Opinion
No. 0077CR638-41
January 3, 2002
MEMORANDUM OF DECISION REGARDING DEFENDANTS' MOTION TO SUPPRESS TESTIMONY OF NINO ETCHEVARIA
Defendant Ransi Pena, joined by his co-defendant Eric Ramos, moves to suppress the statement and any testimony of Nino Etchevaria. The theory underlying this motion is the well established, and colorfully phrased, "fruit of the poisonous tree" doctrine. Wong Sun v. United States, 371 U.S. 471, 488 (1963). See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (Holmes, J.) ("The knowledge gained by the Government's own wrong cannot be used. . . ."). Citing the recent decision of Commonwealth v. Segoria, 53 Mass. App. 184 (2001), the defendants argue that Pena mentioned Nino Etchevaria in his statement to the police. Later the police talked with Etchevaria and the prosecution now seeks to call him as a trial witness. A judge has suppressed the statement of defendant Pena. Ergo, the defendants conclude, the identity of Etchevaria is the "fruit" that must be suppressed. See Commonwealth v. Lahti, 398 Mass. 829 (1986).
The Commonwealth's initial response is that the motion is baseless in that suppression of a willing witness' testimony may only be suppressed on a "fruits" theory in extremely limited circumstances of intentional police misconduct that are not present in this case. See Stearns, Massachusetts Criminal Law: A District Court Prosecutor's Guide, p. 325 (2001) ("Testimony of a witness whose identity is discovered in as a non-coerced by-product of a constitutional violation will seldom be suppressed as a fruit of the poisonous tree"). See also Commonwealth v.Waters, 420 Mass. 276, 278 (1995) (distinguishing between suppression of physical evidence and a witness' testimony). After this frontal assault on the motion, the Commonwealth follows up by pressing the three established exceptions to the fruit of the poisonous tree doctrine: independent source, attenuation, and inevitable discovery. The Commonwealth, which bears the burden of proving the applicability of such exceptions, has established that the identity of Nino Etchevaria would have been inevitably discovered.
Despite the Commonwealth's argument to the contrary, this case does not fit neatly into the Commonwealth v. Caso, 377 Mass. 236, 241 (1979) mold. In Caso, the Supreme Judicial Court emphasized that "a truly voluntary decision by a witness to testify should not be overridden unless the extreme circumstances of a particular case require the suppression of the testimony as a deterrent to further resort to the unlawful conduct which resulted in the discovery of the witness." Id. Let it be clear that no "extreme circumstances" of misconduct exist in this case. Likewise, however, Nino Etchevaria's decision to testify can hardly be termed "truly voluntary." Etchevaria is, at best, a reluctant witness who initially refused to testify until forced to by a grant of immunity. This is not the type of voluntary testimony referred to in Caso.
For purposes of Massachusetts constitutional law, the inevitable discovery doctrine involves a two-step analysis that "focuses first on the question of inevitability and second on the character of the police misconduct." Grasso McEvoy, Suppression Matters Under Massachusetts Law, pp. 365-366. See Commonwealth v. O'Connor, 406 Mass. 112, 117 (1989). Compare Nix v. Williams, 467 U.S. 431 (1984). It is a demanding test. The inevitability must be such that discovery of the information by lawful means is "certain as a practical matter", Commonwealth v.O'Connor, supra at 117, or "virtually certain." Commonwealth v.Parrot, 407 Mass. 539, 548 (1990).
After hearing testimony and making certain credibility determinations, I conclude that the Commonwealth has proven that witness Etchevaria certainly would have been identified and located. even without the Pena interview. Balanced against that finding is the fact that the police misconduct, if any, was minimal. Therefore, this case presents an excellent example of when inevitable discovery doctrine should be applied. Thus, defendant Pena's motion must be denied.
Co-defendant Ramos' motion must be denied on a more procedural ground, namely standing. It was, of course, Pena's rights at stake when the court suppressed Pena's statement. Given the absence of any egregious police misconduct, defendant Ramos lacks standing to press a fruit of the poisonous tree argument. Commonwealth v. Scardamaglia, 410 Mass. 375, 380 (1991); Commonwealth v. Waters, 420 Mass. 276, 278 (1995).
The factual findings that support these conclusions follow.
