Opinion
No. 00-00224
April, 2001
FINDINGS OF FACT, RULINGS OF LAW, AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS
The defendant, Brian Auclair, moves to suppress statements that he gave to Lowell Police Officers, the Massachusetts State Police and the New Hampshire State Police. Mr. Auclair maintains that he did not knowingly and voluntarily waive his Miranda rights at the time of the custodial interrogations. In addition, Mr. Auclair claims that his statements were not voluntary. An extensive hearing on this motion was held April 2-3, 2001. At the hearing, the court heard testimonial evidence from a number of police officers and two expert witnesses. After evaluation of the evidence presented and review of the applicable law, for the following reasons, Mr. Auclair's motion is DENIED.
FINDINGS OF FACT
Based on all of the credible evidence, this court makes the following findings of fact:
1. On December 24, 1999, at approximately 7:15 p.m., the defendant Brian Auclair ("Auclair") arrived with his girlfriend, Rachel Woodson ("Woodson") and her three-month-old daughter, Klarise Cadorette ("Klarise"), at a Christmas party held at 87 Third Street, Lowell Massachusetts, the home of Auclair's mother and step father, Bernett and Gordon Joslin.
2. At approximately 7:45 p.m., Auclair left the party to buy beer and wine coolers at Manning's Package Store with his cousin, Clifton Durant, Christine Joslin and George Vasquez.
3. Some time after Auclair returned to the party, Woodson put Klarise to bed on Bernett Joslin's bed located in an upstairs bedroom. When the baby began to cry, Woodson went back upstairs, carried Klarise downstairs, and fed her. Auclair held the baby until she fell asleep in his arms.
4. At some point later in the evening, Auclair carried Klarise back upstairs to his mother's room.
5. At approximately 12:45 a.m. on December 25, 1999, Auclair and Woodson decided to leave the party. Auclair's sister, Tammy Auclair ("Tammy"), went upstairs to get Klarise.
6. Shortly thereafter, Tammy rushed back downstairs with Klarise in her arms, ran into the living room, and placed Klarise on the floor. Klarise's right eyelid was black and blue, the inside of her ear had black discoloration, and the area around her ear was slightly swollen. An unidentified person called 911 and an ambulance was dispatched.
7. At approximately 3:10 a.m., on December 25, 1999, the Lowell Police Department received a phone call concerning the incident at 87 Third Street. As a result of the serious injuries Klarise sustained, the Lowell Police Department and the Massachusetts State Police began conducting an investigation. Among the Lowell Police Officers assigned to the case were Detective John Guilfolyle ("Guilfoyle"), lead investigator Detective Christopher Finneral ("Finneral"), and supervisor of the investigation, Detective Sergeant James McPadden ("McPadden"). The police planned to interview everyone who was present at the party.
8. The police arrived at 87 Third Street at approximately 4:30 a.m. on December 25, 1999. At that time, Guilfoyle noticed that Auclair was resting on the couch. No one from the police department interviewed Auclair.
9. On December 25, 1999, at approximately 11:25 a.m., Guilfolyle and State Trooper Lisa Butner ("Butner") returned to 87 Third Street to take pictures of the upstairs bedrooms. At Guilfolyle's request, Auclair agreed to go down to the Lowell Police Department for an interview.
10. Guilfolyle and Butner waited to escort Auclair to the station in an unmarked police cruiser outside the residence. After approximately one minute, Auclair came out of the residence and got into the police cruiser parked outside the residence. He appeared to have been crying.
11. During the ride to the Lowell Police Department, which lasted about five minutes, Auclair and the officers engaged in conversation, but did not discuss any facts surrounding Klarise's injuries.
12. Upon arriving at the Police Department, Guilfolyle and Butner escorted Auclair into an interview room in the Criminal Investigation Bureau.
13. The interview room is approximately eight feet by eleven feet, and contains a table surrounded by 3-4 chairs and a window.
14. Both Guilfolyle and Butner, who conducted the interview, were dressed in plain clothes, had their police badges displayed, and were carrying their weapons.
15. Guilfolyle gave Auclair a standard Lowell Police Department Miranda card and asked him to read the card aloud. The card stated that he had the right to remain silent, that anything said could be used against him in court, that he had the right to a lawyer, that he had a right to have a lawyer present during questioning, that if he could not afford a lawyer, one would be appointed before questioning, and that if he decided to answer questions without a lawyer present, he would still have the right to stop questioning at any time until he talks to a lawyer.
16. Auclair expressed no difficulty understanding these instructions, and slowly read the Miranda warning aloud.
17. At Guilfolyle's request, Auclair placed his initials next to the question on the card that states, "Having these rights in mind, do you wish to talk to me now?" After Guilfolyle dated the card "12:25 99 11:48 a.m.," both he and Auclair signed the card, and Butner witnessed the card with her signature.
