Com. v. Sherman

• Decision Date: 27 May 1983
• Citation: 450 N.E.2d 566,389 Mass. 287
• Parties: COMMONWEALTH v. Everett L. SHERMAN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 566

450 N.E.2d 566

389 Mass. 287

COMMONWEALTH v. Everett L. SHERMAN.

Supreme Judicial Court of Massachusetts Berkshire.

Argued Feb. 8, 1983.

Decided May 27, 1983.

Edward J. Spence, III, Pittsfield, for defendant.

Francis X. Spina, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

HENNESSEY, Chief Justice.

The defendant was convicted of larceny from a building and two counts of breaking and entering in the daytime with intent to commit a felony. He appealed, arguing that his motions to suppress a statement made to the police, and to dismiss the complaints, were improperly denied. The Appeals Court affirmed the judgments of conviction. Commonwealth v. Sherman, 14 Mass.App.Ct. 971, 438 N.E.2d 1098 (1982). We allowed the defendant's application for further appellate review. We conclude that the defendant's statement should have been suppressed because the police did not inform him of the availability of counsel, thus precluding a valid waiver of his right to counsel. Accordingly, the judgments of conviction are reversed and the case is remanded for a new trial. ¹

We summarize the relevant facts. Officer Leon Manning of the Massachusetts State police received information that the defendant and one Foster Jones might have been involved in housebreaks in Savoy, Massachusetts. On August 14, he encountered them on a public street, where they had been driving in an automobile. He asked them to identify themselves and then told them to meet him at the North Adams police station. The defendant drove to the station, followed by Officer Manning. At the station, the defendant was taken to an interrogation room, told that he was a suspect, and given his Miranda rights. The defendant testified at the suppression hearing that he understood his rights. He did not request an attorney. In response to Officer Manning's questions, the defendant made a statement implicating himself in two housebreaks. Officer Manning transcribed the statement, and the defendant signed it. The motion judge ruled on the defendant's suppression motion that the defendant fully understood his Miranda rights, and "voluntarily, knowingly, freely and willingly responded to [Officer Manning's] questions ...."

Earlier on that morning, Officer Manning had seen Ms. Rita Scales in North Adams District Court. Ms. Scales was a trial attorney on the staff of the Massachusetts Defenders Committee. She testified at the hearing on the suppression motion and at trial that on August 14, 1980, she was representing the defendant on a pending case involving a charge of breaking and entering in Florida, Massachusetts. Officer Manning approached her and told her that he intended to question the defendant about the Savoy, Massachusetts, housebreaks. She asked him to tell her when and where he was going to question the defendant, and stated that she wanted to be present when the questioning took place. He did not respond. Officer Manning testified that he spoke to Ms. Scales because he knew that she was either representing the defendant at the time or had represented him in the past. He acknowledged that Ms. Scales asked to be present at the defendant's interrogation and wanted to know when and where it was going to take place. It was uncontradicted that Officer Manning did not inform the defendant of Ms. Scales's request to be present, nor did he inform Ms. Scales of the interrogation that afternoon of the defendant. Ms. Scales was subsequently appointed to represent the defendant in the instant cases, but withdrew when it became apparent that she might be a witness. The motion judge found that a Massachusetts Defenders attorney does not accept cases prior to appointment, which occurs at court arraignment, and does not voluntarily offer legal representation to prospective defendants. Ms. Scales testified that she had never volunteered her services as a Massachusetts defender prior to court appointment, which occurs at arraignment. The judge concluded that Ms. Scales was not representing the defendant on the instant cases on August 14, 1980, the Florida, Massachusetts, matter being "separate, distinct and independent." Based on this fact, and on the defendant's failure to request an attorney after having been given his Miranda rights, the judge ruled that the defendant made "an intelligent waiver" of his right to have counsel present.

