Opinion
18-P-1232
11-01-2019
COMMONWEALTH v. Edward GONZALEZ.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant has been charged with murder and illegal possession of a firearm. Following evidentiary hearings, a Superior Court judge allowed a motion to suppress the defendant's statements, reasoning that the Commonwealth had failed to establish beyond a reasonable doubt that the defendant reinitiated communication with the police after he invoked his right to counsel. The Commonwealth's application to pursue an interlocutory appeal was allowed by a single justice of the Supreme Judicial Court, who reported the matter to this court. We reverse.
Background. We summarize the relevant facts from the judge's findings and from undisputed facts in the record that were implicitly credited by him. See Commonwealth v. Jones-Pannell, 472 Mass. 429, 436 (2015). On May 26, 2016, the defendant was arrested after being implicated in a Springfield murder. The victim of the murder was the father of a Massachusetts State trooper. The defendant was arrested in Holyoke, advised of his Miranda rights, and transported to the Springfield Police Department to be interviewed. Captain Trent Duda of the Springfield Police Department assigned Sergeant Jeffrey Martucci and Detective Jose Canini to interview the defendant. Sergeant Martucci advised the defendant that he was under arrest for murder and again administered Miranda warnings to the defendant. The defendant knowingly and voluntarily waived his Miranda rights and agreed to be interviewed.
The officers informed the defendant that a witness had placed him at the scene of the murder. The defendant denied his involvement in the murder and asked the officers for photographs or video recordings of him at the scene. Captain Duda, who was watching the interview from another room, grew frustrated with the defendant's responses. He entered the interrogation room and confronted the defendant aggressively, directing him to answer the officers' questions. Specifically, Captain Duda told the defendant that he would go to prison unless he cooperated. Captain Duda also told the defendant, "You are here, sitting here, to tell a story. Either you tell it, or you don't." The defendant responded, "No, I ain't speaking." Captain Duda left the room and the officers continued to press the defendant for answers. The defendant repeated that he wanted to see evidence of his presence at the scene. The conversation continued and approximately two minutes later, the defendant asked, in Spanish, "Can I call my lawyer." After the defendant repeated his request to call a lawyer the officers ended the interview. Sergeant Martucci directed that the recording equipment be turned off and told the defendant that he would be booked for murder.
The first interview was not a model of technique or clarity. The defendant appeared willing to respond to questions, but the officers frequently interrupted and talked over the defendant (and each other) as the defendant attempted to respond. At one point, despite the defendant's statement that he "would like to talk to [them]," the officers told him to stop talking and then lectured him. Both officers shouted and swore at the defendant and he responded, "[W]hy are you yelling at me?"
Detective Canini spoke Spanish and conducted some of the interview in Spanish.
Detective Canini remained alone with the defendant for approximately forty minutes while he waited for instructions to transfer the defendant to the booking area. During that time, Detective Canini escorted the defendant to the bathroom. The defendant asked what would happen next and Detective Canini explained the booking process. Detective Canini and the defendant engaged in conversation while they waited in the interrogation room, but that conversation was not recorded. Detective Canini could not recall the subject of their conversation, but testified that it involved "some general talk, but not about what was going on," and that the defendant "did not say anything of any evidentiary significance." The defendant told Detective Canini that he would "talk to him but, did not want to get yelled at." No report was prepared memorializing the conversation. Canini then informed Captain Duda that the defendant wanted to speak with the officers again.
Approximately forty minutes after the conclusion of the first interview, Detective Edward Podgurski and Detective Canini commenced a second recorded interview. Detective Podgurski showed the defendant the Miranda advisement and waiver form the defendant had executed earlier and stated, "And you signed off on this Miranda form earlier this evening, approximately -- not even -- about a half hour ago.... We gave you an opportunity to go to the bathroom and as we were bringing you to get booked you said you wanted to talk to us again." The defendant responded, "Um-huh." Detective Podgurski then repeated the Miranda warnings and asked, "Having these rights in mind, Edward, do you wanna talk to Detective Canini and myself right now about what you're being charged with?" The defendant again responded, "Um-huh."
We quote the phrase's "[u]m-huh" and "[a]h-hah" as they appear in the transcripts of the recorded interviews. It is clear from our independent review of the recorded interviews that these phrases were affirmative responses.
Shortly after the second interview began, the following exchange occurred between Detective Canini and the defendant:
Q.: "Earlier today we tried to talk to you and you asked for a lawyer correct?"
A.: "Ah-hah."
Q.: "You had a couple of minutes to think about it and you decided you didn't need a lawyer and you wanted to talk to us, is this correct?"
A.: "Ah-hah."
Q.: "And you made these decisions on your own?"
A.: "Ah-hah."
In the ensuing interview, which lasted just over an hour, the defendant first explained that on the night of the murder he agreed to drive Jose Rodriguez Villegas and a man called "Pinto" to Springfield to "hold-up somebody." The defendant waited in the car while Rodriguez and the other man, who was armed, entered a house. After the defendant heard gun shots, Rodriguez and the other man came running back to the car and the defendant drove them to Holyoke. Later in the interview, the defendant admitted there was no third person and that he was present when Jose Rodriguez Villegas shot the victim.