Throughout this entire process, Guilfolyle did not have any trouble understanding Auclair, nor did Auclair express any difficulty in understanding the questions posed to him.
19. Guilfoyle began the interview by asking Auclair background questions including his age and occupation. Auclair responded that he was born in July 1977, that he lived in a basement apartment at 32 Varney Street, that he was employed as a mover at Troy's Moving and Storage, that he had completed the eleventh grade at Lowell High School, and that he was not under the influence of alcohol, medication or controlled substance.
At the time of the interview, Auclair was 22 years of age, was living independently, and was capable of maintaining gainful employment.
21. Guilfoyle explained to Auclair that he and Butner had been to the hospital, and that Klarise was in very serious condition. Guilfoyle indicated that it was time for Auclair to tell the police if Klarise had been dropped or hurt in some way.
22. Auclair responded that he went to the party with Woodson at approximately 7:15 p.m.; that Woodson put Klarise to bed upstairs in Auclair's mother's bedroom at about 8:30 p.m., and that Klarise had woken up about 45 minutes later. Thereafter, Klarise was fed, and Auclair took her and held her until she fell back asleep in his arms. Auclair then carried Klarise back upstairs, placed her on his mother's bed, and placed a pillow on either side of her to prevent her from rolling off the bed. Auclair then left the room and closed the door behind him. Shortly before 11:00 p.m., Auclair checked on Klarise. The next time he saw Klarise was around 12:45 a.m., when his sister Tammy rushed down the stairs holding Klarise in her arms. At that time, Auclair noticed that the inside of Klarise's right ear was black, and that her eyelid was black. According to Auclair, Klarise would not have gotten those injuries from being dropped. Rather, she must have "been hit or something."
23. Auclair's oral statement lasted approximately one hour. At times Auclair seemed upset, but he did not cry openly during the interview.
The police did not ask Auclair how many hours he had been awake.
25. After Auclair gave his oral statement, he consented to Guilfoyle reducing the statement to writing. Using a standard Lowell Police form, at approximately 12:47 p.m., Guilfoyle composed a written statement and gave it to Auclair to read. Auclair slowly read the statement aloud, made two corrections to the statement, and initialed those changes.
26. Auclair expressed his concern that additional information could be added to his statement and asked for a copy of the statement. Guilfoyle responded that he could not give Auclair a copy, and that Auclair would have to go through the District Attorney's Office to obtain a copy. Guilfoyle then placed a large "X" on the remaining blank space of the second page in an effort to assure Auclair that no additional information would be added to his statement.
27. The written statement took approximately one hour to complete. Thus, the entire interview lasted approximately 2-2 ½ hours.
28. After the interview, Guilfoyle drove Auclair back to his mother's residence at 87 Third Street. Klarise's injuries were not discussed during the trip.
29. As a result of the injuries she sustained on December 24, 1999, Klarise died on December 26, 1999.
30. At some time prior to December 28, 1999, both Tammy and Auclair agreed to take a polygraph examination.
31. By December 28, 1999, the police were interested in re-interviewing Tammy and Auclair because during the course of the investigation, it became clear that they were the last two persons to see Klarise before she was injured.
On December 28, 1999, at approximately 4:00 p.m, McPadden and Detective Wayne ("Wayne") went to Auclair's apartment to see if he was willing to go to the Lowell District Attorney's Office for a further interview.
At approximately the same time, Finneral went to pick up Tammy for a second interview.
When they arrived at 32 Varney Street, the officers were directed to Auclair's apartment door by Auclair's boss/ landlord. The officers, who were both in plain clothes, armed, and displaying their badges, knocked on the door, identified themselves, and asked Auclair if he would go with them to the District Attorney's Office for another interview. Auclair obliged and walked to the unmarked cruiser, where he sat alone in the backseat. That particular cruiser did not have a cage or barrier between the rear and front seats.
35. During the car ride, which lasted approximately 5-10 minutes, Auclair and the officers were engaging in a conversation unrelated to Klarise's death when Auclair began speaking about Klarise. Auclair first stated that he had not been sleeping since the incident, that he had high anxiety, and that he was suffering from hot flashes. Auclair further stated that there was talk among the partygoers about who had hurt Klarise, and that some people believed that George Vasquez ("Vasquez"), Tammy's boyfriend, was the likely culprit. McPadden then asked why others thought Vasquez was to blame, and Auclair responded that Vasquez had been drinking and disappeared for some time during the party. McPadden then asked Auclair who he thought was responsible for hurting Klarise. Auclair shifted around nervously in his seat and said that he believed Vasquez hurt Klarise, for the same reasons he previously stated.
36. When they arrived at the Lowell District Attorney's Office, McPadden escorted Auclair to meet Finneral in the hallway.
