Com. v. Berry

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

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.

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. 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 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 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 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 these facts, the motion judge found that, because of his upset condition, Berry was emotionally and mentally unable to assist the defendant in evaluating the significance of making a statement to the police. The judge therefore concluded that "the Commonwealth has failed to sustain its heavy burden of demonstrating that the [defendant's] statement ... was made after an opportunity for a meaningful consultation with his father wherein his rights were explained to him in such a way that he understood the significance of waiving his rights."

In reviewing the Superior Court's decision, we accept the motion judge's subsidiary findings of fact. However, we make an independent determination of the correctness of his application of constitutional principles to the facts as found. See Commonwealth v. Libran, 405 Mass. 634, 639, 543 N.E.2d 5 (1989); Commonwealth v. A Juvenile, 389 Mass. 128, 135, 449 N.E.2d 654 (1983). There is no material dispute over the facts as found. The Commonwealth contends that the judge's conclusion was incorrect as a matter of law. The defendant emphasizes the judge's findings concerning Berry's mental and emotional distress (due both to the violent confrontation of the night before the defendant's statement was made and the seriousness of the charges against the defendant), and responds that the judge correctly concluded that Berry was incapable of providing the defendant with an opportunity for a meaningful consultation.

In general, "the prosecution has a heavy burden to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Commonwealth v. Guyton, 405 Mass. 497, 500, 541 N.E.2d 1006 (1989). In addition, where the defendant is a juvenile, courts must proceed with "special caution" when reviewing purported waivers of constitutional rights. See, e.g., Commonwealth v. A Juvenile, 389 Mass. at 132-133, 449 N.E.2d 654; Commonwealth v. Cain, 361 Mass. 224, 228, 279 N.E.2d 706 (1972). As to juveniles at least fourteen years old at the time of the purported waiver, the prosecution must show that, before the disputed statement was obtained, the juvenile was advised of constitutional rights through a reading of the Miranda warnings and was afforded the opportunity to consult with an interested adult who was informed of, and understood, those rights. See Commonwealth v. Guyton, supra, 405 Mass. at 500-502, 541 N.E.2d 1006, citing Commonwealth v. A Juvenile, 389 Mass. at 131-134, 449 N.E.2d 654....