Case Information
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SJC-11360
COMMONWEALTH vs. BENJAMIN SANCHEZ. Hampden. December 9, 2016. - April 5, 2017. Present: Gants, C.J., Botsford, Lenk, Hines, & Gaziano, JJ. [1] Homicide. Burning a Dwelling House. Abuse Prevention. Evidence, Expert opinion, Admissions and confessions, Voluntariness of statement. Witness, Expert. Constitutional Law, Confrontation of witnesses, Waiver of constitutional rights, Admissions and
confessions, Voluntariness of statement. Practice, Criminal, Capital case, Confrontation of witnesses, Waiver, Admissions and confessions, Voluntariness of statement, Postconviction relief. Indictments found and returned in the Superior Court
Department on August 27, 2009. The cases were tried before Peter A. Velis, J., and a motion for a new trial, filed on May 20, 2015, was considered by Mark D. Mason, J. Elaine Pourinski for the defendant. Bethany C. Lynch, Assistant District Attorney, for the
Commonwealth.
GAZIANO, J. In the early morning hours of July 12, 2009, a Springfield fire department rescue squad responded to a house fire and found the body of the defendant's estranged wife on the living room floor. She was transported to a hospital where it was determined that she had been strangled and stabbed. At trial, the Commonwealth relied on circumstantial evidence to prove that the defendant had entered the house, assaulted the victim, and set the building on fire. A Superior Court jury convicted the defendant of murder in the first degree on theories of deliberate premeditation and extreme atrocity or cruelty, arson of a dwelling house, and violating a G. L. c. 209A abuse prevention order.
On appeal, the defendant claims that the evidence introduced at trial was insufficient to support his convictions of murder in the first degree and arson. In addition, he raises the following claims of error: (1) expert witnesses were allowed to testify about the substance of forensic testing results obtained by other analysts, in violation of his right to confrontation under the Sixth Amendment to the United States Constitution; (2) his custodial statements to police were obtained without a valid Miranda waiver and were involuntary; and (3) the motion judge abused his discretion in denying the defendant's motion for a new trial without an evidentiary hearing. The defendant also asks that we grant him a new trial or reduce the verdicts pursuant to our authority under G. L. c. 278, § 33E. We affirm the convictions and decline to reduce the degree of guilt or to order a new trial.
1. Facts. We recite the facts the jury could have found
in the light most favorable to the Commonwealth,
see Commonwealth v. Latimore,
In October, 2008, the defendant and the victim separated, at least in part because of the defendant's drug use. The defendant moved from the house they had lived in to a mobile home park a few miles away. In March, 2009, the victim obtained an emergency abuse prevention order against the defendant, [2] and in May, 2009, she filed for divorce At the time of the victim's death, the defendant and the victim shared physical and legal custody of Angel. The victim initially had been granted sole physical custody, but the custody order was modified approximately one month before her death to provide that Angel would spend weekdays with his mother and weekends with his father.
In June, 2009, the defendant asked to meet with the victim to discuss their relationship. She agreed to meet with the defendant on July 9, 2009, despite the abuse prevention order, so long as he brought his brother with him. The defendant assented to this condition, but he arrived alone at the meeting. He asked the victim if she were certain that she wanted to follow through with the divorce. She said that she was. The defendant also expressed a desire to move to Puerto Rico with their son. The victim told the defendant that he would have to make such a request to the court. Upon hearing this, the defendant became visibly upset, slamming the door as he left.
On Saturday, July 11, 2009, the victim left a family gathering around 11 P.M. and was dropped off at her house. At approximately 11:20 P.M., the son called his half-sister, who lived with the victim but was staying at a friend's house that night. The defendant took the telephone from his son and asked the half-sister where she was. When she replied that she was at her friend's house, the defendant asked her "if [she] left [her] mother home alone." She answered, "No." This was a deliberate lie because she did not want the defendant to know that the victim was alone in the house.
