Com. v. Brant

• Citation: 380 Mass. 876,406 N.E.2d 1021
• Parties: COMMONWEALTH v. Jeffrey A. BRANT.
• Decision Date: 18 June 1980
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1021

406 N.E.2d 1021

380 Mass. 876

COMMONWEALTH v. Jeffrey A. BRANT.

Supreme Judicial Court of Massachusetts, Norfolk.

Argued April 8, 1980.

Decided June 18, 1980.

Thomas P. McCusker, Jr., Westwood, for defendant.

Charles J. Hely, Asst. Dist. Atty. (Gerald M. Kirby, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, WILKINS and BRAUCHER, JJ.

HENNESSEY, Chief Justice.

This is an appeal by the defendant Brant under G.L. c. 278, §§ 33A-33G, from his conviction for armed robbery while masked. Prior to trial Brant filed a motion to suppress statements. After a hearing the motion was denied in part and Brant filed his exception. The case was tried before a jury, Brant was found guilty, and the trial judge imposed a sentence of not less than eighteen years nor more than thirty years at the Massachusetts Correctional Institution at Walpole. Brant claimed an appeal, asserting as errors the denial of his motion to suppress an inculpatory statement given by him to authorities and the allowing of a certain closing argument to the jury by the prosecutor involving the defendant's right to remain silent. The Appeals Court, with one judge dissenting, concluded that there was no error and that the judgment should be affirmed. --- Mass.App. --- ^a, 395 N.E.2d 1320. We conclude that there was error in the motion judge's denial ¹ of the motion to suppress Brant's statement and that the judgment of conviction must be reversed. In reaching this result we observe that neither the motion judge nor the Appeals Court had the benefit of Rhode Island v. Innis, --- U.S. ----, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), upon which we rely in part in this opinion, and which, to say the least, brings new shades of meaning to the issues raised in this case.

We summarize the facts as found by the motion judge and from our own reading of the trial transcript. On the night of December 28, 1977, a food store in Norwood, Massachusetts, was robbed by two masked men, one of whom carried a rifle or a sawed-off shotgun. A woman clerk was shot and seriously wounded by one of the robbers, who then escaped. Brant and one Kampen were arrested in Titusville, Florida, on February 4, 1978, after a high-speed automobile chase which involved the exchange of gunfire. Kampen was booked at 9:30 A.M. and Brant, who had eluded his pursuers somewhat longer, was booked at 2:10 P.M. During the booking procedures, each was informed of his Miranda rights and each was specifically asked whether he wished to call the public defender. Kampen said only that he would see the public defender in court that morning, while Brant requested and was permitted to call the public defender.

On Sunday, February 5, 1978, both Kampen and Brant were brought into court for a proceeding which, the parties stipulated, involved the setting of bail and a probable cause hearing on certain Florida charges. The Florida public defender appeared and represented both defendants.

Following this hearing Kampen and Brant were held in custody at the Brevard County jail, one of a complex of buildings in the county seat, which included the sheriff's office and, across the street, the courthouse. Kampen and Brant were held in separate cell blocks and could not converse with each other. Each of the defendants was told by other prisoners that, if they were convicted and sent to one of Florida's State prisons, they would be subject to homosexual assaults.

On February 13, 1978, the Florida public defenders' office was relieved by court order from representing Kampen and Brant due to a conflict of interest between these defendants and a juvenile apprehended with them. On that same day, Assistant District Attorney Tiernan of Norfolk County, Massachusetts, telephoned Deputy Sheriff Hudepohl of Florida and requested that he seek to interview Kampen and Brant concerning the incident which is the subject of the present indictments.

Hudepohl arrived at the jail sometime shortly before 10 A.M. and asked to have Kampen and Brant brought to him. Kampen arrived first and was taken by Hudepohl into a small interview room adjacent to the main control room of the jail. He first informed Kampen that he wished to interview him concerning certain Massachusetts offenses. Hudepohl also told him that Tiernan had called and said that he wanted Kampen's side of the story. Hudepohl cautioned Kampen that he would not inquire about the Florida charges and carefully read him his Miranda rights, making sure after each question that Kampen understood. Hudepohl then asked Kampen, "Do you wish to talk with me now without a lawyer?" Kampen said, "Yes." Kampen proceeded to give Hudepohl an inculpatory statement which, when transcribed, covered six pages.

