Following a jury trial in the Superior Court, the defendant, Alexander Molina, was convicted of murder in the second degree, unlawful possession of a firearm while not at
1. Background. The facts of the case are summarized in the Appeals Court’s decision, see Molina,
At approximately 10 p.m. on the same day, the police prepared to tow a bluish-green Mazda Protegé automobile that was within the environs of the crime scene. The defendant and an acquaintance crossed the crime scene tape, and the defendant told State Trooper Ann Marie Robertson that the police were towing his car. In response to Robertson’s inquiry, the defendant stated that his name was Orlando Figueroa.
At around 11:45 p.m., State Trooper Carmelo Serrano, Jr., and Detective Christopher J. Dumont of the New Bedford police department began to interview the defendant at the police station. The interview concluded approximately three and one-half hours later, at 3:15 a.m. on March 31, 2005, after which the two officers drove the defendant back to the area of Ruth Street and dropped him off. Later that same day, after speaking with at least one of the eyewitnesses to the shooting, the police arrested the defendant and he was charged with the victim’s murder.
2. The police interview and the defendant’s statements. The defendant’s interview by Trooper Serrano and Detective Du-mont took place in the police station in an apparently windowless room measuring twelve feet by eight feet. The interview was videotaped.
Trooper Serrano: “OK. Do you understand your rights?”
Defendant: “Uh-huh, but I just said if I could call my attorney and I was told that it wasn’t necessary; that I was coming just to be asked some questions.”
Trooper Serrano: “Uh huh.”
Defendant: “And that I just went to ... I was sleeping and I get a call that my car was being taken and when I go there and I am told that I have to come here, that someone wants to ask me some questions ... I don’t know what happened because I truly don’t know . . . my car was there because it was getting me [szc] music equipment.”
Trooper Serrano: “OK, before ... do you, do you want to speak with me now ... I want to ask you some questions; do you want to speak with me now during this time? You understand your rights no?”
Defendant: “Uh-huh, yes I understand.”
Trooper Serrano: “Having understood your rights, you want to speak with me now?”
Defendant: “Whatever you say.”
Trooper Serrano: “OK, then if you please sign here; this is just that you were advised of your rights and that . . . you wish to speak with me now.”
Defendant: “[T]hat is not that I am a witness for the town hall ... I have no problem.”
Trooper Serrano: “[A]nd, Detective Dumont, could you please sign . . . .”
The defendant, Serrano, and Dumont all signed the Miranda waiver form, and the interview began. Serrano initially asked general questions about the defendant, including where he lived, where he worked, the defendant’s girl friends, the installation of music equipment in the defendant’s car, and why the car had been at the intersection of Ruth and Salisbury Streets. He and the defendant joked some. The questions then began to focus on what the defendant had been doing earlier that day, the sequence of his activities, and especially where he was immediately before and around the time of the shooting — although Serrano had not yet mentioned the fact that a shooting had taken place. The defendant stated that during the afternoon of March 30, he was
“[I]s it mandatory that I mention a name? Because if I . . . truly, if I had known that this would be like this, I honestly would have brought an attorney because I truly don’t even know what has happened; I haven’t been informed of what has happened and I am being questioned about, really, I mean, it’s like my rights are being violated because I am being questioned on something that I truly don’t know ... I mean because . . . .”
Serrano then informed the defendant for the first time that the officers were investigating a shooting at the intersection of Ruth and Salisbury Streets. Serrano stated that all of them were “grown up men” and that the officers already knew the answers to some of the questions that they were asking. Serrano informed the defendant that if he started lying to the officers, it was the defendant who was going to look suspicious. After that exchange, the officers continued to question the defendant about his clothing, and focused on what he was wearing at various times throughout the day.
Serrano asked the defendant about his conversation with
There was a fifteen-minute break in questioning at around 1:40 a.m. Following the break, Serrano no longer sat while he was questioning the defendant but instead stood close to the seated defendant, talking down at him. His voice was raised, and he interrupted the defendant, not letting him finish his answers to questions. The interview ended at approximately 3:15 a.m. on March 31, 2005; it had lasted approximately three and one-half hours.