FINDINGS
On May 4, 2001, Judge John Cratsley allowed defendant Ransi Pena's motion to suppress his statement to the police. As can be seen from Judge Cratsley's extensive and careful opinion, he found that the Commonwealth had not met its heavy burden of establishing beyond a reasonable doubt that defendant Pena's waiver of his Miranda rights and the voluntariness of his statement had been established. In his findings, Judge Cratsley stated that "the question of waiver and voluntariness in this case is close one". Judge Cratsley did not find that any conduct by the law enforcement authorities was improper. For example, there was no question that the police carefully read theMiranda rights to the defendant and obtained a written waiver of those rights. Instead, the Judge focused on the defendant's relative youth, limited schooling, his sense of isolation, his emotional condition, and his lack of sleep. As the judge concluded "in light of the totality of the circumstances, including the defendant's youth and inexperience, narcotic withdrawal, sleep deprivation, lack of food, emotional condition in light of the extremely isolating aspects of the interrogation, this court concludes that the Commonwealth has not proven beyond a reasonable doubt that the defendant understood his Miranda rights and knowingly and voluntarily waived them."
Likewise, Judge Cratsley found that the Commonwealth was unable to prove beyond a reasonable doubt that the defendant's statements were voluntary. Judge Cratsley cited the same concerns: "Although many would characterize Lieutenant Flynn's techniques as "good police work", this court finds that in conjunction with other questionable circumstances, most importantly the defendant's youth, his physical and emotional condition at the time of the interrogation, and the location of the interrogation, the circumstances lead this court to conclude that the Commonwealth cannot persuade this court that he voluntarily made his statements." As is plain in Judge Cratsley's opinion, the police conduct in this case was not "distinctly egregious" and did not constitute a violation of substantive due process. See Commonwealth v. Scardamaglia, 410 Mass. 373 (1991). Although Judge Cratsley's disapproved of some of the police questioning and found that the Commonwealth had not met its heavy burden, no conduct by the law enforcement officials came close to shocking the conscience of a community. This is hardly a case of a coerced confession brought about by intentional police wrongdoing.
Judge Cratsley was critical of Lt. Flynn's "continuous accusations that the defendant was lying, his appeals to the defendant's desire to see his family." The judge, however, found no evidence of trickery or false statements by the police. Nor were any threats made or promises of leniency. Compare Commonwealth v. Lahti, 398 Mass. 829, 830 (1986). Nor was there any other sort of intentional wrongdoing. Compare Commonwealth v. Caso, 377 Mass. 236 (1979).
Sergeant Dennis Marks of the Massachusetts State Police took defendant Pena's statement and reduced it to writing. After reviewing that statement, the defendant signed it. See Exhibit 1. The statement is extensive and goes into considerable detail. The statement was obtained from defendant Pena during the early morning hours of January 10, 2000. During the statement, defendant Pena detailed at significant length, the fact that the shooting was not done by him but by co-defendant Eric Ramos. The defendant also implied that the shooting was in self defense. Defendant Pena detailed various phone calls made by co-defendant Eric Ramos and the victim Kevin Banks. More than three quarters of the way through defendant Pena's statement, he mentioned, in an off-handed fashion, words to the effect: "I called Nino Etchevaria, my cousin on the cell Wednesday night around 11:00 p.m. and told him what happened. Nino asked me if Eric did anything to the dude and I said Yea, I told him that Eric shot him." I find that this is the full extent of what defendant Pena said regarding Nino Etchevaria with the possible addition that he indicated to Sergeant Marks that the police could contact his cousin, Nino Etchevaria, to confirm this statement. Defendant Pena did not inform Sergeant Marks where Nino Etchevaria was located when he called him on the cellular phone.
This case is a far cry from Commonwealth v. Lahti, 398 Mass. 829, 832 (1986), where the police obtained an involuntary statement "for the very purpose" of obtaining the identity of witnesses and other victims. Here the identity of Etchevaria as a potential witness was an unanticipated and innocent byproduct of the interview.
Ten days later, Sergeant Dennis Marks of the Massachusetts State Police and Lynn Police Lieutenant Dennis Flynn interviewed Nino Etchevaria at the Lynn police station. Mr. Etchevaria voluntarily appeared at the police station but was not particularly cooperative. At first he indicated a lack of knowledge concerning the death of victim Kevin Banks. At this point, either Sergeant Marks or Lieutenant Flynn informed Etchevaria of their conversation with defendant Pena instructing the officers to ask his cousin, namely Nino Etchevaria, about the telephone conversation. As further stimulus, Trooper Marks showed Nino Etchevaria his hotel bill showing phone charges for that evening. By this point of the investigation, Sergeant Marks had determined that Nino Etchevaria had spent the night at the Sheraton Ferncroft Hotel in Danvers, Massachusetts and had obtained his hotel bill. He determined this by checking telephone records of defendant Pena's cellular phone. The cellular phone records show that minutes after the death of Kevin Banks, a call from Pena's cellular phone was made to a number which he later determined to be the Sheraton Ferncroft Hotel. (The call was at 9:05 p.m. and the death of Kevin Banks was reported on a 911 call at approximately 8:54 p.m.).