Once Miranda warnings are given, "[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination ...." Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966). Commonwealth v. Taylor, 374 Mass. 426, 436, 374 N.E.2d 81 (1978). Commonwealth v. Dustin, 373 Mass. 612, 614, 368 N.E.2d 1388 (1977), cert. denied, 435 U.S. 943, 98 S.Ct. 1523, 55 L.Ed.2d 540 (1978). Commonwealth v. Bettencourt, 361 Mass. 515, 521, 281 N.E.2d 220 (1972). Cf. Commonwealth v. Day, 387 Mass. 915, 921 & n. 10, 444 N.E.2d 384 (1983) (on motions to suppress after date of Day opinion, Commonwealth must prove knowing and intelligent waiver of Miranda rights beyond a reasonable doubt). The defendant argues that Officer Manning's failure to inform him of Ms. Scales's request to be present at his interrogation prevented him from making a valid waiver of his right to counsel. ²

At the outset, we note that Commonwealth v. Andujar, 7 Mass.App.Ct. 777, 783-784, 390 N.E.2d 276 (1979), is not relevant to our discussion. In Andujar the defendant claimed that he did not validly waive his Miranda rights because the police interrogated him despite his attorney's alleged request, in the defendant's presence, that the police refrain from questioning the defendant. The Appeals Court held that despite the request, the totality of circumstances indicated that the defendant validly waived his rights. The court relied on a number of cases holding that there is "no absolute constitutional requirement that [a defendant's] attorney, even if already retained or appointed, be present during, or notified prior to, an interrogation." Commonwealth v. Andujar, supra at 783, 390 N.E.2d 276. The court noted that "[t]his is not a case where the police ... failed to make the defendant aware of defense counsel's immediate availability ...." Id. at 784 n. 7, 390 N.E.2d 276.

By contrast, we are here concerned with the consequences of failure to inform the defendant of his attorney's request. This goes to the defendant's knowledge at the time of the waiver, which is a crucial element in determining whether the waiver was knowing, intelligent, and voluntary. "To pass up an abstract offer to call some unknown lawyer is very different from refusing to talk with an identified attorney actually available to provide at least initial assistance and advice, whatever might be arranged in the long run. A suspect indifferent to the first offer may well react quite differently to the second." State v. Haynes, 288 Or. 59, 72, 602 P.2d 272 (1979), cert. denied, 446 U.S. 945, 100 S.Ct. 2175, 64 L.Ed.2d 802 (1980). Accordingly, we consider whether the waiver was voluntary in light of our holding in Commonwealth v. McKenna, 355 Mass. 313, 244 N.E.2d 560 (1969). Compare, e.g., Commonwealth v. Santo, 375 Mass. 299, 302-303, 376 N.E.2d 866 (1978), with Commonwealth v. Mahnke, 368 Mass. 662, 691-692, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976).

In Commonwealth v. McKenna, supra, the defendant was represented at a probable cause hearing on one set of charges by an attorney, Mr. John C. Collins. When the defendant was arrested that afternoon on different charges, he asked his aunt to call Mr. Collins. He was taken to the Revere police station, received his Miranda rights, and was interrogated by a Sergeant Gannon. He did not request an attorney. While he was being questioned, Mr. Collins called the station from Waltham, identified himself to Gannon as the defendant's lawyer, and stated that he would go to the place where the defendant was being interrogated. Gannon did not tell Mr. Collins that the defendant was then under interrogation in Revere, and Mr. Collins understood from the conversation that the defendant would be questioned in Boston. Mr. Collins immediately drove to Boston. The defendant arrived later, after having made incriminating statements in Revere.

The judge concluded that the defendant knowingly and intelligently waived his right to be silent and to be assisted by counsel at his interrogation. Commonwealth v. McKenna, supra 355 Mass. at 317-320, 244 N.E.2d 560. We held that "when Mr. Collins identified himself to Sergeant Gannon and invoked on [the defendant's] behalf his right to counsel and stated that he wanted to be with [the defendant] wherever the interrogation was to be held, it was Gannon's duty immediately so to inform [the defendant] .... The legal consequence of the denial of the opportunity to reconsider whether he wanted counsel is that whatever 'waiver' there may have been up to the time Mr. Collins made his request to Sergeant Gannon that he be present became then inoperative. Conceivably, [the defendant] might have chosen to go on with the interrogation. But he was entitled to know of his counsel's availability and, with that knowledge, to make the choice with intelligence and understanding." Id. at 324, 244 N.E.2d 560. Accordingly, we held that the defendant's motion to suppress should have been allowed as to those statements made after Mr. Collins spoke to Gannon. See People v. Smith, 93 Ill.2d 179, 66 Ill.Dec. 412, 442 N.E.2d 1325 (Ill.1982); State v. Haynes, supra; State v. Jackson, 303 So.2d 734 (La.1974).

In Commonwealth v. Mahnke, 368 Mass. 662, 691-692, 335 N.E.2d 660 (1975), the defendant made incriminating statements to the police, after having been given...