COMMONWEALTH vs. DONOVAN K. SMITH.
Worcester. November 6, 2015. - March 11, 2016.
Supreme Judicial Court of Massachusetts
473 Mass. 798 (2016)
Present: GANTS, C.J., CORDY, BOTSFORD, LENK, & HINES, JJ.
This court concluded that a criminal defendant who initially had waived his Miranda rights met his burden to establish that he clearly stated his intent to cut off further questioning by the police when he said he was “done talking,” where his choice of words fell within the range of cases in which this court has found a clear and unequivocal invocation of the right to remain silent, and therefore, a motion to suppress his statement subsequent to that invo cation, on the ground that the police did not honor this invocation scrupu lously, would have been successful, and the failure of the defendant‘s trial counsel to raise this ground constituted ineffective assistance [807-810]; further, a recording of a statement that the defendant made while he was alone in the interrogation room after having invoked his right to terminate questioning should not have been admitted in evidence against him, where the recording should not have been made after the invocation [810-811]; finally, because the admission of the defendant‘s statement, including the statement made while he was alone, likely influenced the jury‘s verdicts and therefore created a substantial likelihood of a miscarriage of justice, this court reversed his convictions and remanded the matter for a new trial [811-813].
This court, exercising its authority to review the entire case under
INDICTMENTS found and returned in the Superior Court Depart ment on December 7, 2010.
A pretrial motion to suppress evidence was heard by Janet Kenton-Walker, J., and the cases were tried before John S. McCann, J.
Aziz Safar for the defendant.
Susan M. Oftring, Assistant District Attorney, for the Com monwealth.
1. Background.
From the evidence presented at trial, the jury could have found the following. On August 24, 2010, at approx imately 12:45 p.m., Sara Ventura parked her automobile on Fairfax Road in Worcester. As she was getting out of the vehicle, she heard a loud scream and looked in the direction of the scream. She saw nothing, but a few seconds later, she heard what sounded like a gunshot. She then saw a young African-American man running very quickly down the street.1 At around the same time, Carlos Turner, who was in his apartment on Fairfax Road, heard a “pop” and looked out the window, where he saw a woman, later identified as the victim, sitting in the driver‘s seat of a Lexus automobile with the front passenger‘s door open. Turner also noticed a dark-skinned man wearing a black shirt and light blue jeans near the front of the vehicle, running away while appearing to adjust the back of his shirt. Turner telephoned the police soon thereafter when he noticed that the victim had slumped forward and had blood on her neck.
At approximately 12:47 p.m., Officer Kevin Krusas of the Worcester police department was dispatched to Fairfax Road, where he observed the victim seated in the driver‘s seat of her blue Lexus, but leaning across the front passenger seat. The victim had been shot in the neck but still had a pulse, and fire fighters who arrived at the scene administered cardiopulmonary resuscitation. The victim was transported to a hospital, where she remained in critical condition for six days until life support
During their investigation, the police learned that Kenneth Cashman, a homeowner on Fairfax Road, had attached to his house a surveillance system consisting of several cameras that generated audio-video recordings of the surrounding areas. The police viewed the recordings, and although none of the cameras recorded the shooting itself, the recordings showed the victim‘s blue Lexus as it arrived on Fairfax Road. They also showed a male entering the front passenger seat of the Lexus; the Lexus being driven out of the video range of the cameras, but not out of the system‘s audio range; and Ventura parking her vehicle on Fairfax Road.
The police retrieved the victim‘s cellular telephone and discov ered that the last incoming call that the victim received came from a telephone registered to William Madison. Using global positioning information received from Madison‘s cellular tele phone carrier, the police were able to locate Madison at his apartment on Vernon Street Place in Worcester, where he lived with his mother; his girl friend, Kassie Ago; and her young son. On August 25, 2010, Detective Sergeant Gary Quitadamo and other Worcester police detectives went to Madison‘s home to speak with him regarding the shooting incident. Madison agreed to go with them to the police station, where he was interviewed.2 While Madison was at the police station, police sought, received, and executed a search warrant for Madison‘s residence and seized marijuana, a cellular telephone registered to Madison, and a black, long-sleeved T-shirt near a washing machine. The police had been informed by Madison‘s cellular telephone carrier that, within hours of the incident, Ago had contacted the carrier to change the existing telephone number and register the new num ber under a fictitious name.
