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Commonwealth v. Smith

Supreme Judicial Court of Massachusetts, Worcester

March 11, 2016

Commonwealth
v.
Donovan K. Smith

         Argued November 6, 2015

          Indictments found and returned in the Superior Court Department 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 Commonwealth.

         Present: Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.

          OPINION

Page 799

          [46 N.E.3d 986] Botsford, J.

          A Superior Court jury found the defendant guilty of the attempted armed robbery and murder in the first degree of Michelle Diaz on theories of extreme atrocity or cruelty and felony-murder. In this direct appeal from his convictions, the defendant challenges the admission in evidence of his videotaped statement to the police, and the admission of an enhanced recording of a statement made by the defendant while he was left alone during the police interrogation. He requests relief pursuant to G. L. c. 278, § 33E. We conclude that the failure of the police to honor the defendant's right to terminate questioning, a claim the defendant did not raise below, created a substantial likelihood of a miscarriage of justice and requires the reversal of the defendant's convictions; the defendant is entitled to a new trial.

         1. Background.

         From the evidence presented at trial, the jury could have found the following. On August 24, 2010, at approximately 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 Tumer, 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. Tumer 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. Tumer 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

Page 800

measures were withdrawn and she died.

         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 discovered 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 telephone carrier, the police were able to locate Madison [46 N.E.3d 987] 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 number 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 Commonwealth pursuant to which each agreed to provide information about the shooting incident and to testify against the defendant in

Page 801

exchange for lesser sentences. On October 7, the police also arrested Kenny Roman, a friend of Ago's. On January 7, 2012, represented by counsel, Roman entered into a cooperation agreement that called for him to provide information and testify against the defendant regarding the shooting incident in exchange for a lesser sentence.[3]

         Madison, Roman, and Ago (collectively, cooperating witnesses) 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 [46 N.E.3d 988] 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

Page 802

later disposed of the gun by burying it.[4]

         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 interrogation. 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, G. L. c. 265, § 1, and attempt to commit armed

Page 803

robbery, G. L. c. 274, § 6. On January 4, 2012, the defendant filed a motion to suppress his statement to the police on the ground that the statement made was involuntary as a result of improper interrogation tactics used by the police in eliciting a confession.[7] An evidentiary hearing was held before a Superior Court judge at which Tarckini and Quitadamo testified. That judge denied the motion on June 12, [46 N.E.3d 989] 2012. The defendant's trial commenced before a jury and a different judge on September 24, 2012,[8] and on October 2, the jury found the defendant guilty of murder in the first degree on theories of extreme atrocity or cruelty and felony-murder, as well as of attempt to commit armed robbery. He was sentenced to life in prison without the possibility of parole on the murder charge and a concurrent term of from four to five years on the charge of attempt. The defendant filed a timely notice of appeal to this court.

         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 interrogation[9] 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 falsehoods, trickery, and promises of leniency improperly put forth by the defendant's police interrogators, and therefore was not voluntary.[10] Before we consider the defendant's claims, we set forth

Page 804

additional facts about the interrogation.

         i. Facts.

         After administering Miranda warnings to the defendant 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 fingerprint 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:

[46 N.E.3d 990] Defendant: " I'm done." ...

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