Commonwealth v. Pacheco, No. 13–P–1821.

CourtAppeals Court of Massachusetts
Citation87 Mass.App.Ct. 286,28 N.E.3d 1172
Docket NumberNo. 13–P–1821.
PartiesCOMMONWEALTH v. Michael PACHECO.
Decision Date17 April 2015

87 Mass.App.Ct. 286
28 N.E.3d 1172

COMMONWEALTH
v.
Michael PACHECO.

No. 13–P–1821.

Appeals Court of Massachusetts, Bristol.

Argued Dec. 4, 2014.
Decided April 17, 2015.


28 N.E.3d 1174

Tara L. Blackman, Assistant District Attorney, for the Commonwealth.

Joseph Maggiacomo, III, Quincy, for the juvenile.

Present: COHEN, FECTEAU, & MASSING, JJ.

Opinion

MASSING, J.

Following the execution of a search warrant, resulting in the discovery of a handgun and several bags of heroin in the defendant youthful offender's bedroom, the Taunton police arrested the juvenile and took him to the police station to question him about his suspected involvement in a shooting that took place on the railroad tracks near his home. Because he was sixteen years old, the police arranged for the juvenile's guardian to be present during questioning. A Juvenile Court judge found that the

juvenile validly waived his Miranda rights at the outset of questioning, but that the police failed to honor his mid-interview request to consult with his guardian. Accordingly, the judge denied the juvenile's motion to suppress statements made during the first part of the interview, but allowed the motion with respect to statements made after his request to consult. We affirm.

Background. The facts found by the judge at the hearing on the motion to suppress, as amplified by uncontested evidence presented at the hearing and by the contents of the videotaped interview,1 are as follows. On September 22, 2012, at approximately 8:30 p.m. , two Taunton police officers went to the apartment where the juvenile lived with his guardian, Crystal Courtney,2 to execute a search warrant for

28 N.E.3d 1175

a firearm as part of an investigation into a shooting. After discovering a handgun and several glassine bags containing a substance that appeared to be heroin in the juvenile's bedroom, the officers arrested the juvenile and transported him to the police headquarters for questioning. The police advised Ms. Courtney that she could accompany the juvenile, who was sixteen years, ten months old at the time, to the station to act as an interested adult and brought her to the police station shortly after the juvenile's arrival.

At approximately 11:06 p.m. , Detective Lynne Pina commenced a videorecorded interrogation of the juvenile in a small interview room at the station, assisted by Brian Dunham, another officer from the department. Pina gave the juvenile and Ms. Courtney a notification of rights form, read them the Miranda rights from the form, and gave them an opportunity to read it themselves. Neither Pina nor Dunham left the room. Without requesting an opportunity to speak to each other in private, the juvenile and his guardian signed the rights form.

Pina began the interview by questioning the juvenile about the night of the shooting. He initially denied any involvement. At approximately 11:31 p.m. , another officer interrupted the interrogation

to say that the video equipment was not recording. Pina and Dunham left the interview room to address the problem. When they returned approximately four minutes later, Pina told the juvenile, “We will pick up where we left off; you have been given rights and signed forms,” and resumed the interrogation.

The juvenile continued to deny his involvement in the shooting. Pina and Dunham then told the juvenile that they had evidence he possessed the gun even before the shooting took place, and that a dog had traced a scent from the railroad tracks where the shooting occurred to his back door. Moreover, they had spoken with the victim, who gave them “very good descriptions” and said “he'd probably be able to identify the people who shot him.” The police urged the juvenile to tell them the truth, saying he had an opportunity to “help [him]self.” Pina continued, “There was somebody with you. Who was with you?,” adding that “this is going to go a long way to help you in the court system, the [district attorney] will look at you favorably, if you start cooperating with the case and the investigation.” Referring to Ms. Courtney, Pina asked, “Do you want to talk to her about it? Do you want to ask her what you should do?”

The officers continued to try to convince the juvenile to cooperate, saying, “You should be helping yourself right now.” When the juvenile repeated, “I didn't shoot the guy,” Pina asked, “So who did? Tell us what happened.” The juvenile then asked, “Can I have a few minutes first?” Dunham said, “Sure, absolutely. You want to talk to Crystal?” The juvenile replied, “I just want to make sure, you know what I'm saying?”

Before the officers left the room, Ms. Courtney asked whether the video recording machinery would continue to record; she was told that it would. The officers left the room, but watched the juvenile and his guardian on a screen in the detectives' room. Speaking in low tones, the juvenile and Ms. Courtney began to exchange Ms. Courtney's cellular telephone (phone). The juvenile first took the phone, entered some text, and showed it to her. She entered some text and returned the phone to him. After about thirty seconds, while the juvenile was entering text on the

28 N.E.3d 1176

phone, Pina returned to the interview room and told the juvenile to stop. He complied and returned the phone to Ms. Courtney. When Pina left them alone this time, they did not speak any more. Ms. Courtney broke into tears and hugged the juvenile until Pina and Dunham returned and resumed the interrogation at 11:50 p.m .