The following day, Madison and Ago were each interviewed by the police concerning the August 24 shooting incident, but neither of them provided any substantive information. One month later, and after further investigation, the police arrested Madison and Ago in connection with the August 24 shooting incident. On September 29, 2010, Madison and Ago, represented by separate counsel, entered into cooperation agreements with the Common wealth pursuant to which each agreed to provide information about the shooting incident and to testify against the defendant in
Madison, Roman, and Ago (collectively, cooperating wit nesses) each testified at the defendant‘s trial that he or she participated in a plan with the defendant and his older brother, Marcus Young, to rob someone of money and drugs and then split the proceeds. Roman, who was a friend of the victim and knew her to be a marijuana dealer, suggested the victim as the target. The plan was for the defendant to actually carry out the robbery. Because the group believed — based on information supplied by Roman — that the victim might be armed, they agreed that the defendant should carry with him a gun; Madison supplied the gun.
The plan was executed on August 24, 2010. Ago contacted the victim, arranged for a purchase of marijuana, and told the victim that her friend would be picking it up. The pickup was to be on Fairfax Road in Worcester. The defendant, Madison, and Young left Madison‘s apartment to walk to Fairfax Road, the defendant walking a few feet ahead of Madison and Young. When they were approximately 500 feet away from the destination, Madison and Young stopped and the defendant continued walking toward Fairfax Road to meet the victim. Madison lost sight of the defendant before the defendant reached and entered the victim‘s blue Lexus. The next time Madison saw the defendant, he was running past Madison toward Madison‘s apartment. Madison and Young followed, running behind the defendant. According to Madison and Ago, once back in the apartment, the defendant stated several times that he had shot the victim. The defendant returned the gun to Madison, who placed it in Ago‘s purse. Ago and Madison then drove the defendant and Young back to Young‘s apartment, where Madison gave the gun to Young, who placed it in a drawer in his bedroom. According to Ago, Young
At the crime scene, the police recovered the following: a can of tire sealant containing a hidden compartment filled with four plastic bags of marijuana from underneath the victim‘s Lexus near a rear tire; an envelope containing $250 in the driver‘s side door of the Lexus; a .380 caliber bullet casing in the driver‘s seat; and a spent projectile on the floor inside the vehicle that the Commonwealth‘s ballistician identified as being a hollow-point .380 bullet used in a semiautomatic firearm. The black shirt that the police had seized from Madison‘s apartment, identified by Ago as belonging to the defendant, was tested for blood and gunshot residue and tested negative for the presence of either.
On October 6, 2010, police arrested the defendant, who was eighteen years old, at a school program and brought him to the Worcester police station for an interrogation in connection with the incident. Worcester police Detective Michael Tarckini led the interrogation, which lasted approximately one hour and thirty-five minutes and was recorded on audio-video tape.5 Detective William Escobar and, briefly, Detective Lieutenant John Towns, both Worcester police officers, also participated in the interroga tion. At the outset, Tarckini administered Miranda warnings to the defendant; the defendant signed a written waiver form and agreed to speak to the police. The defendant insisted to the detectives for some time that he had had no involvement in the August 24 shooting incident. However, he later admitted that he participated in a plan devised by Ago and Madison to rob the victim, but that the robbery failed after the victim became aware that he was attempting to rob her. He repeatedly denied shooting the victim. He told the police that he got out of the victim‘s automobile and ran away after he realized he could not obtain the drugs, that he did not have a gun, and that he heard gunshots as he was running away.6
On December 7, 2010, the defendant was indicted for murder in the first degree,
2. Discussion.
a. Admission of the defendant‘s statement.
