Opinion
No. 11–P–851.
2012-06-8
COMMONWEALTH v. Karyn D. AKLEY.
By the Court (GRAHAM, VUONO & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury-waived trial in the Superior Court, the defendant was convicted of two counts of larceny in an amount exceeding $250, in violation of G.L. c. 266, § 30. On appeal, the defendant argues that her motion to suppress statements she made to a private investigator, to her employer, and to the police should have been allowed. She also challenges the sufficiency of the evidence with respect to whether she committed the offense on the day specified in one of the indictments. We affirm.
1. Motion to suppress. After an evidentiary hearing, at which the defendant testified, the motion judge made the following findings of fact. The defendant worked as the front desk manager of the Personal Best Salon (the salon), located in Pembroke. Her duties included receiving payments from customers and preparing daily financial reports. The salon was owned by Marie Goldman, who had operated the business for twenty-six years. In late 2006, Goldman noticed an increase in the use of gift cards to redeem cash rather than salon services, and eventually installed a surveillance camera to monitor the front desk from her second-floor office. On one occasion, Goldman observed the defendant take money from the cash drawer and put it into her purse. Goldman reported the incident to Rick Seifert, the coowner of the strip mall where the salon is located. Seifert, who is also a private investigator, agreed to review the salon's financial records and to question the defendant.
On the afternoon of October 3, 2007, Seifert interviewed the defendant in Goldman's office. Seifert's wife, who often attended interviews of female suspects or witnesses, remained outside the door. Seifert and the defendant knew one another and were on friendly terms. Seifert asked the defendant about some specific unusual transactions, including a $140 transaction that had occurred earlier that day. The defendant confessed, and revealed that she had stolen approximately $300 every day for the prior three to six months, for a total of approximately $15,000. At Seifert's request, the defendant then completed a form entitled “voluntary statement,” in which she stated that she would like to make restitution in the amount of $15,600. She also wrote that “[n]o threats or promises were made by Rick Seifert” and noted that she began to fill out the form at 3:20 P.M. and completed it at 3:25 P. M.
At the conclusion of the interview, Seifert told the defendant that he was going to telephone the police. When he left the office to do so, his wife entered the room to keep the defendant company. Their conversation consisted of general topics, and the defendant made no incriminating statements at that time. Meanwhile, Seifert informed Goldman that the defendant had confessed. Goldman then entered the office and told the defendant that she believed much more than $15,600 had been stolen, and that she would forego legal action if the defendant would return $50,000, which the defendant agreed to do.
At around 4:00 P. M., Pembroke police Detective Edward Cain arrived at the salon and advised the defendant of her Miranda rights. The defendant agreed to an interview and proceeded to repeat her confession.
The defendant testified at the motion hearing and provided a markedly different version of events. She stated that Seifert had threatened to handcuff her and had denied her access to the telephone, and that Seifert's wife blocked the only exit to the office. The defendant further testified that she suffers from anxiety and panic attacks, which were exacerbated by the coercive nature of Seifert's interview. With respect to Detective Cain's interrogation, the defendant claimed that she could not understand her Miranda rights because he mumbled and that she was “dazed and confused” during the interview.
The judge expressly discredited the defendant's account of the interviews. As to her claim that her statement was not given voluntarily, the judge ruled that, although the defendant may have been distraught when presented with the evidence against her, there was no evidence that she was in any way coerced to confess.
The judge also ruled that Detective Cain was not required to give Miranda warnings because the defendant was not in custody. This ruling is not contested on appeal.
In reviewing a judge's ruling on a motion to suppress, we accept the “judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law.” Commonwealth v. Washington, 449 Mass. 476, 480 (2007). Here, the facts found by the judge amply support his conclusion that the statements made by the defendant were voluntary. See Commonwealth v. Tremblay, 460 Mass. 199, 207 (2011), quoting from Commonwealth v. Souza, 428 Mass. 478, 483–484 (1998) ( “The test for voluntariness ... is ‘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’ ”). The defendant made her statements to a person whom she knew, Seifert, in a familiar setting, her workplace, over a period of approximately two hours. As the judge appropriately noted, there is no evidence to support the defendant's claim that she was “tricked, threatened, deceived, or promised anything in exchange for her confession.” The defendant's motion to suppress properly was denied.
2. Sufficiency of the evidence. The defendant contends that the evidence was insufficient to prove that she committed larceny on September 29, 2007, the date alleged in the second indictment. At trial, the Commonwealth presented receipts showing that three gift cards, each in the amount of $150 were redeemed for cash on September 29, 2007. The employee name on the receipts was Jacklynn Robbins. Robbins testified that she never had cashed a gift card and, in fact, the practice was not permitted at the salon. The trial judge, as fact finder, was entitled to credit Robbins's testimony. See Commonwealth v. Ware, 75 Mass.App.Ct. 220, 231 (2009). Viewed in the light most favorable to the Commonwealth, see Commonwealth v. Latimore, 378 Mass. 671, 676–677 (1979), this evidence is sufficient to show that the defendant committed larceny in excess of $250 on September 29, 2007.
Judgments affirmed.