Opinion
19-P-526
04-23-2020
COMMONWEALTH v. Derek WEBB.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant stands indicted for manslaughter and unlawful distribution of heroin based on allegations that he provided to Grady Hughes the heroin on which Hughes later overdosed. The defendant moved to suppress statements he made on the night of his arrest, arguing that the statements were made in violation of his Miranda rights and were not voluntary. A judge of the Superior Court allowed the motion after concluding that the statements were involuntary, prompting this interlocutory appeal by the Commonwealth. For the following reasons, we reverse.
Facts. The evidence presented at the hearing on the motion to suppress included videos of the defendant's April 8, 2017, booking and interview with State Police Trooper Noah Pack, a transcript of that interview, and two signed acknowledgements of rights. No testimony was presented at the hearing. We draw the facts from our independent review of the documentary evidence, without deferring to the findings of the motion judge. See Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018).
The defendant was arrested on outstanding warrants from the Westfield District Court. During the booking process, the defendant asked multiple times if there were additional charges and whether he would be able to get out on bail. The booking officer replied that he could not answer those questions and gave the defendant Miranda warnings. On the written form setting forth the Miranda warnings, the defendant answered "no" to the question, "Having these rights in mind, do you wish to talk now?" As he was leaving the booking area, the defendant inquired, "they are going to come talk to me, right?" (or words to that effect).
The arrest warrants were for offenses unrelated to the drug overdose.
There is no question that the defendant was in custody at the time of the booking and the subsequent interview.
Approximately twenty minutes later, the defendant was taken to an interview room where he met with Trooper Pack and Westfield Police Sergeant Steve Dickinson. Only Pack conducted the questioning. The defendant inquired, "I'm here for my arrest warrant, right? Like nothing else?" Pack replied that they would "like to talk to [the defendant] about a few things." Pack told the defendant that the interview was going to be recorded and advised the defendant a second time of his Miranda rights. The defendant indicated that he was willing to talk with Pack. The defendant also told Pack that he was "cold as hell," but that he would be alright.
We have reviewed the video of the interview as well as the transcript. The tone of the interview was casual and nonthreatening. The defendant began by asking whether the questioning pertained to the warrants on which he had been arrested. Pack did not respond directly to those questions, but then asked the defendant questions about his background, residence, and work history. Pack eventually turned the conversation to heroin and stated that he knew that the defendant sold heroin and "coordinated drug deals." Specifically, Pack stated that he knew that the defendant had coordinated a drug "drop off" to "Grady." The defendant replied that "[y]ou're not going to say you know I coordinated that deal because I did not." Pack's tone during this exchange was not accusatory, and he said, "I'm not passing judgment on you. I'm not saying that you're a bad guy, and I know that there's a big scale in the spectrum of people who are involved in drugs." Pack told the defendant that his primary concern was overdoses, but he did not disclose that he was investigating an overdose death. After some additional conversation, the defendant supplied specific information about the heroin with which he had recently been involved. Pack asked the defendant if he had used heroin that day, and the defendant stated that he "already did six bundles." Toward the end of the interview, the defendant asked whether he should ask for a lawyer. Pack said, "I will not ever tell you one way or the other on a lawyer."
Specifically Pack said, "I want to find out what the stamps are that are affiliated with these overdoses, and I want to stop those overdoses from happening anymore."
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Standard of review. The defendant moved to suppress his statements to Pack on the grounds that (1) the statements were obtained in violation of his Miranda rights, and (2) the statements were not voluntary. We address both claims, even though the defendant did not file a cross appeal from the motion judge's denial of his motion on the first ground. See Commonwealth v. Catanzaro, 441 Mass. 46, 51 n.8 (2004). Where, as here, the motion was decided solely on the basis of documentary evidence, our task is to "independently determine the correctness of [the judge's] application of constitutional principles to the facts" as they appear in that evidence. Id. at 50.
Discussion. 1. Miranda warnings. There is no question that at the time of his booking, the defendant clearly stated to the booking officer that he did not want to talk; he signed a document to that effect. Approximately twenty minutes later, however, he agreed to talk in an interview room with two different law enforcement individuals. Our inquiry in such circumstances "is whether the person's right to be free from interrogation, once exercised, was scrupulously honored before questioning resumed" (quotations omitted). Commonwealth v. Callender, 81 Mass. App. Ct. 153, 157 (2012). In making that determination, we consider: "(1) whether a significant amount of time elapsed between the suspect's invocation of the right to remain silent and further questioning; (2) whether the same officer conducted both the interrogation where the suspect invoked the right and the subsequent interrogation, and whether the venues differed; (3) whether the suspect was given a fresh set of Miranda warnings before the subsequent interrogation; (4) whether the subsequent interrogation concerned the same crime as the interrogation previously cut off by the suspect; and (5) the persistence of the police in wearing down the suspect's resistance in order to change his mind." Id. See Michigan v. Mosley, 423 U.S. 96, 105-106 (1975). "Massachusetts courts have concluded that the defendant's Miranda rights were not scrupulously honored where, in addition to the violation of other Mosley factors, the interval was thirty minutes or less" (emphasis added). Callender, supra at 158.