Discussion. We accept the judge's findings as to the background facts unless they are clearly erroneous. See Commonwealth v. Welch, 420 Mass. 646, 651 (1995). We defer to the judge's assessment of the credibility of the testimony taken at the evidentiary hearing on the motion to suppress, see Commonwealth v. Scott, 440 Mass. 642, 646 (2004), but we are in the same position as the judge in reviewing the recorded interviews, and therefore make our own determination as to the weight of that evidence. See Commonwealth v. Novo, 442 Mass. 262, 266 (2004). We "make an independent determination of the correctness of the judge's application of the constitutional principles to the facts." Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).
The Commonwealth concedes that during custodial interrogation of the defendant, he clearly and unequivocally invoked his right to counsel. A defendant's invocation of his right to counsel must be scrupulously honored. Commonwealth v. Thomas, 469 Mass. 531, 541 (2014). Once a defendant invokes his right to counsel, questioning cannot resume until an attorney is obtained for the suspect or the suspect initiates further communication. Edwards v. Arizona, 451 U.S. 477, 484-485 (1981). Commonwealth v. Rankins, 429 Mass. 470, 473 (1999). The Commonwealth has the burden of proving beyond a reasonable doubt that the defendant "initiate[d] further communication, exchanges, or conversations with the police," Edwards, supra at 485, and thereby waived his right to counsel. Rankins, supra.
Here, the judge found that the murder investigation was a "high profile" case, that Detective Canini was frustrated by the defendant's assertion of his right to counsel, and that there was conversation between Detective Canini and the defendant after the defendant's invocation of his right to counsel. Those findings were well supported. However, without more, those facts did not support the judge's inference that Detective Canini's "objective in his continued conversation with [the defendant] was to persuade him to change his mind." Nor was there sufficient evidence to support the judge's inference that "[t]he conversation was likely being monitored by other officers, including Captain Duda." All of the testimony was to the contrary and the judge did not discredit that testimony.
The evidence before the judge was that the interview ceased after the defendant's invocation of his right to counsel, and before any inculpatory statements by the defendant. After the defendant was escorted to the bathroom, he asked what would happen next and Detective Canini explained the booking process. Detective Canini testified that, thereafter, there might have been "some general talk, but not about what was going on." As they waited to be directed to the booking area, the defendant told Detective Canini that he would "talk to [Detective Canini], but he did not want to get yelled at." The judge did not discredit Detective Canini's testimony and no contrary evidence was presented.
We disagree with the judge's conclusion that the exchange between Detective Podgurski and the defendant at the beginning of the second interview "sheds no light on what transpired" between the first and second interviews. While it is true that Detective Podgurski's description of the events was self-serving, the defendant was not bound to adopt that description. Based on our de novo review of the recording of the second interview, we conclude that the defendant adopted Detective Podgurski's description without question or hesitation. During that interview, the defendant agreed that he told Detective Canini that he wanted to talk to him again and repeated as much moments later when, in response to Detective Canini's question, he acknowledged that he had decided, on his own, to speak with Detective Canini without a lawyer present. We agree with the Commonwealth that these acknowledgements from the defendant corroborated Detective Canini's testimony regarding the defendant's reinitiation of communication with him.
Detective Canini's testimony is further corroborated by the defendant's statements in the second interview indicating that his reluctance to participate was limited to certain interviewers. Near the end of the second interview, one of the detectives told the defendant, "Someone else want[s] to ask you a question." The defendant responded that he didn't want to talk to anybody else, and then said, "No, no. Like people that will yell at me and that." Detective Canini responded, "Yeah he doesn't need that." The defendant then said, in English, "Nah, I don't like people screaming at me.... You respect me and I'll respect you."
In summary, absent a finding that Detective Canini's testimony was not credible, and absent any evidence that the defendant's reinitiation of communication with Detective Canini was involuntary, it was error to conclude that the Commonwealth had not met its burden of proof to establish beyond a reasonable doubt that the defendant initiated further communication with the police and thereby waived his right to counsel. See Commonwealth v. Knowles, 451 Mass. 91, 93 n.2 (2008) (motion judge may decline to credit testimony, but cannot make findings inconsistent with uncontradicted testimony without evidence to support those findings). The order allowing the motion to suppress the defendant's statements is reversed.
The defendant also argues that his statements should be suppressed because the Commonwealth (1) failed to honor his right to remain silent during the first interview, and (2) failed to afford him an opportunity to make a telephone call as required by G. L. C. 276, § 33A. We need not address these arguments as they were not raised in the defendant's motion to suppress, the affidavit in support of the motion, or the defendant's memorandum of law filed in the Superior Court. Were we to reach the arguments, we see no merit in them based on the record before us.
So ordered.
Reversed.