Commonwealth v. Davis

• Decision Date: 09 October 2020
• Docket Number: 19-P-612
• Citation: 158 N.E.3d 480,98 Mass.App.Ct. 604
• Parties: COMMONWEALTH v. Christopher J. DAVIS.
• Court: Appeals Court of Massachusetts

98 Mass.App.Ct. 604

158 N.E.3d 480

COMMONWEALTH

v.Christopher J. DAVIS.¹

19-P-612

Appeals Court of Massachusetts, Berkshire..

Argued May 11, 2020.

Decided October 9, 2020.

Tara B. Ganguly, Assistant District Attorney, for the Commonwealth.

Joseph Zlatnik for the defendant.

Present: Vuono, Rubin, Massing, Shin, & Ditkoff, JJ.²

MASSING, J.

The defendant, Christopher J. Davis, voluntarily arrived at the office of the State Police without his attorney to provide information in connection with a murder investigation. When the defendant refused to submit to a polygraph test, the voluntary interview turned into a custodial interrogation. When he exercised his right to cut off questioning and requested his attorney, he was detained, handcuffed, and placed under arrest for perjury. In face of the mounting police pressure, the defendant seemingly initiated further discussions, waived the presence of an attorney, and submitted to a two-hour interview.

After a grand jury indicted the defendant for perjury, G. L. c. 268, § 1, and misleading a police officer, G. L. c. 268, § 13B (1) (c ) (iii), as appearing in St. 2006, c. 48, § 3, he filed a motion to suppress the statements he gave after what he argued was an invalid waiver of his right to the presence of counsel. A Superior Court judge in a well-reasoned decision found that the Commonwealth failed to prove beyond a reasonable doubt that the defendant's decision to proceed without counsel amounted to a voluntarily waiver. A single justice of the Supreme Judicial Court granted the Commonwealth's application for leave to take an interlocutory appeal and reported the appeal to this court. See Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017). We affirm.

Background. The four officers involved in obtaining the defendant's statement -- State Police Detective Lieutenant Edward Culver, State Police Trooper Steven Hean, Pittsfield Police Detective John Soules, and the supervising officer of the State Police unit attached to the Berkshire County district attorney's office, State Police Detective Lieutenant Brian Foley -- testified at the suppression hearing. The motion judge's findings, supplemented by the officers' testimony, which the judge expressly accepted and credited, were as follows.

In July 2017 the defendant was arrested for trafficking in cocaine and other charges arising out of a major drug investigation by the Berkshire County drug task force. With the guidance of his attorney, the defendant waived indictment and began cooperating with the Commonwealth in numerous criminal investigations. One of these investigations concerned the murder of James Dominguez. The defendant testified before a grand jury, which indicted James Cromartie for murder based in large part on information that the defendant had provided. However, the police began to doubt the veracity of the information the defendant provided and asked him to come to the State Police office for further questioning.

The defendant appeared for the interview, but when told that the police wanted to revisit some of his prior statements and conduct a polygraph test, the defendant demurred, stating he wanted his attorney to be present and that he had child-care issues. The meeting was rescheduled for the next day. The defendant appeared at 9 A.M. , but his attorney was not present. Nevertheless, the defendant voluntarily went to a small conference room for questioning. Much of what occurred in the room thereafter -- with the notable exception of a crucial forty-five minute period -- was video recorded.

Detective Lieutenant Culver, with whom the defendant was not familiar, informed the defendant that the investigators wanted to administer a polygraph test. Culver told the defendant that the police had concerns about his veracity and that if the information he had provided was not truthful, "it's going to be a significant problem." Nonetheless, Culver "repeatedly assured [the defendant] that the test was voluntary and he was free to leave at any time." After discussing the voluntary polygraph for about ten minutes, Culver gave the defendant a few minutes alone to think it over, warning him, "It's your testimony. It's your future."

As Culver left, the defendant asked to speak to Detective Soules, an officer with whom the defendant was more comfortable. Soules came in and, upon the defendant's request, turned off the video recorder. The defendant asked Soules, "What's going on, what's the problem?" Soules explained "that there [were] some minor inconsistencies in his prior statement involving the murder that need[ ] to be cleared up." The defendant expressed his dissatisfaction with Culver.

