Com. v. Philip S.

• Decision Date: 12 April 1993
• Citation: 611 N.E.2d 226,414 Mass. 804
• Parties: COMMONWEALTH v. PHILIP S., a juvenile. 1
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 226

611 N.E.2d 226

414 Mass. 804

COMMONWEALTH v. PHILIP S., a juvenile. ¹

Supreme Judicial Court of Massachusetts Essex,

Argued Jan. 4, 1993.

Decided April 12, 1993.

S. Jane Haggerty, Asst. Dist. Atty., for Com.

Robert F. Kelley, Lawrence, for the juvenile.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN, LYNCH, O'CONNOR and GREANEY, JJ.

GREANEY, Justice.

The juvenile, aged twelve years and eleven months at the time of the events recounted below, is charged in the juvenile session of the Lawrence Division of the District Court with delinquency by reason of manslaughter. During interviews on December 18 and 20, 1989, the juvenile made oral admissions and signed two statements, in which he admitted that he had set fire to a couch located on the porch of his family's second-floor apartment on the evening of December 17, 1989. The fire spread throughout the three-story wooden dwelling. A Lawrence fire fighter was severely injured while fighting the fire and died of his injuries on December 20, 1989.

The juvenile moved to suppress his admissions and statements. After an evidentiary hearing, a District Court judge, sitting in juvenile session, allowed the motion. The Commonwealth was permitted to appeal, see Mass.R.Crim.P. 15(a), 378 Mass. 882, 882-883 (1979), and the Appeals Court affirmed the order allowing suppression. 32 Mass.App.Ct. 720, 594 N.E.2d 880 (1992). We granted the Commonwealth's application for further appellate review and now reverse the order allowing the motion to suppress.

The facts are set forth in the opinion of the Appeals Court and need not be fully repeated here. ² 32 Mass.App.Ct. at 722-725, 594 N.E.2d 880. We summarize only what is relevant to a discussion of the issues. As indicated, the juvenile was interviewed by investigating officials twice, on December 18 and 20, 1989. The December 18 interview was held at the fire station. The juvenile was accompanied by his mother, Mrs. Smith (the juvenile's father, a taxicab driver, was unavailable). The inquiry on this day was conducted by Captain Kevin Ord of the Lawrence fire department, a second fire fighter, and State police officer Neal Dwyer. After ascertaining that the juvenile was not being truthful about how the fire started, Officer Dwyer gave the juvenile complete Miranda warnings by reading them from a standard police-issued card. Officer Dwyer asked the juvenile and Mrs. Smith whether they understood each particular warning after he read that warning from the card. ³ Neither Mrs. Smith nor the juvenile asked any questions; both indicated that they understood their rights. Mrs. Smith did not ask for an attorney. Officer Dwyer then read the waiver provisions on the other side of the card, asked the juvenile and Mrs. Smith whether they understood the provisions, and informed them in "straight talk" that, if the juvenile chose to waive his rights and discuss the incident, the interview could be terminated at any point. The juvenile indicated his willingness to waive his rights and remain and speak with the investigating officials. Mrs. Smith signed the card containing the Miranda warnings and waiver. All three of the officials then left the room for between five and fifteen minutes, allowing Mrs. Smith and the juvenile to "talk over whatever they wanted." They advised the juvenile to tell his mother the truth and to tell them the truth when they returned. When the interview resumed, Mrs. Smith repeatedly encouraged the juvenile to tell the truth about the fire.

During the remainder of the interview, the juvenile changed his story several times. At one point, the juvenile became angry and ran out of the room. The investigating officials did not follow him. Officer Dwyer assumed the interview was over and went to another room and began interviewing other witnesses. Captain Ord also left and did not return. On her own initiative, the juvenile's mother brought him back, and the interview resumed. The juvenile eventually initialed a statement in which he admitted to having set the fire unintentionally.

On December 20, 1989, the juvenile returned to the fire station. His mother met him there and was present while he was interviewed by State police officers John Garvin and Paul Zipper. Officer Garvin read the juvenile and his mother Miranda warnings and the waiver provisions from a printed card. Officer Garvin informed them that the juvenile did not have to make any statement, and he inquired whether the juvenile and Mrs. Smith understood the warnings. Both responded affirmatively. Officer Garvin then asked whether the juvenile wished to waive his rights and speak with the officers. The juvenile and Mrs. Smith responded affirmatively. Both the juvenile and Mrs. Smith signed the waiver provision on the Miranda card. The officers then left the juvenile and his mother alone together for somewhere between five and fifteen minutes, instructing them to discuss the juvenile's Miranda rights. The juvenile and his mother were not conversing when the officers reentered the room, and it is not known what, if anything, had been discussed by them during their time alone. Before reentering the room, Officer Garvin asked, "Would you like to talk to us now? I would like to get a statement from you regarding what happened with the fire." The juvenile answered "yes," and Mrs. Smith stated that she wanted the juvenile to tell the truth.

