Opinion
No. 15–P–556.
10-20-2016
COMMONWEALTH v. Lucas RUANO.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury trial, the defendant, Lucas Ruano, was convicted of posing or exhibiting a child in the nude, possession of child pornography, disseminating matter harmful to a minor, and enticing a child under the age of sixteen. On appeal, he argues that the motion judge erred in denying his motion to suppress statements he made at his apartment; denying his motion to suppress statements he made at the Attleboro police station; and denying his motion to suppress the warrantless seizure and search of his cellular telephone (cell phone). We affirm.
On June 18, 2010, the defendant initially filed a motion to suppress statements made to the police. On October 15, 2010, the motion judge held an evidentiary hearing thereon and denied the motion. On October 22, 2010, the defendant filed a second motion to suppress relative to the search of his cell phone. On December 13, 2010, the same motion judge held an evidentiary hearing thereon, and denied the motion on December 14, 2010.
Background. The following facts stem from the findings of the motion judge, the uncontested testimony of the officers at the evidentiary hearings whom the motion judge found to be “credible,” and our review of the videotaped interview at the police station. See Commonwealth v. Jones–Pannell, 472 Mass. 429, 437 (2015) (appellate court may supplement motion judge's findings of fact with testimony motion judge found credible). See also Commonwealth v. Thomas, 469 Mass. 531, 535 n. 4 (2014) (appellate court in same position as motion judge to review recorded interview of defendant).
In the motion judge's handwritten denial of the motion to suppress the defendant's statements, he found: “The testifying police officers were credible, and the videotape ... confirmed that the defendant was apprised of the Miranda rights and that he made a knowing and intelligent waiver beyond a reasonable doubt.... The testimony and videotape also demonstrated beyond a reasonable doubt that the statement was made voluntarily.”
On February 24, 2009, the thirteen year old victim, C.B., and her parents arrived at the Attleboro police station and met with Detective Jeffrey Peavey. They reported that C.B. had exchanged text messages with the defendant, whom C.B. had met through a mutual friend, J.E. They reported that the defendant had sent C.B. a photograph of his penis; that the defendant had asked C.B. to send him photographs of her breasts and vagina, and to meet for a sexual encounter; that C.B. had sent the defendant a photograph of her breasts, but had refused to send him a photograph of her vagina or meet for a sexual encounter; and that C.B. believed that the defendant forwarded the photograph of her breasts to J.E., and feared that the photograph would be circulated around school. C.B. told Detective Peavey that she had deleted the photographs from her cell phone before arriving at the police station. Detective Peavey obtained C.B.'s and her parents' consent to take C.B.'s cell phone as evidence.
Later that day, Detective Peavey and Officer William Monterroso traveled to J.E.'s apartment and questioned him. J.E. admitted that he had received a photograph of C.B.'s breasts from the defendant, but had deleted the photograph from his iPod. Detective Peavey obtained J.E.'s iPod, with J.E.'s consent. J.E. also informed the officers that the defendant lived in the same apartment building, but was not home.
Detective Peavey and Officer Monterroso returned to the building at 10:54 P.M. and knocked on the defendant's apartment door. The officers identified themselves, and were invited inside. Detective Peavey explained why they were there and, before speaking to the defendant, advised him of his Miranda rights. The defendant admitted that he knew C.B., but initially denied that he had sent her a photograph of his penis. After Detective Peavey informed him that the police had already spoken with J.E., and had J.E.'s iPod and C.B.'s cell phone, the defendant admitted to sending her such a photograph. Detective Peavey asked the defendant if he would accompany them to the police station. He agreed, and asked to gather some items from his bedroom to take to the police station. Therein, Detective Peavey saw the defendant's cell phone and asked, “[C]an I have this cell phone to take with us?” Detective Peavey then took possession of the cell phone.
Thereafter, the officers and the defendant walked to Officer Monterroso's cruiser. Officer Monterroso pat frisked the defendant prior to their entering the cruiser. The defendant was not handcuffed and was not placed under arrest. Officer Monterroso drove the defendant to the Attleboro police station, they entered through the back of the building, and they went to the second-floor interview room. There, the officers informed the defendant that the interview was being recorded, and again advised him of his Miranda rights. The defendant signed a Miranda form, checked a box affirming that he understood all of the rights read to him, and initialed each line of the Miranda form memorializing that he understood each specific right.
During the interview, the defendant again admitted to sending C.B. a photograph of his penis from his cell phone, but alleged that C.B. had proposed a sexual encounter and asked to exchange nude photographs. Detective Peavey mentioned that the defendant had previously contradicted himself; that he had a difficult time believing some of the defendant's current statements; and reminded the defendant that “we have these cell phones[,] the record's stored in those phones somewhere and we can send those to a lab to bring out everything that's been said back-and-forth in text messages, you understand that?” Detective Peavey encouraged the defendant to be truthful, apprised the defendant when his answers were inconsistent with C.B.'s report, and reminded him, “[E]verything's going to be on text messages. Okay. Don't sit here and change the stories and get everything wrong, okay.”
