Commonwealth v. Hoyt

• Citation: 461 Mass. 143,958 N.E.2d 834
• Decision Date: 15 December 2011
• Docket Number: SJC–10719.
• Parties: COMMONWEALTH v. Roy W. HOYT, Sr.
• Court: United States State Supreme Judicial Court of Massachusetts

461 Mass. 143

958 N.E.2d 834

COMMONWEALTH

v.Roy W. HOYT, Sr.

SJC–10719.

Supreme Judicial Court of Massachusetts, Berkshire.

Argued Oct. 6, 2011.Decided Dec. 15, 2011.

Richard L. Goldman for the defendant.

Karen L. Carlo, Assistant District Attorney, for the Commonwealth.

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

LENK, J.

The defendant appeals from his convictions of two counts of rape of a child under sixteen years of age, G.L. c. 265, § 23, and two counts of indecent assault and battery on a person who has attained the age of fourteen years, G.L. c. 265, § 13H. The defendant contends, among other claims, that certain statements admitted against him at trial were obtained in violation of his right to counsel under the Fifth Amendment to the United States Constitution, as interpreted by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ( Miranda ). During custodial interrogation, after being given Miranda warnings, the defendant told police, “I'd like an attorney present. I mean but I can't afford one. So I guess I'll speak to you now. I don't have an attorney.” Immediately thereafter, and without counsel present, the defendant had further discussion with the officers, signed a written waiver of Miranda rights, continued to be questioned, and made inculpatory statements that he was later unsuccessful in attempting to suppress.

We granted the defendant's application for direct appellate review to consider whether, in making the above-quoted statement at the outset of questioning, the defendant invoked his Fifth Amendment right to counsel. We conclude that the defendant unambiguously invoked his right to counsel and that questioning should have ceased until counsel was made available. Therefore, the incriminating statements should not have been admitted at trial. In any event, the defendant is entitled to relief because the Commonwealth did not satisfy its heavy burden of establishing beyond a reasonable doubt that the defendant's subsequent waiver of that right was knowing, voluntary, and intelligent. See Commonwealth v. Day, 387 Mass. 915, 920–921, 444 N.E.2d 384 (1983). Because we cannot conclude that the erroneous admission of the defendant's statements was harmless beyond a reasonable doubt, a new trial is required.

Background. We summarize the procedural backdrop as well as relevant facts as the jury could have found them, reserving certain details for later discussion.

The complainant was born on September 20, 1990. After the death of his father in October, 2003, the complainant began attending Native American gatherings with his mother, who had been involved previously in the local Native American community. The complainant and his mother met the defendant at one such gathering in the spring of 2004. The complainant purchased a rabbit from the defendant and subsequently began visiting the defendant's house to help take care of the defendant's many animals. Although at first his mother went to the defendant's house with him, the complainant was eventually allowed to visit the defendant by himself.

The complainant testified to a pattern of sexual conduct between himself and the defendant that began at this time. Specifically, he testified to incidents in which the defendant and the complainant would engage in sexualized touching. By November of 2005, the conduct escalated when the complainant and the defendant began to engage in oral sex. The defendant provided the complainant with alcohol and marijuana when they had sex. The complainant testified further that at all times during this relationship he did not want to engage in any sexual acts with the defendant, but that he acquiesced out of fear for his mother's safety, even though the defendant had never threatened either the complainant or his family.

In the spring of 2007, the complainant spoke to someone for the first time about the nature of his encounters with the defendant, confiding in a Native American elder who had been teaching him about that culture. Soon thereafter, the complainant told his mother about his encounters with the defendant. To help in proving that the defendant had engaged in these acts, the complainant and his mother decided to make an audio recording of a conversation between the complainant and the defendant discussing the sexual conduct. After making this recording, the complainant's mother filed a complaint with the Pittsfield police department; the complaint was investigated by Detective Dale Eason. After further investigation—including listening to the audio recording and speaking with the complainant, his mother, and the elder—Eason arrested the defendant.

