Commonwealth v. DiGiambattista
| Decision Date | 05 September 2003 |
| Docket Number | No. 00-P-876.,00-P-876. |
| Citation | 794 NE 2d 1229,59 Mass. App. Ct. 190 |
| Parties | COMMONWEALTH v. VALERIO DiGIAMBATTISTA. |
| Court | Appeals Court of Massachusetts |
Present: PERRETTA, DUFFLY, & GREEN, JJ.
John A. Baccari for the defendant.
Kevin J. Curtin, Assistant District Attorney, for the Commonwealth.
Near midnight on March 10, 1998, a building located at 109 Adams Street in Newton was, as State police later determined, intentionally set on fire with gasoline. Thereafter the defendant, who had moved from that address a few days earlier, was twice interviewed. During the second interview, on April 10, 1998, he confessed to having set the fire. Following a trial by jury, the defendant was convicted of burning a dwelling house, G. L. c. 266, § 1.1 The defendant appeals the denial of his motion to suppress incriminating statements. He also appeals the denial of his motions for a required finding of not guilty and for a new trial, and claims error in the judge's refusal to give a requested instruction. We affirm.
1. Motion to suppress. The defendant claims that the motion judge (who was not the trial judge) erred in failing to suppress inculpatory statements made during the April 10 interview because (1) Miranda warnings were not repeated after routine questioning had turned to interrogation and after he had requested an attorney; and (2) his statements were obtained through threats, coercion, and trickery. In our August 8, 2002, memorandum and order issued pursuant to rule 1:28, see Commonwealth v. DiGiambattista, 55 Mass. App. Ct. 1112 (2002), we ordered that additional findings be made, having determined that due to the conflicting evidence presented at the hearing on the motion to suppress, we could not decide these issues absent findings reflecting credibility assessments made by the motion judge.2Commonwealth v. Williams, 58 Mass. App. Ct. 139, 144 (2003). Additional findings thereafter issued, which we summarize as follows.
The defendant and his nineteen year old fiancée, Nicole Miscioscia, and their two young children lived at 109 Adams Street until moving to another address four days before the fire in question. Following the fire, the defendant and Nicole were questioned briefly in their home by three police officers. Thereafter, one of the officers, State Trooper Timothy MacDougall, called Nicole and explained they would like to meet with them again. MacDougall, who knew that neither the defendant nor Nicole could drive, said that he would pick up the defendant, Nicole and the children to take them to the interview site, the Chelsea fire station. MacDougall explained further that they were not under arrest. At the fire station, the defendant was taken to one room, where he remained for the duration of the two-hour interview, while Nicole and the children were taken to another room.
MacDougall and Newton police Officer Steve Fontano, who had been present at the initial interview, met with the defendant. The tone, at the outset, was conversational. The defendant was again told that he was not under arrest, and that he was free to go at any time. He received Miranda warnings, and he indicated he understood them. He then signed a release form waiving his rights and expressing his wish to speak with the officers.
About twenty to thirty minutes into the interview, the tenor of the questioning changed and, as the judge found, there commenced an "interrogation phase of the interview." The police confronted the defendant with the fact that he was their primary suspect, and that they had a witness who placed him at the scene on the evening of the fire. The defendant denied that he had set the fire, and denied that he had been at the scene of the fire on the night in question. He offered, when requested, to take a lie detector test.
It was then that the officers implemented a plan they had earlier devised. Another State Trooper, Paul Zipper, came into the interview room by prior arrangement, and handed MacDougall "a file stuffed with six inches of blank paper and newspaper" and two videotapes. The police had created a label, "Paolini Worker's Comp Construction Case," and attached it to a blank tape; the other, labeled "109 Adams Street" was footage of the fire scene taken by the police. MacDougall placed the items next to him on the table and asked the defendant: "If I told you that somebody at Paolini Construction located adjacent to the burned building was under surveillance by an insurance company for a worker's comp fraud case, is there any reason you would show up on that videotape?" The defendant denied that he could have been taped at the scene. MacDougall and Fontane left the interview room and were replaced by Zipper. Shortly thereafter, the defendant made incriminating statements to Zipper and eventually signed a written statement in which he confessed to having set the fire.
The judge was entitled to credit the testimony of the police officers and not to credit that of the defendant. Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990). "In reviewing the denial of a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error." Ibid. However, the judge's conclusions of law, as well as his findings of ultimate fact that derive from the subsidiary findings, are open to reexamination by this court. Commonwealth v. Cruz, 373 Mass. 676, 682 n.2 (1977) ( " ; Commonwealth v. Barros, 435 Mass. 171, 174 n.5 (2001); Commonwealth v. Evans, 436 Mass. 369, 372 (2002). Our decision affirming the denial of the motion to suppress embodies these familiar principles.
a. Claim that Miranda warnings should have been repeated. The defendant argues that his confession was invalid because the police should have readvised him of his rights under Miranda when the confrontational interrogation commenced. For the reasons set forth in Commonwealth v. Sirois, 437 Mass. 845, 850 (2002), in which an identical claim was made and rejected, we conclude that the defendant's claim is without merit. We are satisfied that, having been given Miranda warnings just thirty minutes before the point when the interview became (we shall assume, but do not decide) custodial, the defendant's knowing waiver at that earlier point remained valid, notwithstanding the change in the tenor of the questioning. See also Commonwealth v. Edwards, 420 Mass. 666, 671 (1995).
b. Voluntariness of confession. Based on the judge's subsidiary findings and the police officers' uncontested testimony at the hearing, it is clear that the officers' display to the defendant of the falsely labeled blank tape and empty file and MacDougall's concurrent question suggesting that the video captured the defendant at the scene, were intended to mislead the defendant into believing the Commonwealth had evidence against him it did not have. The use of such deception as a tactical device is disapproved, Commonwealth v. Jackson, 377 Mass. 319, 328 n.8 (1979) (), and we have indicated that its use "casts instant doubt on whether a defendant's statement is voluntary." Commonwealth v. Nero, 14 Mass. App. Ct. 714, 716 (1982). That doubt, however, standing alone, does not in the particular circumstances of this case ripen into a conclusion that the defendant's statements were involuntary.
"In determining whether a waiver was made voluntarily, the court must examine the totality of the circumstances surrounding the making of the waiver." Commonwealth v. Edwards, 420 Mass. at 670. The motion judge properly considered all of the relevant factors when deciding the voluntariness of the defendant's incriminating statements. See Commonwealth v. Selby, 420 Mass. 656, 663 (1995) (). See also Commonwealth v. Jones, 439 Mass. 249, 257 (2003) (); Commonwealth v. Scoggins, 439 Mass. 571, 576-577 (2003). In the present circumstances, we are satisfied that the Commonwealth has established by proof beyond a reasonable doubt that the defendant's free will was not overborne by the tactics of the police during questioning.
c. Other claims. With respect to the defendant's other claims,3 the motion judge found that the defendant had "never invoked his right to counsel during the April 10 interview." The judge concluded that "because the defendant never invoked his right to counsel or his right to remain silent ... the issue of whether and at what point the interview became custodial interrogation is ... irrelevant with respect to analysis under Miranda requirements," and that the initial, valid waiver remained in effect. The motion judge also found that discussion as to whether the defendant might benefit from alcohol abuse counseling was not done in the context of any "deal" or offer of leniency; and the introduction to the defendant of Zipper as "working with the DA's office," was factually correct and "not part of a coercive atmosphere designed to elicit a confession from" the defendant. The judge...
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