The defendant ultimately admitted, again, that C.B. sent him a photograph of her breasts, that he sent that photograph to J.E., and that he later told J.E. to delete that photograph from his iPod. The defendant initially denied that he still possessed that photograph on his cell phone. Detective Peavey asked the defendant, “Do you have any objection to us looking in that phone if we give you a consent to search to look inside that phone,” to which the defendant replied, “I don't know. I guess so.” Detective Peavey responded, “You don't have to. We'll advise you of a consent to search” and reminded the defendant that they still had C.B.'s call phone and J.E.'s iPod. Officer Monterroso clarified, “It's giving permission for us to look through the phone that's what this all means,” to which the defendant replied, “And what if I don't want to?” Officer Monterroso stated, “Well, that's your right. You can say no; you can say yes ... [b]ut if you say yes, it makes it easier on everybody. If you say no, then we take it one step further.” Detective Peavey added, “You know I'm not intimidating you. I'm not threatening you. I'm just telling you, you have every right in the world to say no. Okay. You've been cooperative this far. I appreciate you being cooperative.” After some further discussion, the defendant agreed to show the photograph to the officers, and did so. Detective Peavey took the cell phone in evidence, stated that he appreciated the defendant's honesty, and showed the defendant a consent form to further search the cell phone for evidence, which the defendant read and signed. A digital video disc (DVD) of the recorded interview, which ran a total of twenty-seven minutes, was marked as an exhibit at the two evidentiary hearings on the motions to suppress.
Discussion. The defendant first argues that the statements he made at his apartment were the result of a custodial interrogation, and the Commonwealth failed to show that he had knowingly, intelligently, and voluntarily waived his Miranda rights. The defendant's motion to suppress, supporting documentation, and argument below did not address the claim that the statements made at the apartment should be suppressed on the basis that they were the result of custodial interrogation and an invalid waiver of his Miranda rights, and the judge made no ruling on it. To the contrary, the first motion to suppress centered on the statements made by the defendant during his recorded interview, the voluntariness of his statements at the police station, and the validity of the Miranda waiver at the police station.
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. Thus, the issue may be deemed waived. See Commonwealth v. Mathis, 76 Mass.App.Ct. 366, 374 (2010) (“A party's failure to raise a potential claim at his suppression hearing waives any appeal on that issue”). As a consequence of the defendant's failure to specifically join the issue, the record below does not contain all the information necessary to make a determination on the question. The defendant's evidence is not sufficient on this point and, not alerted to this argument, the Commonwealth can hardly be blamed for failing to include in evidence all the details of the encounter in the apartment.
While we do not reach the merits of the question, even were we to assume arguendo that the defendant sufficiently preserved the issue, we would find no error here because on this record the defendant has not met his initial burden of showing that he was subjected to a custodial interrogation in the apartment. See Commonwealth v.. Hilton, 443 Mass. 597, 609 (2005), quoting from Commonwealth v. Damiano, 422 Mass. 10, 13 (1996) (“In assessing whether a defendant was in ‘custody’ for purposes of the Miranda requirements, ‘[t]he crucial question is whether, considering all the circumstances, a reasonable person in the defendant's position would have believed that he was in custody’ ”). See also Commonwealth v. Sneed, 440 Mass. 216, 220 (2003) (delineating factors in determining whether defendant was in custody). “There is no specific formula for weighing the relevant factors, ... but ‘[r]arely is any single factor conclusive.’ “ Ibid., quoting from Commonwealth v. Bryant, 390 Mass. 729, 737 (1984).
The judge specifically found that the “testifying police officers were credible” and the record supports that finding.
The Sneed factors are as follows: “(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the nature of the interrogation, i.e., whether the interview was aggressive or, instead, informal; and (4) whether, at the time the incriminating statement or statements were made, the suspect was free to end the interview by leaving the place of the interrogation or by asking the interrogator to leave, or, alternatively, whether the interview terminated with the defendant's arrest.” Sneed, supra.
In the present case, so far as the record shows anything, it shows that the defendant voluntarily admitted the officers “into the familiar surroundings of [his] home.” Id. at 221. Although the defendant could have reasonably believed that he was the subject of their investigation, there is no record evidence that the officers acted aggressively, through their tones, physical gestures, or otherwise, toward the defendant. See Hilton, supra at 610 (style and tone of questioning was neither aggressive nor confrontational). Indeed, there is insufficient evidence of what was said at the doorway and thereafter to support a conclusion that the defendant was in custody at the apartment. Moreover, the meeting in the apartment ended with the defendant agreeing to voluntarily accompany the officers to the police station, and, prior to entering the back of the police cruiser, the defendant was pat frisked, but not handcuffed or formally placed under arrest. See Commonwealth v. Molina, 467 Mass. 65, 66–67, 73–75 (2014) (defendant not in custody when officers asked if defendant would go to police station to answer questions, he rode in police cruiser to police station, and he was not handcuffed or under arrest). The record does not demonstrate that a reasonable person would have understood that he was in custody at the apartment. See Sneed, supra at 222. Accordingly, based on the credited testimony of the officers, the record supports the denial of the motion to suppress the statements made by the defendant at his apartment.
