Opinion
No. 11–P–843.
2013-02-1
COMMONWEALTH v. Joshua RUSSELL.
By the Court (BERRY, KAFKER & GRAINGER, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant was convicted by a jury in the Superior Court of murder in the second degree arising out of a fight that took place outside a bar in Wareham, during which the defendant fatally wounded the victim with a golf club. On appeal, the defendant argues that (1) the trial judge erred by failing to instruct the jury on the lesser included offense of involuntary manslaughter, and (2) a videotape of the defendant's interview with police officers should have been suppressed because they dishonored his preinterview invocation of his right to counsel. For the reasons enunciated below, we reverse the conviction.
1. Miranda violation. “We review [the motion judge's] findings, based upon live testimony [at the suppression hearing], with the familiar deferential standard. We take an independent view of the facts based upon documentary evidence [including videotapes], without deference to the fact finder.” Commonwealth v. Molina, 81 Mass.App.Ct. 855, 860 (2012), citing Commonwealth v.. Hoyt, 461 Mass. 143, 148 (2011). The judge found that the defendant was read his Miranda rights, first when his car was stopped by Fairhaven police Officer Botelho the day after the fight, and again in the booking room at the Fairhaven police station. At the station the defendant signed a form acknowledging his receipt of Miranda rights. After a brief interval, the defendant told Botelho that he wanted to use a telephone to call his lawyer. Botelho gave the defendant a cordless phone and the defendant made a number of calls. The defendant then continued to sit on the booking bench for approximately twenty minutes. During this time, he was allowed to use the phone again and he placed a call to Colleen Tynan, an attorney in New Bedford. The defendant failed to reach Tynan, and left a message. After the defendant's final phone call, Trooper Clements and Detective Correia arrived at the station and the defendant was brought into an interview room.
The Commonwealth argues that the defendant did not preserve this issue for appellate review. We disagree. The defendant moved to suppress the tape before trial; both his examination of Officer Botelho and the judge's findings clearly indicate that he based a claim of error on his request for a lawyer. More was not required. Commonwealth v. Hoyt, 461 Mass. 143, 154 (2011), and cases cited.
Because the motion judge heard extensive testimony from Officer Botelho regarding the events that took place in the booking area, and because the parties do not dispute the judge's findings in this regard, we defer to those findings and have not made an independent review of the booking room videotape. See Commonwealth v. Callender, 81 Mass.App.Ct. 153, 154 n. 1 (2012). However, we have independently reviewed the second videotape, of the defendant's interview with Officers Clements and Correia, and do not give deference to the judge's findings based on that recording.
In the interview room, Clements read the defendant his Miranda rights again and provided him with the Fairhaven police department Miranda rights form. The defendant told Clements, “I was trying to get in touch with my lawyer, but she won't answer the phone.” Clements asked the defendant to initial the form to acknowledge that he had received his rights and understood them; the defendant obliged. Clements informed the defendant that the interview was being recorded. Clements then asked the defendant, “Having all of your rights in mind, do you want to talk to us now?” Further exchanges ensued between the defendant and the officers, resulting in the defendant's signature on the Miranda form indicating that he wished to waive his rights. Thereafter, the defendant made exculpatory statements and denied any involvement in the fight.
The motion judge found that the defendant did not “reference to Clements any efforts he had been making to reach any attorney.” However, both the Commonwealth and the defendant agree in their briefs on appeal that the defendant made this statement. After reviewing the videotape, we agree with the parties that the defendant made this statement and hold that the motion judge's finding to the contrary was error. See note 2, supra.
Approximately sixteen minutes into the interview, the defendant again stated that he wanted to speak to his lawyer. Clements and Correia continued to interview the defendant for approximately three minutes until there was a knock at the door. Clements stepped out of the room and upon reentering asked the defendant if he wanted to have his lawyer present. The defendant repeated his affirmative response. The police then terminated the interview and the defendant returned to the booking area.
The defendant invoked his right to counsel in the booking room when he asked Officer Botelho if he could call his attorney. He was not required to express an additional and explicit desire to forestall questioning until his lawyer arrived, see Miranda v. Arizona, 384 U.S. 436, 474 (1966) (“If the individual states that he wants an attorney, the interrogation must cease until an attorney is present”), nor was his invocation affected by the fact that the defendant failed to reach his attorney by phone. His was an unambiguous request, triggering what the Supreme Judicial Court has described as “the long-standing principle that ‘postrequest responses to further interrogation may not be used to cast retrospective doubt on the clarity of the initial request itself.’ “ Hoyt, 461 Mass. at 152, quoting from Smith v. Illinois, 469 U.S. 91, 100 (1984).
Even if we viewed the defendant's initial request as an ambiguous or equivocal invocation of his right to counsel, our precedents required the police to clarify the defendant's wishes before interrogation could commence. See Commonwealth v. Santos, 463 Mass. 273, 286–287 (2012); Commonwealth v. DiMuro, 28 Mass.App.Ct. 223, 227 (1990). Here, the police did not attempt to clarify before initiating the interrogation.