In this appeal, the defendant challenges the admission of his statement to the police on two separate grounds: (1) during the custodial interrogation9 the police conducted, the defendant exercised his right to cut off questioning but the police improperly did not honor that exercise; and (2) the statement was induced by false hoods, trickery, and promises of leniency improperly put forth by the defendant‘s police interrogators, and therefore was not volu ntary.10 Before we consider the defendant‘s claims, we set forth
i. Facts.
After administering Miranda warnings to the defend ant and obtaining his agreement that he understood the warnings and was willing to talk to the police, Tarckini, with periodic questions or statements inserted by Escobar, told the defendant the following: the police had video footage of him sitting in the victim‘s Lexus and running from that vehicle after the gunshot was heard; there was deoxyribonucleic acid (DNA) and finger print evidence belonging to him in the Lexus;11 people had identified him as the shooter; and the police had recovered his eyeglasses from Madison‘s apartment with the defendant‘s DNA on them.12 For approximately thirty minutes, the defendant‘s repeated responses to these assertions by the police were to the effect that he did not know what they were talking about, and he denied knowing the victim or the fact that she had been shot and killed. Then, the following exchange occurred:
DEFENDANT: “I‘m done.”
TARCKINI: “You‘re done with what?”
DEFENDANT: “I‘m done talking. I don‘t wanna talk no more.”
TARCKINI: “You don‘t wanna talk anymore?”
DEFENDANT: “No. ‘Cause y‘all really don‘t believe me.”
TARCKINI: “It‘s — We already tried to explain that to you, Donovan. I don‘t think you get it.”
DEFENDANT: “Yeah, I understand.”
TARCKINI: “It‘s not believing.”
DEFENDANT: “I understand, sir.”
TARCKINI: “It‘s not believing. It‘s what we know.”
DEFENDANT: “Okay.”
TARCKINI: “What the facts are.”
DEFENDANT: “What the facts show.”
TARCKINI: “Right.”
DEFENDANT: “Right.”
TARCKINI: “Right?”
DEFENDANT: “Yes.”
TARCKINI: “We don‘t make stuff up. We don‘t make people talk to us. We don‘t make people pick people out. We don‘t put people‘s fingerprints inside of a car. We don‘t make up videos. The facts are the facts.”
When the defendant did not respond, Tarckini continued:
TARCKINI: “When we talk to people, we ask certain questions to gauge your truthfulness, things that I know you‘re not gonna lie about like name, address, who you live with, mom, dad, date of birth, stuff like that. Then when we ask you questions about other things, your body reacts a certain way. It‘s just a natural thing. You can‘t help it. Everyone does it. So that‘s what I — when you answer my questions and I say you‘re lying to me, your body‘s telling me that. Not only your words but your body. You understand?”
The defendant, who had remained completely silent during Tarckini‘s speech, spoke only to answer “yes” to the question whether he understood. Tarckini again continued:
TARCKINI: “You have the opportunity now to give your side of the story, to maybe lighten the load, get a little bit off yourself. And you‘re being a tough guy, in the sense that you‘re just gonna — you‘re gonna dig in and sit in a hole and wait out the storm. And I don‘t think you realize all the things that are gonna happen going forward. We‘re trying to give you information so you can process all that. What are you thinking about?”
DEFENDANT: “Life.”
TARCKINI: “Think life‘s been tough to you?”
TARCKINI: “Yeah? Sometimes life isn‘t fair, man. Sometimes we‘re in the wrong place at the wrong time. Sometimes circumstances just put you in a bad way. I kinda think that‘s what happened here.”
Approximately fifty seconds of silence passed, after which the defendant stated: “I didn‘t shoot nobody,” and then he proceeded to make a series of inculpatory responses to questions by the officers. He described a plan among Ago, Madison, and himself to rob the victim, and detailed what had happened after he got into the victim‘s automobile, including that he was in it on the day of the shooting. He stated that the victim picked him up in her automobile, they drove around together before parking on the street, and the victim asked him for the money multiple times, saying that the defendant better not be robbing her; that when he reached for the can containing the marijuana, the victim pulled it away and held it outside the window, out of his reach; that the victim then called out for help; and that when he realized he could not obtain the drugs, he fled and heard gunshots as he ran away. He consistently denied having a gun, seeing the victim with a gun, and shooting her.