37. Unbeknownst to Auclair, the police had arranged for New Hampshire State Trooper Russell S. Conte ("Conte") to be present at the District Attorney's Office to administer a polygraph test.
38. When Finneral met him in the hallway, Finneral reminded Auclair that he had previously stated that he would be willing to take a polygraph test, and indicated that the police were ready to give him the test that day. Auclair agreed and was taken another room where he was introduced to Conte.
39. At this time, Tammy was in a conference room further down the hall waiting to be interviewed for a second time.
40. Conte, who was alone with Auclair in the room, informed Auclair as to how the test worked, indicated that the pre-test and test would last for approximately 3 hours, and administered Miranda warnings. The test began sometime between 4:00 and 5:00 p.m.
41. A number of officers and assistant district attorneys, including at times Finneral, watched behind a two-way mirror as Conte administered the test to Auclair. When it became evident that the test was going to take a long period of time, Finneral drove Tammy home and told her that it would be some time before she could be interviewed.
42. On December 28, 1999, the Medical Examiner, after conducting an autopsy, ruled Klarise's death a homicide.
43. After the test was completed and the results were scored, Conte went back into the conference room and told Auclair the results. Conte did not re-administer Miranda warnings at this time. When Conte stated to Auclair that he did not believe that Auclair was being truthful, Auclair broke down and cried. Auclair also stated that he did not mean to hurt Klarise and that her injuries were the result of an accident.
44. Auclair agreed to speak to the police again, and at approximately 8:00 p.m., Conte brought Auclair into another conference room.
45. Shortly thereafter, Trooper Edward Forster ("Forster"), the lead investigator for the Massachusetts State Police, and Finneral entered the conference room to begin questioning Auclair. Although Auclair was noticeably upset, he was conversing clearly.
46. The interview began at 8:13 p.m. and was recorded. Finneral gave Auclair his Miranda rights by reading them from a card. Finneral told Auclair that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to talk to a lawyer during questioning, and that if he decided to answer questions without a lawyer present, he still had the right to stop questioning at any time until he spoke to a lawyer.
47. When Finneral asked Auclair if he understood his rights, Auclair responded "Yes." Similarly, when Finneral asked, "Having these rights in mind, do yo still wish to talk to me now?" Auclair responded "Yes." At Finneral's request, Auclair placed his initial on the Miranda card next to these two questions and signed the bottom.
48. The police had some difficulty with the tape recorder, which was initially set on voice activation. As a result, Finneral gave Auclair his Miranda warnings a second time by repeating the process described above.
49. Auclair then related what happened the night Klarise was injured. According to Auclair, at approximately 11:00-11:30 p.m. on December 24, 1999, in an effort to give his girlfriend Rachel a "break," he carried Klarise upstairs to his mother's bedroom to put her to sleep. Although he had been drinking liquor that night, Auclair indicated that he thought he was "fine." When he walked into his mother's room, Auclair tripped and fell on the rug, and Klarise's head struck the sideboard of his mother's bed. Auclair mimicked this action by holding out his hands in front of him and falling to one knee. Klarise started to cry, so Auclair started rocking and bouncing her. Auclair then put a binky in her mouth and laid her down on the bed. Auclair told the police that he had no prior problems with Klarise.
50. Auclair was emotional during the interview. At times he seemed relieved, stating, "I'm happy I'm saying it now," "I mean, the truth is out now. There's no — you know, there's no covering up for nothing now, you know?"
Towards the end of the interview, Finneral asked Auclair if he was under the influence of alcohol, if he was taking any medication, and if he completed high school. Auclair responded that he was not under the influence of any substance, had gone as far as 11th grade, and did not have a G.E.D.
52. When Finneral asked Auclair if he understood everything the police were talking to him about that night, Auclair responded "Basically, yes. Yeah." Finneral then stated, "`Basically,' What haven't you understood, so we can talk about it." Auclair responded, "I don't — I don't — . . . It's not — Actually, yeah. I don't know, I just meant basically. I don't know. I just — I don't even know how to put my words. I'm just so lost." Finneral then asked, "so, you've understood everything we've said so far?" Auclair responded, "I — I have. I understood all the rights you told me." Auclair further indicated that he was being truthful and would be willing to take another lie detector test.
53. The interview concluded at 8:37 p.m. At that time, Finneral and Forster left to discuss Auclair's statement.
54. At 8:42 p.m., Finneral and Forster went back into the conference room to continue the interview. That interview was also recorded.
Finneral explained to Auclair that the officers had a few remaining questions. Finneral asked Auclair if he was given Miranda rights and if he signed a Miranda card that night. Auclair responded "Yes." When Finneral asked if he understood those rights, Auclair responded "I understand those rights. I signed them away."
