Commonwealth v. Baye

• Decision Date: 21 May 2012
• Docket Number: SJC–11044.
• Citation: 967 N.E.2d 1120,462 Mass. 246
• Parties: COMMONWEALTH v. Anthony P. BAYE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

462 Mass. 246

967 N.E.2d 1120

COMMONWEALTH

v.Anthony P. BAYE.

SJC–11044.

Supreme Judicial Court of Massachusetts, Hampshire.

Argued Nov. 9, 2011.

Decided May 21, 2012.

David P. Hoose, Springfield (Thomas Lesser, Northampton, with him) for the defendant.

Brett J. Vottero, Special Assistant District Attorney (Thomas H. Townsend & Matthew D. Thomas, Assistant District Attorneys, with him) for the Commonwealth.

Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, GANTS, DUFFLY, & LENK, JJ.

LENK, J.

The defendant stands indicted on multiple felony counts arising out of a series of arson fires. A judge in the Superior Court denied the defendant's motion to suppress certain incriminatory statements he made in the course of nearly ten hours of police interrogation, and a single justice of this court allowed his subsequent application for interlocutory review. The defendant contends that these statements were obtained in violation of his right to counsel under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. He contends further that certain tactics employed by his interrogators were sufficiently misleading and coercive so as to render his statements involuntary. For the reasons set forth below, we conclude that the statements should have been suppressed.

1. Background. We recite the facts as found by the motion judge, supplemented by certain undisputed facts and by our own viewing of a video recording of the interrogation. See Commonwealth v. Novo, 442 Mass. 262, 266, 812 N.E.2d 1169 (2004).

Between 2 a.m. and 3:15 a.m. on December 27, 2009, Northampton suffered a series of fifteen fires concentrated around the city's third ward, a largely residential area. The fires provoked an emergency that the motion judge described as “severe and unprecedented,” requiring the activation of regional emergency plans and overwhelming the capabilities of Northampton's emergency dispatch center. The most severe of the fires killed two men, a father and son, who were inside their home on Fair Street when it burned to the ground. The defendant had two interactions with police officers in the vicinity of the fires, both between 3:20 a.m. and 3:30 a.m. that morning. The defendant or his automobile were also observed by other police officers at or near the scene of certain fires as they were being extinguished. As a result, the defendant quickly became a target of the investigation.

The defendant met with police officers three times in the days following the fires, each time at the Northampton police station. He made the challenged statements during the last of these interviews, on January 4, 2010. This interview consisted of a ten-hour interrogation, during which the defendant admitted responsibility for several of the fires, and which terminated in the defendant's arrest. The interrogation was recorded in its near entirety, ¹ and the recording was played at the evidentiary hearing on the defendant's motion to suppress.

The January 4 interrogation was conducted by two experienced State troopers, Michael Mazza and Paul Zipper.² It began at 10:12 a.m. and was terminated when a third police officer informed the defendant at 8:06 p.m. that he was “now ... under arrest.”

At the beginning of the interrogation, Mazza informed the defendant that he was “not under arrest,” pointing him to the door should he wish to leave. Mazza then read the defendant the Miranda warnings. After a few minutes of casual conversation, Mazza began to ask the defendant about his activities on the night of the fires. These questions were initially informal and guided by the defendant's answers. However, once the troopers had elicited the defendant's account of the night, the atmosphere of the interrogation changed markedly.

Mazza informed the defendant that he had photographic evidence that contradicted the defendant's account.³ Speaking in hushed tones, leaning close into the defendant—who had been seated against a wall—and frequently touching the defendant's arm and back, Mazza then began an hour-long near monologue. Mazza likened his view of the defendant's conduct to the sort of mischief, pranking and “tomfoolery” that could take place on “cabbage night.” ⁴ He repeatedly characterized the deaths and damage caused by the fires as an unplanned “accident,” fueled by alcohol rather than by an intent to do harm.

Further, Mazza stated at multiple points prior to the lunch break that the defendant's involvement in the fires had been “conclusively determined.” Once the defendant realized the “fabulous case” that had been built against him, Mazza maintained, the defendant would recognize that Mazza was “the only person that could help [the defendant] help himself.”