Approximately twenty minutes after the defendant made these statements, the two detectives left the defendant alone in the interrogation room for approximately six minutes; the video and audio recording system were still operating. The defendant sat in the same chair he had been in for the entire interview, and muttered something to himself to the effect of, “Why‘d you shoot her? You didn‘t even shoot the bitch. You didn‘t shoot her. You didn‘t fucking shoot her.”13 When the detectives returned, the
ii. The defendant‘s claims.
The defendant contends that al though he initially waived his Miranda rights, he later invoked his constitutional right to remain silent when he said that he was “done talking,” an invocation that the police did not “scrupulously honor.” Miranda v. Arizona, 384 U.S. 436, 444-445, 473-474, 478-479 (1966). See Michigan v. Mosley, 423 U.S. 96, 102-104 (1975). The argument is framed as one of ineffective assistance of trial counsel for failure to move to suppress the admission of the defendant‘s inculpatory responses to the police based on this invocation. See Commonwealth v. Williams, 453 Mass. 203, 207 (2009), citing Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014). The Com monwealth argues that the defendant‘s claim must fail because, even if trial counsel had brought a motion to suppress raising a claim of invocation of the right to remain silent, the motion would not have succeeded. See Williams, supra. In the Commonwealth‘s
“It is clear that a defendant has not only the right to remain silent from the beginning but also a continuing right to cut off, at any time, any questioning that does take place.” Commonwealth v. Bradshaw, 385 Mass. 244, 265 (1982). However, if a defendant has waived his or her Miranda warnings and later wishes to remain silent, the invocation of that right “must be clear and unambiguous[ ], such that ‘a reasonable police officer in the circumstances would understand the statement to be an invoca tion of the Miranda right.’ ... Whether the defendant has met this burden is a fact-specific determination to be made based on the totality of the circumstances” (citation omitted). Commonwealth v. Howard, 469 Mass. 721, 731 (2014), citing Commonwealth v. Almonte, 444 Mass. 511, 519, cert. denied, 546 U.S. 1040 (2005).
In these circumstances, the defendant‘s statement, “I‘m done,” by itself, was ambiguous, coming as it did as a nonresponse to a long series of statements by Tarckini and Escobar about what the police already knew. In this context, Tarckini‘s question to the defendant, “You‘re done with what?” was an appropriate effort to clarify. See Commonwealth v. Santos, 463 Mass. 273, 286 (2012). See also Commonwealth v. Hearns, 467 Mass. 707, 718 (2014). But the defendant‘s immediate and direct answer, “I‘m done talking. I don‘t wanna talk no more,” was certainly a clarifying response to Tarckini‘s inquiry, one that resolved completely the previous ambiguity, and asserted in no uncertain terms the de fendant‘s desire and intention to end the interrogation. See Howard, 469 Mass. at 733 n.13.15 However, instead of accepting the defendant‘s invocation and terminating the interview, Tarckini,
We conclude that the defendant has met his burden to establish that he clearly stated his intent to cut off further questioning by the police; “his choice of words fell well within the range of cases where we have found a clear and unequivocal invocation.” Hearns, 467 Mass. at 718. See, e.g., id. at 717 (defendant‘s postwaiver statement, “Well then, I don‘t want to talk. I haven‘t got nothing to say,” was clear invocation). See also Howard, 469 Mass. at 732-733 (stating, “I would like to stop at that point” sufficient to invoke right to silence); Commonwealth v. Santana, 465 Mass. 270, 277, 282 (2013) (postwaiver statement that defendant could not “say any more” was clear invocation of right to silence); Santos, 463 Mass. at 285 (postwaiver statement that “I‘m not going on with this conversation” in itself constituted clear invocation). The police, however, continued to interrogate remain silent” (emphasis in original).
