Commonwealth v. Orlando O., 21-P-380

CourtAppeals Court of Massachusetts
PartiesCOMMONWEALTH v. ORLANDO O., a juvenile.
Docket Number21-P-380
Decision Date15 April 2022


ORLANDO O., a juvenile.

No. 21-P-380

Appeals Court of Massachusetts

April 15, 2022

Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass.App.Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).


PURSUANT TO RULE 1:28 The juvenile is charged with armed assault with intent to rob, G. L. c. 265, § 18 (b), aggravated assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (c0 (1), and unlawful possession of a firearm, G. L. c. 269, § 10 (a.) . Following an evidentiary hearing, a Juvenile Court judge allowed, in part, the juvenile's motion to suppress statements he made during police interrogation. The judge reasoned that the juvenile invoked his right to remain silent during the interview, and that the police did not scrupulously honor that invocation. Accordingly, the judge suppressed the juvenile's statements made after that point in the interrogation.

In this interlocutory appeal, the Commonwealth principally argues that the suppression order was error because the juvenile did not express a clear desire to end the interview. In a cross


appeal, the juvenile argues that all of his statements should have been suppressed because (1) he was subjected to custodial interrogation from the outset of the interview, (2) he was not afforded the opportunity to consult with an interested adult, and (3) his statements were not voluntary. We reverse the order insofar as it suppressed the juvenile's statements between 8:11 £.M. and 8:30.58 £.M. Otherwise, we affirm.


The following facts are drawn from the judge's findings, from undisputed facts in the record that she implicitly credited, and from the video recordings (video) of the defendant's interview, which we have independently reviewed. See Commonwealth v. Tremblay, 480 Mass. 645, 654-655 (2018); Commonwealth v. Jones-Pannell, 472 Mass. 429, 436 (2015). On October 5, 2019, a shooting occurred inside a parked vehicle on Main Street in Brockton, resulting in a gunshot wound to the victim's head. As part of the investigation, Massachusetts State Police and the Brockton Police sought to interview everyone who attended a party at a nearby residence that evening, including the juvenile.

On October 7, 2019, the police learned that the juvenile, then seventeen years old, was attending night school at Brockton High School. A State Police trooper drove to the school and asked that the juvenile be brought to the administrative office. The juvenile's parents were contacted, and the defendant's


father agreed to come to the school and to drive the juvenile to the Brockton Police station to be interviewed. The father and the juvenile drove to the police station in the father's car and met the trooper there. They entered together through a side door and went to an interview room in the detectives' office. The juvenile was not handcuffed or otherwise restrained. Two police officers were in the interview room with the juvenile and his father.[1] The officers advised the juvenile of his Miranda rights by reading from a form which was then given to the juvenile. Without further inquiry or consultation, the juvenile and his father signed the form at 6:42 P_.M. and the juvenile agreed to speak to the officers.[2] Between 6:42 and 8:04, the juvenile responded to questions regarding the party, how and when he arrived at the party, who was present, and his relationship with the victim of the shooting, who the juvenile described as his marijuana source. The juvenile denied knowing anything about the shooting. We reserve details regarding the remainder of the interrogation for our discussion below.



We review the judge's decision under familiar standards. We accept the judge's factual findings unless they are clearly erroneous. See Commonwealth v. Welch, 420 Mass. 646, 651 (1995). We defer to the judge's assessment of the credibility of the testimony taken at the evidentiary hearing on the motion to suppress, see Commonwealth v. Scott, 440 Mass. 642, 646 (2004), but we are in the same position as the motion judge in reviewing the surveillance video, and therefore make our own determination as to the weight of that evidence. See Commonwealth v. Novo, 442 Mass. 262, 266 (2004). We "make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Mercado, 422 Mass. 367, 369 (1996) .

Custodial interrogation. It is well settled that the safeguards of Miranda apply only when a defendant is subject to custodial interrogation, Commonwealth v. Jung, 420 Mass. 675, 688 (1995), and it is the defendant's burden to prove custody. Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). Here, the judge concluded that the juvenile was not in custody for Miranda purposes until 8:04 £.M. when the juvenile attempted to leave the interview room with his father and the police told him to just "hang tight" and wait in the interview room. The Commonwealth and the juvenile each claim error in that conclusion. According to the Commonwealth, the juvenile failed


to establish that at 8:04 P..M. his movement was restrained to the degree associated with a formal arrest. See Commonwealth v. Morse, 427 Mass. 117, 123 (1998). The juvenile counters that he was in custody from the very beginning of the interview because a reasonable Black juvenile would have felt compelled to come to the police station and answer questions.

In determining whether the defendant was in custody for Miranda purposes, we consider "(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that the person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal . . .; and (4) whether . . . the person was free to end the interview." Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). Applying these criteria to the facts in this case, including the juvenile's age, see J.D.B. v. North Carolina, 564 U.S. 261, 277 (2011); Commonwealth v. Quinones, 95 Mass.App.Ct. 156, 160 (2019), we discern no error in the judge's conclusion that the juvenile was not subject to custodial interrogation until 8:04 £.M. First, there was no questioning at the school, and the juvenile and his father voluntarily travelled to the police station unaccompanied by the police. Although the interview took place in a small interview room, the officers did not suggest to the juvenile that he was a suspect.


Rather, the officers explained that they were speaking with everyone who attended the party as part of their investigation. The tone of the questioning was conversational, and the juvenile was advised that he could end the interview at any time.

We agree with the judge that circumstances changed at 8:04 £.M. when the juvenile's father left the interview to retrieve his cell phone charger.[3] Although the officers suspended the interview, they did not allow the juvenile to leave the interview room with his father when the juvenile expressed a desire to do so. When the juvenile asked, "Do I have to [stay in the interview room]," the police responded, "Just hang tight" and "he'll be right back." The juvenile then sat alone in the interview room for approximately seven minutes. Considering the totality of these circumstances, we discern no error in the judge's conclusion that a reasonable juvenile would have believed that, as of that moment, his freedom had been restrained to the degree associated with an arrest. See Commonwealth v. Sneed, 440 Mass. 216, 220 (2003) (custody


determination based on objective circumstances not subjective views of the interrogating officers); Morse, 427 Mass. at 123.

Interested adult rule.

For a juvenile over the age of fourteen to validly waive his Miranda rights, the juvenile must have a "genuine opportunity" to consult with an interested adult prior to the waiver. See Commonwealth v. Fernandes, 487 Mass. 770, 786-787...

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