At 11:24 P.M., a security camera at the mobile home park where the defendant lived recorded an image of a sport utility vehicle (SUV), consistent with the defendant's Hyundai Santa Fe, being driven away. Six minutes later, at approximately 11:30 P.M., one of the victim's neighbors heard a woman scream. The scream came from the direction of the corner of the street where the victim lived. The neighbor then heard a man and a woman arguing. He looked out his window and saw a man and a woman standing at the door of the victim's house, arguing. He recognized the woman as his neighbor. The neighbor described the man as light-skinned, about five feet, eleven inches tall, and wearing a light-colored or white T-shirt and dark shorts. The video surveillance recording showed that the SUV returned to the mobile home park approximately thirty minutes later, at 12:02 A.M. on July 12, 2009.
Also at approximately midnight on July 12, 2009, one of the victim's neighbors smelled smoke and discovered that it was coming from the victim's house. Fire fighters responded at 12:46 A.M. A rescue squad found the victim lying unconscious in the living room, in front of her bedroom door. Emergency personnel transported her to the hospital, where she was pronounced dead. In addition to burns, she had multiple blunt and sharp force injuries to her head, neck, arms, right knee, chest, back, and hands. Her death was caused by a combination of sharp force injuries to her left lung, which caused it to collapse, and inhalation of soot and smoke. Hospital staff notified police after they discovered bruising and a ligature mark on the victim's neck.
At 3 A.M. on July 12, 2009, Springfield police officers went to the defendant's trailer at the mobile home park. He accompanied them to the police station, where he gave a statement and provided a buccal swab. The officers noticed that the defendant had bruises on the back of his right hand and on his right wrist, and a wound on the webbing between the thumb and index finger of his left hand.
The fire investigators determined that the fire had been set intentionally, and began in the victim's bedroom. [3]
The defendant provided statements to police on July 12, 17, and 18, 2009. He said that, after his son went to bed, he drove his Hyundai Santa Fe SUV to purchase four bags of heroin and that, after returning home and injecting all four bags, he went back to purchase two additional bags. Initially, the defendant said that he had not been inside the victim's house since April. In a later statement, he said that he and the victim had been together in the victim's house at approximately 3 or 4 P.M. on July 10, 2009, the day before her death. [4]
In the early morning hours of July 12, 2009, the front, back, and side doors of the victim's house were locked. Keys to the house were found behind it, near the front porch of a neighboring house; they were "brand new" and were found on top of leaves and sticks.
At trial, the Commonwealth presented deoxyribonucleic acid (DNA) evidence linking the defendant to the crimes. This included evidence from a red-brown stain on the neck of a white T-shirt discovered in the doorway of the victim's bedroom. That stain contained a mixture of DNA; short tandem repeat [5] (STR) testing showed that the major DNA profile matched the victim's profile, and that the defendant was a potential contributor to the minor profile. There was also another potential contributor to the mixture. Another DNA sample was obtained from underneath one of the fingernails on the victim's right hand. Y-chromosome STR (Y-STR) testing showed that a the major profile from that sample matched the Y-STR DNA profile of the defendant and his paternal relatives. A third sample from the victim's neck contained the Y-STR DNA profiles of at least three males; the defendant and his paternal relatives could not be excluded from this mixture.
2. Discussion. a. Sufficiency of the evidence. The defendant argues that the trial judge erred in denying his motions for required findings of not guilty, because the evidence was insufficient as a matter of law to support his convictions of murder in the first degree and arson.
"In reviewing the denial of a motion for a required finding
of not guilty, [this court] must determine whether the evidence,
including inferences that are not too remote according to the
usual course of events, read in the light most favorable to the
Commonwealth, was sufficient to satisfy a rational trier of fact
of each element of the crime beyond a reasonable doubt"
(citation omitted). Commonwealth v. Zanetti,
Having carefully reviewed the trial record, we conclude that the evidence introduced at trial was sufficient to support the convictions of murder in the first degree on the theories of deliberate premeditation and extreme atrocity or cruelty and arson.
