Commonwealth v. Clarke

• Citation: 960 N.E.2d 306,461 Mass. 336
• Decision Date: 13 January 2012
• Docket Number: SJC–10816.
• Parties: COMMONWEALTH v. Brandon M. CLARKE.
• Court: United States State Supreme Judicial Court of Massachusetts

461 Mass. 336

960 N.E.2d 306

COMMONWEALTH

v.Brandon M. CLARKE.

SJC–10816.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 7, 2011.Decided Jan. 13, 2012.

Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

Rebecca A. Jacobstein (Anne Coolidge Masse with her) for the defendant.

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

LENK, J.

While being held for custodial interrogation, and without having first waived the Miranda rights of which he had been advised, the defendant shook his head from side to side in response to the question, “So you don't want to speak?” The police then posed further questions and, after a time, the defendant made incriminating statements. A judge in the Dorchester Division of the Boston Municipal Court Department allowed the defendant's motion to suppress those statements. A single justice of this court allowed the Commonwealth's application for leave to appeal from the allowance of the motion to suppress, Mass. R.Crim. P. 15(a)(2), as appearing in 422 Mass. 1501 (1996), and reported the case to the full court. The question for decision is whether the defendant, by his conduct, had invoked the right to remain silent guaranteed under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights and, if so, whether the police sufficiently honored that right. We conclude that, under both the Fifth Amendment and art. 12, the right to remain silent was invoked but was not “scrupulously honored,” and that suppression of the subsequent incriminating statements was accordingly warranted. Commonwealth v. Jackson, 377 Mass. 319, 326, 386 N.E.2d 15 (1979), quoting Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). In so concluding, we hold that, in the prewaiver context, art. 12 does not require a suspect to invoke his right to remain silent with the utmost clarity, as required under Federal law. See Berghuis v. Thompkins, ––– U.S. ––––, 130 S.Ct. 2250, 2263, 176 L.Ed.2d 1098 (2010).

1. Background and prior proceedings. On October 10, 2008, Detectives Christopher Ahlborg and Audrina Lyles of the Massachusetts Bay Transportation Authority (MBTA) transit police arrested the defendant for an indecent assault and battery that had occurred at a subway station several weeks earlier on September 16, 2008. After the arrest, Ahlborg and Lyles placed the defendant in an interrogation room at MBTA headquarters. The detectives informed the defendant that their conversation would be video recorded.¹

At the outset of the interrogation, Ahlborg provided the defendant with a waiver form, which described the defendant's rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ( Miranda ). ² On being given the Miranda waiver form, the defendant immediately began to sign it. Ahlborg stopped the defendant, informing him that he first wanted to review with him verbally the rights described in the form before obtaining the defendant's written waiver of those rights. After reviewing those rights with the defendant, Ahlborg asked him whether he wanted to discuss the charges. The following exchange ensued:

The defendant: “[Inaudible] speak with you, or?”

Ahlborg: “Nope, you don't have to speak with me at all if you don't want to. It's completely up to you.”

The defendant: “What happens if I don't speak with you?”

Ahlborg: “Nothing.”

The defendant: “I just want to go home.”

Ahlborg: “You just want to go home? So you don't want to speak?”

At this point in the interrogation, as found by the motion judge, the defendant “shook his head back and forth in a negative fashion.” Ahlborg responded to this head motion by saying, “Okay.” During the motion hearing, Ahlborg testified that he interpreted the defendant's head motion to mean that “he didn't want to speak.”

Lyles, however, stated that she “really didn't interpret that headshake at the time,” although she did characterize the motion as a “headshake.” Instead, she began to correct a misapprehension that she thought had resulted from the earlier exchange. When Ahlborg told the defendant “nothing” would happen to him if he did not speak to the detectives, Lyles thought the defendant understood that statement to indicate that he would be free to leave. So she continued:

Lyles: “But that ‘nothing’ does not exclude you still being charged and us detaining you here. You'll either be bailed, or you'll have to go to court in the morning to answer to what you're being charged with. So it doesn't mean you'll get to walk up out of here and go home right now.” ³

In the subsequent portion of the interrogation, the defendant made a number of statements indicating his confusion. He at different times stated, “I don't know what's going on. I'm really lost about what's going on”; “I just wanna know what's going on”; and “I'm just really scared.” The defendant also cried at various points during the interrogation. After further discussion between the detectives and the defendant, the following exchange occurred:

Lyles: “Well we can't talk to you about anything until you make a decision.”