By Mazza's account, his usefulness to the defendant derived from the weight his opinions carried with prosecutors. Mazza told the defendant that during his more than twenty years in law enforcement, many of them as a fire investigator, district attorneys had uniformly followed his charging recommendations, with only one exception.⁵ He suggested that the defendant would “never ... again” get the opportunity to be treated as “somebody [acting] in a pranking, mischievous manner” rather than “a guy who goes to a fire with ten gallons of gas.” ⁶ If the defendant remained silent, it could be “catastrophic for [him].”

The defendant remained largely stoic and silent through the first hour of Mazza's entreaties. Nevertheless, forty-five minutes into his monologue, at about 12:15 p.m., Mazza began attributing motions of assent to the defendant, telling him that he was “shaking [his] head yes.” When Mazzathen asked the defendant to agree verbally to Mazza's statements, the defendant responded: “Nope. If I'm being accused of anything, I want to talk to a lawyer.”

The troopers did not then cease their questioning. Rather, they informed the defendant that while he had the right to speak to a lawyer, if he would instead just talk to them without counsel, “[W]e can clear this up.” Mazza told the defendant that he “still believe[d] that [he was] the kind of guy that meant just not to do” any harm by setting the fires, and almost begged the defendant to “please, please” agree to a continuation of the interrogation.

The defendant responded that he'd “still wanna talk to a lawyer, just so I'm not accused of something.” Zipper told him, “we haven't accused you of anything.” Mazza concurred, telling the defendant that if the defendant only wanted a lawyer “if we're gonna accuse you of this,” then he need not get a lawyer at that time. In Mazza's words, the troopers would “acquiesce to anything” if the defendant would speak to the troopers without a lawyer, because it would allow them to “work something on this case” that would ensure not only that the case would be put to rest, but, as Zipper put it, that the fires would not “jam [the defendant's] life up.”

Although the defendant again responded with skepticism, he eventually agreed to speak with the troopers if they would not “accuse [him] or charge [him] with these things.” The defendant reaffirmed this sentiment after a brief cigarette break. Within moments, the defendant agreed with Mazza that, contrary to his earlier accounts of his whereabouts on the night in question, he had not watched a movie at his friend's house, and that his vehicle had been seen in a location near the fires. Shortly thereafter, he responded to Zipper's question, “What assurances do I get from you that you are not gonna start another fire?” by saying, “Well, I won't,” and then, “It's just not gonna happen.” Approximately one-half hour after requesting counsel and receiving assurances that he did not need counsel, at 12:53 p.m., the defendant acknowledged that his alibi was false.

After obtaining this admission, Mazza embarked on a second soliloquy, this one lasting approximately one and one-half hours. Early in this second monologue, Mazza represented to the defendant, contrary to Massachusetts law, that the deaths caused by the arson would not qualify as murders if the defendant had not acted “with the intention of killing anybody.” ⁷ Shortly thereafter, he reiterated that there were “exceptions in the [murder] laws when there are deaths caused by accident[ ].” Mazza then explained that, with the defendant's help, he could “show ... conclusively” that the deaths in the Fair Street fire had been accidental. After a further forty minutes spent elaborating his view of the deaths and damage caused by the fires as having been accidental, Mazza embarked on a series of insistent pleas that the defendant confirm that he had not intended serious harm. The defendant finally responded to a question on whether he “ever wanted to hurt anybody” by saying, “Not really.” He clarified, “I never want to hurt anybody.” He was then asked, repeatedly, if he had intended to hurt anyone in the fatal fire:

Mazza: “It was an accident. Wasn't it? It was, yes? Say yes.”

Defendant: “Yes.”

Mazza: “You lit a fire that was more than likely intended on being a small fire. Am I correct? Yes or no? Yes or no?”

Defendant: “Yes.”

Following these admissions, Mazza and Zipper took the defendant out to lunch at a local restaurant; conversation there was largely unrelated to the case.

Questioning resumed later in the afternoon. Although the postlunch session included a drive around each of the arson sites, it otherwise mirrored the prelunch session in theme and tenor. During the after lunch questioning, the defendant initially reasserted his noninvolvement in the fatal fire, and denied involvement in the most serious of the house fires. However, the defendant admitted to setting several smaller fires. The troopers told him repeatedly that admitting to some of the fires but not others was simply not credible. By refusing to admit involvement in the more serious fires, they claimed, the defendant was not being sufficiently cooperative to “get ... credit” with the district...