Opinion
21-P-380
04-15-2022
COMMONWEALTH v. ORLANDO O., a juvenile.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The juvenile is charged with armed assault with intent to rob, G. L. c. 265, § 18 (b ), aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (c ) (1), and unlawful possession of a firearm, G. L. c. 269, § 10 (a ). Following an evidentiary hearing, a Juvenile Court judge allowed, in part, the juvenile's motion to suppress statements he made during police interrogation. The judge reasoned that the juvenile invoked his right to remain silent during the interview, and that the police did not scrupulously honor that invocation. Accordingly, the judge suppressed the juvenile's statements made after that point in the interrogation.
In this interlocutory appeal, the Commonwealth principally argues that the suppression order was error because the juvenile did not express a clear desire to end the interview. In a cross appeal, the juvenile argues that all of his statements should have been suppressed because (1) he was subjected to custodial interrogation from the outset of the interview, (2) he was not afforded the opportunity to consult with an interested adult, and (3) his statements were not voluntary. We reverse the order insofar as it suppressed the juvenile's statements between 8:11 P.M. and 8:30.58 P.M. Otherwise, we affirm.
Background. The following facts are drawn from the judge's findings, from undisputed facts in the record that she implicitly credited, and from the video recordings (video) of the defendant's interview, which we have independently reviewed. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018) ; Commonwealth v. Jones-Pannell, 472 Mass. 429, 436 (2015). On October 5, 2019, a shooting occurred inside a parked vehicle on Main Street in Brockton, resulting in a gunshot wound to the victim's head. As part of the investigation, Massachusetts State Police and the Brockton Police sought to interview everyone who attended a party at a nearby residence that evening, including the juvenile.
On October 7, 2019, the police learned that the juvenile, then seventeen years old, was attending night school at Brockton High School. A State Police trooper drove to the school and asked that the juvenile be brought to the administrative office. The juvenile's parents were contacted, and the defendant's father agreed to come to the school and to drive the juvenile to the Brockton Police station to be interviewed. The father and the juvenile drove to the police station in the father's car and met the trooper there. They entered together through a side door and went to an interview room in the detectives’ office. The juvenile was not handcuffed or otherwise restrained. Two police officers were in the interview room with the juvenile and his father. The officers advised the juvenile of his Miranda rights by reading from a form which was then given to the juvenile. Without further inquiry or consultation, the juvenile and his father signed the form at 6:42 P.M. and the juvenile agreed to speak to the officers. Between 6:42 and 8:04, the juvenile responded to questions regarding the party, how and when he arrived at the party, who was present, and his relationship with the victim of the shooting, who the juvenile described as his marijuana source. The juvenile denied knowing anything about the shooting. We reserve details regarding the remainder of the interrogation for our discussion below.
It appears from the video that the interviewers included a trooper and a Brockton police officer. We refer to them both as officers.
Like the parties, we use the times that appear on the video rather than the actual times. The discrepancy is not material to the issues before us.
Discussion. We review the judge's decision under familiar standards. We accept the judge's factual findings unless they are clearly erroneous. See Commonwealth v. Welch, 420 Mass. 646, 651 (1995). We defer to the judge's assessment of the credibility of the testimony taken at the evidentiary hearing on the motion to suppress, see Commonwealth v. Scott, 440 Mass. 642, 646 (2004), but we are in the same position as the motion judge in reviewing the surveillance video, and therefore make our own determination as to the weight of that evidence. See Commonwealth v. Novo, 442 Mass. 262, 266 (2004). We "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
Custodial interrogation. It is well settled that the safeguards of Miranda apply only when a defendant is subject to custodial interrogation, Commonwealth v. Jung, 420 Mass. 675, 688 (1995), and it is the defendant's burden to prove custody. Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). Here, the judge concluded that the juvenile was not in custody for Miranda purposes until 8:04 P.M. when the juvenile attempted to leave the interview room with his father and the police told him to just "hang tight" and wait in the interview room. The Commonwealth and the juvenile each claim error in that conclusion. According to the Commonwealth, the juvenile failed to establish that at 8:04 P.M. his movement was restrained to the degree associated with a formal arrest. See Commonwealth v. Morse, 427 Mass. 117, 123 (1998). The juvenile counters that he was in custody from the very beginning of the interview because a reasonable Black juvenile would have felt compelled to come to the police station and answer questions.
In determining whether the defendant was in custody for Miranda purposes, we consider "(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal ...; and (4) whether ... the person was free to end the interview." Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). Applying these criteria to the facts in this case, including the juvenile's age, see J.D.B. v. North Carolina, 564 U.S. 261, 277 (2011) ; Commonwealth v. Quinones, 95 Mass. App. Ct. 156, 160 (2019), we discern no error in the judge's conclusion that the juvenile was not subject to custodial interrogation until 8:04 P.M. First, there was no questioning at the school, and the juvenile and his father voluntarily travelled to the police station unaccompanied by the police. Although the interview took place in a small interview room, the officers did not suggest to the juvenile that he was a suspect. Rather, the officers explained that they were speaking with everyone who attended the party as part of their investigation. The tone of the questioning was conversational, and the juvenile was advised that he could end the interview at any time.