The same is true of the phrases, “I‘m done talking” and “I don‘t wanna talk no more.”
“[T]he admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his ‘right to cut off questioning’ was ‘scrupulously honored.‘” Mosley, 423 U.S. at 104. The factors identified in Mosley to evaluate this issue all point to the conclusion that scrupulous honoring of the defendant‘s right did not occur here.18 That is, the police did not immediately cease questioning the defendant; the questioning continued almost without a pause, and without a fresh set of Miranda warnings; and the scope and subject matter of the interrogation remained the same as before the invocation — the defendant‘s involvement in the victim‘s death. See id. at 106-107. See also Commonwealth v. Taylor, 374 Mass. 426, 433-434 (1978). In these circumstances, a motion to suppress the defendant‘s statement to the police on the ground of invocation of the right to remain silent would have been success ful, see, e.g., id. at 433-436, and trial counsel‘s failure to raise this ground constituted error. See Wright, 411 Mass. at 682.
The defendant advances a separate but related claim that what he stated while he was alone in the interrogation room (volun teered statement) should not have been admitted in evidence. The defendant argues that the volunteered statement was wholly am biguous and that, in the circumstances, its admission was more prejudicial than probative, and the trial judge abused his discre tion in admitting it.19 Our plenary review of this case pursuant to
As discussed, when the defendant invoked his right to termi nate questioning, the police were required immediately to end the interview. At that point, all questioning should have ceased, and it follows that the recording of the interview also should have ceased. That is not what happened. Rather, the two detectives continued to interrogate the defendant and the recording equip ment continued to operate, including during the time, postinvo cation, that the detectives left the defendant sitting for approxi mately six minutes by himself in the interrogation room, during which time he made the volunteered statement. The critical question is “whether ... the evidence to which instant objection is made has been come at by exploitation of [the primary] illegality or instead by means sufficiently distinguishable to be purged of the primary taint” (citation omitted). Wong Sun v. United States, 371 U.S. 471, 488 (1963). See Bradshaw, 385 Mass. at 258. It is clear that without the audio-video recording, there would be no evidence of the defendant‘s statement — indeed, as one of the police officers, Quitadamo, testified, the only way the police were able to make out the defendant‘s words in the volunteered statement at all was through enhancement of the sound quality of the audio recording by using some techno logical means to reduce the ambient noise. The Commonwealth should not be permitted to take advantage of a recording that should not have been made by introducing the recording in evidence. Cf.
The remaining question is whether the erroneous admission of the defendant‘s statement, including the volunteered statement,
b. Review under G. L. c. 278, § 33E.
We address an additional issue raised by our review of this case under
3. Conclusion.
The defendant‘s convictions are reversed, the verdicts are set aside, and the case is remanded to the Superior Court for further proceedings consistent with this opinion.
So ordered.
Notes
TOWNS: “What we wanted to have an opportunity for you to do was tell us if something happened. Alright. You gotta know that these guys are telling the truth.”
DEFENDANT: [inaudible]
TARCKINI: “We‘re not trying to trick you.”
TOWNS: “Listen. Hey, listen.”
TARCKINI: “Listen to us.”
TOWNS: “Hey, if you change your mind, wanna talk to these guys, alright, tell us downstairs. A bad decision . . . [inaudible]. If something happened inside the car that wasn‘t like you just pull out the gun and start shooting, you know what I mean, if it‘s not what happened, then you need to have an opportunity to say that. And today gives you a good form of credibility to say that. Mitigates for sure.”
TARCKINI: “We‘re not trying to trick you.”
“[W]e take the word ‘stop’ to mean what it says. A suspect‘s or defend ant‘s use of the word ‘stop,’ or the phrase, ‘I would like to stop at that point,’ in this context should raise a red flag for an interrogating police officer — a signal that it is necessary at the very least for the officer immediately to pause in order to reflect on what the defendant has just said, and to consider whether the defendant is seeking to invoke his right to