The ensuing interview lasted approximately four hours, with two or three breaks, initiated by the officers, each lasting between five and twenty minutes. The officers left the room during these breaks. At some point, the juvenile was offered, and declined, a soda. The juvenile's story changed frequently during the interview. Mrs. Smith on occasion became frustrated with his responses and urged him to tell the truth. At the end of the interview, the juvenile and his mother reviewed for accuracy, and initialed, each page of an inculpatory statement. When the interview was concluded, Mrs. Smith did not want the juvenile to return home with her. At her suggestion, a social worker who had previously counseled the juvenile was brought to the fire station and arranged for an accommodation for the juvenile in a juvenile home.

The judge concluded that the juvenile's motion to suppress should be allowed because the Commonwealth had not shown that Mrs. Smith satisfied our "interested adult" rule and that an actual consultation had taken place between the juvenile and his mother prior to the interviews. As an alternative basis for allowing suppression, the judge concluded that the "totality of the circumstances" indicated that the juvenile's statements were involuntary. In reaching the conclusion about involuntariness, the judge relied on the juvenile's age and lack of familiarity with police practice; the height (over six feet), and bearing (including their concealed handguns) of the interviewing officers; their urgings that the juvenile tell the truth; the fact that the juvenile and his mother were furnished Miranda warnings only twice; and the additional fact that the officers did not remind the juvenile that he and his mother were free to leave.

We turn now to the principles that govern the appeal. Investigating officials permissibly may interview a juvenile suspected of a crime, and a statement that is the product of that interview, if knowing and voluntary, may be admitted at trial against the juvenile. See Commonwealth v. Tavares, 385 Mass. 140, 146, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982); Commonwealth v. Daniels, 366 Mass. 601, 605, 321 N.E.2d 822 (1975). However, "courts must proceed with 'special caution' when reviewing purported waivers of constitutional rights" by juveniles, Commonwealth v. Berry, 410 Mass. 31, 34, 570 N.E.2d 1004 (1991); Commonwealth v. A Juvenile, 389 Mass. 128, 133, 449 N.E.2d 654 (1983), and certain procedures are to be followed in obtaining a juvenile's waiver of his rights against self-incrimination. See Commonwealth v. Ward, 412 Mass. 395, 590 N.E.2d 173 (1992); Commonwealth v. Berry, supra; Commonwealth v. Guyton, 405 Mass. 497, 541 N.E.2d 1006 (1989); Commonwealth v. A Juvenile, 389 Mass. 128, 449 N.E.2d 654 (1983); Commonwealth v. Day, 387 Mass. 915, 921, 444 N.E.2d 384 (1983). When the juvenile is under the age of fourteen, as was the juvenile in this case, those procedures require that the Commonwealth "show that a parent or an interested adult was present, understood the [Miranda] warnings, and had the opportunity to explain his rights to the juvenile so that the juvenile understands the significance of waiver of these rights." Commonwealth v. A Juvenile, supra, 389 Mass. at 134, 449 N.E.2d 654. Commonwealth v. Berry, supra, 410 Mass. at 35 n. 2, 570 N.E.2d 1004.

The judge concluded that Mrs. Smith was not an interested adult because she had not actually engaged in " 'counseling' [the juvenile] vis a vis the exercise of his privilege [against self-incrimination]." The judge also considered Mrs. Smith not disinterested because she repeatedly urged her son to tell the truth; she brought him back for further interrogation when he angrily left the room during the December 18 interview; and she became upset at times over his behavior and responses. The judge also relied on facts that, at the close of the second interview, Mrs. Smith did not want her son to return home with her, and she did not attend care and protection proceedings concerning her son instituted in June, 1990.

Interested adult. In deciding whether an adult advising a juvenile during a custodial interrogation is an interested adult, the facts must be viewed from the perspective of the officials conducting the interview. Commonwealth v. Berry, supra at 37, 570 N.E.2d 1004. If, at the time of the interrogation (as assessed by objective standards), it should have been reasonably apparent to the officials questioning a juvenile that the adult who was present on his...