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Commonwealth v. Tremblay

Supreme Judicial Court of Massachusetts, Suffolk

October 3, 2018


          Heard: May 10, 2018.

         Indictments 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.

         Applications 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 defendant.

          Janis DiLoreto Smith, Assistant District Attorney, for the Commonwealth.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

          LENK, J.

         The 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 clothing.

         The 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).

         As to 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).

         In the 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.

         Mindful 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.

         This 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.

         The 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 reversed.

         1. Background.

         a. Findings of fact.

         The 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.[1] 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.

         Sergeant 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.

         Over 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.

         Back 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.

         When 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.

         Sergeant 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.[2], [3] 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."

         The 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.

         When he 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.

         Stratton 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 first interview."

         After 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 ...

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