Heard: May 10, 2018.
found and returned in the Superior Court Department on March
10, 2015. A pretrial motion to suppress evidence was heard by
Kenneth W. Salinger, J.
for leave to prosecute interlocutory appeals were allowed by
Hines, J., and Cordy, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeals
were consolidated and reported by them to the Appeals Court.
After review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
Patrick Levin, Committee for Public Counsel Services, for the
DiLoreto Smith, Assistant District Attorney, for the
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, &
defendant stands accused of murder in the first degree in
connection with the beating death of a woman who had obtained
a restraining order against him. The Commonwealth appeals
from an order suppressing both the statements that the
defendant made during custodial interrogations and the
forensic testing results obtained from his bloodstained
motion judge heard testimony from police witnesses and
watched an audio-video recording of a second custodial
interrogation, which took place soon after the police
realized that they inadvertently had failed to record the
defendant's first interrogation. The judge concluded that
the defendant was too intoxicated during both interviews to
make a knowing, intelligent, and voluntary Miranda waiver.
Consequently, the judge determined that the Commonwealth had
not met its burden of proving beyond a reasonable doubt that
the defendant validly waived his Miranda rights at the
unrecorded first interview. See Commonwealth v.
Hoyt, 461 Mass. 143, 149 (2011).
the suppression of the defendant's statements, the case
calls upon us first to examine unsettled aspects of the
standard of review to be applied to the judge's
subsidiary findings, some of which were drawn from
documentary evidence. We decline to adopt the Federal
approach, which does not permit a reviewing court to make an
independent assessment of pertinent documentary evidence, and
instead requires deference to all subsidiary fact findings
that are not clearly erroneous. See Anderson v. Bessemer
City, N.C., 470 U.S. 564, 574-575 (1985). We instead
reaffirm the long-standing principle that an appellate court
may independently review documentary evidence, but should
accept subsidiary findings based partly or wholly on oral
testimony, unless clearly erroneous. See Commonwealth v.
Hoose, 467 Mass. 395, 399 (2014). In such circumstances,
the case should be decided "upon the entire
evidence," see Berry v. Kyes, 304 Mass. 56,
57-58 (1939), giving "due weight" to the
judge's subsidiary findings when required. See
Edwards v. Cockburn, 264 Mass. 112, 120-121 (1928).
recording of the second interrogation, the judge saw a man
then so intoxicated that his level of sobriety one hour or so
earlier -- the pertinent time for assessing the validity of
the Miranda waiver -- could only have been much worse. The
recording of the second interview thus formed part of the
predicate for the judge's conclusion that the defendant
had been too intoxicated at the beginning of the unrecorded
first interview to give a valid waiver. Our de novo review of
that documentary evidence instead reveals that, for the
duration of the recording of the second interview, the
defendant appeared to be lucid, coherent, responsive, and in
control of his mental faculties. Thus, the judge's
findings regarding the defendant's condition during the
second interview -- and, to the extent that they are premised
on extrapolations from that interview, his findings
concerning the defendant's capacity validly to waive his
Miranda rights during the first interview -- are not
supported by that evidence and cannot stand.
that the judge also made findings relating to the
defendant's condition that are based on oral testimony,
and to which we must defer, the case on appeal is to be
decided on the "entire evidence." See
Berry, 304 Mass. at 57-58. We therefore must weigh
our de novo review of the second interview along with the
judge's assessment of the oral testimony. Doing so
presents unique challenges in these particular circumstances,
where the findings focus largely on a comprehensive
documentary record of the wrong time period. We do not know
the extent to which the recording of the second interview may
have had an impact on the judge's other factual findings
and credibility determinations, or what else the judge might
have found if he shared our view of the recording.
Additionally, the judge failed to make factual findings or
credibility determinations regarding certain material
evidence. We are thus not confident that the remaining
findings as to the testamentary evidence that are entitled to
deference allow for meaningful review of the entire evidence
in this case.
being so, it is the better part of wisdom to remand this case
so that the judge can make findings and credibility
determinations regarding all pertinent evidence in light of
our de novo assessment of the recording of the second
interview. Cf. Commonwealth v. Jones-Pannell, 472
Mass. 429, 438 (2015); Commonwealth v. Isaiah I.,
448 Mass. 334, 338 (2007). Depending on the findings made on
remand as to the defendant's condition and level of
sobriety at the pertinent time, and recognizing that
intoxication alone does not preclude a valid waiver,
Commonwealth v. Wolinski, 431 Mass. 228, 231 (2000),
a remand will also afford the opportunity to clarify any such
nexus, and allow the judge as well to determine the
voluntariness of the statements.
situation is otherwise as to the suppressed forensic testing
results. The police lawfully seized the defendant's
clothing incident to arrest, and thereafter did not need a
separate warrant to test the clothing for the presence of
human blood. See Commonwealth v. Arzola, 470 Mass.
809, 816-817 (2015), cert, denied, 136 S.Ct. 792 (2016).