We highlight some of the salient facts recited above. The evidence indicated that the defendant had a motive for the killing. Four months before the victim's death, the victim obtained an emergency abuse prevention order against the defendant after a history of domestic violence. A few days before the victim's death, the defendant and the victim had a conversation in which the defendant became visibly "upset" and slammed a door upon hearing from the victim that she would proceed with the divorce and would contest his move to Puerto Rico with their son.
On the night of the stabbing, the defendant asked the
victim's daughter if the victim was alone in her house.
Although the defendant was misinformed that she was not, the
victim indeed was alone in the house at that point, for the
first time since she had obtained the abuse prevention order
four months earlier. Minutes after the conversation informing
the defendant that the victim was at her house, while the son
was asleep in the back room of the defendant's mobile home, an
SUV similar to the defendant's Hyundai Santa Fe left the mobile
home park. See Commonwealth v. Phoenix,
Early in the morning of July 12, 2009, police found the defendant with injuries on both hands. His left hand tested positive for the presence of blood. DNA evidence on a T-shirt found in the doorway of the victim's bedroom, and on her body, contained a mixture of DNA, including a major STR DNA profile that matched the victim's profile and a minor profile from which the defendant could not be excluded.
The defendant made contradictory statements to police about
his whereabouts on the day prior to, and the day of, the
killing, that were contrary to testimony from the victim's
daughter and the victim's boy friend. See Commonwealth
v. Robles,
Taken together, the evidence also was sufficient to support a finding of extreme atrocity or cruelty. The victim had blunt force injuries to both sides of her head, her right eye, both arms, and her right knee, and a ligature mark on her neck. She also was stabbed forty-five times, including stab wounds to her neck and through her left lung. Her arms and legs were burned, and she inhaled soot and smoke, which contributed to her death, indicating that she was alive after having been repeatedly stabbed and beaten, and while the fire burned around her.
In light of this, the defendant's argument that the
Commonwealth did not meet its burden of proof because the
evidence was circumstantial in nature, or because there was no
blood or soot in the defendant's vehicle, or on his person or
clothing, on the morning after the fire, is unavailing. Viewed
in the light most favorable to the Commonwealth, the evidence
was sufficient to support the convictions. See Commonwealth
v. Lao,
b. Right to confront DNA analyst. At trial, the defendant
repeatedly objected to the testimony of Amy Barber, a DNA unit
supervisor at the State police crime laboratory (crime lab), on
the ground that her testimony violated his right to
confrontation.
[6]
On appeal, he argues that it was error to permit
Barber to testify about the results of DNA testing performed by
another analyst, Melanie Knasas, and that the Commonwealth
failed to establish that Knasas was unavailable to testify. We
conclude that the testimony did not violate the defendant's
right to confrontation. See Commonwealth v. Greineder, 464
Mass. 580, 603, cert. denied,
(2013); Commonwealth v. Barbosa,
Under the Sixth Amendment to the United States Constitution
and art. 12 of the Massachusetts Declaration of Rights, a
criminal defendant has the right to confront the government's
witnesses. See Bullcoming v. New Mexico,
the reliability of the facts or data that underlie her opinion." Id.
Barber's expert testimony did not deprive the defendant of his rights under the confrontation clause. Knasas worked at the crime lab. She conducted the initial testing on twelve items (including from the victim's T-shirt, her right-hand fingernails, and her neck) to develop STR DNA profiles for later comparison to known DNA samples. At the time of trial, however, Knasas no longer was employed at the crime lab, and she was traveling out of State.
Barber was a DNA unit supervisor responsible for the day- to-day operations within the crime lab's DNA unit; she supervised five other chemists and was familiar with all of the crime lab's protocols and procedures. In addition, Barber was the technical reviewer assigned to review Knasas's analysis in this case, to ensure that the proper protocols had been followed and that Knasas's conclusions were scientifically sound.
Barber did not testify to Knasas's testing results. During direct examination, the prosecutor prefaced his questioning by instructing Barber, "Now, I want to ask you specifically, Ms. Barber -- I don't want to ask you about any conclusions that have been reached by Ms. Knasas. I'm going to ask you to testify to your own independent opinions based on the data you just described. All right?" Within those parameters, Barber testified to a chart that she had prepared describing her interpretation of the raw data.
