Com. v. Adams

• Decision Date: 18 May 1983
• Parties: COMMONWEALTH v. Kenneth ADAMS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 149

450 N.E.2d 149

389 Mass. 265

COMMONWEALTH v. Kenneth ADAMS.

Supreme Judicial Court of Massachusetts Plymouth.

Argued Jan. 4, 1983.

Decided May 18, 1983.

Jane Larmon White, Boston, for defendant.

Robert S. Sinsheimer, Asst. Dist. Atty., for Commonwealth.

Before HENNESSEY, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

After choosing a jury trial in the first instance and then waiving his right to a jury trial, Kenneth Adams was convicted in the Wareham District Court jury of six sessions of open and gross lewdness and lascivious behavior under G.L. c. 272, § 16. The Appeals Court granted a stay of execution of sentence pending appeal. We transferred the appeal to this court on our own motion. We now reverse the defendant's conviction because we conclude that several inculpatory statements made by the defendant were admitted in evidence without a showing that the defendant was fully advised of his Miranda rights and that, consequently, a finding could not have been made that the defendant knowingly, intelligently, and voluntarily waived these rights.

There was evidence from which the following facts could be found. On May 27, 1980, at approximately 7:15 P.M., Frank Wisnewski was walking with his daughter on West Haven Drive in Brockton. A blue Dodge Dart automobile passed them travelling in the opposite direction. A few minutes later the same automobile passed by them travelling towards them, slowing down as it approached. During this time Wisnewski was able to see into the car, and he saw the defendant "playing with his penis."

Wisnewski returned to his home and informed his neighbor State Police Corporal Galen Worcester of the incident. After speaking with Wisnewski, Corporal Worcester got into his police cruiser and drove in the direction the defendant had been travelling. Meanwhile, Wisnewski telephoned the Brockton police. After driving for approximately five minutes, Corporal Worcester came upon the defendant's vehicle. Corporal Worcester sounded his police siren and within one-quarter to one-half of a mile, the defendant stopped his vehicle by the side of the road. Corporal Worcester alighted from his cruiser, approached the defendant's automobile, and asked the defendant for his driver's license and registration. Worcester noticed that the defendant's pants were unzipped and that several pillows were beside the defendant on the front seat. From his observations while following the defendant's automobile, Worcester inferred that the defendant had been sitting on these pillows prior to being stopped.

The defendant asked Corporal Worcester the reason for the stop and Worcester responded that the defendant had been seen masturbating in Brockton. Almost immediately after stopping the defendant, Worcester was joined by Brockton police officers John Butler and Dominic Persampierri, who were accompanied by Frank Wisnewski. Officer Butler placed the defendant under arrest, put him in the cruiser, and took him to the Brockton police station.

1. At the defendant's trial Officer Butler testified as to the events immediately preceding and following the defendant's arrest. Butler stated that on arriving at the scene he advised Adams "of his rights" and then arrested him. Butler testified at trial that while transporting Adams to the police station he had a conversation with Adams. The prosecutor asked Butler what he said to Adams. The defendant's lawyer objected at this point. He argued that no proper foundation had been established for this testimony because Butler had neither testified as to the Miranda warnings he administered to Adams, nor to whether Adams had waived these rights prior to making any statement. The judge directed Butler to recite the rights he had given Adams. Butler testified that he informed the defendant that he had the right to remain silent, the right to stop the questioning at any time, the right to consult with an attorney whom the Commonwealth would provide for him if he could not afford to pay for one, and the right to make one telephone call. The officer testified that he advised the defendant of his rights from memory rather than using a Miranda card. On further questioning from the prosecutor the officer stated that these were all the rights he administered to the defendant.

Following this recitation, the prosecutor asked Butler what the defendant had said to him. The defendant's counsel again objected arguing that the statements should not be admitted because the police officer's testimony revealed that he had not told the defendant that any statement he made could be used against him. Additionally, the defense counsel argued that the Commonwealth had still not made a showing that the defendant had knowingly, intelligently, and voluntarily waived his rights prior to making these statements. The judge made no explicit finding that the defendant waived his rights nor that the defendant received all the required Miranda warnings. He did not hold a voir dire hearing on these issues. He permitted Butler to testify, however, as to his conversation with the defendant over the defense counsel's objection. Butler stated that Adams admitted to him that he had his penis out at the time of the incident. Butler further testified that Adams said that he did not think there was anything wrong with such conduct and that he did it all the time.

The defendant now renews his argument that admission of his statements in evidence violated the dictates of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was clear error. We agree. In Miranda, the United States Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." Id. at 444, 86 S.Ct. at 1612. In delineating these procedural safeguards the Court stated that "the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed" (emphasis added). Id. The defendant may waive these rights, provided that the waiver is made voluntarily, knowingly, and intelligently but "unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him." Id. at 479, 86 S.Ct. at 1630.

In this case, the Commonwealth did not demonstrate that the defendant was fully advised of his rights. Officer Butler's testimony did not show that he had advised the defendant that any statements he made could be used against him. The Commonwealth now argues that there is no absolute requirement that an officer must inform a defendant that his statements may be used against him. This is a clear misstatement of the law. In Miranda the Supreme Court held that: "The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court" (emphasis supplied). Miranda, supra at 469, 86 S.Ct. at 1625. This warning "is an absolute prerequisite to interrogation." Id. at 471, 86 S.Ct. at 1626. The Court explained that: "This warning is needed in order to make [the accused] aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege." Id. at 469, 86 S.Ct. at 1625. Our cases have recognized the mandatory nature of this warning. In Commonwealth v. Dustin, 373 Mass. 612, 368 N.E.2d 1388 (1977), we upheld an order suppressing a statement made by a defendant because the officer speaking with the defendant implied that any statement the defendant made could not be used against him. We noted there that: "This was directly contrary to the required Miranda warning that anything the defendant said could and would be used against him in court." Id. at 615, 368 N.E.2d 1388. Thus, since the prosecutor in this case did not "demonstrat[e] ... at trial" that the defendant was given his full Miranda warnings, the defendant's statements should not have been admitted in evidence against him. Miranda, supra 384 U.S. at 479, 86 S.Ct. at 1630.

The Commonwealth also argues that the defendant is barred from challenging the admission of his statements because he failed to file a motion to suppress the statements. However, the Commonwealth has confused the motion to suppress with the admission of the statements in evidence. Even if the defendant has not moved to suppress his statements the burden is still on the Commonwealth, upon seasonable objection, to prove affirmatively, prior to the admission of these statements, that the statements were properly obtained and that the defendant waived his rights. Id. ¹ The Commonwealth offered no evidence on this issue. Since the record demonstrates that the defendant was not advised of all of the required Miranda warnings, the statements must be suppressed since no valid waiver could be obtained of rights that were not explained completely. The defendant, therefore, must be afforded a new trial. See Commonwealth v. Tavares, 385 Mass. 140, 145, 430 N.E.2d 1198 (1982), quoting Coyote v. United States, 380 F.2d 305, 309-310 (10th Cir.), cert. denied, 389 U.S. 992, 88 S.Ct. 489, 19 L.Ed.2d 484 (1967) ("[I]f [the Miranda ] prerequisites have not been fully met, the confession is without more involuntary as a matter of law, hence inadmissible and insubmissible").

2. The defendant also appeals from the judge's denial of his motion to dismiss the complaint charging him with "open and gross lewdness and lascivious behavior" under G.L. c. 272, § 16, on the ground...