Commonwealth v. Brandwein
| Decision Date | 07 September 2001 |
| Citation | 435 Mass. 623,760 NE 2d 724 |
| Parties | COMMONWEALTH v. MICHAEL J. BRANDWEIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.
Carlo A. Obligato, Committee for Public Counsel Services, for the defendant. Julia K. Holler, Assistant District Attorney, for the Commonwealth.
The defendant appeals from his conviction of armed robbery while masked, contending that his communications with a psychiatric nurse were wrongfully disclosed to the police and that his subsequent arrest and confession to the police were the fruit of that unlawful disclosure. He also contends that his confession should have been suppressed as involuntary. We granted his application for direct appellate review. For the following reasons, we affirm the conviction.
1. Facts. Testimony presented at the evidentiary hearing on the defendant's motion to suppress reveals the following facts.1
On May 11, 1998, a masked gunman robbed the Security Federal Savings Bank at the Falmouth Mall. The following day, the defendant contacted a clinic in Harvard seeking an emergency appointment with Cathy Lindbeck, a psychiatric nurse who had been involved with the defendant's therapy for a period of one or two years.2 An appointment was set for that afternoon.
The defendant arrived at 1 P.M., an hour early, and was visibly agitated while waiting to see Lindbeck. At approximately 2 P.M., the defendant met with Lindbeck alone in her office for the scheduled appointment. The defendant still appeared "agitated" and "very upset." He told Lindbeck that he had "done something very stupid" and that he did not want to "go to jail." He handed Lindbeck an envelope and told her to give it to his daughter. He then said that he had overdosed on his medications. By that point, Lindbeck was of the opinion that the defendant was suicidal, and she was concerned that his reporting of the amount of his overdose might not be reliable. She told the defendant that she wanted to telephone for an ambulance. The defendant protested that he did not want the police contacted. He went on to tell her that he had robbed a bank, and that he had been burned when "the money exploded." He lifted his shirt to show her the burn marks on his stomach.
Deferring to the defendant's request that she not dial 911, Lindbeck instead called the defendant's insurer to arrange for an ambulance to take the defendant to a hospital. While Lindbeck was on the telephone to the insurance company, the defendant blurted out that he had a gun. Lindbeck was "totally petrified," and asked the defendant to give her the gun. As the defendant took out a gun, Lindbeck asked him if it was loaded, to which the defendant responded that it was. She asked him to unload it. The defendant complied. Lindbeck then placed the gun in one drawer and the bullets in another drawer. In connection with his handing over the gun, the defendant again stated that he did not want to go to jail and asked Lindbeck not to tell anyone.3
After confirming that an ambulance was being sent, Lindbeck suggested to the defendant that they go out to secure his automobile, as it would be left at the clinic while he went to a hospital.4 The defendant agreed, and they both went out to the parking lot. Meanwhile, the defendant's former girl friend, Sheri Whittemore, had arrived. The defendant, still agitated, began conversing with Whittemore in the parking lot. Lindbeck remained outside watching the defendant, awaiting the arrival of the ambulance.
Although Lindbeck had not contacted the police, the ambulance company had notified the Harvard police that an ambulance was en route to the clinic to attend to a suspected drug overdose. It was standard practice for the Harvard police to dispatch an officer to provide assistance for any such reported medical emergency, and, pursuant to that practice, Officer Marybeth Hebert had been dispatched to the clinic. She arrived there shortly before the ambulance. At the time of her arrival, Hebert had no knowledge of any crime. Her purpose in going to the clinic was solely to offer assistance to ambulance personnel dealing with what had been reported as a possible drug overdose.
When Hebert arrived, Lindbeck immediately pointed out the defendant as the person who had overdosed. Lindbeck also told Hebert that the defendant had brought a gun to the clinic, and that she had locked the gun in her office. Hebert went over to the defendant and asked him if he had any weapons. He said that he did not. Hebert pat frisked him and found no weapons. She observed that he was upset and distraught, and the defendant told Hebert that he had "done a stupid thing" (which she assumed referred to the drug overdose). The ambulance arrived shortly thereafter, and the medical personnel attended to the defendant and took him to Emerson Hospital.
