Opinion
No. 11–P–1495.
2013-10-29
COMMONWEALTH v. Angel MORALES.
By the COURT (GREEN, GRAINGER & FECTEAU, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted of two counts of aggravated rape of a child (by virtue of an age difference of ten years or more). In this consolidated appeal from his convictions and the denial of his motion for new trial, the defendant's arguments pertain only to the denial of his motion. He contends that counsel was ineffective for failing to file a motion to suppress the defendant's incriminating statements to the police. The defendant claims error in the judge's decision that a motion to suppress evidence would have been futile because the defendant was not subject to a custodial interrogation and, therefore, was not subject to Miranda. Miranda v. Arizona, 384 U.S. 436 (1966). Moreover, the defendant asserts that his waiver of Miranda rights was not intelligent or voluntary. We affirm.
We review the denial of the defendant's motion for new trial for an abuse of discretion. Commonwealth v. Marinho, 464 Mass. 115, 123 (2013). In a motion for a new trial, the burden is on the defendant to prove facts that are neither agreed upon nor apparent on the face of the record. Commonwealth v. Comita, 441 Mass. 86, 93 (2004) (citations omitted). In order to show that counsel was ineffective for failing to file a motion to suppress evidence, the defendant must show such a motion likely would have succeeded. Commonwealth v. Buckman, 461 Mass. 24, 40 (2011).
During both a voir dire hearing and during trial, the defendant's trial counsel raised the issue whether some or all of the defendant's incriminating statement to the police ought to be excluded because he claimed that the statement and the defendant's alleged waiver of Miranda rights were not truly voluntary by virtue of language difficulties. We note that, notwithstanding the fact that trial counsel failed to file a motion to suppress, the judge appropriately stopped the trial and permitted a voir dire hearing on the issue of the voluntariness of the defendant's statement. [A] judge is obliged sua sponte to conduct a voir dire only where there is evidence of a substantial claim of involuntariness, and where voluntariness is a live issue at the trial. Commonwealth v. Stroyny, 435 Mass. 635, 646 (2002) (citation omitted), and cases cited therein. See Commonwealth v. Alcala, 54 Mass.App.Ct. 49, 52 (2002). Following this voir dire, the judge ruled the statement admissible, implicitly concluding, as a preliminary matter, that the statement was noncustodial and voluntary. He gave appropriate instruction to the jury, both contemporaneously with the admission of the videotaped statement, and in his final instructions, pursuant to the humane practice rule. Specifically, he informed the jury that among the issues to consider was whether the defendant was subject to a custodial interrogation and, if so, whether Miranda rights were properly given and whether the defendant understood and voluntarily waived them. Since the defendant objected to its admission and was given an opportunity to contest the admissibility of his statement on the basis of voluntariness due to his alleged language difficulties, we fail to discern how a claim for ineffective assistance of counsel for not filing a motion to suppress meets the necessary showing of prejudice under Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). Here, we view the defendant's objection and the voir dire hearing that followed as a practical equivalent, in these circumstances, to a pretrial motion to suppress. See Commonwealth v. Woods, 427 Mass. 169, 170 (1998) (We note at the outset that the defendant did not file a pretrial motion to suppress or move for a voir dire, which would have been the proper methods for challenging the admissibility of statements allegedly obtained in violation of the Miranda standards), citing Commonwealth v. Woods, 419 Mass. 366, 370 (1995). Consequently, the defendant is unable to show how he was prejudiced by trial counsel's failure to file a pretrial motion to suppress.
The judge viewed the videotaped statement of the defendant prior to permitting it to be shown to the jury.
Additionally, we agree with the motion judge's conclusion that a motion to suppress, on the issue of the voluntariness of the defendant's statement and his waiver of Miranda, would have been futile because the defendant was not subject to custodial interrogation. As the judge noted, A defendant bears the burden of proof that[,] at the time in issue[,] custody had attached by either a ‘formal arrest’ or a ‘restraint of movement akin to formal arrest.’ California v. Beheler, 463 U.S. 1121, 1125 (1983)[.] See Commonwealth v. Kirwan, 448 Mass. 304, 309 (2007). Moreover, the test for whether a defendant is in custody is objective in that [t]he crucial question is whether, considering all the circumstances, a reasonable person in the defendant's position would have believed that he was in custody. Commonwealth v. Groome, 435 Mass. 201, 211 (2001), quoting from Commonwealth v. Damiano, 422 Mass. 10, 13 (1996). See Commonwealth v. Almonte, 444 Mass. 511, 517 (2005).
In this case, the judge found that the defendant voluntarily went to the police to speak with them about his relationship with the victim and concluded, after applying the Bryant factors, see Commonwealth v. Bryant, 390 Mass. 729, 737 (1984), that the defendant was not in custody until after his admissions. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime. Miranda v. Arizona, 384 U.S. at 478. See Commonwealth v. Diaz, 422 Mass. 269, 271 (1996); Commonwealth v. Brum, 438 Mass. 103, 111–112 (2002). In this situation, what commenced as a noncustodial interrogation only became custodial in nature once the defendant willingly confessed to the crime. See Commonwealth v. Smith, 426 Mass. 76, 80–81 (1997) (defendant who voluntarily came to a police station was not in custody until after he announced that he was there to confess to a recent murder, thereafter a Miranda rights waiver was required before further interrogation). Judgments affirmed.
The defendant also argues that, because of language difficulties, he put his date of birth on the Miranda waiver form that was then improperly admitted as evidence of an element of the crime. However, the motion judge correctly concluded that at the time the defendant completed the Miranda waiver form and revealed his date of birth the defendant was not in custody. The defendant was only in custody after he made the incriminating admission, while the defendant had filled out the form before the interview even began. Moreover, even if the defendant was in custody when he revealed his date of birth, [s]ome information gained at booking is ‘exempt’ from [Miranda's exclusionary rule] ... includ[ing] biographical data requested for record keeping purposes and related to police administrative concerns, such as defendant's height, weight, address, date of birth and current age. Commonwealth v. White, 422 Mass. 487, 501 (1996). In any event, the point does not support a claim of ineffective assistance of counsel, because even if he had succeeded by some pretrial means in excluding his statement concerning his date of birth on the Miranda form, it would not have accomplished anything material for his defense, since the Commonwealth would easily have been able to establish his date of birth by other means at trial.
The defendant's interview with police was videotaped and the judge had the opportunity to view the videotape prior to his ruling to allow it admitted into evidence. Once in evidence, the jury viewed the videotape as well. Even if custodial, we agree with the motion judge's conclusion that the defendant's interview by police was preceded by a full recitation of the Miranda rights, that the defendant's waiver was knowing and voluntary, and that the statement was otherwise voluntary. Notwithstanding that the Miranda warnings were given in English both orally and in writing, and that the defendant's native language was Spanish, the judge properly concluded that any language difficulty was over particular words apart from the Miranda warnings. The defendant expressed no difficulty in understanding his Miranda rights and did not ask any questions about them. Moreover, the interview remained cordial throughout and was never coercive.
Order denying motion for new trial affirmed.