Com. v. D'Entremont, 93-P-338

• Decision Date: 16 May 1994
• Docket Number: No. 93-P-338,93-P-338
• Citation: 632 N.E.2d 1239,36 Mass.App.Ct. 474
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. Keith D. D'ENTREMONT.

Page 1239

632 N.E.2d 1239

36 Mass.App.Ct. 474

COMMONWEALTH v. Keith D. D'ENTREMONT.

No. 93-P-338.

Appeals Court of Massachusetts,

Middlesex.

Argued Feb. 7, 1994.

Decided May 16, 1994.

Michael A. Cioffi, Saugus, for defendant.

David W. Cunis, Asst. Dist. Atty., for Com.

Before SMITH, KAPLAN and IRELAND, JJ.

SMITH, Justice.

A jury returned guilty verdicts against the defendant on two indictments charging him with rape and assault by means of a dangerous weapon, to wit, a rock. Prior to trial, the defendant filed a motion to suppress a statement that he made to the police after his arrest. Following an evidentiary hearing, the motion was denied and the defendant claims error. The defendant also claims that the judge committed error at the trial in (1) allowing in evidence a portion of the victim's testimony on redirect examination and (2) allowing a nurse to testify as a fresh complaint witness.

1. The denial of the defendant's suppression motion. On appeal, the defendant claims that the statement that he made to the police should have been suppressed because the statement was made after he had invoked his Miranda rights to remain silent and to have an attorney present during any interrogation. See Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). The defendant argues that Miranda was violated because his right to cut off questioning was not "scrupulously honored," Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313 (1975), and because the police interrogated him without the presence of a lawyer, after he had invoked his right to counsel. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).

We summarize the facts found by the motion judge. During the early hours of October 27, 1991, the victim reported that she had been raped by the defendant. The defendant, who was seventeen years of age, was arrested and booked at approximately 2 P.M. on the same date. At his booking the defendant was advised of his Miranda rights by a Captain Carlucci. The defendant invoked his right to remain silent and his right to have counsel present. He was placed in a cell. Later that day, the defendant's father visited him at the police station and told him not to discuss the facts of the case until he had spoken with an attorney.

A detective, one Terrio, was assigned to investigate the victim's claim that the defendant had raped her. After interviewing the victim, Terrio went to the defendant's cell at about 6 P.M., some four hours after the defendant had been arrested. She introduced herself to the defendant and informed him that she had interviewed the victim concerning the victim's version of what had transpired earlier that day. Terrio told the defendant she knew he had advised the police earlier that he did not wish to discuss the facts of the case with the police, but, if he changed his mind, she would be willing to speak with him. ¹

The defendant informed Terrio that he wanted to tell her his side of the story. Terrio then gave the defendant his Miranda rights. The defendant said that he understood his rights but that he still wanted to talk to her about what had occurred. Terrio urged the defendant to speak to his father before making a decision to talk to her. Terrio then brought the defendant into her office where a telephone call was placed to his father. The defendant's father again told the defendant not to speak to the police about the facts of the case until after he had spoken to his attorney. Nevertheless, after the conversation with his father, the defendant informed Terrio that he would like to talk to her about the case. At that point it was approximately 7 P.M. Terrio advised the defendant of his Miranda rights again and gave him a Miranda waiver form to read and sign. After the defendant had read the form, Terrio went over its contents with him to make sure that he understood his rights. The defendant decided to waive his Miranda rights, signed the form, and then gave a statement to Terrio in her office. ²

In denying the defendant's motion, the judge ruled that Terrio's introductory remarks to the defendant at his cell did not constitute "interrogation." Rather, the judge ruled it was the defendant who voluntarily decided to speak to the police without the presence of counsel. The judge ruled that Terrio did nothing to coerce or trick the defendant into waiving his constitutional rights. The judge also found that the defendant was not under the influence of drugs or alcohol, appeared intelligent and rational, understood the nature of the charges against him, and was aware that anything he said to Terrio could be used against him.

