Com. v. Torres

• Citation: 678 N.E.2d 847,424 Mass. 792
• Parties: COMMONWEALTH v. Angel TORRES.
• Decision Date: 01 May 1997
• Court: United States State Supreme Judicial Court of Massachusetts

Page 847

678 N.E.2d 847

424 Mass. 792

COMMONWEALTH v. Angel TORRES.

Supreme Judicial Court of Massachusetts,

Hampden.

Argued Dec. 2, 1996.

Decided May 1, 1997.

James C. Orenstein, Assistant District Attorney, for the Commonwealth.

Stewart T. Graham, Jr., Springfield, for defendant.

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

ABRAMS, Justice.

At issue is the admissibility of statements the defendant made to the Springfield police following his arrest in February, 1995. The defendant was indicted for murder in the first degree and illegal possession of a firearm. Prior to trial, the defendant filed a motion to suppress the statements, claiming that the police violated his right to remain silent after he invoked it. After an evidentiary hearing, a Superior Court judge allowed the defendant's motion to suppress. The judge ruled that the police engaged the defendant in an interrogation without readministering Miranda warnings, and therefore the defendant's rights were not "scrupulously honored." See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-1690, 64 L.Ed.2d 297 (1980); Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326-327, 46 L.Ed.2d 313 (1975); Commonwealth v. Gallant, 381 Mass. 465, 468, 410 N.E.2d 704 (1980). The Commonwealth filed a notice of appeal and a request for a stay. A single justice of this court allowed the Commonwealth's application for interlocutory appeal. For the reasons stated below, we vacate the order of suppression and remand the case to the Superior Court for further proceedings.

We summarize the relevant facts as found by the motion judge. ¹ On December 27, 1994, Denise Hubbard, an innocent bystander, was killed in a gang-related shooting on a Springfield street corner. The police obtained a witness statement which inculpated the defendant as the person who drove the actual shooter, allegedly Juan David Rosado, to the scene of the murder. On Friday afternoon, February 17, 1995, police detectives arrested the defendant and Rosado on outstanding warrants for unrelated crimes and brought them to the police station. The detectives learned that the two men could not be arraigned that afternoon because the judge in charge of arraignments at the Springfield District Court already had ended arraignments for the weekend.

At the police station, the police separated Rosado and the defendant. An officer read the defendant the Miranda warnings, and the defendant signed a Miranda waiver form. ² See Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630-1631, 16 L.Ed.2d 694 (1966). The police then questioned the defendant. After a short period of time, the defendant was too upset to speak further and he asked to be taken to a cell. He never requested a lawyer. The officers complied with his request and he was taken downstairs, booked, and placed in a cell.

The booking officer later relayed a message from the defendant that he wanted to speak with one of the detectives. The motion judge found that the defendant then told Detective Dennis O'Connor "that he wanted to talk about his family, what the consequences would be to him of these allegations, and whether he could see members of his family." During the conversation, Detective O'Connor told the defendant that a supervisor's approval was needed to arrange a family visit, and no supervisor was available that night. O'Connor called his supervisor, Lieutenant Thomas Kelly, who was not yet on duty, and told him of the defendant's request. The defendant was allowed to use the telephone, and he called a friend and asked her to obtain an attorney. The defendant made no statements on February 17.

Lieutenant Kelly came on duty the following day, Saturday, February 18, and at around 9 A.M. he spoke with the defendant. The motion judge found that, for thirty to forty-five minutes, the defendant and Kelly "had general conversation wherein Lieutenant Kelly said Detective O'Connor had told Kelly that the defendant was upset and concerned about his family which was in part a continuation of the Torres-O'Connor conversation of [February 17]." Kelly did not readvise the defendant of the Miranda warnings. Kelly asked the defendant if he had any problems, and the defendant told Kelly that he was concerned about when he could see his family, his mother, his girl friend, and his son. In particular, he became emotional about his son and cried. He told Lieutenant Kelly their house was in the middle of a gang area. Lieutenant Kelly told the defendant that he could make a telephone call. Kelly also told the defendant that his family could come down to the station. The defendant was then taken to a telephone. He called a friend and his family.

