Opinion
No. 11–P–1862.
2012-11-28
COMMONWEALTH v. Abdule BROWN.
By the Court (GRASSO, KANTROWITZ & GRAHAM, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
A jury found the defendant, Abdule Brown, guilty of carrying a firearm without a license, G.L. c. 269, § 10( a ).
He argues on appeal that a substantial risk of a miscarriage of justice was created when evidence was introduced at trial that he was offered, but declined, to have his statement to the police recorded.
He was found not guilty of two counts of possession of a firearm without an identification card and carrying a loaded firearm. A fifth charge, being an armed career criminal, was dismissed.
The defendant's argument concerning his motion to suppress is without merit, and we do not address it.
Facts. On June 22, 2008, the defendant, whose car matched the description of a car fleeing the scene of a shooting, was stopped. A search of the glove box revealed a handgun, which led to his arrest. At the police station, the defendant received his Miranda warnings and he agreed to talk to the officers but declined to have the interview recorded. In substance he admitted ownership of the gun. At trial, the Commonwealth introduced the signed Miranda form (exhibit no. 3), and briefly went through it with Detective Schroeder. The prosecutor then asked whether “these proceedings [are] put on tape?” to which the witness responded, “They are, yes, if the individuals want to be taped.” The prosecutor asked, “Do you know if Mr. Brown chose to be taped?” and Schroeder responded, “No, he declined to be taped.”
At that point the prosecutor asked for a sidebar conference, where she explained that the testimony had been elicited in the event that the defendant would be raising an issue under Commonwealth v. DiGiambattista, 442 Mass. 423 (2004) ( DiGiambattista ). Defense counsel did not object to the question, but added that there would not be such an issue.
The Commonwealth's next witness, Detective Wright, similarly testified that he advised the defendant of his Miranda warnings and his opportunity to have the interview electronically recorded. The prosecutor asked, “[D]o you recall if Mr. Brown wanted his interview recorded?” and Wright responded, “He declined to have his interview recorded.” Once again there was no objection.
The defendant testified on his own behalf, indicating that the car and gun belonged to his girlfriend; that he had no knowledge of the gun; and that he was not entirely truthful with the police as he wanted to “man up and say that it was mine.” He admitted that the officers were accurate in their testimony as to what he told them on this point. “I said everything they asked me, that's what I say. Whatever they said I said, I did say that. I'm not denying that at all.”
During the charge conference, the trial judge offered to give a DiGiambattista instruction. Defense counsel, however, asked that it not be given on the basis of the defendant's testimony.
Defense counsel also did not seek a humane practice jury instruction.
Law. The DiGiambattista case counsels that a defendant who is the subject of an unrecorded police interrogation is entitled, upon request, to a cautionary jury instruction concerning the use of such evidence. The instruction may be given even when the defendant declines to have the statement recorded, Commonwealth v. Tavares, 81 Mass.App.Ct. 71, 73 (2011), in which case the Commonwealth is permitted “to address any reasons or justifications that would explain why no recording was made, leaving it to the jury to assess what weight they should give to the lack of a recording.” Ibid., quoting from DiGiambattista, supra at 448–449. As this instruction “will likely be given after the close of the evidence and, moreover, after closing arguments, we consider it axiomatic that the ‘reasons or justifications' contemplated by DiGiambattista can be proved as part of the Commonwealth's case-in-chief.” Commonwealth v. Tavares, supra at 74 n. 5.
Discussion. In this case, it appears that the final decision whether to raise a DiGiambattista issue was not made until after the Commonwealth rested. For understandable tactical reasons, defense counsel waived the giving of the jury instruction. Given the timing, there was no error in the Commonwealth proceeding as it did, presenting the “reasons or justifications that would explain why no recording was made.” DiGiambattista, supra.
Further, the brief testimony on this point by both detectives elicited no objections. Thus, under these circumstances, it is difficult to discern error, much less a substantial risk of a miscarriage of justice.
Upon Miranda being given and waived, the statements of a defendant are ordinarily admissible, including theoretically his refusal to have the session recorded. Declining to have a statement recorded is fundamentally different from classic refusal evidence, such as a refusal to take a breathalyzer test, which implicates considerations under art. 12 of the Massachusetts Declaration of Rights. As such, the defendant's contention that evidence of his decision not to have his statement recorded must be excluded under Commonwealth v. Conkey, 430 Mass. 139, 141 (1999) ( Conkey I ), S. C., 443 Mass. 60 (2004), is misplaced. Conkey I, which dealt with a “defendant's initial assent and subsequent failure to appear for fingerprinting,” and similar cases are concerned with a defendant's refusal to take affirmative steps to comply with police requests for forensic testing. See, e.g., Commonwealth v. Lydon, 413 Mass. 309, 313–314 (1992) (refusal to have hands swabbed for evidence of gunpowder); Commonwealth v. McGrail, 419 Mass. 774 (1995) (refusal to submit to field sobriety tests); and Commonwealth v. Hinckley, 422 Mass. 261 (1996) (refusal to turn over sneakers for testing).
Conclusion. There was no error, let alone a substantial risk of a miscarriage of justice, in the admission of the defendant's declination to have his statements to the police recorded.
One can envision circumstances in which the defense decision to forego a DiGiambattista instruction is made early on, in which case the admission of testimony on a defendant's refusal to have his statement recorded may arguably not be relevant to any issue at trial. See Mass. G. Evid. §§ 401–403 (2012). Compare Commonwealth v. Drummond, 76 Mass.App.Ct. 625, 628 (2010). The case before us does not warrant any further discussion on this point.
Judgment affirmed.