For purposes of this memorandum, the defendant assumes that the Commonwealth will present evidence consistent with the police report filed by Trooper Robert Johnson of the Massachusetts State Police dated January 22, 2003:
On 01/20/2003 at approximately 1830 hrs., Tpr. Charles E. MacKenzie #2215 was in an off-duty capacity in the back yard of his residence of 12 Tipperary Drive in Sutton. As he was headed from his back yard to the front yard he heard a loud popping noise and observed a vehicle, he later described as a small white car with a black top, that he believed may have been an older model Toyota Celica. This vehicle was heading east up Tipperary Drive into Whitinsville at a high rate of speed. When Mr. MacKenzie got in his house, his wife and 3 children were hysterical. It was at this point, he realized that the front picture window in his front foyer had been smashed. The outer pane was completely destroyed and the inner pane was cracked. Mr. MacKenzie called the Sutton police and Sgt. Perry and two other officers responded. He gave them a description of the vehicle and filed a report.
On 01/21/2003 at approximately 0800 hrs. I was assigned the investigation. I visited the area Police Departments to inquire if there had been any other reports of vandalism. Northbridge PD advised me that they had received a report the night before from Donna M. Guillaume of 85 Tipperary Drive Whitinsville, that she observed someone throw something at her house but that no damage was inflicted. I contacted Mrs. Guillaume on 01/21/2003 at approximately 1930 hrs. and she described the incident. She claimed a white, 2 door, sporty, older model car with a black top came up the street (easterly direction) and stopped at the Stop sign. She said the vehicle backed up a few feet and stopped and that the operator got out and threw something at the front of the house, striking the wooden part. She said it appeared that there was a passenger in the vehicle. She described the operator as a tall, white, thin male in his teens. She said the male then jumped back in his car and headed down Dublin Way (north).
On 01/22/2003 at approximately 0800 hrs. I searched the parking lot of the Northbridge High School and located a 1991 Toyota Celica convertible with a black top. (MA#). A check of the registration revealed the vehicle to be owned by Derek R. ------- 10/14/85 of ---------St. Whitinsville. I contacted Joseph Beasley, the Vice-Principal at Northbridge High, and requested the use of his office to conduct an interview with Mr. -------.
On 01/22/2003 at approximately 1250 hrs., Tpr. Frothingham #2361 and I met with Mr. Beasley in his office at the High School. Mr. Beasley went and got Mr. ------- for our interview. I advised Mr. ------- that we were there to investigate an incident of vandalism on Monday evening (2 nights ago) at approximately 6:30 PM. He claimed that he had smashed some mailboxes in the past but had done nothing that night. He said that he picked up a friend, Timothy R. (---------) from Douglas at about 6:30 PM and went straight to a basketball game in Shrewsbury. I explained that we had a window broken on Tipperary Drive and described the location to him. He denied any knowledge of the incident. I told Mr. ------- that we had fingerprints on the rocks we recovered and two eye witnesses that described the vehicle and the operator. I told him that Mrs. Guillaume could positively identify the person that threw the rock and that I planned on showing her his photo. I told him that we had no intention of arresting him, and even if he confessed he was free to leave. I told him that we were going to find out who did it and that we were going to check his alibi with Mr. ------. He then admitted to us his involvement, stating, “All right I did it.” I told him that we would need to take a statement from him and had him write in his own words what transpired. (see attached statement). Mr. ------- was told that he would be receiving a summons in the mail for his action sand then he left the office.
On 01/22/2003 at approximately 1500 hrs. I spoke with Timothy ----- on the phone and asked him if he could meet me at Uxbridge PD. He agreed to meet me there. I then contacted Det. Rick Belanger and invited him to participate in the interview. Det. Belanger had questions to ask Mr. ----- about a separate incident of vandalism that had occurred previously in his town.
