Com. v. Philip S.

• Decision Date: 08 September 1992
• Docket Number: No. 91-P-1329,91-P-1329
• Parties: COMMONWEALTH v. PHILIP S., a juvenile.
• Court: Appeals Court of Massachusetts

Page 880

594 N.E.2d 880

32 Mass.App.Ct. 720

COMMONWEALTH v. PHILIP S., a juvenile.

No. 91-P-1329.

Appeals Court of Massachusetts,

Essex.

Argued April 7, 1992.

Decided June 24, 1992.

Further Appellate Review Granted Sept. 8, 1992.

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

Robert F. Kelley, Lawrence, for defendant.

Before BROWN, JACOBS and GILLERMAN, JJ.

GILLERMAN, Justice.

During the course of investigative interviews by members of the Lawrence fire department and the Massachusetts State police, a juvenile, whom we shall call Philip, signed two statements in the presence of his mother in which he admitted that he set fire to a couch on the porch of their second-story apartment. The fire subsequently engulfed the three-story wooden dwelling. A Lawrence firefighter was seriously injured while fighting the fire. He died several days later as a result of the injuries, and Philip was charged with delinquency by reason of manslaughter. When he gave the statements, Philip was twelve years and eleven months old. Prior to this episode, he had no juvenile record.

Philip's counsel filed a motion to suppress the two statements, and after hearings on May 22, 1990, and June 6, 1990, a judge of the Lawrence District Court in juvenile session allowed the motion on July 17, 1990. The judge's findings and order were not issued until November 4, 1991; he concluded that Philip did not knowingly, intelligently, or voluntarily waive his right against self-incrimination under the Fifth Amendment to the Federal Constitution, see Commonwealth v. MacNeill, 399 Mass. 71, 74-79, 502 N.E.2d 938 (1987), which is fully applicable to cases involving juveniles. See Commonwealth v. A Juvenile, 389 Mass. 128, 130, 449 N.E.2d 654 (1983). The Commonwealth has appealed; we affirm.

We summarize the facts that bear on the Commonwealth's arguments that Philip was not held in custody when he admitted to setting the fire, and that in any event Philip knowingly, intelligently, and voluntarily waived his rights. The subsidiary facts, which are contained in the judge's findings and in the record of the proceedings before him, are largely undisputed. Absent clear error, we accept the judge's subsidiary findings, and we give substantial deference to his ultimate findings; we make our own determination of the correctness of the application of the law to his findings. Commonwealth v. MacNeill, supra 399 Mass. at 76, 502 N.E.2d 938 (1987). Commonwealth v. Dunn, 407 Mass. 798, 804-805, 556 N.E.2d 30 (1990). Commonwealth v. Azar, 32 Mass.App.Ct. 290, 296, 588 N.E.2d 1352 (1992).

1. The custody issue. The judge's memorandum of decision does not include any findings concerning Philip's claim that he was held in custody during the period of the interrogation. Nevertheless the judge's suppression of the two statements may be construed as an implied finding in favor of Philip on that issue. See Commonwealth v. Lanoue, 392 Mass. 583, 586 n. 2, 467 N.E.2d 159 n. 2 (1984) (judge's failure to make detailed subsidiary findings does not require a remand "where the ultimate conclusion is clearly evident from the record"); Commonwealth v. A Juvenile, 402 Mass. 275, 280, 521 N.E.2d 1368 (1988). In general, custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Commonwealth v. Bryant, 390 Mass. 729, 736, 459 N.E.2d 792 (1984), quoting from Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). There was ample evidence in the record to support the conclusion that Philip was in custody prior to the interrogation. The test is "how a reasonable person in the juvenile's position would have understood his situation." Commonwealth v. A Juvenile, 402 Mass. at 277, 521 N.E.2d 1368. The standards which we apply are set out in Commonwealth v. Bryant, supra 390 Mass. at 737, 459 N.E.2d 792; ¹ "[r]arely is any single factor conclusive." Ibid.

Philip was interviewed on December 18, 1989, and again on December 20, 1989. The circumstances were as follows.

(a) The December 18, 1989, interview. ² Captain Kevin Ord of the Lawrence fire department, an expert in determining the origin of fires, arrived at the fire scene at approximately 8 A.M. on December 18, 1989. The fire had by then been extinguished. After examining the building he determined that the fire had originated on the second floor porch where the couch was located. Captain Ord learned that the occupants of the second floor were Philip, his mother (whom we shall call Mrs. Smith) and her husband; that Mrs. Smith was a taxicab dispatcher and Mr. Smith drove a taxicab; and that when the fire started Philip was home alone. On the basis of this information Ord believed that Philip might be involved in the starting of the fire.

