Opinion
14-P-198
02-25-2016
COMMONWEALTH v. RAFAEL NINA BRITO.
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
After a jury trial, the defendant was convicted of rape. He appeals, arguing that the judge erred in denying his motion to suppress statements he made to police officers during his postarrest interview. He claims that, during the interview, the police used impermissible tactics that "overbor[]e his will." The defendant also contends that the Miranda warnings he was given before the interview were inadequate. Finally, the defendant argues that, even if suppression is not warranted, he is entitled to a new trial based on the fact that the police made impermissible statements that were included wrongly in the videotape of his interview that was played for the jury. We affirm.
The defendant was indicted on the charge of aggravated rape.
Background. Details of the rape that occurred on the evening of February 15, 2008, are, for the most part, irrelevant to the issues raised here. On February 18, 2008, the defendant surrendered himself to the police on an arrest warrant issued earlier that day; he was arrested and interviewed at the police station and the interview was both video and audio recorded. At the outset, the defendant was informed of, and agreed to, the recording of the interview (and signed an acknowledgment form to that effect). The detectives informed him of his Miranda rights, including the instruction that, "If you decide to answer any questions now without a lawyer present, you will still have the right to stop answering at any time until you speak with a lawyer" (the "fifth" Miranda warning). The defendant acknowledged understanding his rights, and verified his grasp of the English language by reading aloud the first two lines of the written version of the warnings; he declined additional time to read the written version, indicating, "No. I, I understand them." The defendant then accepted some water offered by Detective Petruzziello.
A complete transcript of the postarrest interview with the defendant (except for the redaction of the victim's name) is included in the record. In light of this, it is not necessary for this panel to view the video version of the interview; we therefore deny the defendant's motion to file the interrogation video on DVD.
Detective Petruzziello again informed the defendant that he was being charged with aggravated rape., The defendant then told the detectives his version of the events that occurred on February 15. During the interview, Detective Lee stated that although it was "pretty obvious" that the defendant knew "who did what" the defendant did not have to tell them; Detective Petruzziello told the defendant, "[Y]ou can't be responsible for what [your friends] did. . . . [Y]ou can only be accountable for yourself." The defendant stated he felt "bad, because [he] didn't stop it" when things got loud "[b]ut [the victim] was going with the flow, so [he didn't] know what to do." After stating that he was "involved in it too, because it's in my house," Detective Lee informed the defendant that "the fact that [he] didn't get an erection doesn't take [him] out of the situation" and that he was charged with the same crime as his codefendants; the defendant agreed he was "still in it."
Detective Petruzziello mentioned that the defendant was previously told "downstairs" the crime with which he was being charged.
Also, the defendant confirmed that he had not consumed any drugs or alcohol the day of the interview, that he was not currently taking any medication, and that he understood everything the detectives had said to him up to that point.
After the detectives again asked the defendant what each of his codefendants did during the incident, the defendant continued to tell only of his participation and that he did not see specifically what his codefendants did to the victim. He stated, however, that he was "just as guilty as them, because [he] saw it happen and, you know, even if [he] didn't get involved." The entire interview lasted less than one hour.
In his pretrial motion to suppress, and accompanying memorandum, the defendant argued that his statements to the police were involuntary due to the fact that he was an unsophisticated eighteen year old high school student. He was unfamiliar with the legal system because he had never before been in trouble with the police. He contended that he "stoically" waived his rights because he was confused about the charges against him and did not fully comprehend the rights read to him. He also sought to suppress the items seized under the search warrant based on what he characterized as involuntary statements. His motion was denied. The jury found the defendant guilty on the lesser included offense of rape; he timely appealed.
Discussion. Statements by the defendant. On appeal, the defendant first argues that the statements he made during the postarrest interview were involuntary and thus should have been suppressed. For the first time on appeal, he also contends that the police used improper interrogation tactics -- misstatements of the law, minimization of the defendant's conduct, last chance themes, and exploiting the defendant's lack of sophistication -- to override his will, rendering the defendant's statements involuntary.