The defendant filed a motion to suppress evidence of the statements he made during the police interview, and it was the subject of an evidentiary hearing before a Superior Court judge (motion judge). The defendant argued that his Miranda waiver was invalid and that he had invoked the right to counsel. The motion judge denied the defendant’s motion.
3. Discussion. In challenging the admission of his statements made during the police interview, the defendant accepts the premise that the right provided by Miranda v. Arizona,
We disagree. In summary, our reasons are the following. As
a. Standard of review. “When reviewing the denial of a motion to suppress, we accept the judge’s findings of fact and will not disturb them absent clear error,” but we independently determine “the correctness of the judge’s application of constitutional principles to the facts as found.” Commonwealth v. Tremblay,
b. Custody. The defendant argues that the police interrogation became custodial at approximately the same time that he made his second reference to an attorney — around 12:30 a.m. “ ‘The crucial question’ in determining whether an interrogation is custodial is whether ‘a reasonable person in the defendant’s position would have believed that he was in custody.’ ” Baye,
The defendant voluntarily accompanied the police to the station for questioning. See Hilton,
The defendant insists that Trooper Serrano’s statements
It is true, as the motion judge determined, that the character of the police interrogation shifted at approximately 1:55 a.m., following the fifteen-minute break. At that time, both Serrano and Dumont no longer were sitting in relaxed fashion, but remained standing close to — one might characterize the position as standing almost over — the defendant. For the rest of the interview, Serrano either questioned the defendant from this stance or did so sitting on the edge of a desk in very close proximity to the defendant. Moreover, Serrano’s interrogation style was dramatically different at this point: rather than asking questions, many of which were open-ended, at a relatively
c. Voluntariness of the statements. Where a defendant makes statements to the police while “not in custody, we focus solely on the question whether his statements were voluntary.” Commonwealth v. Durand,
Our review of the videotapes and translation of the defendant’s police interview persuades us that all of his statements were voluntary. Neither officer offered misleading comments or engaged in any trickery or deception, contrast Baye,
“The presence of one or more factors suggesting a statement may have been made involuntarily is not always sufficient to render the statements involuntary.” Selby,
d. Validity of Miranda waiver. Our conclusion on the issue of voluntariness does not resolve all issues raised in this case concerning the admissibility of the defendant’s statements.
The defendant received Miranda warnings only once, at the beginning of his interview with the police, and we must assess the validity of the waiver at that time.
When analyzing whether an error was harmless beyond a reasonable doubt, “we ask whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury’s verdicts.” Commonwealth v. Tyree,
As stated previously, at trial, Trooper Serrano was the sole source of evidence concerning the defendant’s statements. The defendant had made most of the statements that Serrano recounted before the interview became custodial. These included statements that the defendant was with someone named Patricia at the time of the shooting, but did not know her last name; that he was not specifically in the area of the shooting at the time it occurred; and that, earlier in the day of the shooting, the defendant had been wearing a yellow shirt that was given to him by someone named Angelo, but the defendant did not know Angelo’s last name.
Judgments affirmed.
Notes
After the shooting, but before the defendant approached his vehicle, which was being towed, police officers who were canvassing the area around the crime scene visited an apartment where a number of people were present, including the defendant. The officers asked all of those present for their names; the defendant stated that his name was Orlando Figueroa.
The facts set out in this section are based on the findings made by the Superior Court judge (motion judge) who heard the defendant’s motion to suppress all evidence of his statements made during this police interview, as well as our review of the interview videotapes and a bilingual, Spanish and English transcript of the interview.
Trooper Carmelo Serrano’s initial question concerning the yellow shirt — “Then, where is the . . . yellow sweatshirt that you had on this afternoon?” — was made in response to the defendant’s statement that he had worn white “sweats” with red stripes to work that day and then, after showering at a friend’s house, had changed into the brown jogging suit he was wearing at the police station. New Bedford police officer Paul J. DeCosta had observed the defendant in the intersection of Ruth and Salisbury Streets at around 5 p.m. on March, 30, 2005, and had noted that he was wearing a yellow shirt. It is reasonable to infer that Serrano learned that the defendant had been wearing a yellow shirt from DeCosta.