Captain Ord contacted Mrs. Smith, told her he was interviewing all the occupants of the house, and asked her to bring her son to the fire station. Mrs. Smith agreed to appear, and she and Philip arrived at the fire station where they were met by Captain Ord, Trooper Neal Dwyer of the Massachusetts State police, and Lieutenant John Burton of the Lawrence fire department. Dwyer was in plain clothes; the others were in uniform.

Philip was asked to give an account of what happened the evening the fire started. After Philip gave his description of events, Captain Ord called a break, and left the room with Dwyer. He told Dwyer that Philip's story did not make sense. Dwyer agreed. Ord and Dwyer then returned to the interview room, and Dwyer read the Miranda warnings to Philip and his mother from a card he carried. After each of the warnings, he asked them if they understood; separately, they said that they did. Mrs. Smith signed the waiver provision on the Miranda card, but Philip did not. There is nothing in the record describing the circumstances of Philip's failure to sign the waiver.

At this point, Dwyer told Mrs. Smith that the officers were going to leave the room, and in their absence Philip should tell his mother the truth about the fire "and tell us the truth afterwards." The officers left the room, returned in less than ten minutes, and resumed their questioning of Philip. This time Philip identified certain television shows he said he had been watching. Ord fetched a television guide and showed Philip that the shows he had identified were not on television that night. According to Ord, Philip then became hysterical, screamed at Ord, jumped up and ran out of the building.

Philip was not gone for long. Mrs. Smith went after him and brought him back to the officers. The questioning resumed without Ord, who by then had concluded that his presence was upsetting Philip. According to Dwyer, Philip was now the focus of the investigation. There was no repetition of the reading of the Miranda rights. Instead, Dwyer instructed Philip to "tell the truth," and Philip continued with his account of events which, according to Dwyer, changed every five minutes. Mrs. Smith repeatedly told Philip to "tell them the truth." By then, Dwyer was convinced that Philip had set the fire. Between one and two hours later, Dwyer had obtained an inculpatory statement from Philip. The statements, which were written out by Dwyer, were then signed by Philip and Mrs. Smith, and they left the fire station.

(b). The December 20, 1989, interview. The police, with the consent of Mrs. Smith, arranged a second interrogation of Philip on December 20. Philip was offered a ride to the Lawrence fire station by the police, and he accepted. The second interrogation was conducted by Trooper Paul Zipper and Corporal John Garvin of the Massachusetts State police; both men were dressed in plain clothes with concealed weapons. Zipper and Garvin both knew, before the interview started, that the injured firefighter had died. They also understood from the beginning of the questioning that Philip was the focus of the investigation.

Corporal Garvin read the Miranda warnings to Philip and his mother. He then asked Philip and his mother whether they understood the rights just described. Each one replied "yes." Garvin then asked, "Having those rights in mind, do you wish to talk to us now?" Philip said "Yes," and his mother said, "I want him to tell you the truth." Zipper and Garvin then left the room after telling Philip and his mother that they would have the opportunity to discuss between them the rights that had just been read to them. The officers returned after ten or fifteen minutes. Philip and his mother were sitting silently in the room, and nothing is known of what, if anything, was said between them. Indeed, the judge found that Mrs. Smith "did not view her role as one of 'counseling' Philip vis-a-vis the exercise of his privilege.... Mrs. [Smith] had the specific goal of eliciting statements from Philip for the benefit of her son's questioners. 'Tell the truth' was Mrs. [Smith's] only advice to her son throughout the two days of questioning." Without regard to whether that advice was good or bad, or right or wrong, it most assuredly was incomplete.

Mrs. Smith then gave her permission to the continuation of the interview, and she continued to insist that Philip tell the truth of what happened. Philip said he would tell what happened. At 3:35 P.M. Philip and his mother then signed the waiver provision on the Miranda card from which Garvin had read their rights. The judge found that following the reading of the Miranda warnings, Philip was never reminded that he remained free to leave.

The interrogation of Philip continued for more than four hours, ³ with a few breaks of varying duration. By 7:30 P.M. the officers concluded that there was nothing more to be learned, and the interrogation terminated. The statements, as written out by the police, were read back to Philip and his mother; they initialed each page and signed the last page. The discussion turned to...