On 01/22/2003 at approximately 1730 hrs. I met Mr. ----- at Uxbridge PD. I advised him of his rights per Miranda and told him that he was free to leave at anytime. I explained to him about Mr. -------'s confession and told him that I wished to get a statement from him about the incident that occurred on 01/20/2003 at 6:30 PM. Mr. ----- gave me a detailed description of the incident. (see attached statement).
On 01/22/2003 at approximately 1915 hrs. I responded to 12 Tipperary Drive and recovered the rock that was used to break the window, from Tpr. MacKenzie. The rock is of the type commonly referred to as “rip-rap” rock and is used for construction purposes. It was similar to the description that was given in the statement by Mr. -----. Mr. MacKenzie also advise me that the estimate he received from National Glass in Worcester valued the replacement of the window at $1,646.50. The window was a dual pane 6' x 5' plate glass variety.
On 01/22/2003 at approximately 2000 hrs. I responded to 85 Tipperary Drive and took a written statement from Donna Guillaume describing the incident. (see attached statement).
Officer Richard Belanger of the Northbridge Police Department filed a report describing the incident at 85 Tipperary Drive and two other rock throwing incidents allegedly occurring on November 10, 2002. According to his report:
On Tuesday, January 21, Detective Sergeant Shawn Heney and Detective Richard Belanger were assigned to investigate [these incidents]. Sgt. Heney and Det. Belanger did a computer search printing two similar incidents involving a small, white/light colored car with a rock being thrown through house windows. One incident took place at 161 Goldthwaite Rd., the Baldwin residence. The incident occurred on November 1, 2002, at approximately 10:50 p.m. Mrs. Michelle Baldwin reported that a large rock was thrown through her livingroom window spraying glass all over her husband who had been sitting right in front of the window. The second incident took place at 61 Carr St. just shortly after the Goldthwaite incident. Mr. George Gigarjian called to report that somebody threw a rock through his picture window sometime around 11:00 p.m. November 10, 2002.
Later, the report describes an interview with the defendant:
On Wednesday January 22, 2003, at approximately 2:45 p.m. Det. Belanger contacted Mr. ------- requesting to speak with him. Mr. ------- voluntarily came to the Northbridge Police Station. Det. Belanger advised Mr. ------- of his Miranda rights, which he stated he understood and waived. Det. Belanger questioned Mr. ------- about the incident on Monday January 20. Mr. ------- admitted to throwing the rocks at the houses on Tipperary Dr. Mr. ------- stated that he was with his friend, Timothy “TJ” ----- of ----- St. Douglas, MA, on their way to a basketball game at St. John's when Mr. ------- got the idea of throwing rocks and breaking something. So Mr. ------- drove into the Clover Hill Estates development and randomly threw rocks at two houses. Mr. ------- told Det. Belanger that he was the only one who threw the rocks.
Det. Belanger questioned Mr. ------- about two other houses that were vandalized in November of 2002. Mr. ------- admitted to also being involved in the rock throwing in November. Mr. ------- stated that on the night of November 10, 2002, he was out riding in his car (white Toyota) with his friends Mr. ----- and Mr. Mark Kipuke, of Northbridge. Mr. ------- stated that they were bored and decided to “break something”. Mr. ------- detailed how he and his friends picked up rocks at the end of Goldthwaite Rd. Mr. ------- stated that he stopped the car, got out, walked up the street and threw a large rock into the window. Mr. ------- stated that he then hopped into the car driving to Carr St., letting Mr. Kipuke and Mr. ----- out. Mr. ------- told Det. Belanger that both boys went up a hill with a rock and came back down to the road getting into the car. Mr. ------- stated that he did not know who threw the rocks at the house (61 Carr St.). Mr. ------- told Det. Belanger that they did this for the fun of it.