Accordingly, the order suppressing the results of the
forensic testing of the defendant's clothing must be
Findings of fact.
judge held an evidentiary hearing on the defendant's
motion to suppress at which three officers testified and an
audio-video recording of the defendant's second interview
was submitted. The judge did not make any explicit
adverse credibility findings, but stated that he credited the
officers' testimony "to the extent it [was]
consistent with [his] explicit findings of fact." The
judge found as follows. Shortly after 2 A.M. on November 18,
2014, Boston police received a 911 call stating that the
victim had died at her apartment. Her body was found, covered
with a blanket, on a "very bloody" couch; her face
was bruised and bloodied. Two of the defendant's friends
were in the apartment when the officers arrived, but the
defendant was not present. One friend appeared to be
intoxicated; the other, who did not, had telephoned 911.
Scott Yanovitch of the Boston police department requested a
dispatch to all relevant units; the dispatch went out around
2:50 A.M. Officer Shawn Roberts heard the dispatch and
recognized the address because he had responded there to some
previous complaints by the victim of domestic violence by the
defendant. Roberts used his mobile data terminal to perform a
search of the prior police reports regarding that address,
found the defendant's name, and checked his criminal
record. Roberts discovered that an active restraining order
was in place requiring the defendant to stay away from the
victim's residence, and that there was an outstanding
warrant to arrest the defendant for failing to register with
the Sex Offender Registry Board. Roberts also examined the
defendant's booking photographs.
the next hour or so, Yanovitch saw a man who was later
identified as the defendant "hanging out" near the
victim's apartment. The first time, Yanovitch briefly
stepped outside the victim's apartment to get some fresh
air and saw the defendant walk past him, talking and mumbling
to himself. The second time, when Yanovitch escorted one of
the defendant's friends outside the apartment to smoke a
cigarette, the defendant approached and asked the friend for
a cigarette. Around the same time, Roberts completed his
research and contacted Yanovitch over the police radio to
tell him what he had learned about the defendant. Yanovitch
asked Roberts to come to the scene to determine if the friend
that he had escorted outside to smoke was the person Roberts
had researched. Roberts arrived, confirmed that the friend
was not the same individual, and left.
inside the apartment, Yanovitch heard the defendant, standing
on the sidewalk, yelling loudly; he was yelling statements
such as "What's going on in there?"; "I
know what happened"; and "She was my friend."
Yanovitch went outside again. The defendant approached him,
asked, "What's going on in there?" and
repeated, "She was my friend." Yanovitch asked the
defendant for his name, and the defendant responded,
"What, are you going to run me?" Yanovitch then
asked Roberts to return to the scene to determine if the
defendant was the person he had researched; by this time it
was approximately 3:40 A.M.
Roberts returned and approached the defendant, Roberts
smelled alcohol. He identified the defendant and placed him
under arrest pursuant to the outstanding warrant. The
defendant stated that he had paperwork showing that the
arrest warrant had been recalled, but the paperwork concerned
a different warrant. Roberts read the defendant the Miranda
rights; the defendant did not indicate whether he understood.
Roberts and another officer then drove the defendant to
Boston police headquarters. During the drive, the defendant
repeatedly asked if he would be released because the warrant
was a mistake; he said nothing about the victim.
Detective Michael Stratton interviewed the defendant for
approximately one hour, starting at around 4:30 A.M., while
Roberts observed. Stratton told the defendant that they were
being recorded, but, for the duration of the defendant's
interview, the officers inadvertently recorded a different
interrogation room. Stratton read the defendant the Miranda
rights from a preprinted form, and the defendant initialed
the form and signed his name.,  The defendant then made
statements implicating himself in the victim's death; the
defendant said that he and the victim had gotten into an
argument and that he had hit her in the head twelve to
fifteen times. The defendant said that he "got her
good," and, "I think I killed her."
defendant also said that, when he woke up the next morning,
the victim's body was cold and he thought she was dead.
He stated that he then left the apartment and found his
friend, and they drank beer together before returning to the
victim's apartment. Once there, the defendant mopped
puddles of blood from the floor and took out the trash. He
then drank more beer, finishing the last of the beer as his
other friend telephoned 911. Throughout the interview, the
defendant also repeatedly insisted that the warrant was a
mistake and asked when he would be released.
learned of the mistake in recording, Stratton asked the
defendant if he would agree to a second interview; the
defendant assented, but wanted a cigarette first. During the
ten-minute cigarette break, the defendant continued to ask
when he would be released.
interviewed the defendant a second time beginning at around
5:50 A.M. This interview was audio-video recorded. The judge
found that the defendant was "quite intoxicated"
throughout the interview, and that Stratton knew this but did
not attempt to discern the defendant's level of
intoxication. The judge found that the defendant was
"stumbling around and very unsteady on his feet"
when he re-entered the interview room, and that he
"sound[ed] drunk and seem[ed] to have trouble speaking
clearly." The defendant paid "very little attention
while Stratton tried to review the Miranda form with
him," and "reached across the table and started
playing with Stratton's pen and papers." The judge
found that, at that point, the defendant still did not
realize that he had incriminated himself, as he was again
arguing that the warrant was only a "straight
warrant," a "mistake," and asking if he would
be released. The defendant also made statements such as,
"She's dead because of me," and, "I did
whack her." The judge stated that, "[s]ince it is
apparent that [the defendant] was quite intoxicated
throughout the second police interrogation, the Court infers
and therefore finds that he was even more drunk during the
the second interview, Stratton arrested the defendant for
murder. Stratton also seized all the defendant's clothing
after he noticed apparent bloodstains on the defendant's
shoes and socks. The officers had not obtained a warrant to
seize or test the clothing. Every piece of clothing ...