Supreme Judicial Court of Massachusetts, Plymouth
Heard: October 9, 2015.
pretrial motion to suppress evidence was heard by Christine
M. Roach, J., and the case was tried before Jeffrey A. Locke,
found and returned in the Superior Court Department on May
Jeffrey L. Baler for the defendant.
M. McKenna, Assistant District Attorney (Audrey Anderson,
Assistant District Attorney, with her) for the Commonwealth.
Present: Gants, C.J., Spina, Botsford, Lenk, & Hines, JJ.
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.
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.
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.
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.
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
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.
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
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
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.
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.
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.
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. On April 15, 2011, the
defendant was convicted of murder in the first degree on a
theory of felony-murder. 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. This appeal followed.
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.
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.
Motion to suppress.
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.
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. 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.
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).
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. The judge gave little weight to the
testimony of either expert.
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.
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 ...