Barber did not, as the defendant suggests, "act as a
conduit for" Knasas's test results, opinions, or conclusions.
See Greineder,
Moreover, the admission of Barber's testimony did not
violate the defendant's common-law right to confrontation.
See Tassone,
The defendant contends further that the confrontation
clause requires the Commonwealth to prove Knasas's
unavailability before Barber was permitted to testify. This
argument is without merit. We do not require the Commonwealth
to demonstrate that an analyst is unavailable as a prerequisite
to the admission of substitute expert testimony in order to
comport with a defendant's rights under the confrontation
clause. See Commonwealth v. Williams,
c. Right to confront electrical-fire investigator. The defendant argues that his Sixth Amendment confrontation clause rights were violated by the testimony of State police Trooper David Percy. Percy, an arson investigator, testified that the fire was set deliberately. In conducting his investigation, Percy was assisted by fire fighter and licensed electrician Benjamin Hall. Percy observed Hall examine electrical appliances, electrical outlets and wall switches for damage. The defendant argues that the Commonwealth's failure to present testimony from Hall denied the defendant the right to challenge the testimony that the fire was not accidental. For reasons similar to our discussion of the DNA analysis, we conclude that Percy's testimony did not violate the defendant's rights under the confrontation clause.
Percy, unlike Hall, was not a licensed electrician. Percy
was, however, able to respond directly to the defendant's
questions about the decision to rule out an accidental fire
based on an electrical source.
[7]
Percy had personally inspected
the various electrical outlets and electrical appliances in the
victim's house, and had formed his own independent opinion
concerning the origin of the fire. Percy did not repeat Hall's
opinion. See Barbosa,
d. Defendant's statements. The defendant challenges the
validity of his waiver of the Miranda rights, see Miranda
v. Arizona,
The Commonwealth "bears the burden of proving beyond a
reasonable doubt, in the totality of the circumstances, that a
defendant's [Miranda] waiver was voluntary, knowing, and
intelligent." Commonwealth v. Auclair,
In reviewing a judge's denial of a motion to suppress, we
accept the judge's findings of fact and will not disturb them
absent clear error. See Commonwealth v. Smith,
Here, we discern no error in the judge's decision to deny the defendant's motion to suppress his statements.
i. Statement on July 12. To begin, we consider whether
the defendant was subjected to custodial interrogation
triggering Miranda protections. "[T]he safeguards prescribed
by Miranda become applicable as soon as a suspect's freedom of
action is curtailed to a 'degree associated with a formal
arrest.'" Berkemer v. McCarty,
See Commonwealth v. Clemente,
The defendant also challenges the voluntariness of his statement on July 12. He maintains that any statements were not the product of rational thought, because he was under the influence of heroin and alcohol, had not taken his medications for mental illness, and suffers from a learning disability. The judge found these arguments to be without merit. We conclude that this finding was not clearly erroneous.
Here, "[t]he atmosphere surrounding the officer's questions
was neither coercive nor intimidating." Commonwealth
v. Burbine,
We note that, during the July 12 interview, a detective falsely informed the defendant that the victim had been pregnant when she died. The judge did not accept the detective's explanation that he passed along this upsetting information to the defendant because he "must have been told by somebody that she may have been [pregnant]." The judge found that "[t]his news did upset the defendant, but even if it were intended to elicit incriminating statements regarding [the victim's] death, such a tactic was unsuccessful. . . . [I]t did not have any impact on the defendant's statement." The judge's findings regarding the impact of the detective's false statement are not clearly erroneous.
ii. Statement on July 17. The defendant contends also that, because he was under the influence of alcohol and heroin, and had not taken his medications for his mental illness at the time of his arrest, his Miranda waiver and subsequent statements were not voluntary, and his recorded statement on July 17 should have been suppressed. In light of the totality of the circumstances, we conclude that the judge properly determined that the defendant knowingly and voluntarily waived his Miranda rights, and voluntarily provided the statement to police.