Not long thereafter, the defendant made a third reference to an attorney,
The motion judge found that the interview was not custodial at the outset, and did not become custodial until, after approximately two hours, Trooper Serrano’s questioning became confrontational and coercive, with Serrano making clear that he believed the defendant was lying. The judge determined that the defendant was properly advised of his Miranda warnings and that a rereading of his Miranda rights once the interview became custodial was not required. As to the defendant’s Miranda waiver, the judge concluded that the waiver was valid because the defendant signed a Miranda waiver form; he had had prior experience with law enforcement; even though he was not told that he was a suspect in relation to the shooting that had taken place, officers are not required to provide that information, but its absence is one factor to consider in the totality of the circumstances; and Serrano did not use any force or trickery during the interview. With respect to the defendant’s argument that he had invoked his right to counsel, the judge found and ruled that because all the defendant’s references to wanting an attorney occurred before the interrogation became custodial, his right to counsel had not yet attached and, therefore, even if the references were sufficient to constitute an invocation of the right, it was, in effect, premature.
As recounted by Serrano at trial, at the time of the interview, the defendant was dressed in a brown type of suit, and the defendant had told the officers that he was with someone named Patricia at the time of the shooting, but he did not know her last name. Serrano also stated that the defendant denied being in the area of the shooting at the time it occurred, but admitted to wearing a yellow shirt on that day, which he had borrowed from a man named Angelo. In addition, Serrano testified that, when asked what name he gave to police officers who were conducting a preliminary investigation of the area of the shooting soon after it occurred, the defendant provided various names other than his real name, including Orlandito [ric] .Figueroa, which the defendant identified as his father’s name and said that he was using it. Trooper Serrano further testified that the defendant told him he had showered at his friend Johan’s house on the afternoon of the shooting, that he had left some of his clothes there, and that his sister, Wanda, had picked up the defendant’s clothing from Johan’s house.
See note 5, supra.
The defendant argued in his brief that his first attorney reference constituted an invocation of the right to counsel. However, during oral argument, the defendant conceded that he was only entitled to counsel once the interview became custodial, and he could not in good faith argue that it was custodial from the outset.
In affirming the denial of the defendant’s motion to suppress his statements, the Appeals Court assumed for the sake of argument that the entire police interview was custodial, but concluded that the defendant had never sufficiently invoked his right under Miranda v. Arizona,
At the time they were interviewing the defendant, the police had not yet spoken to anyone who had identified the defendant as the shooter; the police spoke to the first person to do so later in the morning of March 31, 2005, after the defendant’s interview had concluded.
In Commonwealth v. Baye,
Although the defendant summarily raised the voluntariness of his statements in the memorandum he filed in support of his motion to suppress, the issue was not mentioned at the hearing on that motion, and the motion judge did not address it. At trial, the defendant did not challenge the voluntariness of his statements, and in like fashion, the defendant has not raised a voluntariness challenge on appeal. Nevertheless, we address the issue here because voluntariness always is a factor to be considered when evaluating the admissibility of a defendant’s statements against him in a criminal trial. Cf. Commonwealth v. Va Meng Joe,
Also relevant to the voluntariness of the defendant’s statements is his apparent belief that he was at the police station to answer questions about his
In the course of discussing why he gave a false name to the police, the defendant made references to having a nervous disorder. There is nothing else in the record that relates to the existence or nature of the claimed disorder, and in any event, evidence of a mental condition alone does not require a finding that a person’s statements are involuntary. Commonwealth v. Benoit,
Included among the defendant’s statements about which Trooper Serrano testified was that the defendant’s sister Wanda had picked up his clothes from his friend Johan’s house. See note 6, supra. The defendant did not make this statement until after the police interview had become custodial.
The motion judge rejected the claim that the police were required to re-administer Miranda warnings at the point the interview became custodial — about two hours after the interview commenced — and the defendant does not raise any issue concerning this point on appeal. We see no need to consider it. See Commonwealth v. Sirois,
Although he did not do so before the Appeals Court, the defendant raised the validity of his Miranda waiver in his pretrial motion to suppress and renewed his objections at the beginning of his trial. The error is thus preserved, and we review it to determine whether it was harmless beyond a reasonable doubt. See Commonwealth v. Molina,
Other precustodial statements made by the defendant to which Serrano testified included that the defendant had identified himself to the investigating officers as Orlandito [íz'c] Figueroa, which he said was his father’s name; and that he showered at his friend Johan’s and left some of this clothes there.