47 Mass. App. Ct. 229 | Mass. App. Ct. | 1999
A single justice of the Supreme Judicial Court allowed the Commonwealth’s application for interlocutory appeal from an order of a District Court judge allowing the defendant’s motion to suppress statements he made to a Department of Social Services (department) investigator. The Commonwealth claims that the judge’s findings of fact were not supported by
We summarize facts found by the motion judge, with amplification from uncontested facts in the record, including the judge’s oral findings of fact. Thomas L. Birch, an investigator with the department, was assigned to investigate a report filed pursuant to G. L. c. 119, § 51 A. The report alleged that the defendant had sexually abused his ten year old daughter and her ten year old friend. In October, 1996, Birch and Officer Reichert of the Sharon police department observed, via a two-way mirror, a “SAIN”
On October 24, 1996, Birch went to the defendant’s home. He told the defendant that, as a result of a report of possible sexual abuse of the defendant’s daughter’s friend, he was there to conduct a social services interview for the benefit of the children, the family, and the department. Birch also told the defendant that, because this was not a criminal investigation, he was not accompanied by a police officer
During the course of the interview, the defendant made incriminating statements.
The judge found, and the defendant conceded, that the defendant did not make his statements as a result of a custodial interrogation, and that Miranda v. Arizona, 384 U.S. 436 (1966), was therefore inapplicable. See Commonwealth v. Larkin, 429 Mass. 426, 432 (1999), quoting from Illinois v. Perkins, 496 U.S. 292, 297 (1990) (“Miranda warnings are only necessary where one is the subject of ‘custody and official interrogation’ ”). See also Commonwealth v. Berrio, 407 Mass. 37, 41 (1990) (defendant not in custody during interview by the department’s investigator to substantiate a 51A report and therefore not entitled to Miranda warnings).
The judge discredited parts of Birch’s testimony and found that Birch’s characterization of the interview as a “social service interview” was a contrivance to advance prosecution interests and obtain evidence against the defendant; that Birch and the police officer decided that Birch would be able to obtain more evidence than the officer; and that Birch lulled the defendant into a false sense of security regarding the nature and purpose of the interview by placing him “in a mental frame of mind so that he felt free to speak without fear of incriminating himself.” The judge concluded that a “sufficient degree of mental coercion” existed such that the defendant “responded with information he otherwise would have refused to provide had he been aware of the criminal nature of the interview,” and suppressed the statements as involuntary.
“In reviewing whether a statement was made voluntarily, we accept the judge’s subsidiary findings of fact unless not warranted by the evidence. Commonwealth v. Tavares, 385 Mass. 140, 144-145, cert, denied, 457 U.S. 1137 (1982). The judge’s ultimate findings, while open for review, are afforded ‘substantial deference.’ ” Commonwealth v. Raymond, 424 Mass. 382, 395 (1997) (citations omitted).
“The test for voluntariness of a confession is ‘whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.’ ” Commonwealth v. Souza, 428 Mass. 478, 483-484 (1998), quoting from Commonwealth v. Raymond, 424 Mass, at 395. See Frazier v. Cupp, 394 U.S. 731, 739 (1969). See also Commonwealth v. Magee, 423 Mass. 381, 387-388 (1996). “There is no easy acid test for voluntariness.” Commonwealth v. Mahnke, 368 Mass, at 680.
“Misinformation by the police does not necessarily render a confession involuntary,” but it is a factor to be considered. Commonwealth v. Raymond, 424 Mass, at 395. See Commonwealth v. Meehan, 377 Mass. 552, 563 (1979), cert, dismissed, 445 U.S. 39 (1980) (“Taken alone, the misinformation would not, we think, suffice to show ‘involuntariness’ . . . but the judge could view it as a relevant factor in considering whether the defendant’s ability to make a free choice was undermined”); Commonwealth v. Magee, 423 Mass, at 389 (“police deception regarding the facts of a particular crime or the existence of evidence linking the defendant to the crime [does] not, by itself, render a confession involuntary”). The significance of the distinction here is that the misleading information went to the nature of the interview, not the facts or evidence involved in the case. Birch aggravated his misrepresentation by stressing that he was not required to give Miranda warnings, implying that anything the defendant said would not
While “[t]he presence of one or more factors suggesting a statement may have been made involuntarily is not always sufficient to render the statements involuntary,” Commonwealth v. Selby, 420 Mass, at 664, on these facts the judge did not err in suppressing the statement. Based on Birch’s representation to the defendant that the interview was not a criminal investigation and that he (Birch) did not need to give the Miranda warnings, that he (defendant) did not need an attorney, and his (Birch’s) failure to inform the defendant until the end of the interview that any incriminating evidence would be relayed to the police or district attorney, the judge was warranted in concluding that the totality of the circumstances demonstrated that the defendant’s will was overborne in that he was lulled into a false sense of security. Contrast Commonwealth v. Berrio, 407 Mass, at 42 (statements made to department social worker admissible where judge found them prompted not by coercion but “the defendant’s decision that his cooperation would best serve his own interests”). The judge’s subsidiary findings were supported by the evidence and his ultimate finding of involuntariness was warranted.
The defendant raises for the first time on appeal the requirements of 110 Code Mass. Regs. § 4.27(5) (1993), which provides that “[a]t the time of first contact with parent(s) or caretaker(s), the investigator shall deliver to said individual a statement of rights which shall include written notice that a 51A report has been made, the nature and possible effects of the investigation, and that information given could and might be used in subsequent court hearings.” While the regulation was
The order suppressing the defendant’s statement is affirmed.
So ordered.
Sexual Abuse Investigation Network.
Birch testified that he also had told the defendant at the outset that he (defendant) did not have to speak with him, but the judge made no finding on this point.
Miranda v. Arizona, 384 U.S. 436 (1966).
The content of the statements is not clear from the record. Birch testified that the defendant told him that his daughter’s friend spent a lot of time at his home, including overnights; that the defendant acknowledged being “very affectionate” with his daughter and her friend, including kissing and hugging the girls; and that Birch and the defendant had discussed whether the defendant had offered his daughter’s friend money for anything, including hugs.
Even if not required, whether Miranda warnings were given is a factor to be considered under the due process standard of voluntariness. Commonwealth v. Mandile, 397 Mass. 410, 413 (1986).
Thus, whether Birch was an agent of the police, as the defendant claims, is not controlling. Contrast Commonwealth v. A Juvenile, 402 Mass. 275, 278 (1988) (where a private citizen was functioning as an instrument of the police and the defendant was in custody, the defendant was entitled to Miranda warnings).
After the court inquired of Birch what his duty would be regarding law enforcement following an initial investigation, the judge observed that, even though Miranda was inapplicable, “[the defendant] should have been given some kind of notice, I think. I think I’d want [some authority] that says that he’s not to be advised — he doesn’t have to be advised that what he says is going to be used against him.”