In Hoyt, the Supreme Judicial Court held that statements the defendant made immediately after his invocation of counsel did not render his request for counsel ambiguous. The characterization of continuous and uninterrupted speech as a response to further interrogation, see Hoyt, 461 Mass. at 150, applies accurately in this case where the police clearly interposed questions. We follow the rule stated in Hoyt, in spite of its distinguishable facts.
The defendant's next statement, made in the interrogation room—“I was trying to get in touch with my lawyer, but she won't answer the phone”—did not undermine the clarity of the defendant's previous invocation of rights in the booking room. This was simply a reference to the fact that he had already invoked his right to an attorney and that it had not been satisfied. Alternatively, were we to assign ambiguity to the exchanges between the defendant and Botelho in the booking area, the statements which ensued in the interrogation room cannot be said to have resolved any such ambiguity in favor of a stated desire by the defendant to speak to the officers without an attorney. See note 4, supra.
Cf. Commonwealth v. Mavredakis, 430 Mass. 848, 855–862 (2000) (protections under art. 12 of Massachusetts Declaration of Rights are greater than those recognized under Fifth Amendment to United States Constitution in circumstances where lawyer is trying to reach suspect being questioned who may have waived Miranda rights); Commonwealth v. Clarke, 461 Mass. 336, 345–351 (2012) (in the prewaiver context, art. 12 does not require a suspect to invoke his right to remain silent with the utmost clarity, as required under Federal law).
The defendant did not say anything to the police until Clements and Correia brought him into the interview room and re-administered the Miranda warnings. “When an accused has invoked his right to counsel during a custodial interrogation, the police must stop the interrogation until counsel has been made available to the defendant, unless the accused himself initiates further conversation with the police.” Commonwealth v. Morganti, 455 Mass. 388, 396 (2009), citing Edwards v. Arizona, 451 U.S. 477, 484–485 (1981). The defendant's statements in response to the third Miranda warnings must be viewed as “postrequest responses to further interrogation” in violation of the Edwards rule, and thus cannot be used to cast doubt on the defendant's desire to have counsel present during questioning.
We also conclude that admission of the videotape at trial was not harmless beyond a reasonable doubt. It allowed the Commonwealth to attack the credibility of the nontestifying defendant. See Commonwealth v. Santos, 463 Mass. 273, 287–288 (2012).
2. Involuntary manslaughter instruction. Because the case may be retried, we comment briefly on the defendant's argument pertaining to the judge's refusal to give the jury an instruction on involuntary manslaughter.
The jury could have found that during the melee the defendant retrieved a golf club from the trunk of his car and swung it into the crowd. At trial, one witness testified that the defendant swung the golf club sideways, like a bat. Another testified that he swung the club over his head in a downward, chopping motion. The victim's cousin testified that the defendant swung the club “wildly.”
The word “wildly” is susceptible to different interpretations, and here these are material to the issue. The word can be understood to mean “forcefully,” an interpretation that would undermine the defendant's argument. It can also be synonymous with “erratic,” in which case a “reasonable view of the evidence would have permitted the jury to find ‘wanton and reckless' conduct rather than actions from which a ‘plain and strong likelihood’ of death would follow.” Commonwealth v. Jenks, 426 Mass. 582, 585 (1998). “It is well established that if, in a murder prosecution, the jury would be warranted in finding the defendant guilty of manslaughter, rather than murder, it is reversible error not to give an instruction on manslaughter.” Commonwealth v. Martinez, 393 Mass. 612, 613 (1985). On this record, while the issue is close, the judge should have given the instruction. We are, of course, unable to anticipate whether the evidence in the event of a retrial will provide a requirement for the instruction.
We think this case is distinguishable from those cited by the Commonwealth, which largely involve attacks by multiple aggressors or the use of a firearm. See Commonwealth v. Curtis, 417 Mass. 619, 627–628 (1994) (no basis for involuntary manslaughter instruction where victim was beaten by a group with baseball bats and a bottle); Commonwealth v. Childs, 445 Mass. 529, 533–534 (2005) (involuntary manslaughter instruction not warranted where defendant pointed a loaded and cocked gun into an occupied car); Commonwealth v. Snow, 34 Mass.App.Ct. 27, 30–33 (1993) (no view of the evidence warranted an instruction on involuntary manslaughter where six youths beat the victim with sticks and canes during a “rumble” between rival teen gangs, and the victim died of a knife wound inflicted by one of the youths). Compare Commonwealth v. Acevedo, 446 Mass. 435, 437–438 (2006) (trial judge gave instruction on involuntary manslaughter where defendant swung a knife into a hostile crowd gathered outside a party).
3. Conclusion. The defendant's motion to suppress his videotaped interview should have been allowed because he clearly and unequivocally invoked his right to counsel prior to questioning. The judgment is reversed, the verdict is set aside, and an order shall enter allowing the motion to suppress consistent with this memorandum and order.
So ordered.