Eason and Pittsfield police Sergeant Marc Strout questioned the defendant at the police station after his arrest. Eason started the interrogation by reviewing the Miranda waiver form with the defendant.¹ Although the defendant did not have his reading glasses, he gave his signed permission for the interrogation to be videorecorded.² After Eason read the defendant the Miranda warnings,³ the following exchange took place:

Eason: “This right here states that you understood everything I just read to you. Having these rights in mind, do you wish to speak to us now?”

Defendant: “I'd like an attorney present. I mean but I can't afford one. So I guess I'll just speak to you now. I don't have an attorney.”

Eason: “Okay. If you want to speak to us later, that's fine as well. I mean but we're not, you know, we don't get you an attorney, we can let you use a phone book and stuff like that, but it's up to you.”

Defendant: “I'll just talk to you now.”

Eason: “Okay.”

Strout: “Roy, I just want to make it clear. You want to talk to us now, and you don't want an attorney?”

Defendant: “Uh, I'd have to wait here until an attorney came right?”

Strout: “You can ... we can let you use the phone and the phone book to call an attorney. I can't tell you if they're gonna come here, I don't know what they would do.”

Defendant: “I'll just talk to you without an attorney.”

Thereafter, the defendant signed the form, waiving his rights under Miranda, and made inculpatory statements.

On June 14, 2007, the defendant was indicted for rape of a child by force, G.L. c. 265, § 22A; assault with intent to commit rape and rape, G.L. c. 265, § 22 ( b ); indecent assault and battery on a child under fourteen, G.L. c. 265, § 13B; and indecent assault and battery on a person who has attained the age of fourteen, G.L. c. 265, § 13H.

The defendant filed a pretrial motion to suppress incriminating statements made during the police interrogation.⁴ After an evidentiary hearing, a Superior Court judge denied the motion. Having viewed the video recording of the interrogation, the judge concluded that suppression was not required because there had been no “unequivocal invocation” of the right to counsel. ⁵

After a four-day trial before a different Superior Court judge, during which the entire interrogation video recording was admitted in evidence and played for the jury,⁶ the defendant was found guilty of two counts of rape of a child and two counts of indecent assault and battery.⁷

On appeal, the defendant claims error in three respects. First, he contends that the judge erred in allowing the admission of his incriminating statements obtained in violation of Miranda, arguing both that he invoked his right to counsel at the start of the interrogation and that his waiver was invalid. Second, the defendant argues that the judge erred in admitting in evidence testimony as to multiple first complaints, thereby giving rise to a substantial risk of a miscarriage of justice. Finally, the defendant argues that he was deprived of his right to the effective assistance of counsel.

Discussion. a. Motion to suppress incriminating statements in violation of Miranda. i. Standard of review. In reviewing a ruling on a motion to suppress, “[w]e accept the judge's subsidiary findings absent clear error but conduct an independent review of his ultimate findings and conclusions of law.” Commonwealth v. Bostock, 450 Mass. 616, 619, 880 N.E.2d 759 (2008), 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, supra at 619, 880 N.E.2d 759, quoting Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996). Deference as to a motion judge's factual findings is generally appropriate because “[t]he judge determines the weight and credibility of the testimony” taken at the evidentiary hearing on the motion to suppress. Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004).

Here, however, the motion judge heard no such testimony. At the evidentiary hearing, he considered only documentary evidence: the Miranda waiver form, the interrogation video recording, and the transcript of the interrogation. We have all of these materials before us. We are thus “in the same position as the motion judge in viewing the videotape” as well as the other evidence submitted to him. Commonwealth v. Prater, 420 Mass. 569, 578 n. 7, 651 N.E.2d 833 (1995). In such cases, “[w]e have consistently held that lower court findings based on documentary evidence available to an appellate court are not entitled to deference.” Commonwealth v. Novo, 442 Mass. 262, 266, 812 N.E.2d 1169 (2004). “[W]e will ‘take an independent view’ of recorded confessions and make judgments with respect to their contents without deference to the fact finder, who ‘is in no better position to evaluate the[ir] content and significance.’ ” Id., quoting Commonwealth v. Bean, 435 Mass. 708, 714 n. 15, 761 N.E.2d 501 (2002).

ii. Invocation of the Fifth Amendment right to counsel. The Fifth Amendment provides that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” The United...