Thе defendant appeals from his convictions of two counts of rape of a child under sixteen years of age, G. L. c. 265, § 23, and two counts of indecent assault and battery on a person who has attained the age of fourteen years, G. L. c. 265, § 13H. The defendant contends, among other claims, that certain statements admitted against him at trial were obtained in violation of his right to counsel under the Fifth Amendment to the United States Constitution, as interpreted by
Miranda
v.
Arizona,
We granted the defendant’s application for direct appellate review to consider whether, in making the above-quoted statement at the outset of questioning, the defendant invoked his Fifth Amendment right to counsel. We conclude that the defendant unambiguously invoked his right to counsel and that questioning should have ceased until counsel was made available. Therefore, the incriminating statements should not have been admitted at trial. In any event, the defendant is entitled to relief because the Commonwealth did not satisfy its heavy burden of establishing beyond a reasonable doubt that the defendant’s subsequent waiver of that right was knowing, voluntary, and intelligent. See
Commonwealth
v.
Day,
Background. We summarize the procedural backdrop as well as relevant facts as the jury could have found them, reserving certain details for later discussion.
The complainant was bom on September 20, 1990. After the death of his father in October, 2003, the complainant began attending Native American gatherings with his mother, who had been involved previously in the local Native American community. The complainant and his mother met the defendant at one such *145 gathering in the spring of 2004. The complainant purchased a rabbit from the defendant and subsequently began visiting the defendant’s house to help take care of the defendant’s many animals. Although at first his mother went to the defendant’s house with him, the complainant was eventually allowed to visit the defendant by himself.
The complainant testified to a pattern of sexual conduct between himself and the defendant that began at this time. Specifically, he testified to incidents in which the defendant and the complainant would engage in sexualized touching. By November of 2005, the conduct escalated when the complainant and the defendant began to engage in oral sex. The defendant provided the complainant with alcohol and marijuana when they had sex. The complainant testified further that at all times during this relationship he did not want to engage in any sexual acts with the defendant, but that he acquiesced out of fear for his mother’s safety, even though the defendant had never threatened either the complainant or his family.
In the spring of 2007, the complainant spoke to someone for the first time about the nature of his encounters with the defendant, confiding in a Native American elder who had been teaching him about that culture. Soon thereafter, the complainant told his mother about his encounters with the defendant. To help in proving that the defendant had engaged in these acts, the complainant and his mother decided to make an audio recording of a conversation between the complainant and the defendant discussing the sexual conduct. After making this recording, the complainant’s mother filed a complaint with the Pittsfield police department; the complaint was investigated by Detective Dale Eason. After further investigation — including listening to the audio recording and speaking with the complainant, his mother, and the elder — Eason arrested the defendant.
Eason and Pittsfield police Sergeant Marc Strout questioned the defendant at the police station after his arrest. Eason started the interrogation by reviewing the Miranda waiver form with the defеndant. 1 Although the defendant did not have his reading glasses, he gave his signed permission for the interrogation to *146 be videorecorded. 2 After Eason read the defendant the Miranda warnings, 3 the following exchange took place:
Eason: “This right here states that you understood everything I just read to you. Having these rights in mind, do you wish to speak to us now?”
Defendant: “I’d like an attorney present. I mean but I can’t afford one. So I guess I’ll just speak to you now. I don’t have an attorney.”
Eason: “Okay. If you want to speak to us later, that’s fine as well. I mean but we’re not, you know, we don’t get you an attorney, we can let you use a phone book and stuff like that, but it’s up to you.”
Defendant: “I’ll just talk to you now.”
Eason: “Okay.”
Strout: “Roy, I just want to make it clear. You want to talk to us now, and you don’t want an attorney?”
Defendаnt: “Uh, I’d have to wait here until an attorney came right?”
Strout: “You can ... we can let you use the phone and the phone book to call an attorney. I can’t tell you if they’re gonna come here, I don’t know what they would do.”
Defendant: “I’ll just talk to you without an attorney.”
*147 Thereafter, the defendant signed the form, waiving his rights under Miranda, and made inculpatory statements.
On June 14, 2007, the defendant was indicted for rape of a child by force, G. L. c. 265, § 22A; assault with intent to commit rape and rape, G. L. c. 265, § 22 (b); indecent assault and battery on a child under fourteen, G. L. c. 265, § 13B; and indecent assault and battery on a person who has attained the age of fourteen, G. L. c. 265, § 13H.