The motion judge found that, at the time Kampen first spoke with Hudepohl, he was calm and collected and quite familiar with his Miranda rights, not only from his Florida experiences, but from earlier occasions on which those rights had been read to him. The judge also found that Kampen's "will was not overborne by the circumstances of his incarceration nor his concern over the results of conviction in Florida; and . . . that (Kampen) knowingly, intelligently and voluntarily waived his Fifth Amendment rights guaranteed under Miranda and its progeny and his Sixth Amendment right to have his attorney present."

Upon completion of the interview Hudepohl and Kampen left the interview room and Kampen was permitted to speak briefly with Brant in the main control room. Hudepohl next informed Tiernan of Kampen's incriminating statement, and Tiernan promptly secured complaints against Kampen in the District Court of Norfolk for armed robbery, while masked, and assault with intent to murder. Tiernan and Detectives Fruci and Casey then left for Florida.

On the morning of February 15, 1978, Hudepohl returned to the Brevard County jail with Kampen's earlier taped statement, now transcribed. Kampen, still appearing calm and cooperative, signed the six page statement before a notary. Later that morning, Kampen and Brant were taken to the courthouse where new counsel were appointed to represent each of them, and they were arraigned on the Florida charges. Assistant District Attorney Tiernan and Officers Casey, Fruci and Hudepohl were in court during the arraignment of the defendants and knew that they were represented by counsel, Attorney Norwich having been appointed for Kampen and Attorney Cossaboom having been appointed for Brant. Further, the Massachusetts authorities and Hudepohl, by that time, had formed the intention to interrogate Brant later that day.

After their arraignment, Kampen and Brant were returned to jail. Later that afternoon they were brought into the jail interview room where Tiernan, Casey, Fruci and Hudepohl had assembled. At 4:57 P.M. Hudepohl turned on his tape recorder and began to read Brant his rights from a document entitled, "Brevard County Sheriff's Department Interrogation Preamble." This form contained the printed question, "Are you willing to proceed without an attorney being present to represent you?" This question was followed by a blank space for the answer of the person being interviewed. When Hudepohl read this question to Brant, Brant replied, "No." Hudepohl wrote this response on the form and confirmed that Brant refused to answer any further questions without his counsel being present. One of the Massachusetts authorities then interjected the fact that Kampen had already made a statement to the police, and Hudepohl confirmed to Brant that this was so and that Kampen's statement had already been signed and notarized. The motion judge found that the authorities, in using these words and conduct, "hoped and expected" that Brant would make a further statement. Hudepohl then turned off the tape recorder.

Kampen remarked that his statement was "all lies," and Brant asked for a moment to speak with Kampen privately. He was afforded this privilege. Fourteen minutes after the interrogation had ceased, Brant and Kampen returned to the interview room and Brant asked that the tape recorder be turned back on as he wished to make a statement. Hudepohl complied, directing Brant's attention to the interrogation preamble, specifically the question of Brant's willingness to proceed without an attorney being present to represent him. Brant himself crossed out the response, "No," wrote in, "Yes," and signed his name indicating his willingness to give a statement without his attorney being present. Brant indicated that he had changed his mind about giving a statement of his own free will, without any threats or promises.

Although Brant stated he wished to make a statement, further proceedings followed a question and answer format, Hudepohl asking Brant certain questions and Brant responding. At one point Kampen volunteered a response when Brant hesitated, or seemed uncertain, and one of the Massachusetts authorities began to follow up Kampen's response. Hudepohl then specifically reminded Kampen of his Miranda rights, and asked him expressly, "In light of all that, do you still wish to talk to us without having an attorney here, or your attorney of record here in Brevard County?" Kampen responded, "Yeah." Thereafter both Brant and Kampen were asked further questions and responded thereto. Both Kampen's and Brant's statements were incriminating, the statements virtually amounting to a confession to the Massachusetts offenses.

On Friday morning, February 17, 1978, the statements made on the 15th having been transcribed, Kampen and Brant were given an opportunity to read the twenty page transcription of their joint statement. Both defendants read the joint statement, initialed each page, and then executed an affidavit stating that the facts set forth therein were "true and correct." Later that day, Kampen and Brant were returned to court where, on the advice of their appointed counsel, who were present, they each waived...