Although Sergeant Marks does not have a present memory of when he obtained the Sheraton Ferncroft bill (Exhibit 2), it is clear from the evidence that he obtained the bill prior to the January 20th Etchevaria interview. Etchevaria himself admitted that he was shown something at the interview that listed his phone calls from the Sheraton Ferncroft. In addition, the written statement given by Etchevaria makes reference to the specific balance owing ($59.00) — a figure that could only be determined by reference to the actual bill.
It is somewhat unclear how Sergeant Marks obtained the Sheraton Ferncroft Hotel bill relating to Nino Etchevaria. Sergeant Marks, early in the investigation (on January 6th and 7th), requested and obtained the cellular phone records for both defendants Ramos and Pena. Pena's record of calls showed the call to the Sheraton Ferncroft Hotel. At that point, a point in time well before the January 10th interview with Pena, Sergeant Marks knew Pena's cellular phone number. Sergeant Marks reviewed these records immediately upon obtaining them (i.e. on January 7). In reviewing the Pena cellular phone records he noticed two calls to the cellular phone number of the victim Kevin Banks (the last one being 8:45 p.m. on January 5th). The next traceable call (a previous call came up with all zeros and was untraceable) was a phone number of the Sheraton Ferncroft Hotel. Sergeant Marks, apparently using a reverse directory which was available to him, could trace this phone call to the Sheraton Ferncroft Hotel.
Sergeant Marks, on some unspecified date before his interview with Nino Etcheveria, visited the Sheraton Ferncroft Hotel and obtained the hotel bill relating to Nino Etcheveria. When Sergeant Marks visited the Sheraton Ferncroft Hotel he determined that the hotel could not trace where an incoming call went to. In other words, the specific room that the incoming call was connected to was not part of the records of the Sheraton Ferncroft. Sergeant Marks did learn, however, that the Sheraton Ferncroft could find any outgoing calls made from specific rooms at the Sheraton Ferncroft for a particular date. By this procedure, Sergeant Marks could find that Nino Etcheveria had made phone calls to defendant Pena's cellular phone on January 5th and, thus, obtain information about Mr. Etcheveria's stay at the Ferncroft Hotel.
It has not been established from the evidence whether Sergeant Marks made such an investigative step or whether he had some other source of information indicating that Nino Etcheveria was at the Sheraton Ferncroft Hotel at the time of the phone conversations between Etcheveria and defendant Pena. Obviously, if Sergeant Marks had obtained this hotel record showing communications between Pena and Etcheveria through an investigative method completely separate from his interview with defendant Pena, the police had an independent source for this information and the defendants' motion must fail. This, however, has not been established. Instead, it is just as likely that Sergeant Marks obtained the Sheraton Ferncroft bill before talking to Etcheveria but after talking to Pena. One might speculate that Pena made some mention that Etcheveria was staying at a hotel. Sergeant Marks simply does not have a present memory of how or when he obtained the bill. The long and short of it is that the Commonwealth bears the burden of proof to establish an independent source and it has failed to met that burden.
The Commonwealth, however, plainly has proven that it was inevitable that Nino Etcheveria's conversations with Pena would have been discovered regardless of Pena's brief mention of him during his lengthy interview. Law enforcement authorities were extremely interested in the telephone activity of defendants Pena and Ramos during the period of January 5th and 6th. Sergeant Marks obtained a subpoena for these phone records on the day immediately following the death of Kevin Banks. He received the records on January 7th and immediately reviewed them. The records contained information of immediate interest to an experienced investigator such as Sergeant Marks. The records showed that the defendants had called the victim Kevin Banks prior to the shooting. The records also showed that the last call from the defendant Pena's cellular phone to the victim was at 8:45 p.m. Bank's death was reported at 8:54 p.m. The very next call recorded, on the somewhat foreshortened records received on January 7th, was a call from Pena to a number which turned out to be the Sheraton Ferncroft Hotel. Although Sergeant Marks did not know at that moment that the number matched up to the Sheraton Ferncroft, obtaining such information was a simple investigative task.