After he was arrested on July 17, the defendant was transported to the police station and brought to an interview room. The detectives asked the defendant if he wanted a Spanish-speaking officer to translate. The defendant accepted this offer, and a Spanish-speaking detective joined them. This detective spoke to the defendant in Spanish. The defendant agreed to speak English during the interview, and to have portions of the interview interpreted as needed. During the interview, the Spanish-speaking detective clarified a few terms, but the vast majority of the interview was conducted in English, without apparent difficulties.
The detectives began the recorded interview by advising the defendant of his Miranda rights, his telephone rights, and his right to a prompt arraignment. The detective read each right to the defendant, who indicated his understanding of each right orally and by initialing each line on the form. In response to line eight on the form, "[h]aving these rights in mind do you wish to talk to me now?" the defendant wrote his initials and said, "I don't have a problem." When the detective asked the defendant if he wanted to use a telephone, the defendant replied, "In a little while," and the detective told the defendant to let him know when the defendant wanted to use it.
While, as the judge noted, it would have been better practice to inquire into the defendant's need for medication, once the defendant alluded to his medications for mental illness, the judge found that "the defendant was coherent, [and] able to understand the questions put to him . . . , and that the defendant's responses to the questions were generally appropriate and evidenced his comprehension of the questions." [11] The judge found that defendant's demeanor indicated that he was not impaired by alcohol, heroin, or the lack of medication.
About ten minutes into the interrogation, the defendant handed a detective a criminal defense attorney's business card and said, "Call him." The detective considered the defendant's act and remark as an invocation of his right to counsel and, accordingly, ended the interview. The detective informed the defendant that he would be booked and processed, and that he would be able to make a telephone call.
After the defendant invoked his right to counsel, however,
the detective told the defendant, "I am disappointed because I
thought you'd step up and take [your son] out of this." This
comment was highly inappropriate, as the detective did not
scrupulously honor the defendant's right to speak through
counsel. Once Miranda warnings have been given, if a defendant
states that he or she wants an attorney, the interrogation must
cease until an attorney is present. See Commonwealth v. Brant,
The judge found that the defendant "did not . . . take the
bait, and he remained silent." After carefully weighing the
circumstances, the judge determined that the effect of the
officer's comment had dissipated by the time the defendant
recanted his invocation of his Miranda rights on the following
day, and we do not disturb this finding. See Commonwealth
v. Bradshaw,
iii. Statement on July 18. The defendant argues that the police questioning on July 18 was improper because he had invoked his right to counsel on the previous day, and also that his statements were involuntary because he was experiencing heroin withdrawal, was without his medication for his mental illness, and was disadvantaged by a learning disability. Based on these factors, the defendant argues that his statements were "not a product of rational thought." The judge rejected these arguments. We discern no error in the judge's assessment.
Once a defendant invokes his or her right to counsel, the
defendant may not be questioned until counsel has been made
available, unless the defendant himself or herself initiates
further communication with police. See Commonwealth v. Judge,
On July 18, Springfield police Officer Kenneth Jones was walking by the defendant's cell at 9 A.M., during a routine cell check, when the defendant indicated to Jones that he wanted to speak to the detectives. Jones did not initiate the conversation. The detectives asked the defendant if he wished to speak without a lawyer present, and the defendant indicated that he did.
In response to the defendant's request, the detectives brought the defendant to an interview room in the detective bureau. The interview was recorded. The detectives spoke to the defendant in English after he indicated that he understood English. They had no difficulty communicating with the defendant over the course of an interview lasting two hours and twenty minutes. The officers reviewed what had occurred on the previous day and earlier that morning. They again read each line of the Miranda rights form to the defendant, he initialed each line indicating his understanding, and he indicated that he would speak without an attorney present.