According to a police report filed by Officer Timothy Burke of the Uxbridge Police Department, on January 28, 2003, he received information from another police department regarding destructive vandalism occurring on November 10, 2002 in Uxbridge. He contacted the defendant at 4:15 p.m. and asked that he come to the Uxbridge Police Station and speak with him regarding an investigation. The defendant arrived at about 4:45. According to Burke's report:
------- was advised of his Miranda rights and signed the card indicating that he understood his rights and was willing to speak with us now without a lawyer present. I informed ------- of the investigation into the incidents of 11/10/02 in regards to large rocks being thrown through the windows of houses in Uxbridge. A statement was taken from ------- in which he admitted to throwing the rocks through the windows of three residences in Uxbridge (see attached statement). ------- admitted that there were two others with him, but that he had been doing the vandalism. The other two people with him were Timothy -----, Jr. and Mark -----.
According to the report, the defendant subsequently pointed to the houses he had allegedly vandalized.
The defendant expects to present testimony from Assistant Principal Joseph Beasley, who was present during Trooper Johnson's interview with the defendant at Northbridge High School. According to Beasley, the troopers did not advise the defendant of his Miranda rights at the start of the interview, and the defendant initially denied any involvement in the incident. Only after the troopers indicated that they would not arrest him if he admitted to the incident but would summons him into court and “work it out” did he finally admit his involvement. At that point, they advised him of his rights and had him write out a statement.
I. The Defendant, Who Is A Juvenile, (A) Is Entitled To Suppression Of Statements Obtained When The Police Questioned Him Without Providing Him With An Opportunity To Consult With An “Interested” Adult; (B) Is Entitled To Suppression Of Statements And Evidence Derived From The Interrogation Where The Police Elicited Those Statements In A Custodial Setting In The Absence Of Miranda Warnings; And (C) Is Entitled To Suppression Of Statements Given To Other Police Departments Where Such Questioning Is Directly Traceable To The Initial Illegal Interview
In this case, the defendant made incriminating statements during the course of what clearly was a custodial interrogation in the office of the Assistant Principal of Northbridge High School. That interrogation was fatally flawed for two reasons. First, the two state troopers questioned the defendant, who was seventeen years old, without the presence of an “interested” adult and without giving him the opportunity to consult with an interested adult. Second, the troopers failed to advise him of his constitutional rights until after he had admitted his involvement in the charged offenses. The fruits of that interrogation must be suppressed. Moreover, the interrogations conducted by officers from the Northbridge and Uxbridge subsequent to the interrogation at the high school were conducted without the presence of an interested adult, and in any event, were traceable to the initial illegal interview. The defendant is entitled to suppression of all of his statements.
A. The Defendant Was In Custody At The Time Of The Initial Interview In The Assistant Principal's Office
The initial question that this court must address is whether the defendant was in custody at the time of the questioning in the Assistant Principal's office. “[T]he custodial setting is thought to contain 'inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.'” Minnesota v. Murphy, 465 U.S. 420, 430 (1984), quoting Miranda v. Arizona, 384 U.S. 436, 467 (1966). The determination of whether a suspect is in custody does not, however, turn on whether there has been a formal arrest. Appellate courts define custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. at 444 (emphasis supplied). See Commonwealth v. Morse, 427 Mass. 117, 126 (1998); Commonwealth v. Haas, 373 Mass. 545, 551 (1977).
“The test [for determining custody] is an objective one: whether 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). See also Commonwealth v. Conkey, 430 Mass. 139, 144 (1999). In determining whether there was custodial interrogation of a juvenile the court looks to “how a reasonable person in the juvenile's position would have understood his situation.” Commonwealth v. Ira I., 439 Mass. 805, 814 (2003), quoting Commonwealth v. A Juvenile, 402 Mass. 275, 277 (1988). The four factors traditionally guiding the court's determination are: “(1) the place of the interrogation; (2) whether the investigation has begun to focus on the suspect, including whether there is probable cause to arrest the suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the suspect; and (4) whether, at the time the incriminating statement was made, the suspect 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 the defendant's arrest.” Commonwealth v. Bryant, 390 Mass. 729, 737 (1984). See also Commonwealth v. Sneed, 440 Mass. 216, 220 (2003); Commonwealth v. Ira I., 439 Mass. at 814. No one factor is dispositive of the issue; rather, the question is decided “in light of the totality of the circumstances.” Procunier v. Atchley, 400 U.S. 446, 453 (1971).
