Commonwealth v. Aquino

• Decision Date: 12 May 2023
• Docket Number: 22-P-139
• Parties: COMMONWEALTH v. KEVIN AQUINO.
• Court: Appeals Court of Massachusetts

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COMMONWEALTH v. KEVIN AQUINO.

No. 22-P-139

Appeals Court of Massachusetts

May 12, 2023

Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court, the defendant was convicted of assault and battery by means of a dangerous weapon (shod foot), causing serious bodily injury, G. L. c 265, § 15A (c) (i). On appeal, the defendant claims error in the denials of his motion to suppress and motions for a required finding of not guilty. The defendant also contends that the prosecutor's cross-examination concerning the defendant's prearrest silence, and comments made by the prosecutor during closing argument on the same, deprived him of a fair trial. We affirm.

Discussion.

1. Motion to suppress statements.

a Facts.

We summarize the facts as found by the motion judge, supplemented with the uncontroverted testimony of the sole witness at the suppression hearing, Detective Jason Gangi of the APPEALS COURT New Bedford police, whose testimony the judge explicitly or implicitly credited, and with the documentary evidence admitted at the hearing. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018).

Shortly after midnight on June 2, 2019, the New Bedford police responded to a report of a male victim who had been beaten unconscious near Acushnet Avenue. A surveillance video recording from a nearby residence captured the assault. Detective Gangi testified that the recording showed a vehicle parked in the back parking lot of a building. Moments later, two men stepped out of the back seat of the vehicle and attacked the victim. Next, the driver, later identified as the defendant, and the front passenger stepped out of the vehicle and approached the beating in progress. The front passenger joined in the assault; the defendant did not. The defendant did, however, place a hat over the victim's face following the attack. The four men then returned to the vehicle and drove away. Police tracked the vehicle by reviewing surveillance video footage retrieved from the area. From this footage police learned that the vehicle was a dark Nissan Altima, and that the vehicle's driver's side headlight was out. Police also obtained the vehicle's registration number from a license plate reader^[1] in the area, which listed the defendant as the registered owner.

A few days later, police observed the Nissan parked on a street near the defendant's residence. The vehicle was towed and secured at a local New Bedford police station, known as "station three," pending a search warrant. That afternoon, the defendant and a companion arrived at station three and asked about his missing vehicle. Detective Gangi was notified and traveled to station three to speak with the defendant. When he arrived, he met the defendant in the lobby and asked him if he would accompany him and another detective to police headquarters to discuss his vehicle. The defendant agreed, and the three traveled to headquarters in an unmarked cruiser with no barrier between the front seat and rear passenger seat. Consistent with his general practice, Detective Gangi pat frisked the defendant before having him sit in the back of the cruiser.

After a short drive, the three arrived at police headquarters and Detective Gangi and his partner escorted the defendant through a side entrance of the building to an interview room. The detectives were dressed in plain clothes, with their guns and badges visible. The defendant entered the interview room and sat down in a chair. He was not restrained in any way. The detectives gave the defendant a cup of water and left him alone for several minutes.

When the detectives returned, Detective Gangi thanked the defendant for "coming down on [his] own time" and "[o]n [his] own free will" to speak with them and advised the defendant that they were investigating an incident that occurred Saturday night into Sunday morning. Detective Gangi asked the defendant where he was around that time. The defendant responded that he was out drinking. Detective Gangi then asked if the defendant had his vehicle that evening, to which the defendant stated that he did. The defendant also acknowledged that his vehicle's driver's side headlight was not functioning.

In response to further questioning about his whereabouts, the defendant stated that he was at the Whiskey Lounge bar and that he had left sometime between 11 P.M. and midnight. The defendant was with three others; he stated that the only stop they made after leaving the bar was to get food near Dean Street and Coffin Avenue. In response, Detective Gangi advised the defendant that "in that stretch, there's a lot of video," and that he knew "exactly where [the defendant was]" and "what went on." After the defendant denied that he had stopped anywhere else, Detective Gangi told the defendant that he knew that the defendant was not telling the truth and that he was going to give him a couple of minutes "to think about what [he was] saying," as the detectives were investigating "a serious incident." He then left the room.

A few minutes later, Detective Gangi returned and provided the defendant with Miranda warnings. After inquiring about the nature of the police's investigation and his alleged involvement, the defendant stated that he wanted an attorney. Questioning then stopped and the detectives placed the defendant under arrest.

The motion judge's findings on the tone and tenor of the interview, with which we concur, see Tremblay, 480 Mass. at 656 657, were as follows:

"Throughout the entire interview, the police were calm and polite toward the defendant. The questioning was not aggressive. They did not raise their voices. They did not pressure or trick the defendant. The tone was conversational. The defendant was able to and did ask questions. Even when Det. Gangi told the defendant that the investigation involved a serious matter and that they knew he was lying, Det. Gangi was respectful. Det. Gangi did not threaten the defendant in any way. He merely suggested that the defendant take some time to think about what he was saying. He told the defendant repeatedly that he did not have to talk to the police. When the defendant invoked his right to counsel, the police immediately respected that decision and terminated questioning."

b. Analysis.

The defendant argues that the motion judge erred in denying his motion to suppress statements he made to the police. He contends that he was subject to a custodial interrogation and thus the absence of Miranda warnings required his statements to be suppressed.

"In reviewing a decision on a motion to suppress, we accept the judge's subsidiary findings absent clear error, but conduct an independent review of [the judge's] ultimate findings and conclusions of law." Commonwealth v. Vasquez, 482 Mass. 850, 857 (2019), quoting Commonwealth v. Jones-Pannell, 472 Mass. 429, 431 (2015). We give due deference to the judge's findings regarding the weight and credibility of witness testimony, see Vasquez, supra, but otherwise conduct an independent review of the documentary evidence, see Tremblay, 480 Mass. At 654-655. Because the defendant's motion was made prior to trial, we review its denial for harmless error. Commonwealth v. Chalue, 486 Mass. 847, 881 (2021).

It is well settled that the safeguards of Miranda only apply when a defendant is subject to custodial interrogation. See Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). "An interview is custodial where 'a reasonable person in the suspect's shoes would experience the environment in which the interrogation took place as coercive'" (citation omitted). Commonwealth v. Amaral, 482 Mass. 496, 500-501 (2019). To determine whether the defendant was in custody, we consider:

"(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive, or, instead, informal . . .; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest."

Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). "A single factor rarely is determinative." Commonwealth v. Cawthron, 479 Mass. 612, 623 (2018).

Here the defendant voluntarily traveled with the detectives to police headquarters to be interviewed.^[2] See Commonwealth v. Rosa-Roman, 485 Mass. 617, 624-625 (2020), and cases cited ("a defendant arriving voluntarily at a police station would suggest that an interrogation there is noncustodial"). Although the defendant was pat frisked before entering the unmarked cruiser, he was not restrained in any way, and the cruiser had no barrier between the front and rear seats. See Commonwealth v. Molina, 467 Mass. 65, 66-67 (2014) (defendant not in custody when officers asked if defendant would go to police station to answer questions, he rode in...