In light of all the circumstances, we conclude that there
was no violation of the defendant's Miranda rights at the July
18 interview, because he himself initiated contact with the
police, a significant period of time had elapsed between his
invocation of the right to counsel on July 17 and his election
to speak without a lawyer present on July 18, and, before he
spoke, he was provided, and again waived, his Miranda rights.
See Commonwealth v. Rankins,
Police may not badger a defendant into waiving his or her
previously asserted Miranda rights. See Michigan v. Harvey, 494
U.S. 344, 350 (1990). The detective's statement on the previous
day concerning "tak[ing] [the defendant's son] out of this" did
not, however, constitute postinvocation badgering, where
approximately eighteen hours separated the defendant's
invocation of his right to counsel and the defendant's
initiation of further dialogue with the police. See Rankins,
The judge properly found the defendant's July 18 statement to be voluntary. The defendant did not request an interpreter, as he had the previous day, and the detectives were able to communicate with the defendant without difficulty. The defendant was alert and did not appear to be experiencing withdrawal symptoms. He did not clearly tell the detectives that he took medication for a mental illness. The defendant answered the officers' questions and often provided more information than what was requested. He recounted his activities the day of and the day preceding the murder. He never sought an end to the interview and never requested a lawyer, a request he clearly knew how to make given that he had asked for a lawyer the previous day. Although the defendant told police that he was "high" twenty-four hours a day, and that he had a daily heroin habit, the evidence does not show that the defendant was impaired due to withdrawal from heroin. [12]
A detective typed a written statement for the defendant, printed it, and another detective read it out loud. The defendant did not agree with the statement. He insisted that the detectives delete words referring to the victim's death from the paragraph describing the purpose of the detectives' interrogation, insisting that he had had nothing to do with her death. Once that change was made, and the defendant was read the revised version, he signed the statement.
We accordingly conclude that the defendant reinitiated contact with the police, knowingly and voluntarily waived his Miranda rights for a second time, and voluntarily gave a second statement.
e. Evidentiary hearing on motion for postconviction relief. The defendant filed a motion for a new trial based on a claim of ineffective assistance of counsel, which was denied without an evidentiary hearing. [13] The defendant contends that, because his motion for a new trial raised a constitutional claim of ineffective assistance, and was supported by affidavits, it was error to deny the motion without an evidentiary hearing. In his motion for a new trial, the defendant claimed that he heard voices during the trial, and that he was deprived of the effective assistance of counsel due to counsel's failure to bring his mental state to the court's attention. The defendant submitted his own affidavit and the affidavits of his two sisters as evidence. An affidavit by trial counsel contradicted the defendant's claims. [14]
We typically review the grant or denial of a motion for a
new trial under the abuse of discretion or other error of law
standard. See Commonwealth v. Lykus,
"A judge is required to conduct an evidentiary hearing on a
motion for a new trial only if a substantial issue is raised by
the motion or affidavits." Commonwealth v. Torres, 469 Mass.
398, 402 (2014). See Commonwealth v. Wallis,
See Commonwealth v. Leng,
In his written decision, the motion judge weighed the competing affidavits and found, "Because I credit trial counsel's affidavit [that he monitored the defendant's mental state in light of the defendant's potential incompetence], I do not credit the countervailing representations set forth in the other affidavits." The motion judge denied the motion for new trial without a hearing.
Based on the defendant's failure to raise a substantial issue by affidavit, we conclude that the motion judge's denial of the defendant's motion for postconviction relief without a hearing did not constitute an abuse of discretion.
See Commonwealth v. Tucceri,
f. Review under G. L. c. 278, § 33E. The defendant argues also that there were mitigating facts in this case that warrant exercise of our authority under G. L. c. 278, § 33E, to reduce the degree of guilt to manslaughter or, in the alternative, murder in the second degree. We have carefully reviewed the entire record pursuant to our duty under G. L. c. 278, § 33E, and discern no reason to order a new trial or to reduce the conviction to a lesser degree of guilt. See Lao, 443 Mass. at 781.
Judgments affirmed.
Order denying motion for a new trial affirmed.
Notes
[1] Justice Botsford participated in the deliberation on this case prior to her retirement.