In this case, the questioning took place in the Assistant Principal's office at his high school, a formal setting that the defendant clearly would have viewed as custodial. At no time was the defendant told that he was free to leave, and especially where the Assistant Principal summonsed him to that location, a reasonable person in his shoes would not have felt that he could simply walk out of the room or refuse to cooperate. Contrast Commonwealth v. Sneed, 440 Mass. at 221 (questioning took place in defendant's home, and she was free to refuse to admit officers or to ask them to leave). The investigation had begun to focus on the defendant, and in view of the match between the defendant's car and the description provided by witnesses, as well as the physical description of the suspect, the troopers appear to have had probable cause to arrest the defendant. Contrast Commonwealth v. Sparks, 433 Mass. 654, 656-657 (2001) (at the time of the investigation, the defendant was not the focus of the investigation but was one of many people who may have had some contact with the victim). The questioning was aggressive and accusatory. See Commonwealth v. Gallati, 40 Mass. App. Ct. 111, 114-115 (1996). Significantly, the troopers elicited the initial admission through the use of trickery. Johnson falsely told the defendant that they had “fingerprints on the rocks” and “two eye witnesses that described the vehicle and the operator.” He then stated that a person whose window had been broken “could positively identify the person that threw the rock and that [he] planned on showing her [the defendant's] photo.” (Johnson Report of1/22/03, ¶ 4). Again, in view of the setting, the nature of the questioning, and the fact that the defendant was never told he could leave or refuse to cooperate, the defendant would not have felt free to leave. See Commonwealth v. Gil, 393 Mass. 204, 212 (1984). Finally, the fact that the defendant was not arrested at the conclusion of the interview has more to do with the nature of the offense rather than the nature of the questioning.
Where the questioning amounted to a custodial interrogation, the defendant was entitled to the full range of constitutional protections.
B. The Failure To Permit The Defendant To Consult With An “Interested” Adult
Nothing in the report describing the interrogation at the high school or the two subsequent interrogations at the Northbridge or Uxbridge police departments indicates that the defendant was advised of his right to consult with an “interested” adult. In the absence of an opportunity to consult with or have an interested adult present, the questioning was fatally flawed, and the defendant is entitled to suppression of any evidence obtained through such interrogation.
As the Supreme Judicial Court recently noted:
For purposes of establishing a valid waiver [of constitutional rights] by a juvenile under the age of fourteen years, we require the Commonwealth to show "that a parent or an interested adult was present, understood the warnings, and had the opportunity to explain his rights to the juvenile so that the juvenile understands the significance of waiver of these rights." Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983). However, where a juvenile is fourteen years of age or older, the rule is more flexible: "[T]here should ordinarily be a meaningful consultation with the parent, interested adult, or attorney to ensure that the waiver is knowing and intelligent. For a waiver to be valid without such a consultation the circumstances should demonstrate a high degree of intelligence, experience, knowledge, or sophistication on the part of the juvenile." Id. The court later clarified that actual consultation between the juvenile and a parent, interested adult, or attorney was not required, as long as there was a "genuine opportunity" for such consultation. Commonwealth v. MacNeill, 399 Mass. 71, 78 (1987). "It is the juvenile's opportunity to consult that is critical, not whether he avails himself of it." Id. "So long as the juvenile is at least fourteen and has the opportunity for a meaningful consultation, the juvenile may make a valid waiver without actual consultation." Commonwealth v. Berry, 410 Mass. 31, 35 (1991). "[T]he ultimate question is whether the juvenile has understood his rights and the potential consequences of waiving them before talking to the police.
