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Commonwealth v. Neves

Supreme Judicial Court of Massachusetts, Plymouth

May 25, 2016


          Heard: October 9, 2015.

         A pretrial motion to suppress evidence was heard by Christine M. Roach, J., and the case was tried before Jeffrey A. Locke, J.

         Indictment found and returned in the Superior Court Department on May 15, 2008.

          Jeffrey L. Baler for the defendant.

          Gail M. McKenna, Assistant District Attorney (Audrey Anderson, Assistant District Attorney, with her) for the Commonwealth.

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

          LENK, J.

         The defendant was convicted by a Superior Court jury of murder in the first degree on a theory of felony-murder in the 2008 shooting death of Edward Conley, a Brockton taxicab driver. Before us is the defendant's appeal from his conviction. The defendant asserts error in four respects: (1) the failure to suppress statements later admitted in evidence that were made involuntarily to police, in violation of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444-445 (1966) (Miranda); (2) the introduction over objection of a witness's grand jury testimony after the witness claimed a loss of memory; (3) the failure to strike, upon request, another witness's testimony after learning that he had violated a sequestration order; and (4) the failure to give a requested instruction on involuntary manslaughter. The defendant also seeks relief under G. L. c. 278, § 33E. While we conclude that some of the defendant's statements to police were not made voluntarily and should not have been admitted, any error was harmless beyond a reasonable doubt. We also conclude that the judge's rulings with respect to the contested witness testimony and the instruction on involuntary manslaughter were not in error. Having reviewed the entire record, we affirm the conviction and discern no reason to exercise our authority to grant extraordinary relief.

         1. Factual background.

         We recite the facts the jury could have found, reserving certain details for later discussion. In early February, 2008, the defendant discussed plans to rob a drug dealer with Jeffrey Milton, Antonio Fernandes, and Brandon Walters. On February 15, 2008, however, the drug dealer whom the defendant had in mind was not available. The defendant proposed to the group that they instead rob a taxicab driver. The defendant showed them that he had a gun.

         Shortly after midnight, the defendant drove Milton in the defendant's automobile, a green Honda, to a pay telephone. Using a female-sounding voice, Milton telephoned for a taxicab to come to a specific address on Galen Street in Brockton. The defendant previously had identified that address as being "perfect" for robbing a taxicab driver: it was at the end of a dead end street, and the nearby street lighting was dim.

         The defendant and Milton then picked up Fernandes and Walters, and drove to the end of another street that was close to Galen Street. While Milton and Walters waited with the defendant's Honda, the defendant and Fernandes went to meet the taxicab, which was not visible from where the Honda was parked. When the taxicab arrived, the defendant telephoned Walters to tell him to start the Honda's engine. The defendant got into the back seat of the taxicab, behind the driver, Conley. Fernandes also got into the back seat, but on the passenger's side. The defendant then took out the gun and pointed it at Conley, and Fernandes told Conley to give them his money.

         Conley panicked and grabbed for the gun. Although the progression of the subsequent events is disputed, it is clear that, at some point, the gun discharged, and Conley was shot in the back of the head behind the right ear at close range. It is also clear that the taxicab accelerated away from the end of Galen Street and crashed into a fence near a house farther up the street.

         The defendant and Fernandes jumped out of the vehicle while it was still in motion and ran back to the Honda. Fernandes reached the Honda first, followed closely thereafter by the defendant, who was injured and missing a shoe. The defendant said that he had lost his cellular telephone. He then handed something wrapped in a sweatshirt to Walters, and Walters put it in the trunk. They drove away.

         In the early morning hours of February 16, 2008, the defendant woke up Nicole Resendes, his then girl friend. He told her that his cellular telephone and shoes had been stolen from him in a robbery. He later asked his associate Joao Cruz explicitly to be his "alibi" for the time of the shooting, relating to him a story similar to the one he had told Resendes.[1]

         Soon after the shooting, police found Conley slumped over the steering wheel and unresponsive. Conley was taken to a local hospital, where he was pronounced dead between 1 and 2 A.M. Police did not find any identifiable fingerprints at the scene, but did find a shoe on the street approximately fifty yards from the crash that had Conley's blood on it.[2] After a tip from a suspect in an unrelated crime, the investigation eventually turned to the defendant. Police questioned the defendant at the Brockton police station on March 14, 2008, and again after his arrest on March 24, 2008. During the second interview, the defendant stated that he shot Conley. Each interview was audio-video recorded.

         2. Procedural background.

         On May 15, 2008, a grand jury returned an indictment charging the defendant with murder in the first degree, G. L. c. 265, § 1. Before trial, the defendant moved to suppress the statements he made during both police interviews. After an evidentiary hearing on October 21, 2010, a Superior Court judge denied the motion. At trial, the jury were shown slightly redacted versions of the interviews.

