Opinion
14-P-365
05-06-2015
COMMONWEALTH v. ALFRED JORDAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The Commonwealth appeals from an order of a judge of the Superior Court allowing the defendant's motion to suppress statements made during a police interrogation. Central to the judge's reasoning was the failure by the interrogating officer to suspend questioning when the defendant checked a box indicating "no" on a form designed to record his waiver of Miranda rights for the interview. The circumstances attending the defendant's completion of the form, and the officer's acceptance of it, suggest at least the possibility that the defendant's selection of the "no" box was inadvertent, and that neither the defendant nor the officer was aware that the defendant had checked "no" rather than "yes." However, the motion judge made no finding on that question. We accordingly remand the matter to the Superior Court for further proceedings.
See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Following suspicious fires at residential buildings in Everett and Chelsea during the early morning hours of March 28, 2013, police attention centered on the defendant. Police interviewed the defendant on the morning of March 28, during which the defendant denied involvement with the fires. Shortly thereafter, the defendant was taken into custody on two outstanding unrelated arrest warrants, and was held at the Suffolk County house of correction at South Bay (South Bay). On March 30, police obtained a warrant for the defendant's arrest on charges of arson, based on the Everett fire. Police then scheduled an interview with the defendant at South Bay, to be held on April 8, 2013. The defendant advised officials at South Bay that he was willing to meet with Sergeant Donald Bossi of the State police, and the motion judge found that the defendant did so freely and voluntarily. When the defendant arrived for his meeting with Sergeant Bossi, he was not handcuffed or otherwise restrained, and he was in civilian clothing. Sergeant Bossi administered Miranda warnings to the defendant, including his right to speak with an attorney before answering any questions. Bossi then asked the defendant if he was willing to speak with him, and the defendant responded in the affirmative. Bossi handed the defendant a written form designed to record his waiver of Miranda rights, which the defendant completed and returned to Bossi. However, in response to the question "[h]aving these rights in mind, do you wish to talk to me now?" the defendant checked the "no" box. Bossi then proceeded to interview the defendant.
At the hearing on the defendant's motion to suppress, Bossi testified that he did not notice that the defendant had checked the "no" box, and the motion judge explicitly credited that testimony. The Commonwealth argued that the defendant checked the "no" box by mistake, and that he both intended to check, and believed he had checked, the "yes" box, as reflected in his affirmative statement to Bossi regarding his willingness to speak with him. The motion judge made no finding regarding the defendant's intention to check the "no" box, or his awareness that he had done so. Instead, explaining that the test of voluntariness is an objective one, the judge treated Bossi's failure to suspend the interview once the defendant checked the "no" box as an act that a reasonable person in the defendant's position would view as coercive, so that the interview Bossi thereafter conducted was custodial.
We conclude that the motion judge erred in assigning significance to the defendant's selection of the "no" box on the Miranda waiver form without regard to whether it was an intentional or inadvertent act, or even whether the defendant himself was aware that he had checked "no" instead of "yes." Throughout the motion judge's order, he observed that Bossi failed to honor scrupulously the defendant's invocation of his right to remain silent, without regard to whether the defendant had in fact invoked that right. Similarly, Bossi's failure to suspend the interview once the defendant selected the "no" box cannot have conveyed a coercive message to the defendant if neither the defendant nor Bossi was aware at the time that the defendant had selected the "no" box. Accordingly, to the extent the judge's conclusion that the interrogation was custodial rested on Bossi's failure to suspend it once the defendant selected the "no" box on the Miranda waiver form, the decision cannot stand in the absence of a finding that the defendant intended to select the "no" box. Only if the defendant intended to check the "no" box and was aware that he had, in contradiction to his verbal statement of consent to Bossi, can Bossi's continuation of the interview thereafter be considered custodial or coercive.
The Commonwealth separately urges us to conclude, based on the totality of the circumstances, see Commonwealth v. Tolan, 453 Mass. 634, 642 (2009), that the defendant's statements during the interview with Sergeant Bossi were voluntary. However, only a portion of the interview was recorded, and the portion during which Bossi apparently persuaded the defendant to confess to his role in setting the fires, based at least in part on a belief that he could avoid jail time in favor of a term of probation, took place before Bossi turned on the audio recorder. On the present record, we accordingly are without basis to assess the voluntariness of the defendant's confession in the totality of the circumstances.
The motion judge made no separate finding concerning the voluntariness of the defendant's statements.
The order allowing the defendant's motion to suppress is vacated, and the matter is remanded to the Superior Court for such further findings or proceedings as may be appropriate.
So ordered.
By the Court (Cypher, Kafker & Green, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: May 6, 2015.