Commonwealth v. Novo

• Citation: 442 Mass. 262,812 NE 2d 1169
• Parties: COMMONWEALTH v. RUI NOVO.
• Decision Date: 04 May 2004
• Court: United States State Supreme Judicial Court of Massachusetts

442 Mass. 262

812 NE 2d 1169

COMMONWEALTH v. RUI NOVO.

Supreme Judicial Court of Massachusetts, Bristol.

May 4, 2004.

August 6, 2004.

Present: Marshall, C.J., Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ.

Robert J. Schilling, Assistant District Attorney, for the Commonwealth.

Daniel Bennett for the defendant.

CORDY, J.

This case requires us to determine whether police interrogation tactics used to secure a suspect's confession during the course of a videotape recorded interview made the confession involuntary. We conclude that the motion judge correctly suppressed the confession itself, but that statements made prior to specific acts of coercive police conduct were voluntary, and can be admitted in evidence at trial.

1. Background. Rui Novo stands indicted for murder in the first degree, stemming from the death of Joshua Santos, the two year old son of Novo's girl friend, Melissa Santos. Novo and Santos brought Joshua to St. Luke's Hospital in New Bedford on April 1, 2003, where he later died. Joshua's subsequent autopsy revealed severe bruising and internal injuries, and that his death was a homicide.

On April 3, 2003, State police Detective William Serpa contacted Santos and Novo and asked them to come to the police station for an interview concerning Joshua's death; Novo and Santos agreed, and Serpa drove Novo to the New Bedford police station, while other officers took Santos to the State police detective unit in New Bedford. Serpa and Officer Christopher Cotter of the New Bedford police interviewed Novo, and the entire interview was recorded on videotape.

At the beginning of the interview, Serpa read Novo the Miranda warnings from a New Bedford police department waiver of rights form. After reading each right, Serpa asked Novo if he understood, and in each instance Novo responded, "Yes." When Serpa described the rights as "Miranda rights," Novo nodded, indicating his familiarity with the term. One of the rights given was as follows: "[I]f you decide to answer any questions now, with or without an attorney, you still have the right to stop the questioning at any time for the purpose of consulting an attorney."

Novo agreed to answer the officers' questions and, after providing background information, gave a detailed account of his activities from the afternoon of Monday, March 31, 2003, through his arrival at the hospital on Tuesday, April 1, 2003. Novo made clear that Joshua had been with him and Santos exclusively at all times. Although Joshua did not appear ill during the day Monday, he complained of being tired and went to bed at 6 P.M. Monday evening. When Novo checked on Joshua around 8 P.M., he found Joshua lying in his bed in a puddle of vomit. Novo bathed Joshua, Santos cleaned up the vomit, and Joshua was put back to bed. At approximately 7:45 A.M. the following morning, Novo found Joshua watching television in the living room, and there were puddles of vomit on the coffee table and carpet. Joshua vomited several more times during the day, once when Santos tried to give him a vitamin milkshake, and several more times in various rooms in Novo's apartment. Novo and Santos then brought Joshua to the hospital.

At this point in the interview, the officers left the room for several minutes. When they returned, Serpa showed Novo photographs of Joshua's body and questioned him about the source of the numerous bruises that were evident. Novo stated that he had seen bruises on Joshua before but believed them to be from rough play. Serpa then informed Novo that Joshua had undergone an autopsy, and that the cause of death was "massive, massive injuries from beatings." Novo repeatedly stated that he never beat Joshua, and Serpa responded by stating that this was Novo's "only opportunity" to explain the bruises and that Novo could not "help [him]self any other time but right now."

Serpa then used a number of techniques in an attempt to convince Novo to admit that he caused Joshua's bruises. First, he falsely told Novo that Santos was "giving a statement right now" and "talking about all sorts of abuse," falsely stated that the medical examiner had taken fingerprints from the bruises and that the officers had "done the measurements" on Novo's fingerprints and "[i]t's you," and expressed empathy as a parent for the frustration of dealing with a vomiting child. Novo continued, however, to deny that he was responsible for Joshua's injuries.