         The defendant did not testify. His theory of defense was that his recorded statements had not been made voluntarily, that the Commonwealth's witnesses at trial were not credible, and that Conley's death occurred accidentally after the armed robbery had ended.

         After the close of all the evidence, the jury were instructed on murder in the first degree on theories of premeditation, extreme atrocity or cruelty, and felony-murder by armed robbery or attempted armed robbery.[3] On April 15, 2011, the defendant was convicted of murder in the first degree on a theory of felony-murder.[4] The defendant, who was seventeen years old at the time of the shooting, was sentenced to the then-mandatory term of life in prison without the possibility of parole.[5] This appeal followed.

         3. Discussion.

         The defendant claims reversible error in four respects. First, he argues that it was error to deny his motion to suppress statements he made to police, because the waiver of his Miranda rights was not valid and because his statements were not made voluntarily. Second, he argues that it was error to permit the introduction of grand jury testimony from a witness (Resendes) who claimed memory loss during her trial testimony. Third, he argues that it was an abuse of discretion not to strike a witness's testimony after the witness (Milton) violated a sequestration order. Fourth, he argues that it was error for the judge not to give an instruction on involuntary manslaughter. Each of the claimed errors was preserved. Finally, the defendant asks that we grant a new trial or reduce the verdict to a lesser degree of guilt pursuant to our power under G. L. c. 278, § 33E.

         For the reasons that follow, we affirm the defendant's conviction and decline his request that we grant him extraordinary relief pursuant to G. L. c. 278, § 33E.

         a. Motion to suppress.

         The defendant argues that it was error to deny his motion to suppress statements made to Brockton police officers during two interviews on March 14, 2008, and March 24, 2008. During the first interview, the defendant admitted that the shoe found on Galen Street was his, but denied any involvement in the events leading up to Conley's death. During the second interview, however, the defendant admitted, among other things, to holding the gun when Conley was shot.

         Statements of a defendant subject to custodial interrogation must be suppressed if the Commonwealth cannot prove beyond a reasonable doubt both that the defendant validly waived his Miranda rights, see Miranda, 384 U.S. at 444-445, and that he made the statements voluntarily.[6] See Commonwealth v. Pucillo, 427 Mass. 108, 110 (1998) . The defendant contends that he did neither. He also contends that he explicitly invoked his or her right to silence in the middle of the second interview, and that the police failed scrupulously to honor that request.

         In reviewing a ruling on a motion to suppress, we "accept the judge's subsidiary findings of fact absent clear error, but conduct an independent review of the judge's ultimate findings and conclusions of law." Commonwealth v. Washington, 449 Mass. 476, 480 (2007), citing Commonwealth v. Scott, 440 Mass. 642, 646 (2004). "The determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw and heard the witnesses, and not of this court." Commonwealth v. Moon, 380 Mass. 751, 756 (1980). Where a decision is based on recorded rather than live testimony, however, "we will 'take an independent view' of recorded confessions and make judgments with respect to their contents without deference to the fact finder, who 'is in no better position to evaluate the[ir] content and significance.'" Commonwealth v. Novo, 442 Mass. 262, 266 (2004), quoting Commonwealth v. Bean, 435 Mass. 708, 714 n.15 (2002).

         The motion judge concluded that the defendant validly waived his Miranda rights, and that his statements during both interviews were voluntary. Her conclusions were based on her analysis of the recorded interviews and her assessment of live testimony from two clinicians (one testifying for the Commonwealth and one for the defendant) concerning the effect of childhood lead poisoning on the defendant's ability to understand his rights.[7] The judge gave little weight to the testimony of either expert.

         For reasons we explain, we agree with the determination of the motion judge that the defendant validly waived his Miranda rights at both interviews. We further agree that the defendant made voluntary statements at the first interview, and initially made voluntary statements at the second interview. Thereafter, however, the police failed to honor scrupulously the defendant's repeated requests to end questioning. The statements he made subsequent to those requests therefore should have been suppressed. Nonetheless, given the other properly admitted evidence, their admission was harmless beyond a reasonable doubt.

         i. Miranda waivers.

         "A valid Miranda waiver is one that is made knowingly, intelligently, and in all respects, voluntarily." Commonwealthv.Selby, 420 Mass. 656, 660 (1995), S_.C., 426 Mass. 168 (1997). In determining the validity of a waiver, relevant considerations include the totality of the circumstances, such as "promises or other inducements, conduct of the defendant, the defendant's age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, the initiator of the discussion of a deal or leniency (whether the defendant or the police), and the ...

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