56. When Forster explained that the results from Klarise's autopsy indicated that she had several old rib fractures inflicted prior to December 24, 1999, Auclair denied hurting or shaking Klarise on any prior occasion. When Finneral asked him to explain how the fractures got there, Auclair stated in part, "I ain't pointing fingers at nobody, but Rachel used to say, `I'm going to slap you,' or `I just feel like shaking you up,' or `I'm gonna leave you on a doorstep,'. . . I don't know if any of that has to do with it."
57. Auclair appeared frustrated during this interview. He stated that he was unsure as to whether Tammy had been upstairs when he put Klarise to bed. He also stated that he tripped on the rug often, and that he "might have been buzzed."
58. The interview concluded at 8:46 p.m.
59. At approximately 8:50 p.m, Auclair was allowed to call his mother's house. Finneral, who was standing in the hallway outside the conference room, overheard Auclair speaking to his sister Tammy on the telephone. Finneral also heard the voice of someone on the other end yelling. Auclair was very upset and yelled back, "I did it, I did it, I did it, I killed her."
60. At approximately 9:08 p.m., Finneral and Trooper Alan Hunte ("Hunte") began a third interview with Auclair. That interview was also recorded.
After explaining that the officers had a few remaining questions about some discrepancies in Auclair's previous statements, Hunte said to Auclair, "You understand that you've been advised of your rights, you understand your rights, and you still understand all of your Miranda waivers?" Auclair responded "Yeah."
62. Hunte informed Auclair that he had attended Klarise's autopsy earlier that day. He explained that the amount of force required to cause Klarise's injuries was severe, and that the injuries could not have been caused by the accident that Auclair described. When Hunte told Auclair that he did not believe that Klarise was killed in the way that Auclair described, Auclair responded, "Well, that's the way I'm telling you, and if you don't believe that, you can do whatever you want and go proceed with it. I'm not trying to make this any harder. It's hard on me as it is. That's my story. I'll get a lawyer. That's my story."
63. Finneral then stated to Auclair that according to the autopsy results, because the trauma to Klarise's head was so severe, she was instantaneously knocked unconscious. Auclair then stated that Klarise had cried and that his niece Sasha had asked him if Klarise was going to be alright. When Hunte asked Auclair if his niece had heard Klarise cry, he responded "Yes." Hunte then stated, "You're totally being honest with me now right now." Auclair replied that he was, and that he would be willing to "take another one of those tests."
64. The interview ended at approximately 9:15 p.m. At that time, Auclair was handcuffed and arrested and brought to the Lowell Police Station.
65. Later that evening, at approximately 10:40 p.m., Finneral and McPadden went to the cell block area of the Lowell Police Department to interview Auclair. The officers gave Auclair Miranda warnings by reading him a Miranda card and having him sign the card. They showed Auclair a picture of his mother's bedroom that included his mother's bed. They asked him to indicate on the picture where Klarise's head had struck the bed. Auclair indicated that her head struck the bed somewhere along the side of the bed.
66. At the motion hearing, Dr. Robert S. Ebert, a board certified forensic psychologist, was called as a witness for Auclair. Dr. Ebert conducted a 2 ½ hour interview with Auclair on August 15, 2000. Based on this interview, the results of a number of psychological and personality tests administered to Auclair, and a review of the interview tapes, he opined that Auclair is competent to stand trial and was capable of being criminally responsible. It is his opinion, however, that Auclair may suffer from borderline personality disorder. According to Dr. Ebert, this disorder can rise to the level of a mental illness in a highly pressured or unstructured setting. Because of Auclair's mental state, Dr. Ebert has some "questions" as to whether Auclair had the ability to voluntarily waive his Miranda rights on December 28, 1999. In his opinion, Auclair's behavior at times during the interview was questionable, and Auclair appeared to be preoccupied with admitting guilt. According to Dr. Ebert, Auclair may have been confused during questioning, and rather than telling the truth, Auclair may have said what he believed the police wanted to hear. Dr. Ebert characterized Auclair's I.Q. score of 82 as being "low average/ dull normal." On cross-examination, Dr. Ebert acknowledged that Auclair (1) understood the consequences of speaking to the police, (2) denied any intentional wrongdoing, and (3) "stuck with his story," some indication that Auclair's will was not overborne by the police.