After making the telephone call, at approximately 9:50 A.M., Lieutenant Kelly told the defendant he wanted to question him about the murder and that the police had a witness's statement implicating the defendant in the street-corner shooting. An officer read the defendant the Miranda warnings. The defendant signed a waiver form at 9:53 A.M. The defendant then gave a lengthy written statement detailing his involvement in the murder. ³ The judge found beyond a reasonable doubt that the defendant gave this confession freely, voluntarily and of his own will, without coercion or duress. ⁴ The judge also found that the defendant never requested an attorney on February 18. At 6:30 P.M. Detective Kelly again read the defendant the Miranda warnings and the defendant signed a second waiver form. Kelly then took a second written statement from the defendant. The judge found beyond a reasonable doubt that this second statement was also given freely, knowingly and voluntarily, without coercion or duress.

The judge concluded that in the circumstances, the general questions and conversation in the morning "were designed and intended to get the defendant to make an incriminating response." He ruled that that conversation was the "functional equivalent" of interrogation without Miranda warnings. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689-1690, 64 L.Ed.2d 297 (1980). He also concluded that the Miranda warnings read to the defendant the day before did not carry over to the morning, when the conversation resumed. The judge ruled that "this was all part of one confinement and detention and new Miranda [warnings] should have been given before any discussions were held with the defendant concerning the shooting." Therefore, the defendant's rights were not "scrupulously honored." The judge allowed the motion to suppress both written statements. ⁵

Discussion. The judge's findings clearly indicate that in the afternoon or early evening, the defendant invoked his right under the Fifth Amendment to the United States Constitution to remain silent and that the police, at least initially, honored that right by stopping the interrogation. Under Miranda, there is no per se rule against the resumption of interrogation after a person in custody has expressed a desire to remain silent. See Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 326-327, 46 L.Ed.2d 313 (1975). Rather, the admissibility of statements obtained after an invocation of that right depends on whether the person's right to cut off questioning was "scrupulously honored." Id. See also Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981); Commonwealth v. Taylor, 374 Mass. 426, 432-433, 374 N.E.2d 81 (1978).

The Commonwealth asserts that the defendant's right to cut off questioning was scrupulously honored because the police did not resume the interrogation until after the defendant had received a fresh set of Miranda warnings and validly waived his rights the following morning. See Mosley, supra at 106, 96 S.Ct. at 327-328. Contrast Commonwealth v. Gallant, 381 Mass. 465, 468, 410 N.E.2d 704 (1980); Commonwealth v. Gore, 20 Mass.App.Ct. 960, 961, 480 N.E.2d 1059 (1985).

The Commonwealth challenges the judge's conclusion that the initial pre-Miranda dialogue between the defendant and Lieutenant Kelly on that morning constituted the functional equivalent of interrogation. The motion judge determined that Lieutenant Kelly "intended" the pre-Miranda conversation "to lead up to questions about the murder." The Commonwealth asserts that the dialogue was a conversation about the defendant's family initiated by the defendant.

The Commonwealth contends that, because the defendant himself initiated the discussion about his family with Detective O'Connor on the previous evening and willingly continued that conversation with Lieutenant Kelly the next morning, the Commonwealth did not engage in a conversation which was the functional equivalent of an interrogation. ⁶

The functional equivalent of interrogation. The procedural safeguards of Miranda are required not where a suspect is merely in police custody, but rather where a suspect is subjected to custodial interrogation. Innis, supra at 300, 100 S.Ct. at 1689. Interrogation "must reflect a measure of compulsion above and beyond that inherent in custody itself," and therefore Miranda warnings are only required when "a person in custody is subjected to either express questioning or its functional equivalent." Id. at 300-301, 100 S.Ct. at 1689. The term "functional equivalent" 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." Id. at 301, 100 S.Ct. at 1689-1690. Arizona v. Mauro, 481 U.S. 520, 526-527, 107 S.Ct. 1931, 1934-1935, 95 L.Ed.2d 458 (1987). In this context, an "incriminating response" includes any response, inculpatory or exculpatory, which the prosecution might seek to use against the suspect at trial. Innis, supra at 301 n. 5, 100 S.Ct. at 1690 n. 5.

"The 'functional equivalence' test does not turn on the subjective intent of the particular police officer...