use the cell phone, that there was no
evidence about who else may have had access to the password, and
that the card on the flowers may have been authored by an
unidentified party. Maybe that is so. The defendant's claim,
31
however, that another person may have authored either the text
messages or the card is relevant to their weight, not their
admissibility. Purdy, 459 Mass. at 451. The Commonwealth
presented more than an ample foundation for the judge to
determine that a reasonable jury could find by a preponderance
of the evidence that the defendant authored the text messages.
b. Prior bad acts. The defendant next argues that the
trial judge erred in allowing in evidence certain prior bad acts
evidence. "We have long held that '[e]vidence of prior bad acts
is not admissible to show that the defendant has a criminal
propensity or is of bad character.'" Andre, 484 Mass. at 414,
quoting Commonwealth v. Otsuki, 411 Mass. 218, 236 (1991). See
Mass. G. Evid. § 404(b)(1). "However, such evidence is
admissible when offered for another purpose, such as motive,
opportunity, intent, preparation, plan, knowledge, identity, or
pattern of operation, so long as its probative value for that
purpose is not outweighed by its prejudicial effect."
Commonwealth v. Hall, 485 Mass. 145, 163 (2020), citing
Commonwealth v. Crayton, 470 Mass. 228, 249 (2014). "[T]he
application of [limiting] instructions ordinarily renders any
potentially prejudicial evidence harmless." Crayton, supra at
251, quoting Commonwealth v. Donahue, 430 Mass. 710, 718 (2000).
i. OUI charge. At trial, the Commonwealth introduced
evidence that the defendant had been arrested for OUI the week
32
before the killing, arguing that the victim's unwillingness to
post bail was a motivating factor in the defendant's decision to
kill her. On appeal, the defendant argues that any relationship
between the OUI and an alleged motive is slight, and that its
introduction served only to tarnish his reputation. Because the
defendant preserved the issue, we review for prejudicial error.
See Commonwealth v. McDonagh, 480 Mass. 131, 142 (2018). We
find none.
Evidence concerning the OUI charge was relevant to show the
deterioration of the defendant and the victim's relationship and
thus provide a motive for why he killed her. See, e.g.,
Commonwealth v. Mason, 485 Mass. 520, 532 (2020) (prior bad acts
evidence "provided context for the defendant's hostility toward"
victim); Commonwealth v. Sharpe, 454 Mass. 135, 144-145 (2009)
(prior bad acts evidence "relevant to show the existence of a
hostile relationship"); Commonwealth v. Mendes, 441 Mass. 459,
464-465 (2004) ("Evidence of the hostile relationship between
the defendant and his wife was not offered as improper
propensity evidence, as the defendant contends, but also as
evidence of his motive to kill her"). At trial, the officer who
arrested the defendant for the OUI testified that, during the
arrest, the defendant explained that he had just been in a fight
with his girlfriend. Text messages between the victim and the
defendant, as well as witness testimony, established that he had
33
recently been fired from his job, was financially strapped, and
was increasingly anxious. For example, one witness testified
that on the evening leading up to the killing, the defendant was
aggravated by the victim's refusal to post his bail for the OUI
charge.
Whatever prejudicial effect this evidence had on the
defendant was slight when considered in the context of the rest
of the evidence that the Commonwealth presented and the crime
for which the defendant was on trial. In any event, the judge
instructed the jury not to consider the OUI as evidence of the
defendant's propensity to commit the crime charged in the
indictment. See Commonwealth v. Bryant, 482 Mass. 731, 737
(2019) (jury presumed to follow judge's limiting instructions
concerning prior bad act evidence). Therefore, the judge did
not abuse his discretion.
ii. Text messages about a work-related dispute. The
Commonwealth also presented text messages between the defendant
and the victim concerning a dispute that the defendant had with
former coworkers, arguing that the exchange was relevant to
prove motive. The dispute, which led to the defendant being
fired, involved a physical altercation between the defendant and
his coworkers. On appeal, the defendant contends that the text
messages about the dispute bore only a "very tenuous" connection
to the crime with which he was charged. Because the defendant
34
did not preserve this issue, we review "for a substantial
likelihood of a miscarriage of justice."11 Commonwealth v.