67. At the motion hearing, the court also heard testimony from the Commonwealth's expert witness, Dr. Malcolm Rogers, who conducted a 1 ½ hour interview with Auclair on January 12, 2001. Based on this interview, and a review a number of documents including the interview tapes and police reports, Dr. Rogers concluded that Auclair does not suffer from a major mental disorder and had the capacity to knowingly and voluntarily waive his Miranda rights on December 28, 1999. In his opinion, Auclair demonstrated that he has adequate cognitive capacity when he resisted pressure and consistently refused to change his story. He opined that Auclair was not likely to simply say what someone wanted him to say. Dr. Rogers was also of the opinion that Auclair was "looking for a way to get the truth out" because he was uncomfortable with pressure being applied to other suspects. He also testified that the police interview "provided the setting" for Auclair to "tell what he wanted to tell." According to Dr. Rogers, although Auclair may have had problems with interpersonal relationships in the past, particularly during his childhood, as he matured, Auclair began "pulling his life together" and his relationships with his family improved. Dr. Rogers characterized Auclair's I.Q. score of 82 as falling on "the low side of normal." On cross-examination, Dr. Rogers acknowledged that Auclair had "internal pressure" to say what happened, but opined that did not mean he did not understand his Miranda rights. Dr. Rogers further testified that Auclair "made the judgment" to make his statements.
68. After carefully weighing all of the evidence including the testimony of Dr. Ebert and Dr. Rogers as to Auclair's mental condition, the court credits Dr. Roger's opinion and concludes that Auclair knowingly and intelligently waived his Miranda rights, and voluntarily made the statements at issue.
RULINGS OF LAW
Auclair argues that the court should suppress the statements he gave to the police on the grounds that they were not made voluntarily and were not made after a knowing, intelligent and voluntary waiver of hisMiranda rights.
Miranda warnings must be given when an individual is subjected to custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Custodial interrogation is defined as: (1) questioning, (2) initiated by law enforcement officers, (3) after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.Id. The court must consider factors such as the place of interrogation, whether the investigation has begun to focus on the suspect, the nature of the interrogation, including whether the interview was aggressive, and whether at the time the incriminatory statement was made, the suspect was free to end the interview by leaving or asking the interrogator to leave, as evidenced by whether the interview terminated with the defendant's arrest. See Commonwealth v. Buckley, 410 Mass. 209, 217 (1984), Commonwealth v. Bryant, 390 Mass. 729, 737 (1984). UnderMiranda, an individual in a custodial situation must be informed prior to questioning that he has a right to remain silent, that any statement he does make may be used against him, and that he has a right to the presence of an attorney, either retained or appointed. Miranda, 384 U.S. at 444.
After being advised of the Miranda warnings, the suspect may waive hisMiranda rights either expressly or impliedly. An express statement by the suspect that he is willing to waive his right to remain silent and to have counsel present, followed closely by a confession or declaration of guilt, may give rise to a presumption of a valid wavier. Id. at 475. IfMiranda warnings are waived by the defendant, the court must then consider (1) whether the defendant made a voluntary, knowing, and intelligent wavier of his Miranda rights, and (2) whether the defendant made the statements voluntarily without being intimidated or coerced. SeeCommonwealth v. Williams, 388 Mass. 846 (1983); Commonwealth v. Tavares, 385 Mass. 140, 144 (1982).
The Commonwealth bears the burden of proving the validity of a Miranda waiver beyond a reasonable doubt. Commonwealth v. Edwards, 420 Mass. 666, 669 (1995). In determining whether a waiver was made voluntarily, the court must examine the totality of the circumstances surrounding the making of the waiver. Id.
The Commonwealth also bears the burden of proving beyond a reasonable doubt that the defendant's statements were made voluntarily.Commonwealth v. Jackson, 432 Mass. 82, 85 (2000). In examining the voluntariness of the statement, the court examines the totality of the circumstances to determine whether it was the product of a rational intellect and free will. See Tavares, 385 at 145. Although the voluntariness of a Miranda waiver and the voluntariness of a statement are separate and distinct inquires, the "totality of the circumstances" test under each analysis is the same. See Commonwealth v. Medeiros, 395 Mass. 336, 343 (1985);. Edwards, 420 Mass. at 673. Relevant factors to consider include the defendant's age, intelligence, education, physical and mental condition, details of the interrogation, recitation ofMiranda warnings, the experience of the accused with the criminal justice system, and whether any promises or inducements were made to obtain cooperation. See Commonwealth v. Mandile, 397 Mass. 410, 413 (1986).
I. Oral and Written Statements, December 25, 1999 and Car Ride Statements, December 28, 1999
In the present case, the court finds that Auclair was not in police custody until the moment on December 28, 1999 in which he discussed the results of his polygraph test with Conte. Thus, there was no custodial interrogation, and no Miranda warnings were required, on either December 25, 1999, when Auclair gave an oral and written statement to Lowell Police, or on December 28, 1999, when Auclair made statements concerning Klarise's death as he was driven by police in a cruiser to the Lowell District Attorney's Office.