Hebert remained behind at the clinic and spoke to Whittemore, the defendant's former girl friend. Whittemore expressed concern that the defendant had many weapons, and mentioned that he carried a small gun in his pocket. She also reported to Hebert that the defendant had told her he had robbed a bank on Cape Cod. Until that statement from Whittemore, Hebert had been unaware of the defendant's involvement in any robbery. Hebert contacted the dispatch officer to check whether the defendant was licensed to carry a firearm and learned that he was not.
Hebert then went into the clinic to speak further with Lindbeck. Lindbeck turned over the defendant's gun and ammunition, and provided Hebert with more detail concerning the defendant's visit — that the defendant had arrived in a distraught and suicidal state, that he had had a gun, that he had turned over the gun on request, that he had admitted to robbing a bank, and that he had been burned when the stolen money had "exploded."
Based on the information concerning the gun, the Harvard police sent an officer to Emerson Hospital to arrest the defendant on firearms charges. The defendant remained at the hospital overnight, with an officer on duty keeping watch. Meanwhile, the Harvard police notified the authorities on Cape Cod that the defendant was claiming involvement in a bank robbery.
When the defendant was discharged from the hospital the next day, he was taken to the Harvard police station for booking on the firearms charge. Miranda rights were read to him as part of the booking procedure, and the booking officer advised the defendant that some officers from the Falmouth police department were coming to speak to him about an incident in Falmouth. The defendant expressed concern about "going to jail" and said that he wanted "help." He appeared "worried" and "anxious." The officer told the defendant that if he knew "the difference between right and wrong," his recommendation was that the defendant be "forthright and come forward, speak with these officers and kind of clear a slate for him." The officer, who had little (if any) information about the bank robbery in Falmouth, did not question the defendant about the incident.
Approximately one and one-half hours later, the defendant was taken to the Clinton Division of the District Court Department to be arraigned on the weapons charge. While at the court house, two officers from Falmouth, accompanied by a State trooper, arrived. Before questioning the defendant, the Falmouth officers readvised him of his Miranda rights, giving him a written copy of the warnings so he could read along while the officer recited them. The defendant then signed the form and agreed to speak with the officers. Although the defendant still appeared "emotionally distraught" and "tired," he was coherent, articulate, and did not appear to be under the influence of alcohol or drugs.5 He proceeded to give the officers a detailed narrative of his perpetration of the bank robbery and its aftermath, explaining that he had been extremely depressed and intoxicated at the time and that he had committed the robbery in the hope that the police would shoot him. On being returned to a holding cell at the completion of the interview, the defendant was weeping. He asked to see the officer from Harvard. The defendant said to the officer, "I did the right thing and told them about it." 2. Suppression as fruit of the poisonous tree. The defendant argues that his confession should have been suppressed as the fruit of Lindbeck's wrongful disclosure of confidential communications. He contends that Lindbeck's revelations to Officer Hebert (concerning both the gun and the bank robbery) were prohibited by G. L. c. 233, § 20B, as the circumstances surrounding those disclosures did not meet the requirements of the dangerous patient exception set forth in § 20B (a). He then argues that his arrest on firearms charges and the interrogation about the robbery were the fruit of those wrongful disclosures such that the confession should have been suppressed as fruit of the poisonous tree. We assume, without deciding, that at least some portions of Lindbeck's disclosures were in violation of her obligation to keep patient information confidential, but we do not agree that any such violation would require suppression of the defendant's confession.
In their briefs and at oral argument, both sides assumed that G. L. c. 233, § 20B, generally prohibits disclosures by psychotherapists6 and focused their arguments on whether the exception set forth in § 20B (a). justified the disclosures made by Lindbeck. That assumption does not comport with the actual wording of § 20B. The relevant prohibition set forth in the statute is as follows: "[I]n any court proceeding and in any proceeding preliminary thereto and in legislative and administrative proceedings, a patient shall have the privilege of refusing to disclose, and of preventing a witness from disclosing, any communication, wherever made, between said patient and a psychotherapist...
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