We agree with the judge that circumstances changed at 8:04 P.M. when the juvenile's father left the interview to retrieve his cell phone charger. Although the officers suspended the interview, they did not allow the juvenile to leave the interview room with his father when the juvenile expressed a desire to do so. When the juvenile asked, "Do I have to [stay in the interview room]," the police responded, "Just hang tight" and "he'll be right back." The juvenile then sat alone in the interview room for approximately seven minutes. Considering the totality of these circumstances, we discern no error in the judge's conclusion that a reasonable juvenile would have believed that, as of that moment, his freedom had been restrained to the degree associated with an arrest. See Commonwealth v. Sneed, 440 Mass. 216, 220 (2003) (custody determination based on objective circumstances not subjective views of the interrogating officers); Morse, 427 Mass. at 123.
The questioning at 8:03 p.m. was focused on the time that the juvenile arrived at the party. The juvenile did not have a cell phone, but he was able to use his father's cell phone to log in to his Snapchat account to retrieve the time and content of messages he sent and received on the night of the shooting. It appears from the video that the father's cell phone lost power during that process and he agreed to go to his car to get his cell phone charger to facilitate the interview.
Interested adult rule. For a juvenile over the age of fourteen to validly waive his Miranda rights, the juvenile must have a "genuine opportunity" to consult with an interested adult prior to the waiver. See Commonwealth v. Fernandes, 487 Mass. 770, 786-787 (2021), cert. denied, 142 S.Ct. 831 (2022) ; Commonwealth v. Alfonso A., 438 Mass. 372, 384 (2003). It is not necessary that the juvenile actually consult with the interested adult as long as there is a genuine opportunity. See Commonwealth v. Berry, 410 Mass. 31, 35 (1991). This requirement is generally satisfied if the juvenile's parent is present for the recitation of the Miranda warnings and subsequent questioning. See Commonwealth v. Guthrie, 66 Mass. App. Ct. 414, 420 (2006), S.C., 449 Mass. 1028 (2007). Here, the judge's finding that the juvenile "had the benefit of an interested adult" before waiving his Miranda rights was well supported by the record. The juvenile and his father drove to the police station together after having been contacted by the troopers. The juvenile's father was present for the administration of the Miranda warnings, signed the waiver form with his son, and remained present during the interrogation. "[T]he fact that the officers commenced the interrogation immediately after reading the juvenile and his [father] the Miranda rights, without leaving the room or offering the juvenile the opportunity to confer, is without legal significance." Commonwealth v. Pacheco, 87 Mass. App. Ct. 286, 291 (2015). The presence of the juvenile's father before and at the time of the administration of the Miranda warnings was sufficient to satisfy the interested adult rule. Id. ,
The juvenile's claim that he did not understand that he could confer with his father about the Miranda warnings is not supported by the record. The juvenile and his father were both familiar with the Miranda warnings because the juvenile had been interviewed with his father on March 27, 2019, regarding an earlier and unrelated homicide. On that occasion he was given an opportunity to speak privately with his father regarding his Miranda rights.
The juvenile makes no argument concerning the application of Miranda or the interested adult rule at the time the interview turned from consensual to custodial.
We decline the juvenile's invitation to adopt a new rule requiring that juveniles over the age of fourteen actually consult with an interested adult before waiving the Miranda rights. The "Appeals Court has ‘no power to alter, overrule or decline to follow the holding of cases the Supreme Judicial Court has decided.’ " Commonwealth v. Vasquez, 456 Mass. 350, 357 (2010), quoting Commonwealth v. Dube, 59 Mass. App. Ct. 476, 485-486 (2003). See also Pacheco, 87 Mass. App. Ct. at 294 (Cohen, J., concurring).
Invocation of right to remain silent. The Commonwealth argues that the judge erred in concluding that the juvenile invoked his right to remain silent during the interview. "[I]f a defendant has waived his or her Miranda warnings and later wishes to remain silent, the invocation of that right must be clear and unambiguous[ ], such that a reasonable police officer in the circumstances would understand the statement to be an invocation of the Miranda right" (quotations omitted). Commonwealth v. Smith, 473 Mass. 798, 808 (2016). If the defendant does not express a clear and unequivocal desire to end the interview, it will not be deemed an invocation. See Commonwealth v. Leahy, 445 Mass. 481, 488-489 (2005) ("Not right now, in a minute. I need to figure some things out" was not an unequivocal invocation). It was the juvenile's burden to establish that the invocation of his right to remain silent was clear and unequivocal, Smith, supra at 809, and we make that determination based on the totality of circumstances. See Commonwealth v. Almonte, 444 Mass. 511, 519, cert. denied, 546 U.S. 1040 (2005) ("I believe I've answered, I've said what I have to say" not clear and unequivocal invocation).
Here, the juvenile argues, and the judge found, that the juvenile first invoked his right to remain silent at 8:11 P.M. At that point, the juvenile was sitting alone in the interview room waiting for his father to return with his cell phone charger. The juvenile stood up, grabbed his drink and his father's cell phone, opened the door of the interview room, and told the officers that he wanted to see his father. The officers told him to wait in the interview room. When the juvenile said, "You guys told me I could leave anytime," the officers told him that he could not leave without an escort.