The December 25 interview occurred after Auclair voluntarily accompanied officers to the police station. See Buckley, 410 Mass. at 217;Hunt, 392 Mass. at 35. That interview was conducted as part of an on-going investigation of all partygoers. See Bryant, 390 Mass. at 738. Auclair was not a suspect at the time of his initial interview, and became so only after the autopsy results, coupled with Auclair's polygraph results, suggested that he was lying about the way Klarise's injuries were inflicted. Buckley 410 Mass. at 217. Auclair's leaving the station when the interview concluded supports the position that he was free to leave. Id. The fact that the police commenced the interview with Miranda warnings did not make the situation custodial. Bryant, 390 Mass. at 737 n. 8. Rather, the Miranda warnings "may be understood as a step out of abundant caution to counteract any coercive element inherent in an interview at a police station." Medeiros, 395 Mass. at 346.
Alternatively, even if Auclair's initial police interview was custodial, as discussed infra, the court finds that Auclair knowingly, intelligently and voluntarily waived his Miranda rights, and that the statements were made voluntarily.
The conversation that Auclair had with the police in which he made statements concerning Klarise's injuries as they drove him to the Lowell District Attorney's Office on December 28, 1999, was also non-custodial. Although at that time the police investigation was focused more closely on Auclair, he was not the exclusive suspect. See Bryant, 390 Mass. at 738. While Auclair was being transported to the District Attorney's Office for a polygraph exam, so too was Tammy. Auclair voluntarily accompanied the police to the District Attorney's Office and sat unrestrained in the back seat of the cruiser, which did not have a barrier between the front and back seat. Moreover, that conversation was initiated by Auclair. Under these circumstances, the court finds that when Auclair voluntarily made these statements, he was not in custody and was not subject to interrogation.
Even if Auclair was in custody, the statements that he volunteered to police without interrogation would still be admissible. SeeCommonwealth v. Swenor, 3 Mass. App. Ct. 65, 68 (1975); Commonwealth v. Glavin, 354 Mass. 69, 72-73 (1977).
II. Post-Polygraph Statements, December 28, 1999
The court finds that Auclair was in police custody when he was confronted by Conte with the polygraph results. Conte administeredMiranda warnings to Auclair prior to the administration of the polygraph test, and therefore, at least 3 ½ hours prior to the discussion about the results. Under these circumstances, the Miranda warnings were timely. See Commonwealth v. Mello, 420 Mass. 375, 386 (1995) (Miranda warnings not stale after six hours of administration); Commonwealth v. Silva, 388 Mass. 495, 502 (1983) (three hours); Commonwealth v. Cruz, 373 Mass. 676, 687 (1977) (three and half hours); Commonwealth v.Valliere, 366 Mass. 479, 487 (1974) (four hours).
The issue then becomes whether Auclair knowingly, intelligently and voluntarily waived his Miranda rights. The totality of the circumstances indicate, beyond a reasonable doubt, that Auclair voluntarily waived his rights under Miranda. When Auclair began to make statements to police on December 28, 1999, in addition to being advised of his rights on that day, Auclair had already been warned of his rights in the course of a prior interview conducted on December 25, 1999. The issuance of Miranda warnings to Auclair three days earlier was thorough and clear. At that juncture, Auclair acknowledged that he understood his rights and the consequences of speaking to the police when he read and signed theMiranda card, and further indicated his understanding when he made corrections to the written statement produced by the officers. SeeMedeiros, 395 at 348. Auclair, who was 22 at the time of the interviews, was living independently, and was capable of maintaining gainful employment and interpersonal relationships. See Mederios, 395 Mass. at 347. He had nearly completed high school and was fully oriented and alert. Although there is no doubt that Auclair became upset when he was confronted by Conte with the polygraph results, the mere fact that someone is upset at the time he decides to cooperate with police does not render the waiver of his Miranda rights involuntary. SeeCommonwealth v. Perrot, 407 Mass. 539, 543 (1990) (defendant's depressed state of mind and placement on suicide watch did not render him incompetent to waive his rights and confess voluntarily). These factors, coupled with his willingness to undergo a polygraph examination, render Auclair's responses rational, consistent, and in accord with one who has decided to make a clean breast of matters and confess to the police. The court finds that Auclair had knowingly, intelligently and voluntarily waived his Miranda rights when he was interviewed by Conte following administration of the polygraph exam.
Next, the court must determine whether the statements Auclair gave, to the effect that he dropped Klarise and was responsible for her injuries, were voluntary. Auclair claims that Conte used the erroneous results of his polygraph test to coerce these statements, and therefore the statements should be suppressed.
In Commonwealth v. Mederios, 395 Mass. 336, 348-349 (1985), the Supreme Judicial Court held that absent the existence of oppressive interrogation and testing conditions, allegations of physical abuse, bribes, or threats by police, the practice of using deceptive polygraph results to coax a suspect into making admissions is not illegal or coercive. In Mederios, the defendant confessed to murder after he was told that the results on the polygraph examination showed that he had answered certain questions deceptively. Id. at 339. The Court found that the confession was admissible, reasoning that because "the test was taken willingly, neither the fact [that] it was given nor the fact that the defendant was told by the test giver it revealed, in his opinion, that the defendant was not telling the truth, inherently demonstrates coercion." Id. at 348.
