Commonwealth v. DiGiambattista, SJC-09155 (MA 8/16/2004)

• Decision Date: 16 August 2004
• Docket Number: SJC-09155
• Citation: 442 Mass. 423
• Parties: COMMONWEALTH vs . VALERIO DiGIAMBATTISTA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

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COMMONWEALTH vs. VALERIO DiGIAMBATTISTA.

SJC-09155

Supreme Court of Massachusetts.

Middlesex.

April 6, 2004.

August 16, 2004.

Practice, Criminal, Admissions and confessions, Voluntariness of confession. Constitutional Law, Admissions and confessions, Waiver of constitutional rights. Evidence, Corroborative evidence, Expert opinion. Burning a Dwelling House.

Indictment found and returned in the Superior Court Department on June 5, 1998.

A pretrial motion to suppress evidence was heard by Charles T. Spurlock, J., and, following review by the Appeals Court, 55 Mass. App. Ct. 1112 (2002), further findings of fact regarding the defendant's motion to suppress were made by him; the case was tried before Judith A. Cowin, J.

After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

John A. Baccari (William J. Barabino with him) for the defendant.

Kevin J. Curtin, Assistant District Attorney (Alexandra T. Camp, Assistant District Attorney, with him) for the Commonwealth.

The following submitted briefs for amici curiae:

David M. Siegel for Suffolk Lawyers for Justice, Inc., & another.

Carlo Obligato, Committee for Public Counsel Services, & Marco Rechenberg, of New York, for Committee for Public Counsel Services.

Thomas F. Reilly, Attorney General, Cathryn Neaves, Assistant Attorney General, & Robert J. Bender, Assistant District Attorney, for Attorney General & others.

Present: Marshall, C.J., Greaney, Ireland, Spina, Sosman, & Cordy, JJ.¹

SOSMAN, J.

The defendant, Valerio DiGiambattista, was convicted of burning a dwelling house (G. L. c. 266, § 1). That conviction rested, in large measure, on DiGiambattista's confession to the police during an unrecorded interrogation at a fire station. It is undisputed that, in an effort to obtain his confession, the interrogating officers resorted to trickery, falsely suggesting to DiGiambattista that his presence at the scene of the fire had been captured on videotape, while simultaneously expressing sympathy for his actions and opining that he needed counselling for his alcoholism. In his subsequent confession, DiGiambattista's version of how and where he started the fire was completely contrary to the forensic evidence, and other details of his confession were ultimately shown to be impossible. On appeal, DiGiambattista contends that his motion to suppress the confession should have been allowed, and that, even with the introduction of the confession, the evidence against him was insufficient because the Commonwealth failed to present evidence corroborating that confession. See Commonwealth v. Forde, 392 Mass. 453, 458 (1984) (Forde). After remanding the case to the motion judge for further findings concerning the motion to suppress, the Appeals Court affirmed the conviction. Commonwealth v. DiGiambattista, 59 Mass. App. Ct. 190, 191, 199 (2003). We granted the defendant's application for further appellate review, and we invited the filing of amicus briefs addressing whether we should expand the Forde corroboration rule and whether we should require electronic recording of custodial interrogations. For the following reasons, we conclude that the defendant's confession should have been suppressed, and we therefore reverse the defendant's conviction and remand the case for further proceedings. We also take this occasion to announce that, henceforth, the admission in evidence of any confession or statement of the defendant that is the product of an unrecorded custodial interrogation, or an unrecorded interrogation conducted at a place of detention, will entitle the defendant, on request, to a jury instruction concerning the need to evaluate that alleged statement or confession with particular caution.

1. Facts. The evidence, viewed in the light most favorable to the Commonwealth, was as follows. DiGiambattista, Nicole Miscioscia (his girlfriend and later fiancee), and Miscioscia's children lived in a rented house at 109 Adams Street in Newton. The property was owned by Angelo Paolini, who had a construction company on the lot next door. During the final year of his tenancy, DiGiambattista withheld rental payments on account of Paolini's failure to make much needed repairs to the premises.

On March 7, 1998, buoyed by the receipt of a tax refund, DiGiambattista and his family moved out of the 109 Adams Street property and relocated to an apartment in Chelsea. A few days prior to their departure, DiGiambattista installed a new lock on the front door, keeping one key for himself and giving the other one to his mother. (A few of his mother's belongings remained on the premises, with the understanding that she would later retrieve them.) With that new lock in place, the only way to lock the door from the outside was by way of a key.