The judge found that the juvenile's statement, "You guys told me I could leave anytime," was a clear invocation of his right to end the interview and remain silent. We disagree. We consider the defendant's statement "in the context of his willingness to talk both immediately prior to and subsequent to the break." Commonwealth v. Pennellatore, 392 Mass. 382, 387 (1984). Here, the juvenile waived his right to remain silent and spoke freely with the officers for over an hour. At the point of the questioned statement, the juvenile and his father had consented to the officers using the father's cell phone to access the juvenile's Snapchat account and the father agreed to go to his car to retrieve his cell phone charger to facilitate that process. At 8:13 P.M. the juvenile's father reentered the interview room, plugged his cell phone into the charger, and spoke privately with the juvenile in another language. At 8:14 P.M. the officers reentered the interview room and the interview continued. Neither the juvenile nor his father expressed any hesitation or reluctance to continue answering the officers’ questions.
Considering the totality of these circumstances, we are not persuaded that the juvenile met his burden to show that he expressed a clear and unequivocal desire to end the interview. While he clearly stated a desire to leave the interview room temporarily with his father, that is not the equivalent of invoking his right to remain silent. In the circumstances here, where the juvenile and his father had cooperated fully in accessing information from the father's cell phone, the father returned moments later and began to recharge his cell phone for the purpose of continuing the interview, and the interview continued immediately thereafter, we cannot conclude that a reasonable police officer would have understood the juvenile's statement to have been a clear and unequivocal invocation of his right to remain silent.
Circumstances changed again at 8:30 P.M. when the officers asked the juvenile if they would see him on video surveillance on Main Street on the night of the shooting. After initially denying that he was on Main Street on the night of the shooting, the juvenile bowed his head and nodded. The juvenile's father then interjected, "Did you have anything to do with this?" and the juvenile nodded a second time. The father immediately stood and said, "We done." After the troopers asked if it was an accident, the juvenile nodded a third time, at which point the father said, "I gotta go," and the juvenile stood and said, "I'm going with him." Based on the totality of these circumstances we are persuaded that a reasonable police officer would have understood the juvenile's statements and actions as a clear invocation of the juvenile's right to terminate the interview. Because the officers did not "scrupulously honor" the invocation by terminating all questioning, all statements made by the juvenile after he stood and said, "I'm going with him" at 8:30.58 P.M. on the video, were properly suppressed. Commonwealth v. Clarke, 461 Mass. 336, 353 (2012).
For the first time on appeal, the Commonwealth argues that the Miranda rule does not apply to the juvenile's admissions between 8:31 P.M. and 8:34 P.M. because they were spontaneous and not in response to police interrogation. We are not persuaded. The statements came after nearly two hours of interrogation regarding the shooting on Main Street two days earlier. The juvenile's inculpatory statements beginning at 8:31 P.M. , although not directly responsive to specific questions, were clearly prompted by the officers’ inquiry about the surveillance video. Put another way, we are satisfied that the juvenile's inculpatory statements were provoked "by direct questioning" rather than spontaneously volunteered. Commonwealth v. Dixon, 79 Mass. App. Ct. 701, 707 (2011).
Voluntariness. The juvenile separately challenges the voluntariness of his statements. "In determining whether a statement was made voluntarily, in compliance with due process of law, we examine whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act." Commonwealth v. Selby, 420 Mass. 656, 662-663 (1995). Specifically, we consider "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 ..., the details of the interrogation, including the recitation of Miranda warnings." Commonwealth v. Mandile, 397 Mass. 410, 413 (1986). "Once a defendant has presented evidence that the statements at issue were made involuntarily, the burden is on the Commonwealth to prove beyond a reasonable doubt that the statements were made voluntarily." Selby, supra at 663. Based upon our independent review of the videotaped interrogation, we are not persuaded by the juvenile's argument that the police engaged in coercive tactics that rendered his statements involuntary. Despite the fact that he was seventeen years old, the juvenile appeared intelligent, calm, and composed through most of the interview. The officers made no offers of leniency, and we agree with the judge that "both officers remained professional and polite at all times." Simply put, the record does not support the juvenile's claim that his will was overborne.
The juvenile also argues that his race (he describes himself as Black) contributed to the involuntary nature of his statements. This argument was not raised in the Juvenile Court and the judge heard no evidence regarding the impact of the defendant's race on the voluntariness of his statements. Accordingly, we need not address the claim. See Commonwealth v. Yasin, 483 Mass. 343, 349 (2019), quoting Commonwealth v. Bettencourt, 447 Mass. 631, 633 (2006). Were we to reach the argument, consideration of the juvenile's race would not change our conclusion that, based on the record before us, the statements were voluntary.
Conclusion. The order on the motion to suppress is reversed insofar as it suppressed the juvenile's statements between 8:11 P.M. and 8:30.58 P.M. Otherwise the order is affirmed.
So ordered.
affirmed in part; reversed in part