In the present case, Auclair's willingness to take the polygraph examination is not diminished by the fact that the officers who escorted him to the District Attorney's Office did not tell him that Conte was waiting to administer a polygraph exam. Auclair had previously consented to taking the exam, and twice thereafter expressed his willingness to take another. Auclair presented no evidence at the hearing indicating oppressive interrogation and testing conditions, physical abuse, bribes or threats by police. Consequently, the police tactic of using Auclair's failing polygraph results to coax him into making certain admissions do not render those admissions involuntary. Further, unlike Mederios, there is no indication here that the police used the polygraph results deceptively.
Although the waiver of Miranda rights and the determination of voluntariness present separate issues, they both concern Auclair's state of mind, his understanding, and related matters. See Commonwealth v.Sires, 413 Mass. 292, 307 (1992). The court concludes beyond a reasonable doubt that Auclair's waiver of his Miranda rights on December 28, 1999 was voluntary, and the use of his failing polygraph results do not render the subsequent statements he gave involuntary. For these reasons, the court DENIES Auclair's motion to suppress the statements he made to Conte following the polygraph examination.
III. 8:13 p.m. Statements and 8:42 p.m. Statements, December 28, 1999
Auclair argues that the statements he made during interviews conducted by Finneral and Forster at 8:13 p.m. and 8:42 p.m. on December 28, 1999, should be suppressed because they were not voluntary. Additionally, Auclair contends that he did not knowingly, intelligently and voluntarily waive his Miranda rights.
At the hearing, Auclair argued that the statement, "I'm just so lost," which he made at the conclusion of the 8:13 interview in response to Finneral's asking Auclair whether he understood what the police were saying, is evidence that he involuntarily waived his Miranda rights. According to the evidence, prior to making that statement, Auclair told the police that he had accidentally caused Klarise's injuries, and said, "I'm happy I'm saying it now," "I mean the truth is out now. There's no . . . covering up for nothing now . . ." Furthermore, after he stated that he felt "lost," Auclair also stated that he understood all of his rights and was willing to take another polygraph test. He was alert, fully oriented and clearly conversing. In the totality of these circumstances, and after a careful review of the audio tapes, the court finds that the statement "I'm just so lost" merely reflects Auclair's emotions following his confession. It does not reflect an unknowing waiver of his Miranda rights, nor does it make the statements he gave involuntary. See Perrot, 407 Mass. at 543.
Moreover, before he was interviewed by Finneral and Forster on the night of December 28, as discussed supra, Auclair had already been advised of his rights twice, including Conte's warnings four hours earlier. Auclair was again given his Miranda warnings at approximately 8:15 p.m., when they were read to him from a Miranda card, which he initialed, indicating both verbally and in writing that he understood his rights and still wished to speak with the officers. That process was repeated moments later after the police detected problems with the tape recorder. At 9:15 p.m., approximately one hour after Auclair was given these two sets of Miranda warnings, Finneral again asked Auclair if he understood his Miranda rights and Auclair responded, "Yes. I understood those rights, I signed them away."
The repeated issuance of Miranda warnings coupled with the finding that Auclair was alert, fully oriented, and understood what he was doing, render the statements he made during the interviews conducted by the police at 8:13 p.m. and 8:42 p.m. voluntary. Additionally, under the totality of the circumstances, the court finds, beyond a reasonable doubt, that Auclair repeatedly waived his Miranda rights voluntarily. The statements Auclair made during these interviews are admissible, and his motion to suppress is DENIED.
IV. Telephone Statements, December 28, 1999
Next, Auclair moves to suppress the inculpatory statements that he made during a telephone conversation with his sister Tammy which was overheard by Finneral.
Statements made by a defendant to third persons not acting as agents for the government which the police overhear are generally not protected and are admissible. See Commonwealth v. Trigones, 397 Mass. 633, 643 (1986). In Trigones, a defendant in custody made incriminating statements to third persons that were overheard by plainclothes police officers who were guarding him. The Court held that because none of the statements was made in response to interrogation and there was no evidence of police deception, the statements were admissible and Miranda warnings were not required. Id. at 643. In Commonwealth v. Signorine, 404 Mass. 400, 409 (1989), the defendant had been arrested, but was not given his Miranda rights. Nonetheless, the Court held that the statements he made during a telephone conversation with his brother in-law which was overheard by a police officer were admissible, reasoning that "without any request or desire for privacy, [the defendant] chose a telephone which was located about six feet from the police officer who heard the statement." Id. at 409. Similarly, in Commonwealth v. Tracy, 27 Mass. App. Ct. 455, 461-462 (1989), the Appeals Court held that because "the defendant, without making any request or desire for privacy, chose to make statements on a telephone which was located within earshot of the police," the statements were made voluntarily. See alsoCommonwealth v. Taylor, 398 Mass. 725, 727 (1986) (inculpatory statements made by a defendant during a phone conversation to his sister overheard by police following formal arrest and issuance of Miranda warnings were admissible). Compare Commonwealth v. Silanskas, 433 Mass. 678, (2001) (statements suppressed where police purposely overheard defendant's telephone conversation with his attorney in violation of defendant's right to counsel).