Upton, 484 Mass. 155, 160 (2020). A brief description of these
exchanges demonstrates that their link to the crime was far from
tenuous.
At the time of the killing, the defendant recently had been
fired from his job at a local restaurant. The victim also
worked there and continued to do so after the defendant had been
terminated. Through a series of text messages to the victim in
the days leading up to the killing, the defendant ranted about
perceived wrongs done to him by former coworkers. The victim's
answers varied from seeking to change the subject to trying to
calm the defendant down. Yet in response to the victim's
attempts to extricate herself from the exchanges, the defendant
turned his ire on her, alleging that the victim was like his
former coworkers: aloof to his struggles. Several instances of
this pattern occur in the exchanges.12 After further analogous
11The defendant claims that the issue is preserved because
of the motion in limine he filed to exclude the text messages.
However, the only motion concerning the text messages filed by
the defendant dealt with the authentication issue and did not
raise the prior bad acts issue. A different motion in limine
did object to prior bad act evidence, but that referenced only
the OUI testimony.
12For example, in response to the victim telling the
defendant to "calm down," the defendant wrote: "You don't care
about me either apparently. That makes it easier for me to just
say fuck you too. You'd be better off working at something you
35
back-and-forth exchanges, the victim appears to have grown weary
not only of the dialogue, but also of the defendant, telling
him, "Whatever. Evacuate my house immediately." As the
defendant continued to complain about work-related problems, the
victim repeated that she wanted him to leave her apartment.
Although the impetus for these exchanges is a work-related
dispute, their connection to the defendant and the victim's
relationship is not "tenuous." Like the OUI, the text messages
demonstrated motive. Throughout the exchanges, the defendant
connected his complaints about his former coworkers and employer
to the victim, eventually blaming the latter for his
misfortunes. In doing so, the text messages showcased the
defendant's palpable anger with the victim. Whatever
prejudicial effect the text messages had did not outweigh their
significant probative value. We discern no error.
3. Motion for a new trial. After being convicted, the
defendant moved for a new trial, claiming that his trial counsel
had been ineffective. Specifically, the defendant argued that
he and his trial counsel had been unable to communicate
want to do." The defendant quickly followed up this message
with another one stating: "I have less problem destroying [the
defendant's former employer] now." In another instance, after
the victim told the defendant to leave her apartment, he wrote
to her: "Talk to me when either you or [a former coworker]
grows a conscience. You would have done what I'm doing now long
ago if you were me. I would bet my life on it."
36
effectively. The judge, who had also been the trial judge,
denied the motion without holding an evidentiary hearing. On
appeal, the defendant argues that the judge erred in denying the
defendant's motion without holding an evidentiary hearing.
A judge may rule on a motion for a new trial, without an
evidentiary hearing, if no substantial issue is raised in the
motion or affidavits. Upton, 484 Mass. at 161. "In determining
whether a substantial issue exists, 'a judge considers the
seriousness of the issues raised and the adequacy of the
defendant's showing on those issues.'" Id. at 162, quoting
Commonwealth v. Barry, 481 Mass. 388, 401, cert. denied, 140
S. Ct. 51 (2019). In terms of the first prong, there is no
dispute. "A claim of ineffective assistance of counsel . . .
readily qualifies as a serious issue." Commonwealth v. Lys, 481
Mass. 1, 6 (2018), quoting Commonwealth v. Denis, 442 Mass. 617,
629 (2004).
Turning next to the adequacy of the showing, "the
defendant's submissions 'need not prove the [motion's] factual
premise . . . but they must contain sufficient credible
information to cast doubt on the issue.'" Upton, 484 Mass. at
162, quoting Commonwealth v. Goodreau, 442 Mass. 341, 348
(2004). "Where, as here, the motion judge is also the trial
judge, he may use his 'knowledge and evaluation of the evidence
at trial in determining whether to decide the motion for a new
37
trial without an evidentiary hearing.'" Commonwealth v. Riley,
467 Mass. 799, 826 (2014), quoting Commonwealth v. Wallis, 440
Mass. 589, 596 (2003). "We review a judge's decision to deny a
motion for a new trial without holding an evidentiary hearing
'for a significant error of law or other abuse of discretion'"
(citation omitted). Upton, supra.