The defendant filed a pretrial motion to suppress incriminating statements made during the police interrogation. 4 After an evidentiary hearing, a Superior Court judge denied the motion. Having viewed the video recording of the interrogation, the judge concluded that suppression was not required because there had been no “unequivocal invocation” of the right to counsel. 5
After a four-day trial before a different Superior Court judge, during which the entire interrogation video recording was admitted in evidence and played for the jury, 6 the defendant was found guilty of two counts of rape of a child and two counts of indecent assault and battery. 7
*148 On appеal, the defendant claims error in three respects. First, he contends that the judge erred in allowing the admission of his incriminating statements obtained in violation of Miranda, arguing both that he invoked his right to counsel at the start of the interrogation and that his waiver was invalid. Second, the defendant argues that the judge erred in admitting in evidence testimony as to multiple first complaints, thereby giving rise to a substantial risk of a miscarriage of justice. Finally, the defendant argues that he was deprived of his right to the effective assistance of counsel.
Discussion,
a.
Motion to suppress incriminating statements in violation of
Miranda, i.
Standard of review.
In reviewing a ruling on a motion to suppress, “[w]e accept the judge’s subsidiary findings absent clеar error but conduct an independent review of his ultimate findings and conclusions of law.”
Commonwealth
v.
Bostock,
Here, however, the motion judge heard no such testimony. At the evidentiary hearing, he considered only documentary evidence: the Miranda wаiver form, the interrogation video recording, and the transcript of the interrogation. We have all of these materials before us. We are thus “in the same position as the motion judge in viewing the videotape” as well as the other evidence submitted to him.
Commonwealth
v.
Prater,
ii.
Invocation of the Fifth Amendment right to counsel.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” The United States Supreme Court recognized in
Miranda, supra,
that this protection against compelled self-incrimination must extend to police custodial interrogations because “without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speаk where he would not otherwise do so freely.”
Miranda, supra
at 467. In light of these pressures, in circumstances of custodial interrogation,
8
“[pjrior to any questioning, the [suspect] must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.”
Id.
at 444. “[A] warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.”
Id.
at 469. A defendant’s statements may not be placed bеfore a jury unless the Commonwealth proves beyond a reasonable doubt that, after having been advised of these rights, the defendant gave a knowing, voluntary, and intelligent waiver of them.
Commonwealth
v.
Day,
In deciding whether a defendant has invoked the Fifth Amendment right to counsel, the United States Supreme Court has
*150
stated that “after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unlеss the suspect clearly requests an attorney.”
Davis
v.
United States,
We disagree with the motion judge’s conclusion that the defendant’s statement was ambiguous. In these circumstances, the statement, “I’d like an attorney present,” in response to the question, “Do you wish to speak to us now?” was an unambiguous invocation of the defendant’s right to counsel. We have reached the same conclusion with respect to statements displaying with even less clarity a defendant’s desire for counsel. See, e.g.,
Commonwealth
v.
Contos,
Furthermore, the defendant’s statement was not merеly an “acknowledgment of the serious nature of the charges facing him,” Commonwealth v. Pennellatore, 392 Mass. 382, 387 (1984), since the defendant actually said that he would like an attorney present for questioning rather than simply stating that he would need an attorney at some point in the future. Contrast id. (defendant’s statement, “I guess I’ll have to have a lawyer for this,” was, viewed in context, recognition of seriousness of charges rather than affirmative request for attorney). The defendant’s statement here unambiguously reflected a desire to have counsel present during questioning. His difficulty was that he could not afford an attorney. Where a suspect invokes his right to counsel but notes that he cannot afford counsel, the latter observation does not render the request for counsel equivocal. Because Miranda requires that a suspect who cannot afford an attorney will have one provided for him, indigence cannot be a ground on which to find equivocation.
When a defendant invokes his right to counsel, all subsequent statements are inadmissible unless counsel is provided or the Commonwealth can prove beyond a reasonable doubt that the defendant “initiatefd] further communication, exchanges, or conversations with the police,”
Edwards
v.
Arizona, supra
at 485, and thereby waived his right to counsel.
Commonwealth
v.
Rankins,
iii.
Waiver of right to counsel under State law.
The Com
*152
monwealth contends, however, that, when read in its entirety, the defendant’s initial invocation of his right to counsel (“I’d like an attorney present”) was rendered ambiguous by what he said immediately thereafter (“I mean but I can’t afford one. So I guess I’ll just speak to you now. I don’t have an attorney”). In so arguing, the Commonwealth ignores the long-standing principle that “postrequest responses to further interrogation may not be used to cast retrospectivе doubt on the clarity of the initial request itself.”
Smith
v.
Illinois,
The rule in
Miranda
— establishing a presumption of coercion in the absence of the required warnings — “protects both Fifth Amendment rights and rights guaranteed under art. 12 [of the Massachusetts Declaration of Rights].”
11
Commonwealth
v.
Martin,
As stated, “[t]o be valid the waiver must be made voluntarily, knowingly, and intelligently.”
