Com. v. Berry

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before LIACOS; GREANEY
• Citation: 570 N.E.2d 1004,410 Mass. 31
• Parties: COMMONWEALTH v. Christopher BERRY.
• Decision Date: 07 May 1991

Page 1004

570 N.E.2d 1004 410 Mass. 31 COMMONWEALTH
v.
Christopher BERRY. Supreme Judicial Court of Massachusetts,
Essex. Argued April 2, 1991.
Decided May 7, 1991.

Page 1005

Robert J. Bender, Asst. Dist. Atty. (Gerald P. Shea, with him), Boston, for Com.

Michael P. Hickey, Salem, for defendant.

Before LIACOS, C.J., and NOLAN, LYNCH and GREANEY, JJ.

GREANEY, Justice.

After the defendant, while a juvenile, was indicted for murder in the first degree and breaking and entering with intent to commit a felony, he moved to suppress a statement he had made to the police. A judge of the Superior Court allowed the defendant's motion. A single justice of this court granted the Commonwealth's application for interlocutory appeal. We now reverse.

We summarize the motion judge's findings of fact, with some supplementation from the record. Late in the evening of December 26, 1987, the defendant (then aged sixteen years, four months) returned home to his family's apartment. [410 Mass. 32] His father, Malcolm Berry (Berry), was there, and he suspected that earlier in the evening the defendant and his friends had been drinking, using drugs, and fighting in the apartment.

Berry confronted the defendant, and an argument ensued. Berry called the police, but they did not respond. The argument then turned violent; Berry slapped the defendant, wrestled with him, and forcibly ejected the defendant from the apartment. Upset, the defendant broke the glass in the back door. Berry again called the police, but by the time they arrived, the defendant was gone. Berry also called his Alcoholics Anonymous "sponsor," who came to the apartment, remained with Berry until later in the morning, talked about the situation with him, and helped him begin to calm down.

The defendant returned home about 2 A.M. There was no further confrontation or violence, but Berry again summoned the police. When the police arrived, they informed Berry that they could not remove the defendant unless he had threatened Berry's life. Berry then prepared and signed a statement in which he claimed that the defendant had threatened to kill him. (That particular claim was false. Berry later admitted that the defendant had made no such threat.) Berry also told the supervising officer that he believed that the defendant had ingested drugs and alcohol earlier in the evening.

At this time, roughly 2:30 A.M. on the morning of December 27, the supervising

Page 1006

officer had observed both Berry and the defendant. The officer considered Berry to be sober, and the defendant oriented and not under the influence of drugs or alcohol.

The defendant was taken to the police station and placed in the juvenile room, where he spent the rest of the night. About 9 A.M., Berry received a telephone call from the police station; he was informed that the defendant would be released soon.

At about 1 P.M., Berry received another telephone call from the police. This time he was advised that the defendant was being charged with murder, and he was instructed to [410 Mass. 33] bring clothing for the defendant to the station. The defendant was booked at about 1:45 P.M. No questions were asked of him regarding the alleged crime during this process, and an onlooking officer detected no odor of alcohol on the defendant's breath, nor any unusual behavior. In fact, the defendant appeared normal and unconfused, and he answered questions appropriately during the procedure.

Berry arrived with clothing for the defendant and was present when his son's clothes were taken from him. The defendant and Berry spoke alone in the juvenile room for fifteen to twenty minutes, during which time Berry told the defendant that he loved him, and would stay with him. A detective at the police station spoke with Berry for a few minutes, and he appeared normal. Berry was sober at the time. After his visit with his son, Berry returned home.

Sometime later, the defendant told one of the detectives that he wanted to make a statement. The detective immediately telephoned Berry and asked him to come to the station because the defendant wanted to talk. Berry arrived in minutes.

Until Berry arrived, the police scrupulously avoided talking to the defendant, and no statements were taken. Upon Berry's arrival, the detective read a card containing the Miranda warnings to both Berry and the defendant. Both stated that they understood the warnings, and both read and signed the card. There was no discussion at this time between Berry and the defendant. The defendant then gave an incriminating statement. ¹

The police did not use force, intimidation, or trickery to obtain the defendant's statement. In fact, the motion judge noted that the police treated the defendant properly, and with "meticulous concern" for the defendant's rights. As for [410 Mass. 34] Berry, however, at the time that the defendant gave his statement, Berry was upset, and felt "in a daze" and "out of it."

Based on...