Commonwealth v. Alfonso A., 438 Mass. 372, 380-381 (2003). In this case, no interested adult was present during any of the interrogations. Contrast Commonwealth v. McCra, 427 Mass. 564, 565-566 (1998); Commonwealth v. Hogan, 426 Mass. 424, 430-431 (1998). In order for there to be any genuine consultation between an accused and an interested adult, “the adult who is available to the juvenile must be informed of and understand the juvenile's constitutional rights.” Compare Commonwealth v. Alfonso A., 438 Mass. at 381-382. “That requirement connotes the presence of an adult, or, at the very least, contact between the adult and the police so that the police may inform the adult of those rights.” Id. at 382.
Moreover, nothing in any reports suggests that the police even advised the defendant of his right to contact or consult with an interested adult prior to waiving his constitutional rights. Each of the interrogations is fatally flawed, and the fruits of those interrogations must be suppressed.
C. The Failure To Provide Miranda Warnings Prior To Eliciting Admissions From The Defendant
“When a defendant is in custody, any statement by the defendant elicited by police interrogation is inadmissible unless it is preceded by Miranda warnings.” Commonwealth v. Conkey, 430 Mass. at 144. In this case, as Assistant Principal Beasley will testify, the troopers did not advise the defendant of his Miranda rights until after they had elicited his initial confession. Where, as discussed above, the interrogation was custodial and accusatory, the failure to warn the defendant of his constitutional rights requires that his statements be suppressed. See Id.
D. The Initial Illegality Tainted The Defendant's Subsequent Statements, Notwithstanding The Provision Of Miranda Warnings
Although the troopers provided the defendant with Miranda warnings after his initial confession, the written statement that followed, as well as any additional statements, were obtained in violation of his constitutional rights. In order to determine whether the taint from an illegal interrogation has been eliminated, and, consequently, whether a subsequent statement is admissible, case law in Massachusetts looks more specifically to the effect of the previous confession on the defendant's will. See Commonwealth v. Smith, 412 Mass. 823, 830 (1992) (citations omitted). To be admissible, any statement that follows an illegally obtained admission or confession must be wholly independent of the illegality and not traceable to the initial confession. Id. “Having realized that the suspect had made an incriminating statement without benefit of the Miranda warnings, the police [are] obligated not only to administer the warnings, but also to create a break in the stream of events to insulate any later statement from the taint of the prior illegality.” Id. at 835.
In this case, notwithstanding the provision of Miranda warnings, the written confession and statements to the troopers following the illegal questioning clearly were attributable to the defendant's belief that the cat was already out of the bag. See Id. at 830-831. There was no break in the questioning, and in fact, the defendant would have also believed that his further cooperation was necessary where the troopers had promised to “work it out” without arresting him. That is, even after the provision of Miranda warnings, the defendant would have been operating under the taint of Trooper Johnson's promise, which required his cooperation.
The questioning by officers at the Uxbridge Police Department was similarly tainted. It occurred less than two hours after the questioning by the troopers, it is traceable to information obtained during the troopers' interrogation, and the defendant again would have believed that his cooperation was required to avoid his arrest and to secure the troopers' promise to work things out. Finally, for the same reasons, the interrogation by the Northbridge officers a few days later was fatally flawed.
When the prosecution seeks to use a confession obtained after an earlier one not found to be voluntary, it has the burden of proving not only that the later confession was not itself the product of improper threats or promises or coercive conditions, but also that it was not directly produced by the existence of the earlier confession. See Commonwealth v. Smith, 412 Mass. at 833. In this case, the Commonwealth cannot meet its burden. The defendant is entitled to suppression of all of his written and oral statements, as well as all physical evidence traceable to the unlawful interrogation.
II. Conclusion
Based on the authorities cited and the reasons aforesaid, the defendant requests that his motion to suppress be allowed.
Respectfully submitted,
Derek -------,
By his attorney,