Commonwealth
v.
Edwards, supra
at 670. “The question is not one of form, but rather whether the defendant
in fact
knowingly and voluntarily waived the rights delineаted in the
Miranda
case” (emphasis supplied).
North Carolina
v.
Butler,
Where, as here, the defendant manifestly did not understand the meaning of one or more of the rights described in the Miranda warnings, the Commonwealth cannot meet its burden of proving a valid waivеr beyond a reasonable doubt.
Miranda
requires a warning that a suspect not only has a right to consult with an attorney, but also that “if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”
Miranda, supra
at 479. “Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that [a suspect] can consult with a lawyer if he has one or has the funds to obtain one.”
Id.
at 473. Although he received the full Miranda warnings, the defendant was under just such a misapprehension. In his statements to the police after the Miranda warnings were read, the defendant not only demonstrated a desire to invoke his right to appointed counsel, but also showed a clear ignorance of the meaning of
*154
that right. Any arguable ambiguity in the defendant’s invocation was a product of this fundamental misunderstanding of his right to appointed counsel. Because a knowing waiver requires that a “defendant must understand ‘the [Miranda] warnings themselves,’ ”
Commonwealth
v.
Hilton,
This misunderstanding was exacerbated by what might have been an effort on the part of the police to clarify the defendant’s statements. By twice offering the defendant a telephone book so that he could call an attorney, and telling the defendant that “we don’t get you an attorney,” and “I can’t tell you if they’re gonna come here, I don’t know what they would do,” however, Strout and Eason were not in fact clarifying matters. Their efforts only made the situation worse by effectively emphasizing the option the defendant could not pursue (a private attorney) while obscuring the option in which the defendant had expressed interest and to which he had a right (an appointed attorney). In any event, the officers did not correct the defendant’s manifest misunderstаnding of his right to appointed counsel, and as a result the Commonwealth cannot prove beyond a reasonable doubt that the defendant waived his Miranda rights knowingly, voluntarily, and intelligently. His inculpatory statements should thus not have been admitted at trial.
iv.
Whether the error was prejudicial.
Given this error, we must determine whether the admission of the defendant’s statements requires a new trial. Although the defendant failed to renew his objection at trial after the motion judge denied his pretrial motion to suppress, “[t]he denial of a motion to suppress evidence on constitutional grounds ... is reviewable without further objection at trial.”
Commonwealth
v.
Whelton,
The Commonwealth bears the burden of demonstrating that an error was harmless beyond a reasonable doubt.
Commonwealth
v.
Tyree,
Here, the erroneous admission of the defendant’s incriminating statements was not harmless. The defendant’s theory of the case, at least once it was known that his inculpatory statements had not been suppressed, was that the consensual sexual contact occurred only after the complainant reached the age of fourteen, and consensual intercourse began only after the complainant reached age sixteen. Other than the complainant’s testimony, the defendant’s erroneously admitted statements were the only evidence of prior sеxual contact or intercourse between the defendant and the complainant.
The recording of the interrogation was played for the jury during trial and was available to them during deliberations. During the interrogation, the defendant not only admitted to engaging in oral sex with the complainant on three occasions, but also changed his story throughout the interrogation, thereby “increas[ing] the likelihood that the jury would view the defendant as a liar, a man who would change his story in order to avoid responsibility for his crimes.”
Commonwealth
v.
Mc-Nulty,
Because the unlawful evidence “contributed to or might have contributed to the verdicts,”
Commonwealth
v.
Molina,
b.
First complaint evidence.
We address briefly the defendant’s claim of first complaint error in the event that it arises on retrial.
12
See
Commonwealth
v.
King,
The defendant contends that it was error to allow multiple first complaint testimony. The complainant, his mother, and Eason testified variously as to the complainant’s disclosures to the elder and to his mother, and as to the investigative process itself, notwithstanding the undisputed fact that it was the elder to whom the complainant first complained. The elder did not testify. The defendant contends that only the complainant’s disclosures to the elder were admissible as first complaint testimony and then only if the elder testified as a first complaint witness. The defendant asserts that the complainant’s disclosure to his mother would be admissible as first complaint testimony only if the judge had designated her as a substitute first complaint witness. The defendant maintains also that, insofar as Eason’s testimony as to statements by the complainant, his mother, and the elder, as well as about the investigative process itself, was admitted as first complaint, it was admitted in error.
The first complaint doctrine prohibits introduction of testimony from more than one witness concerning a victim’s reports of a sexual assault, “limiting [such] testimony to that of. . . the first person told of the assault.” King, supra. In limited cir *157 cumstances, however, a judge may permit the testimony of a complaint witness other than the individual to whom the victim first disclosed the assault. 13 First complaint testimony is admissible only where “the fact of the assault or the issue of consent is contested.” Id. at 247.