[2] Before the defendant and the victim separated, he repeatedly threatened to kill her if he found out that she was involved in a relationship with another man. At the time of her death, the victim indeed was dating another man. The defendant mentioned to one of the victim's daughters that he was aware of this relationship.
[3] This conclusion was based, in part, on the following: (1) all but one of the smoke detectors and carbon monoxide detectors had been rendered inoperable at the time of the fire; (2) the fire originated in the victim's bedroom; and (3) investigators ruled out cigarettes, candles, or electrical appliances as causes of the fire.
[4] One of the victim's daughters testified at trial that the defendant was not at the victim's house on July 10, 2009; the victim's boy friend testified that the victim went to his house at about 9 A.M. that day, and was there in the afternoon.
[5] Short tandem repeat (STR) testing of deoxyribonucleic acid
(DNA) focuses on specific places (loci) on the human chromosome
where known sequences of DNA base pairs repeat themselves. A
DNA analyst measures the number of times these repeat sequences
occur at particular loci (called alleles), and uses that
measurement to compare known standards against unknown forensic
samples. In Y-STR DNA testing, the analyst separates male DNA
from female DNA, and examines loci found exclusively on the male
Y-chromosome. See Commonwealth v. DiCicco,
[6] Three DNA analysts from the State police crime laboratory testified concerning STR and Y-STR DNA testing: Jennifer Montgomery testified to STR DNA profiles from the known samples of the victim and the defendant, and the Y-STR profile from the known sample of the defendant; Amy Barber testified to the STR DNA profiles that were obtained from twelve questioned samples
[7] Percy had completed training courses in basic and advanced electrical investigation;, and the failures of appliances and electricity. He had inspected electrical switches and electrical outlets in the course of investigating approximately 1,000 fires.
[8] On appeal, the defendant claimed that his confrontation clause rights also were violated by the Commonwealth's failure to call Springfield police Officer Kenneth Jones as a witness at the hearing on the defendant's motion to suppress. The defendant is mistaken. Jones testified on the fourth day of the hearing, and he was subject to cross-examination.
[9] The factors relevant to determining whether a suspect is
in custody for Miranda purposes include:
"(1) the place of the interrogation; (2) whether the
officers have conveyed to the person being questioned any
belief or opinion that that person is a suspect; (3) the
nature of the interrogation, including whether the
interview was aggressive or, instead, informal and
influenced in its contours by the person being interviewed;
and (4) whether, at the time the incriminating statement
was made, the person was free to end the interview by
leaving the locus of the interrogation or by asking the
interrogator to leave, as evidenced by whether the
interview terminated with an arrest."
Commonwealth v. Groome,
[10] We note that the judge incorrectly stated in his findings of fact that the defendant had requested a correction to this statement before signing it, and referenced that as further indication that, when he made the statement, the defendant had been alert, unimpaired by drugs or alcohol, and able to understand the detectives' spoken English. This error is of no moment, however, as our review of the course of conduct of the interview persuades us that the defendant was alert, unimpaired by alcohol or drugs, and able to understand the detectives.
[11] The defendant denied any involvement in the victim's
death. See Commonwealth v. Fournier,
[12] The judge found that "for the first few minutes of the . . . interview, the defendant's legs were shaking, his hands were fidgeting, and . . . he repeatedly requested cigarettes. Once he smoked the first cigarette and was told that he would have to wait for the second . . . cigarette, the defendant calmed down considerably for approximately [thirty] minutes, during which time he focused on answering the detectives' questions. The defendant did not seem confused or disoriented."
[13] The trial judge had retired.
[14] In his affidavit, the defendant's trial counsel represented, inter alia, that the defendant had been deemed competent by a doctor before trial, and that counsel had agreed with that evaluation at the time; that the defendant did not appear to have difficulty understanding the trial proceedings; and that counsel was "very sensitive" to the defendant's struggles with mental illness and asked the defendant "several times every day during the trial whether he was okay and whether he understood what was going on," and the defendant always replied in the affirmative.