The interview continued for another twenty minutes. The juvenile first told the officers that a friend of his did the shooting,

but when pressed further, he ultimately admitted that he shot the gun. During the rest of the interview, Ms. Courtney used her phone without any objection from the officers. The interrogation ended shortly after the juvenile's confession.

The juvenile was charged, and later indicted, as a youthful offender for armed assault with intent to murder, G.L. c. 269, § 18(b ) ; assault and battery by means of a dangerous weapon, G.L. c. 265, § 15A(b ) ; and unlawful carrying of a firearm, G.L. c. 265, § 10(a ). After the motion judge decided the juvenile's motion to suppress statements, the Commonwealth appealed from the partial suppression order, the juvenile cross-appealed from the partial denial of his motion, and a single justice of the Supreme Judicial Court allowed the Commonwealth's application for interlocutory appellate review.3

1. Opportunity to consult with interested adult. “Special caution ... must be exercised in examining the validity of inculpatory statements made by juveniles.” Commonwealth v. MacNeill, 399 Mass. 71, 74, 502 N.E.2d 938 (1987), quoting from Commonwealth v. King, 17 Mass.App.Ct. 602, 609, 460 N.E.2d 1299 (1984). In general, when police interrogation involves a juvenile over the age of fourteen,4 as is the case here, the juvenile “may properly waive his constitutional rights if, after having been advised of those rights, he was afforded an opportunity to consult with an interested adult who was informed of and understood those rights.” Commonwealth v. McCra, 427 Mass. 564, 567, 694 N.E.2d 849 (1998).5

Whether the juvenile had a “realistic opportunity” to consult is the critical question, not whether he actually availed himself of the opportunity. Commonwealth v. MacNeill, supra at 78, 502 N.E.2d 938. See Commonwealth v. McCra, supra at 567–568, 694 N.E.2d 849. The Commonwealth is not required to establish that the adult and juvenile actually

28 N.E.3d 1177

had a private consultation.6 Commonwealth v. Philip S., 414 Mass. 804, 811–812, 611 N.E.2d 226 (1993). See Commonwealth v. McCra, supra at 568, 694 N.E.2d 849 ; Commonwealth v. Guthrie G., 66 Mass.App.Ct. 414, 416, 848 N.E.2d 787 (2006), S.C., 449 Mass. 1028, 869 N.E.2d 585 (2007). “The choice of a sixteen year old juvenile not to consult with an available friendly advisor concerning those matters suggests that the juvenile's understanding was such that consultation was unnecessary.” Commonwealth v. Alfonso A., 438 Mass. 372, 381, 780 N.E.2d 1244 (2003), quoting from Commonwealth v. MacNeill, supra at 79, 502 N.E.2d 938.7

In Commonwealth v. Guthrie G., supra, the juvenile faced custodial interrogation at the police station after the police discovered a gun in his bedroom. The juvenile's father met him at the police station to act as an interested adult, and the officer read the Miranda warnings to the juvenile and his father. The father signed the Miranda form.8 Although the officer did not specifically give the juvenile time to consult with his father about the meaning and consequences of waiving his rights, “either the father or the juvenile could have immediately asked to discuss the warnings privately or sought to exercise the Miranda rights after they were read.” Id. at 420, 848 N.E.2d 787. We concluded that “[t]he presence of the parent and child together” was sufficient to establish that the juvenile had an opportunity to consult with his father. Ibid.

Applying these standards, we agree with the motion judge that the juvenile had an opportunity to consult with his guardian and...

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2 practice notes
  • Commonwealth v. Orlando O., 21-P-380
    • United States
    • Appeals Court of Massachusetts
    • April 15, 2022
    ...without leaving the room or offering the juvenile the opportunity to confer, is without legal significance." Commonwealth v. Pacheco, 87 Mass.App.Ct. 286, 291 (2015). The presence of the juvenile's father before and at the time of the administration of the Miranda warnings was sufficient to......
  • In re Simkin, SJC–11750.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 29, 2015
    ...not to pursue his complaints against the attorneys. The record indicates that the Board of Bar Overseers (board) reviewed bar counsel's 28 N.E.3d 1172 decision not to take further action. A single justice denied Simkin's petition without a hearing, reasoning that an “individual who files a ......
2 cases
  • Commonwealth v. Orlando O., 21-P-380
    • United States
    • Appeals Court of Massachusetts
    • April 15, 2022
    ...without leaving the room or offering the juvenile the opportunity to confer, is without legal significance." Commonwealth v. Pacheco, 87 Mass.App.Ct. 286, 291 (2015). The presence of the juvenile's father before and at the time of the administration of the Miranda warnings was sufficient to......
  • In re Simkin, SJC–11750.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 29, 2015
    ...not to pursue his complaints against the attorneys. The record indicates that the Board of Bar Overseers (board) reviewed bar counsel's 28 N.E.3d 1172 decision not to take further action. A single justice denied Simkin's petition without a hearing, reasoning that an “individual who files a ......

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