Here, unlike in Callender, 81 Mass. App. Ct. at 159-160, the only factor weighing in the defendant's favor is the first, that is, the twenty minute interval between the defendant's initial invocation of his right not to talk to the booking officer, and the interrogation by Pack. The other four factors weigh in the Commonwealth's favor, and are dispositive. First, there was no initial interrogation here; the defendant simply answered booking questions. Second, the statements at issue were made to a different officer, in a different room, about matters other than the arrest warrants that were the subject of the booking. Third, there was no wearing down of the defendant in an effort to make him talk. Finally, the defendant's right to be free from interrogation was "scrupulously honored" under the totality of these circumstances.
2. Voluntariness. The Commonwealth may not use the defendant's statements at trial unless it has proven beyond a reasonable doubt that the statements were voluntarily made. Commonwealth v. Cartwright, 478 Mass. 273, 287 (2017). We look at the totality of the circumstances surrounding the making of the statements in deciding whether the Commonwealth has met its burden of showing, "in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was [not] overborne, but rather the statement was a free and voluntary act." Id., quoting Commonwealth v. Spray, 467 Mass. 456, 467 (2014). The defendant contends that his statements were involuntary because they were given after Pack engaged in trickery, minimization, and while the defendant either was under the influence of heroin or was cold and stressed. We disagree.
Pack's evasive answers to the defendant's questions about the subject matter of the interrogation cannot be characterized as trickery because Pack never made any false statements of fact that materially implicated the defendant in any criminal conduct. See Commonwealth v. Jackson, 377 Mass. 319, 328 n.8 (1979) (expressly disapproving deliberate and intentionally false statements by police to suspects in effort to obtain statement because such tactics cast doubt on whether waiver is knowing, intelligent, and voluntary, as well as on voluntariness of confession). There was no deceit "about the nature of the intended questioning," Cartwright, 478 Mass. at 282, where Pack pointedly accused the defendant of providing Hughes with heroin. Pack's failure to reveal to the defendant that he was a suspect in Hughes's overdose death, or that he was going to be charged in connection with that crime, does not render the defendant's statements involuntary. Id. at 282, and cases cited. Even if Pack's statement, made in response to the defendant's question whether someone had "lately" passed away by overdose -- "That's not what I'm here about" -- could be deemed a false statement as to Pack's strategy in conducting the interview, suppression is not required. Impermissible trickery, even when considered as one factor in the totality of the circumstances, typically involves the police presenting the defendant with a false statement of fact implicating the defendant in a crime under investigation. See, e.g., Commonwealth v. DiGiambattista, 442 Mass. 423, 424 (2004) (interrogating officers resorted to trickery, falsely suggesting to defendant that his presence at scene of fire had been captured on videotape); Commonwealth v. Selby, 420 Mass. 656, 662 n.1 (1995), S.C., 426 Mass. 168 (1997) (police use of false statement about retrieval of suspect's handprint and fingerprint from scene); Commonwealth v. Edwards, 420 Mass. 666, 671 (1995) (detectives used false handprint to elicit incriminating statements); Commonwealth v. Meehan, 377 Mass. 552, 562-564 (1979) (police use of false statement concerning strength of identification testimony, combined with assurances of benefit from confessing, youth and emotional instability of suspect, and denial of right to use telephone, resulted in suppression); Commonwealth v. Nero, 14 Mass. App. Ct. 714, 718 (1982) (unintentional misstatement by police about strength of identification evidence against suspect). It is clear from the "the totality of the circumstances" (quotation omitted), Commonwealth v. Tremblay, 460 Mass. 199, 207 (2011), surrounding this statement by Pack that the defendant's will was not overborne during the questioning. See id. (presence of one or more factors suggesting statement may have been involuntary does not render it so).
The defendant also argues that Pack engaged in impermissible minimization when he stated that the defendant was not the most reprehensible type of person typically involved with drugs. The trooper's efforts "to minimize [the defendant's] moral culpability" was not inappropriate and fell "within the bounds of acceptable interrogation methods." Cartwright, 478 Mass. at 288. Pack never communicated to the defendant "the impression that a confession would result in a lenient disposition." DiGiambattista, 442 Mass. at 437.
Finally, the defendant argues that his statements to Pack were not voluntary because he was cold, stressed, and under the influence of heroin. We have carefully reviewed the videos of the defendant's booking and interview with Pack. Although the defendant states on the video that he is stressed and cold, and claims that he had consumed six bundles of heroin that day, he does not appear visibly stressed or the least bit intoxicated. He is not sweating, he "gave a coherent account of his activities" over the past few days, Commonwealth v. Bigley, 85 Mass. App. Ct. 507, 509 (2014), and there is no evidence regarding the effects on a regular heroin user of the ingestion of six bundles.
Order allowing motion to suppress reversed.