"In reviewing a ... judge's determination that a voluntary waiver was made, the judge's subsidiary findings will not be disturbed, if they are warranted by the evidence, and his resolution of conflicting testimony will be accepted." Commonwealth v. Tavares, 385 Mass. 140, 144-145, 430 N.E.2d 1198 (1982). "Our appellate function requires that we make our independent determination on the correctness of the judge's 'application of constitutional principles to the facts as found....' " Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), quoting from Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977).

The defendant, here, invoked two separate Miranda rights--the right to remain silent and the right to have counsel present during interrogation. When a defendant invokes both rights two different standards are applied to determine the admissibility of any subsequent statement made by that defendant. In Michigan v. Mosley, 423 U.S. at 104, 96 S.Ct. at 327, the Court ruled that there is no per se rule barring the resumption of interrogation after the defendant has invoked his right to remain silent, and that interrogation may resume if the defendant's rights are "scrupulously honored." Because in Mosley questioning was resumed "only after the passage of a significant period of time and the provision of a fresh set of warnings" and the second interrogation was restricted "to a crime that had not been a subject of the earlier interrogation," the Court ruled that the defendant's right to cut off questioning was scrupulously honored. Id. at 106, 96 S.Ct. at 328. Therefore, if a defendant invokes his right to remain silent, he may be interrogated provided that the police meet certain conditions.

However, a broader protection is given to a defendant who invokes his right to counsel. ³ In Edwards v. Arizona, 451 U.S. at 479, 101 S.Ct. at 1882, the defendant invoked his right to have counsel present during any interrogation. The following day police officers went to the county jail, and when he refused to speak with them, the defendant was told that "he had" to talk. The defendant then gave a statement. Holding that the statement must be suppressed, the Court ruled that when an accused has "expressed his desire to deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police." Id. 451 U.S. at 484-485, 101 S.Ct. at 1885. Also see Commonwealth v. Perez, 411 Mass. 249, 258, 581 N.E.2d 1010 (1991). Because here, the defendant invoked his right to counsel, the critical question we must consider is whether Terrio's remarks constituted interrogation. If they did not, we then must decide if the defendant, himself, initiated further communication with the police before he was interrogated.

For the purposes of Miranda, "interrogation" means not only express questioning of a suspect but also its "functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). Commonwealth v. Rubio, 27 Mass.App.Ct. 506, 511-512, 540 N.E.2d 189 (1989). The "functional equivalent" of interrogation includes "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, supra 446 U.S. at 301, 100 S.Ct. at 1689-1690. ⁴ Commonwealth v. Rubio, supra 27 Mass.App.Ct. at 512, 540 N.E.2d 189.

"The 'functional equivalence' test does not turn on the subjective intent of the particular police officer but on an objective assessment as to whether the police statements and conduct would be perceived as an interrogation by a reasonable person in the same circumstances." United States v. Taylor, 985 F.2d 3, 7 (1st Cir.1993). ⁵ Commonwealth v. Rubio, supra 27 Mass.App.Ct. at 512, 540 N.E.2d 189 ("Interrogation is present 'if an objective observer (with the same knowledge of the suspect as the police officer) would ... infer that the [officer's speech or conduct was] designed to elicit an incriminating response,' " quoting from White, Interrogation Without Questions: Rhode Island v. Innis and United States v. Henry, 78 Mich.L.Rev. 1209, 1231-1232 [1980] ).

Terrio's remarks did not contain any express questions nor did her remarks imply a question. Contrast Commonwealth v. Rubio, supra 27 Mass.App.Ct. at 513, 540 N.E.2d 189 (showing cocaine to defendant was confrontational and had the force of an implicit question: "Is this yours?" and, therefore, was the functional equivalent of interrogation). If Terrio's remarks simply "struck a responsive chord," such "subtle compulsion" does not amount to an interrogation unless it can be determined objectively that Terrio should have known that her remarks were "reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. at 303, 100 S.Ct. at 1691. Terrio's statement was neither confrontational nor inquisitional; it was no more than it purported to be: an expression of her availability if he wanted to talk. The defendant's response...