In this case, when Auclair called his sister and confessed to Klarise's death, he did so within earshot of Finneral, who was standing in the hallway outside the conference room. Finneral's close proximity to Auclair was evidenced by his ability to hear the voice of someone on the other end of the phone. Auclair's statements were not the product of police interrogation, and he had been repeatedly advised of his Miranda rights. No evidence presented at the hearing indicated that Auclair requested privacy, that the police ignored any such requests, or that the police otherwise acted deceptively. See Taylor, 398 Mass. 727. For these reasons, Auclair's motion to suppress the statements he made during the telephone conversation is DENIED.
V. 9:08 Statements, December 28, 1999
Auclair also argues that the statements he made to the police during the interview that was conducted at 9:08 p.m. on December 28, 1999 should be suppressed because the police continued to interrogate him after he invoked his Miranda right to counsel.
Once Miranda warnings have been given, and the defendant affirmatively requests an attorney, further interrogation must cease until the attorney is present. See Commonwealth v. Brant, 380 Mass. 876, 882 (1980);Commonwealth v. Pennellatore, 392 Mass. 382, 386 (1984); Commonwealth v.Chadwick, 40 Mass. App. Ct. 425, 429(1996) (statements made after defendant asked to speak his lawyer suppressed). The invocation of theMiranda right to counsel "requires, at a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney." Commonwealth v. Judge, 420 Mass. 433, 450 (1995).Under these authorities, the Supreme Judicial Court has held in several cases that the defendant's references to an attorney were not sufficient to be considered affirmative requests for counsel. InCommonwealth v. Todd 408 Mass. 724, 726 (1990), the Court found that the defendant did not make an affirmative request for an attorney when she "wondered aloud about the advisability of having a lawyer," and therefore the police did not violate Miranda when they continued interrogation. Likewise, in Commonwealth v. Corriveau, 396 Mass. 319, 330 (1985), the Court held that the defendant's statement, "it's beginning to sound like I need a lawyer" was not an affirmative request to consult with an attorney, and statements made thereafter were admissible. Similarly, inPennallatore, 392 Mass. at 386, the Court held that the defendant's statement, "I'll guess I'll have to get a lawyer for this," was insufficient to trigger the Miranda right to counsel. Rather, the reference was a response to the seriousness of the charges. Id.
In the present case, after Hunte indicated to Auclair that he had attended Klarise's autopsy and did not believe she was killed in the way Auclair described, Auclair responded "Well, that's the way I'm telling you, and if you don't believe that you can do whatever you want . . . That's my story. I'll get a lawyer. That's my story." Auclair never made a reference to an attorney again. Rather, he further stated that he was being truthful and was willing to take another polygraph test. When viewed in context, Auclair's isolated statement, "I'll get a lawyer," appears to be an acknowledgment that the police suspected that he was lying, and that the charges against him were becoming more serious.Pennellatore, 392 Mass. at 387. Prior to making the statements at issue, on six separate occasions, Auclair had already been given, and had knowingly, intelligently, and voluntarily, waived his Miranda rights. The court finds that Auclair's reference to attorney was not an affirmative request for an attorney, and the police were not required to cease questioning thereafter. Auclair's motion to suppress these statements on the asserted ground that he invoked his Miranda right to counsel is, therefore, DENIED.
VI. Lock-up Statements, December 28, 1999
Lastly, Auclair moves to suppress the statements that he gave to McPadden and Finneral while he was being held in Lowell Police Lock Up at approximately 10:40 p.m. on December 28, 1999. Auclair maintains that neither the statements nor his waiver of Miranda were voluntary.
Prior to interviewing Auclair, McPadden and Finneral gave AuclairMiranda warnings by reading to him and having him sign a standardMiranda card. This, coupled with Auclair's voluntary waiver of hisMiranda rights five times earlier that day, and the court's previous findings aforementioned, render Auclair's Miranda waiver and statements he made during the police's final interview voluntary. Auclair's motion to suppress these statements is DENIED.
ORDER
For the foregoing reasons, Mr. Auclair's motion to suppress is DENIED .
___________________________ Raymond J. Brassard Justice of the Superior Court
DATED: April, 2001