The judge did not abuse his discretion. Because the judge
also had presided over the trial, he was able to observe how the
defendant and his trial counsel interacted. What he observed
indicates that any communication issues were likely of the
defendant's own making.13 For example, during a status
conference, the defendant's trial counsel informed the judge
that he had just learned, by receipt of a package from the
Office of Bar Counsel, that the defendant had filed a complaint
against him. Trial counsel was unaware whether the defendant
wanted to continue being represented by him. When asked by the
judge about this issue, the defendant expressed his interest in
continuing to be represented because, since he had submitted his
complaint, he had witnessed the effectiveness of his counsel.
The defendant then opted to withdraw the complaint,
13By the conclusion of his trial, the defendant had been
represented by two attorneys (one as full trial counsel and
another initially as standby counsel and then also as full trial
counsel), each attorney had moved to withdraw, and the defendant
had moved pro se to dismiss his counsel.
38
acknowledging that his own stubbornness likely factored into the
friction between him and his attorney.
Although the defendant stated in an affidavit in support of
his motion for a new trial that he had felt anxious and fearful
toward his trial counsel, the judge did not credit these
assertions. Nor, for that matter, did the judge have to credit
them. See Commonwealth v. Marrero, 459 Mass. 235, 241 (2011),
quoting Commonwealth v. Lucien, 440 Mass. 658, 672–673 (2004)
("The judge was entitled to reject summarily any claim supported
only by the defendant's self-serving affidavits, and infer from
his own observation of the defendant and counsel at trial that
they were conferring over precisely the matter the defendant now
claims was never discussed"). We thus discern no error.
4. Review under G. L. c. 278, § 33E. Finally, the
defendant asks this court to exercise its discretion under G. L.
c. 278, § 33E, either to "order a new trial" or to "direct the
entry of a verdict of a lesser degree of guilt, and remand the
case to the superior court for the imposition of sentence." To
this end, the defendant argues that a combination of mental
illnesses, substance use disorders, and trauma indicate that the
killing reflected spontaneity, not premeditation.14 We disagree.
14Specifically, the defendant has a history of obsessive
compulsive disorder, posttraumatic stress disorder, dysthymic
disorder, alcohol dependence, and narcissistic, borderline, and
passive aggressive personality traits. He has a history of
39
The defendant's mental illnesses, although serious, do not
demonstrate that he was "driven by [his] mental condition" alone
to kill the victim. Commonwealth v. Colleran, 452 Mass. 417,
434 (2008). See Commonwealth v. Concepcion, 487 Mass. 77, 95
(2021) ("Mental illness alone is generally insufficient to
support a verdict reduction under G. L. c. 278, § 33E"). On the
contrary, rather than a "bolt from the blue," the victim's death
was preceded by growing hostilities between her and the
defendant. Compare Colleran, supra at 433 ("There appears to
have been no hostile relationship between the defendant and the
victim"); Commonwealth v. Dalton, 385 Mass. 190, 196-197 (1982)
(verdict reduced to murder in second degree where defendant and
victim had good relationship and no motive was apparent). These
tensions culminated in a frantic emergency telephone call from
the victim followed by her throat being slashed and her death.
Amidst these developments, a jury could have found that the
defendant formed the intent to cause the victim's death. See
Commonwealth v. Robinson, 482 Mass. 741, 746 (2019), quoting
Commonwealth v. Chipman, 418 Mass. 262, 269 (1994) ("The law
recognizes that a plan to murder may be formed within a few
seconds").
suicidal ideations and attempts to commit suicide, and had been
prescribed four medications to help manage his mental health.
The defendant also reported a history of homelessness and being
the victim of two rapes that went unprosecuted.
40
We have reviewed the entire record of this case pursuant to
our responsibilities under G. L. c. 278, § 33E. We conclude
that there is no basis for reducing the defendant's sentence on
the murder conviction or ordering a new trial.
Judgment affirmed.
Order denying motion for
a new trial affirmed.