Shortly prior to midnight on Tuesday, March 10, 1998, a neighbor noticed smoke coming from the house at 109 Adams Street. When firefighters arrived at the scene, they found the front door locked, the other two doors boarded up, and the windows closed.² Inspection of the scene and testing of samples revealed that the perpetrator had used gasoline as an accelerant and had started the fire in or near a closet underneath a stair landing. A second, but insignificant, fire had also been set in the kitchen sink, lighting a small amount of paper. Expert assessment was that the fire had been started sometime between 11:25 P.M. and 11:55 P.M.

The following evening, officers questioned DiGiambattista and Miscioscia concerning the fire. There were some inconsistencies in their versions as to DiGiambattista's whereabouts on the night of the fire,³ and inconsistent versions as to who still had a key to the new front door lock. During initial questioning, DiGiambattista suggested the possibility that Paolini had set the fire, mentioning that Paolini may have used gasoline. (At that point in the interview, the officers had not said anything about an accelerant being used to start the fire, and did not yet have expert analysis identifying the accelerant as gasoline.) Further investigation uncovered a witness who claimed that he had seen a man resembling DiGiambattista enter the 109 Adams Street property at around 6 or 6:30 P.M. on the night of the fire.⁴

On April 10, 1998, one month after the fire, DiGiambattista voluntarily accompanied two officers (a State trooper and a Newton police officer) to a nearby fire station for further questioning. The trooper told DiGiambattista that he was free to leave, gave him Miranda warnings, and obtained his written waiver of rights. After an initial period of conversational, mild-mannered questioning, the officers changed tack and told DiGiambattista that he was their prime suspect, that his statements were inconsistent with those of other witnesses, and that they had a witness who placed him at the scene of the fire that night. DiGiambattista denied that he had been at the house that night and denied setting the fire. The officers inquired as to his willingness to take a lie detector test. After what the officers described as some hesitation and seeming reluctance, DiGiambattista agreed.⁵

At that point in the interview, another trooper came into the room carrying a thick folder and two videotapes. The folder was stuffed with blank paper and miscellaneous newspaper clippings (having nothing to do with the case). One of the videotapes, marked "109 Adams Street," was a recording made at the scene the night of the fire. The other, labeled "Paolini Construction Worker's Comp Case," was blank. This fictitious folder and videotape had been prepared in advance, with a plan that the other trooper would bring them into the interview room at a designated time. With the folder and videotapes conspicuously placed on the table next to the interrogating trooper, the trooper asked DiGiambattista: "If I told you that somebody at Paolini Construction was under surveillance by an insurance company for a workers' comp fraud case, is there any reason you would show up on that videotape?" While confronting DiGiambattista with this ostensible evidence against him, the trooper simultaneously sought to "downplay the crime itself, and give [DiGiambattista] a way of saving face, to confess to this by downplaying it," pointing out that "no one was hurt" in the fire and that, in light of the deplorable condition of the premises, the trooper could "relate to" and "understand" his anger at the landlord and the desire to "do something like that."⁶ DiGiambattista continued to deny that he had been at the scene.

The two officers left the room and were replaced by the trooper who had brought in the folder and tapes. That trooper repeated to DiGiambattista that they had a witness placing him at the scene, and that his own prior statement and the statements of witnesses contained inconsistencies as to the time he had left his new apartment that night (see note 3, supra). The trooper then expressed the view that DiGiambattista had not meant to hurt anyone, and that his lighting the fire was the product of stress, alcohol consumption, and understandable frustration with his living situation at 109 Adams Street. The trooper then gave DiGiambattista two proposals, that he had either done this "to hurt someone" or that he "had to be upset," under "stress," and that "when you add the booze in, you're going to make mistakes." During the trooper's explanation, DiGiambattista began nodding, and then acknowledged that he "was stressed" and had been drinking. The trooper asked him if he had used matches or a lighter. DiGiambattista replied that he had used both. The trooper asked him how he had lit the fire. DiGiambattista said that he used gasoline. After one more question and answer (that the trooper could not recall at trial), the trooper summoned the original interrogators into the room to take a more detailed statement because they were the ones "who had all the background knowledge of the...