Under the first complaint doctrine, “[l]aw enforcement officials . . . may testify to the complaint only where they are in fact the first to have heard of the assault, and not where they have been told of the alleged crime after previous complaints or after an official report.”
King, supra
at 243.
14
See
Commonwealth
v.
Monteiro,
At any retrial, these considerations must be taken into account. If the elder testifies as the first complaint witness, no other witnesses should testify in that capacity. If the elder does not testify, the comрlainant may not testify to the fact of his first complaint to the elder or its details, unless the elder is “deceased or the judge determines that there is some other compelling reason for the witness’s absence that is not the fault of the Commonwealth. ’’ 15 King, supra at 245 n.24. To the extent that the elder is determined by the judge to be “unavailable” or “incompetent [to testify],” id. at 243-244, the judge may permit substitute first complaint evidence by the complainant’s mother. In such a circumstance, if the complainant’s mother is substituted as the first complaint witness, the complainant would *158 not be able to testify either to the fact or to the dеtails of his complaint to the elder.
To the extent first complaint testimony is admitted, appropriate limiting instructions should be given to the jury. Such testimony may be considered only “to establish the circumstances in which the complainant first reported the alleged offense, and then to determine whether that first complaint either supports or fails to support the complainant’s own testimony about the crime,” and the jury “may not consider this testimony as evidence that the assault in fact occurred.” Id. at 247-248.
Conclusion. For the foregoing reasons, the defendant’s convictions are reversed, the verdicts are set asidе, and the case is remanded for a new trial in accordance with this opinion.
So ordered.
Notes
The form includes, at the top, a space for the defendant to consent to the recording of the interrogation. The form goes on to list each of the rights *146 described in a proper Miranda warning, and provides space for the defendant to indicate that he agrees (or disagrees) that he has understood the rights and that he wishes to speak with the officers.
We have reviewed the video recording forming the basis of this appeal.
Miranda
v.
Arizona,
The defendant moved also to suppress the audio recording of the telephone conversation between himself and the complainant. The same motion judge denied the motion, and the defendant does not press the issue on appeal.
In reaching his decision, the motion judge did not discuss the validity of the defendant’s waiver, an issue that had been raised by the defendant, albeit somewhat obliquely. On appeal, the Commonwealth does not suggest that the waiver issue was not properly raised below, and its brief treats the issue as having been preserved for review. We treat the question of the validity of the defendant’s waiver as preserved. See
Commonwealth
v. Perez,
The jury were twice given a “humane practice” instruction, in which the judge instructed that they could not consider the defendant’s statements unless they concluded, beyond a reasonable doubt, that the statements were made “voluntarily, freely, and rationally” after the defendant “received, understood, and waived his Miranda rights.”
Prior to submission of the case to the jury, the judge reduced the four forcible rape counts to three charges of rape of a child and entered required findings of not guilty on the four original indictments charging rape. The defendant *148 was acquitted on one charge of rape of a child under sixteen and two charges of indecent assault and battery on a child under the age of fourteen.
Here, there is no dispute that the defendant was subject to custodial interrogation, as contemplated in Miranda, at the time he made incriminating statements, because he was subject to “questioning initiated by law enforcement officers after [being] taken into custody.” Miranda, supra at 444.
Contrary to the Commonwealth’s contention, the applicability of
Davis
v.
United States,
The defendant contends also that, even if the Davis rule applies in the prewaiver context with respect to the right to counsel under the Fifth Amendment to the United States Constitution, art. 12 requires a more protective rule. Given our decision, we reach neither the question whether the Davis rule has been extended to prewaiver invocations of the right to counsel under the Fifth Amendment, nor whether art. 12 would require that we decline to apрly the Davis heightened clarity rule if extended to such prewaiver invocations.
Article 12 provides, in relevant part: “No subject shall... be compelled to accuse, or furnish evidence against himself. . . .”
In light of our disposition, we need not address the defendant’s claim concerning ineffective assistance of counsel, which is unlikely to arise on retrial.
For example, “where the first person told of the alleged assault is unavailable, incompetent, or too young to testify meaningfully.”
Commonwealth
v.
King,
See Commonwealth v. Arana, supra at 227 (admitting such investigative evidence despite its first complaint implications because it responded to “the defendant’s theory that the complainants and their parents were motivated to pursue these charges to support their lawsuit, and the police were complicit in this effort”).
The complainant’s testimony as to whom he made disclosures after telling the elder is independently admissible if it serves a purpose other than to bolster his testimony and its probative value outweighs its prejudicial effect. See Commonwealth v. Dargon, supra.