Furthermore, there is no merit to the defendant's argument that evidence obtained from the cell phone during his police station interview should be suppressed because it was impermissibly tainted by the alleged constitutional violation at the apartment. Where no constitutional violation has been demonstrated in the encounter at the apartment, the motion judge properly denied the defendant's motion to suppress evidence seized from the cell phone.
In his denial of the motion to suppress the seizure of the cell phone, the motion judge found, inter alia, as follows: “Having reviewed the defendant's videotaped interview again ... the Court reaffirms its findings and rulings that the Court made in its denial of the defendant's motion to suppress the record of the interview.... For similar reasons, the Court finds that the defendant's consent to the search of his cell phone and to the retrieval of the images that are the subjects of the indictment was free and voluntary. Further, there was no ‘prior illegality.’ “
Next, the defendant argues that the statements made during the police station interview were involuntary. “We review de novo any findings of the motion judge that were based entirely on ... the recorded interview[ ] of the defendant.” Thomas, 469 Mass. at 539. “We accept other findings that were based on testimony at the evidentiary hearing ... [unless] clearly erroneous,” but “make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found.” Ibid., quoting from Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011).
To evaluate a claim of involuntariness, we look to the totality of the circumstances to determine whether the statement was “the product of a rational intellect and a free will.” Commonwealth v.. Jackson, 432 Mass. 82, 85 (2000), quoting from Commonwealth v. Davis, 403 Mass. 575, 581 (1988). We consider a number of factors, including “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.” Commonwealth v. Novo, 442 Mass. 262, 267 (2004), quoting from Commonwealth v. Mandile, 397 Mass. 410, 413 (1986). 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).
Review of the interrogation and surrounding circumstances compels the conclusion that the defendant's statements were voluntary. The defendant was twenty-one years old, and appeared calm, stable, and coherent throughout the interview, which lasted only twenty-seven minutes. The tone was not hostile, and the environment not oppressive. The defendant was not handcuffed and was seated throughout. He received and waived his Miranda warnings, and affirmed, in writing and verbally, that he understood them. He was not offered any leniency or deal, nor was he offered anything in exchange for his cooperation. Although Detective Peavey advised the defendant that he did not believe some of the defendant's statements, the detective neither yelled nor acted aggressively toward him. The defendant exhibited his engagement and lucidity in the interview by disagreeing with and correcting the officers' assertions on multiple occasions, and clarifying questions that he did not understand. These factors all support a finding that the defendant's statements and actions during the police interview were voluntary.
The defendant counters, relying principally upon Commonwealth v.. DiGiambattista, 442 Mass. 423 (2004), that Detective Peavey repeatedly made false statements and implied promises of leniency in hopes of gaining the defendant's cooperation. We are unpersuaded on both fronts. First, we disagree with the defendant's view that the officers' statements “suggested that the police were in possession of incontrovertible evidence against [the defendant].” Detective Peavey truthfully stated that the officers were in possession of C.B .'s cell phone and J.E.'s iPod. Detective Peavey's statements that those devices could be analyzed by the crime laboratory to uncover the images and correspondences, described his expectation and were not framed as a certainty. Viewing the interview in its entirety, the statements were neither false nor misleading.
Even assuming, arguendo, that Detective Peavey's statements regarding the potential retrieval of information from the victim's and J.E.'s devices could be categorized as “false,” they did not render the defendant's statements involuntary. Compare Selby, 420 Mass. at 662–665 (use of false information by police did not rise to level to show involuntariness).
Second, Detective Peavey never improperly implied that cooperating with the interview would benefit the defendant. Detective Peavey's statements fell “within the general rule that ‘[a]n officer may suggest broadly that it would be ‘better’ for a suspect to tell the truth, ... [and] did not relay to the defendant ‘an assurance, express or implied, that [his cooperation would] aid the defense or result in a lesser sentence.’ “ Commonwealth v. Johnson, 463 Mass. 95, 105–106 (2012), quoting from Commonwealth v. Meehan, 377 Mass. 552, 564 (1979).
In sum, the motion judge correctly concluded that, in the totality of the circumstances, the defendant's statements during the police interview were voluntary. See Commonwealth v. DiGiambattista, 83 Mass.App.Ct. 180, 184–189 (2013). There was no error in the denial of the defendant's motions to suppress.