To begin, we address whether the claim of improper interrogation tactics used by the police during the postarrest interview has been waived. Rule 13(a)(2) of the Massachusetts Rules of Criminal Procedure, as appearing in 442 Mass. 1516 (2004), requires that a pretrial motion to suppress set forth "the grounds on which it is based . . . with particularity." In addition, the required supporting affidavit to the motion must "detail[] all facts relied upon in support of the motion." Ibid. Here, as noted, the defendant made no mention in his motion to suppress, nor in the supporting memorandum of law or affidavit, that the motion should be allowed on the basis of improper police interrogation tactics. "A party's failure to raise a potential claim at his suppression hearing waives any appeal on that issue." Commonwealth v. Mathis, 76 Mass. App. Ct. 366, 374 (2010). However, because the issue has been briefed, we consider it. Our review is limited to considering whether the defendant's claim gives rise to an error creating a substantial risk of a miscarriage of justice. See Commonwealth v. Randolph, 438 Mass. 290, 294-295 (2002). We are satisfied that there was no error, much less one creating a substantial risk of a miscarriage of justice.
The defendant also failed to raise below a claim regarding the impropriety of the "fifth" Miranda warning. As in Commonwealth v. Novo, 442 Mass. 262, 271 (2004), any "misstatement of [the defendant's] fifth Miranda right likely had no effect on the voluntariness of his subsequent statement."
We acknowledge that Detective Petruzziello's statement that the defendant "can't be responsible for what [his friends] did" could have been better phrased; however, that statement did not cause the defendant then to inculpate himself or his codefendants, further supporting the conclusion that the methods used by the interrogating officers did not overcome the defendant's will. See Commonwealth v. Ortiz, 84 Mass. App. Ct. 258, 267 (2013).
Next, we look to the totality of the circumstances to determine whether, generally, the statements made by the defendant were voluntary. "A statement is voluntary if it is 'the product of a rational intellect and a free will.'" Commonwealth v. Novo, 442 Mass. 262, 267 (2004), quoting from Commonwealth v. Jackson, 432 Mass. 82, 85 (2000). In determining the voluntariness of a statement, a number of factors are considered. We agree with the motion judge that none of those factors was present here and, therefore, the Commonwealth met its burden of proving that "'in light of the totality of the circumstances surrounding the making of the statement[s], the will of the defendant was [not] overborne, but,' instead, that the statements were 'the result of a free and voluntary act.'" Commonwealth v. Ortiz, 84 Mass. App. Ct. 258, 267 (2013), quoting from Commonwealth v. Baye, 462 Mass. 246, 256 (2012).
Those factors include "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 . . . , and the details of the interrogation, including the recitation of Miranda warnings." Novo, 442 Mass. at 267, quoting from Commonwealth v. Mandile, 397 Mass. 410, 413 (1986). "Additionally, the 'use of false information by police during an interrogation is deceptive and is a relevant factor indicating a possibility that the defendant's statements were made involuntarily.'" Novo, supra, quoting from Commonwealth v. Selby, 420 Mass. 656, 664 (1995).
Interrogation video recording. The defendant also claims that the judge erroneously admitted the interrogation video recording containing inadmissible statements by the police, bolstering the victim's accusations and offering opinions of the defendant's guilt. He argues that the limiting instruction given before the jury's viewing of the video, as well as the general instruction provided in the final charge, were insufficient to cure any prejudice to the defendant caused by the admission of the video. We are not persuaded.
Prior to playing the video for the jury, there was a lengthy discussion between the judge and the attorneys about redacting the recorded statements made by the interviewing detectives; the judge allowed certain of the defendant's requested redactions. The judge stated, "If something of this comes in inadvertently, I'm confident that a forceful instruction from me will cure any prejudice." Immediately before playing the video for the jury, the judge provided a limiting instruction, adding, at the defendant's request, that the jurors "are the sole and exclusive judges of the facts, and [the judge is] the judge of the law." Because the defendant did not object to the limiting instruction, or the final charge, we review for error creating a substantial risk of a miscarriage of justice. See Commonwealth v. Abrahams, 85 Mass. App. Ct. 150, 155 (2014).
We conclude that the limiting instruction, as well as the instruction given during the final charge, relating specifically to comments and questions by police recorded on the video, were sufficient to prevent a substantial risk of a miscarriage of justice to the defendant. During the final charge, the judge stressed that the police comments and questions contained on the video were "provided only so that [the jury] understand the alleged answers. The jury decides the facts, and the judge the law. The statements of the police must not be considered as statements of the law or fact." See Commonwealth v. Spencer, 465 Mass. 32, 48 (2013) ("Whether proffered evidence is relevant and whether its probative value is substantially outweighed by its prejudicial effect are matters entrusted to the trial judge's broad discretion and are not disturbed absent palpable error"). We are satisfied that the judge's instructions ensured that there was no substantial risk of a miscarriage of justice.
Judgment affirmed.
By the Court (Green, Wolohojian & Hanlon, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: February 25, 2016.