Then Serpa focused on the effect that Novo's failure to confess would have on a subsequent criminal prosecution, telling him, "If you don't give us a reason [for hitting Joshua], Roy,[¹] if you don't give us a reason right now why you did this, a jury's never going to hear a reason." This "now-or-never" theme — that if Novo did not offer a reason for hitting Joshua to Serpa, he would be unable to offer a reason to a jury later — continued through the remainder of the interview.²

Finally, several minutes later, Serpa explained that a conviction of murder in the first degree carried a life sentence, and stated, "You don't give yourself a reason why this happened, Roy, you're going first-degree murder. You're going life in prison without parole." This theme — that, unless Novo offered an explanation, he would be charged with murder in the first degree — also reappeared throughout the remainder of the interview.

More than two hours into the interview, Novo stated that he "suppose[d]" that he caused the injuries to Joshua. Shortly thereafter, he admitted causing them, and was placed under arrest and charged with Joshua's murder.

Novo moved to suppress all of his statements, and, after a hearing at which Serpa testified and the videotape was played, a Superior Court judge granted the motion. The Commonwealth sought leave to proceed with an interlocutory appeal, and a single justice of this court allowed the interlocutory appeal and transferred the case here. 2. Discussion. a. Standard of review. Typically, "[i]n reviewing whether a statement was made voluntarily, we accept the judge's subsidiary findings of fact unless not warranted by the evidence," and the "judge's ultimate findings, while open for review, are afforded `substantial deference.'" Commonwealth v. Raymond, 424 Mass. 382, 395 (1997), quoting Commonwealth v. Tavares, 385 Mass. 140, 145, cert. denied, 457 U.S. 1137 (1982). In this case, however, the judge's findings are based almost exclusively on the videotape of Novo's confession, and "we are in the same position as the [motion] judge in viewing the videotape." Commonwealth v. Prater, 420 Mass. 569, 578 n.7 (1995).

We have consistently held that lower court findings based on documentary evidence available to an appellate court are not entitled to deference. "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." Berry v. Kyes, 304 Mass. 56, 57 (1939). This principle applies whenever the evidence before the trial court is reduced to a tangible form, and is therefore available to the appellate court in the same form as it was reviewed by the trial court. For example, neither findings based on transcripts of deposition testimony, see Guempel v. Great Am. Ins. Co., 11 Mass. App. Ct. 845, 848 (1981), nor findings concerning the "content and significance" of photographs, Commonwealth v. Bean, 435 Mass. 708, 714 n.15 (2002), are entitled to deference. Therefore, we 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.³

b. Voluntariness in the totality of the circumstances. "The test for voluntariness of a confession is `whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.'" Commonwealth v. Raymond, supra at 395, quoting Commonwealth v. Selby, 420 Mass. 656, 663 (1995). "The Commonwealth. . . bears the burden of proving beyond a reasonable doubt that, in the totality of the circumstances, the defendant's statements were made voluntarily." Commonwealth v. Jackson, 432 Mass. 82, 85 (2000).

"A statement is voluntary if it is `the product of a rational intellect and a free will.'" Id., quoting Commonwealth v. Davis, 403 Mass. 575, 581 (1988). In evaluating the voluntariness of a statement, we consider a number of factors "including promises or other inducements, conduct of the defendant, the defendant's age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, the initiator of the discussion of a deal or leniency (whether the defendant or the police), and the details of the interrogation, including the recitation of Miranda warnings." Commonwealth v. Mandile, 397 Mass. 410, 413 (1986). Additionally, the "use of false information by police during an interrogation is deceptive and is a relevant factor indicating a possibility that the defendant's statements were made involuntarily." Commonwealth v. Selby, supra at 664. With these factors in mind, we turn to the specifics of Novo's interview.

Although the officers used a variety of interrogation techniques, one that emerged approximately ninety minutes into the interview was that this would be Novo's "only opportunity" to offer an explanation for why he hit Joshua. Once introduced, this now-or-never theme persisted up to and through Novo's confession. Soon after it was introduced, Serpa explicitly linked it to Novo's rights to testify and to present a...