Although the doctrines of independent source and inevitable discovery are intellectually distinct, they merge somewhat in this case. The phone trial of Pena was being pursued prior to and independent of any interview of Pena. This mates the finding of inevitability all the more certain.
Sergeant Marks continued to be extremely interested in the telephone calls made by the defendants. After all, these records showed many calls made before the death of Kevin Banks including numerous calls from the defendants to Banks. Immediately after the killing of Kevin Banks, there are far fewer calls and none to Kevin Banks phone.
On January 13th, Sergeant Marks received more extensive telephone records relative to the cellular phone accounts of the defendants. Sergeant Marks thereupon completed a master list of every call made from defendants Ramos and Pena to any person. Sergeant Marks determined the person contacted by each call in order to develop witnesses in this investigation. It was during this process (which began soon after January 13th) that Sergeant Marks determined that the call from Pena's cellular phone made shortly after the death of Kevin Banks was a call to the Sheraton Ferncroft Hotel in Danvers, Massachusetts. Once Sergeant Marks determined that the phone call was to the Sheraton Ferncroft Hotel, he then discovered that the hotel had the technology to show every outgoing call from the hotel to a particular telephone number. Thus, it was relatively simple for an investigator to determine whether any calls had been made from the Sheraton Ferncroft Hotel back to Pena's cellular phone. Indeed, such calls were made and recorded on the hotel bill of Nino Etchevaria.
This information certainly would have been obtained regardless of any interview with defendant Pena. After all, Sergeant Marks did contact various people who defendant Pena had called that night on his cellular phone (e.g. a Miss Virginia Sugs). Indeed, as to every call made from Pena's cellular phone after the shooting of Kevin Banks, each one was followed up by Sergeant Marks with two exceptions. One exception was a call to a Melvin Lark. Lieutenant Dennis Flynn of the Lynn Police, who was familiar with Melvin Lark, informed Sergeant Marks not bother attempting to obtain the cooperation of Mr. Lark. The other person called was a Timothy Loftman, a co-defendant at the time. I fully accept Sergeant Marks statement that he definitively would have followed up on this call to the Sheraton Ferncroft Hotel number because it came very shortly after the shooting and it would be important to determine to whom Pena talked to almost immediately after the shooting and what Pena said. Once Sergeant Marks determined that Nino Etcheveria had called back the cellular phone number of Pena, his interest would have been aroused even more. It is simply a certainty that an experienced law enforcement agent would then attempt to interview Nino Etcheveria of Lynn, Massachusetts in connection with this murder investigation.
The proof is in the pudding. Here Sergeant Marks was hot on the tracks of Pena and Ramos (who had fled) and was extremely interested in their telephone activity. He immediately subpoenaed the telephone records and later charted every single telephone call and identified each person called. He went through the effort of going to the Sheraton Ferncroft Hotel before interviewing Nino Etcheveria. He obtained the Sheraton Hotel bill reflecting calls from Nino Etcheveria on the night of January 5th to Pena's cellular phone. When Sergeant Marks arrived at the Sheraton Ferncroft Hotel (a location which he independently discovered by analyzing the phone records) he learned from the hotel that it had the technology to identify any outgoing calls to a particular telephone number. It was inevitable at this point that any calls to either the cellular phone of Pena or Ramos would have been investigated. Once the hotel pinpointed calls from Etchevaria's room to the Pena cellular phone, the identity and importance of Etchevaria was obvious. It is "certain as a practical matter" that Etchevaria would have been located as a potential witness and interviewed, regardless of any mention by Pena.
Nothing in the conduct of Sergeant Marks or Lieutenant Flynn counteracts this inevitable discovery. The police did not engage in any intentional misconduct.
CONCLUSION
The apt image of the phrase "fruit of the poisonous tree" has the disadvantage of occasionally distracting one from the purpose of the doctrine, namely deterring illegal police conduct. In this case, any pressure tactics used when questioning Pena were relatively mild. The decision on the suppression motion was "a close one" and reflected mostly the discretionary decision that the Commonwealth had not met its heavy burden of proof. There would be little if any deterrent effect in suppressing the testimony of a witness briefly mentioned by Pena. To return to the orchard analogy, the tree was not much poisoned and the same fruit was already ripening on another tree. For the reasons stated above, the motions must be DENIED .
________________________________ Richard E. Welch III Justice of the Superior Court
Dated: January 3, 2002