The defendant: “Like yeah, I want to talk about it, but I'm just not sure what it is about.”

Ahlborg: “Ok, so you want to talk to us?”

The defendant: “Yeah.”

Ahlborg: “You do. Ok. If you want to talk to us, sign the paper and indicate that you do want to talk to us.”

The defendant then signed and dated the Miranda waiver form, but did not grant the detectives permission to record the remainder of the interrogation. During this unrecorded portion of the interrogation, the defendant admitted that he had repeatedly brushed his hand against a man on the subway car.

The defendant was charged with one count of assault and battery in violation of G.L. c. 265, § 13A, and two counts of indecent assault and battery on a person fourteen or over in violation of G.L. c. 265, § 13H. He moved to suppress the incriminating statements made during the interrogation, arguing that he had invoked his right to remain silent by shaking his head in a negative fashion at the outset of the interview.

After an evidentiary hearing at which Ahlborg and Lyles both testified, a Boston Municipal Court judge allowed the motion to suppress. In doing so, the judge held that the defendant had unambiguously invoked his right to remain silent. The judge found that the defendant “shook his head back and forth in a negative fashion” in response to the question, “You don't want to speak with us?” The judge based his decision also on the defendant's over-all reluctance to speak with the detectives, as demonstrated by questions such as “Do I have to speak with you?” and “What will happen if I don't speak to you?” In examining the totality of the circumstances of the interrogation, including that the defendant was a “young man in his early twenties” with no prior arrests, the judge concluded that it was “clear that [the defendant] invoked his right to remain silent.”

2. Standard of review. In general, “[i]n reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218, 780 N.E.2d 2 (2002). “[O]ur duty is to make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Bostock, 450 Mass. 616, 619, 880 N.E.2d 759 (2008), quoting Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996).

Where the motion judge's findings of fact are premised on documentary evidence, however, the case for deference to the trial judge's findings of fact is weakened.

“A judge who has seen and heard the witnesses is in a better position to determine their credibility than is a court which is confined to the printed record. The situation is different in regard to findings made upon written evidence. In that respect this court stands in the same position as did the trial judge, and reaches its own conclusion unaffected by the findings made by the trial judge.”

Commonwealth v. Novo, 442 Mass. 262, 266, 812 N.E.2d 1169 (2004), quoting Berry v. Kyes, 304 Mass. 56, 57, 22 N.E.2d 622 (1939). This logic extends to videotape evidence. Here, to the extent that the judge based his legal conclusions on facts found by virtue of a video recording, “we are in the same position as the [motion] judge in viewing the videotape.” Commonwealth v. Prater, 420 Mass. 569, 578 n. 7, 651 N.E.2d 833 (1995). In such circumstances, we have consistently taken “an independent view” of the evidence and analyzed its significance without deference. See Commonwealth v. Bean, 435 Mass. 708, 714 n. 15, 761 N.E.2d 501 (2002).

The motion judge did, however, consider the videotape in light of the detectives' testimony. To the extent the motion judge made credibility determinations relevant to his subsidiary findings of fact, we adhere to the normal standard of review. See Commonwealth v. Novo, supra at 266 n. 3, 812 N.E.2d 1169. We afford such findings “substantial deference,” Commonwealth v. Tavares, 385 Mass. 140, 145, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982), quoting Commonwealth v. Tabor, 376 Mass. 811, 822, 384 N.E.2d 190 (1978), and accept them “unless not warranted by the evidence.” Commonwealth v. Raymond, 424 Mass. 382, 395, 676 N.E.2d 824 (1997).

3. Discussion. a. Fifth Amendment. The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself....” In Miranda, supra, the United States Supreme Court held that this privilege against self-incrimination extends to State custodial interrogations; the Court reasoned that without proper safeguards, “the possibility of coercion...