The recording resumed about ten minutes later with Culver and Soules both present. Culver told the defendant that he was not going to administer the polygraph test. Culver then gave the defendant his Miranda rights and proceeded to question him for about thirty minutes. When Culver's questioning became more "focused and aggressive," the defendant stood up, said to Soules, "I am done talking with this dude," and began to leave the room. As he was leaving he said, "[Y]ou can call the lawyer, we'll have [inaudible] a lawyer here." The defendant attempted to leave, but officers stationed in the hallway quickly ushered the defendant back into the interview room. The defendant remarked, "[Y]ou told me this shit was voluntary but you're telling me I can't leave?" From the hallway Trooper Hean stated, "[R]ight now you are not free to leave."

At this point the supervising officer, Detective Lieutenant Foley, entered the room, accompanied by Hean, who stood in the doorway. Notwithstanding the defendant's effort to cut off questioning and his references to calling a lawyer,³ Foley -- hovering over the defendant, pointing his finger, and telling the defendant to "zip it" when he attempted to speak -- sternly lectured the defendant for three full minutes, emphasizing that the defendant would not be able to leave a court room just because he did not like the tenor of the questioning. Foley then left, saying, "[L]et's get back and calm down as we have more questions."

Culver readministered the Miranda warnings, but this time the defendant refused to waive his rights and said, "I would prefer my lawyer to be here." The interview was stopped, the video recorder was turned off, and the defendant was told he was "in custody" and handcuffed.

What occurred during the next forty-five minutes was not recorded. Both the defendant and the police attempted to contact the defendant's lawyer, but the lawyer was unavailable. Foley, who now took charge of the matter, testified that the defendant was supposed to be a cooperating witness but that he was making things difficult: "Why are we having this problem? Why is he being so obstinate? Why does he want to talk to his attorney when we've already gone through all of that?" Accordingly, Foley went to talk to the district attorney, David Capeless. Foley explained that there were discrepancies between the defendant's grand jury testimony and what he had later told the officers and that the defendant's "attitude was very poor, about as poor as you could get for anybody that was cooperating with the Commonwealth." Seeking the district attorney's permission to arrest the defendant for perjury, Foley explained, "But his whole attitude, plus those ... inconsistencies in the grand jury, there was enough probable cause at that point." The district attorney agreed and ordered the defendant's arrest on charges of perjury.

Foley then returned to talk to the defendant. This crucial conversation was not recorded. Foley candidly testified that when he returned to inform the defendant that he was being arrested for perjury, Foley told the defendant:

"that he was obstinate, that it was not adding up. Told him that he lied and that I believe that he lied in grand jury. Because [the defendant] wanted an attorney that I knew that he invoked, he said he wanted to explain and I told him no. I didn't even want to talk to him again, but he persisted. Said he wanted to explain and I said no. He said he wanted to explain, and I said, "What are you going to go back on tape?"

Back in the interview room, the video recorder was turned on, and Foley "summarize[d] the events of this encounter" for the record. The judge's findings reproduced Foley's soliloquy, addressed to the defendant, verbatim:

"Let's go over what happened. You came in there for an interview, polygraph. You did not want to take the polygraph. During the interview, Chris, you said affirmatively, that "I want my attorney." We called your attorney, couldn't make it. We then had to make a decision based on our case, which I don't want to get into right now [unclear words]. We believe that there were some instances that you were lying. We arrested you for that. Once we arrested you, Chris, you told me that you wanted to talk with us. I told you no. You said you wanted an attorney. You then said you still wanted to talk with us and you were going to waive your request to have an attorney. Is that correct[?]"

The defendant responded, "That is correct." The defendant requested to speak with Foley before continuing, but Foley refused, stating, "No. I'm done, we're on the record." Foley then left the room, Culver administered the Miranda warnings for a third time, and the defendant "clearly and unequivocally acknowledge[d] his understanding of his rights and waive[d] his right to have counsel present and agree[d] to continue discussing the matter." Culver then conducted the lengthy interview that is the subject of the motion to suppress.

In addition to Foley's summary, quoted above, the motion judge found that "[o]ff the camera, [the defendant] indicates that he wants to talk with the police but still requests his attorney's presence. When that is rejected, he then changes his mind and now is willing to proceed without the attorney. Seemingly, this is not inconsistent with Commonwealth...