Commonwealth v. Quint Q., 12–P–1154.

• Decision Date: 12 November 2013
• Docket Number: No. 12–P–1154.,12–P–1154.
• Citation: 84 Mass.App.Ct. 507,998 N.E.2d 363
• Parties: COMMONWEALTH v. QUINT Q., a juvenile.
• Court: Appeals Court of Massachusetts

84 Mass.App.Ct. 507

998 N.E.2d 363

COMMONWEALTH

v.QUINT Q., a juvenile.

No. 12–P–1154.

Appeals Court of Massachusetts,

Suffolk.

Argued May 8, 2013.

Decided Nov. 12, 2013.

Sarah H. Montgomery, Assistant District Attorney, for the Commonwealth.

Michael A. Contant, Boston, for the juvenile.

Present: CYPHER, VUONO, & MEADE, JJ.

CYPHER, J.

A complaint issued in the Suffolk County Division of the Juvenile Court Department charging the juvenile with breaking and entering in the daytime with the intent to commit a felony therein, G.L. c. 266, § 18. The juvenile filed a motion to suppress statements he made at the police station during an interrogation. During the interrogation, the juvenile, age fifteen years and eight months at that time, made oral admissions that earlier that day, he had taken a tool from his high school and, in the company of two friends, used it to pry open the door to a house located at 35 Darling Street in the Mission Hill area of Boston, which the three then entered. Later in the fifty-minute interview, the juvenile admitted to breaking into five other homes on earlier dates. The statement was electronically recorded with his consent, and that audio recording was admitted in evidence at the suppression hearing.

In the juvenile's motion papers, he argued that he was not afforded an opportunity to consult with an interested adult, i.e., his mother, and that the police use of an interrogation technique known as “minimization,” combined with implied promises of leniency, rendered his statement involuntary. After a review of the exhibits and an evidentiary hearing, a judge allowed the motion, concluding that the juvenile's statement was not voluntary because he had been coerced by the “domineering” conduct of his mother throughout the interview, and that he was deprived of the presence of an interested adult, also based on her conduct.¹ The Commonwealth appealed,² arguing that the motion should not have been granted on grounds not litigated at the hearing and that, in any event, the judge erred in ruling that the statements were not voluntary or that the juvenile's mother was not an interested adult. We reverse.

Standard of review. Generally, “[i]n reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004), quoting from 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, 450 Mass. 616, 619, 880 N.E.2d 759 (2008), quoting from Commonwealth v. Mercado, 422 Mass. 367, 369, 663 N.E.2d 243 (1996). Here, the judge based his factual findings and legal conclusions on the audio recording of the juvenile's interrogation, and the recording is part of the record on appeal. Thus, we independently will review the recording and make judgments with respect to its content “without deference to the fact finder, who ‘is in no better position to evaluate [the] content and significance.’ ” Commonwealth v. Novo, 442 Mass. 262, 266, 812 N.E.2d 1169 (2004), quoting from Commonwealth v. Bean, 435 Mass. 708, 714 n. 15, 761 N.E.2d 501 (2002). On review, we “are in the same position as the ... judge” in listening to the audio recording. Ibid., quoting from Commonwealth v. Prater, 420 Mass. 569, 578 n. 7, 651 N.E.2d 833 (1995).

Facts. We summarize the evidence presented at the suppression hearing, which is not disputed and which the judge credited in all but one instance, noted infra. Sergeant Detective Timothy Horan of the Boston police department testified that on March 28, 2011, he was directed to 35 Darling Street to investigate a break-in in progress. A neighbor had telephoned 911 and reported seeing several suspects trying to pry open the back door of the house at that address. Two police officers arrived in advance of Horan and caught one of the alleged culprits at the scene, John Doe.³ Upon Horan's arrival he spoke to Doe, who said that he had been with the juvenile and a third individual. Doe said the juvenile had taken a tool from his plumbing class and had used it to pry open the door. Doe admitted that the three intended to go inside to see what they could steal. He gave the police the address for each of the two other suspects.

Based on the initial radio dispatch and Doe's statements, Horan believed he had probable cause to arrest the juvenile. Accompanied by two other detectives, Horan went to the juvenile's home and arrested him, transported him to the police station, and contacted his mother. The booking procedure began at about 6:15 p.m. The juvenile's mother arrived at the police station, and the interrogation began soon thereafter at 8:07 p.m.

The interview was conducted by Horan and Detective Phyllis Carter. The judge found that “Horan read each line of the Boston police department Miranda warning juvenile form to the juvenile and asked the juvenile to initial each statement expressing his Miranda rights. After the juvenile signed the Miranda warning form, his mother was asked to initial the form, as well.” She did so on the appropriate lines next to the specific Miranda rights and “replied that she had done it before.” During the interview the juvenile acknowledged that he had been on probation and that he had been doing community service. ⁴ Horan also obtained the juvenile's consent to record the interview. The judge found that as “the interview proceeded, the mother began to participate in the process with various statements, remarks, and observations.”

Initially, the juvenile did not know what the date was, and the mother remarked, “You should know what today's date is if you stayed in school all day.” Horan asked the juvenile to give his account of his “activities this morning up on Darling Street on Mission Hill.” The juvenile said, “We was just walking around. And then we just went inside this backyard and we noticed that this door was open, so we went inside the room, went inside the room and see if we can find something. Well, not find anything; we went to see what was in there ... and when we was leaving, we seen that there was a lot of cops.”

Horan focused on the entry and asked, “Who opened the door?” The juvenile first said that “it was open,” and when questioned again, said, “I don't know.” When Horan asked if a crowbar was used to break into the house, the mother interjected, “Shit, if I check my car, my crowbar better be in my car.... [My car is] outside.” The juvenile continued to deny any knowledge of how the door had been opened. Horan explained the situation to the juvenile as follows:

“[T]hat's not the truth. I know it's not the truth and you know it's not the truth.... [H]ere's what's going to happen. I'm going to ask you a bunch of questions. Some of those questions I already know the answer to. Some of them I don't know the answer to. This one I know the answer to; I know how you got in the door. I need you to tell me the truth, because if you don't tell me the truth, we're wasting our time here. This is a chance for you to come clean, [and then] I can speak to the D.A., I can speak to somebody in probation and I can say that you were straight up with me and you were cooperative, and, you know, maybe what you did, ... a momentary lapse of judgment; you made a mistake, but it's not indicative of who you are as a person. So what I need you to do is to step up and tell the truth. If you keep trying to avoid responsibility, ... we can't help you. How did you get in the door?”

With a few more prompts from Horan such as, “We did our homework,” the juvenile admitted he took a tool from his plumbing class, but continued to deny that he used it or that he was present when the door was opened. The detectives pressed him on the point, telling him that witnesses saw the incident. His mother added, “[P]eople seen.... There's witnesses,” and the juvenile said, “I didn't open the door, though.” She urged him “to tell the truth.”

Horan then raised the concept of joint venture, and the juvenile's mother interrupted and asked if she could explain joint venture to the juvenile. She said, “[J]oint venture is what your uncle did thirteen years for; [for] being around someone, not knowing he killed somebody, but he was there. Joint venture. He did twelve years, both of your uncles, thirteen and twelve. You know this.” When the juvenile's mother finished, Horan told him, “This is your chance to tell the truth.” Horan again asked the juvenile, “Who opened the door?” The juvenile admitted, “I opened the door.”

Horan also explored whether any bicycles were stolen once the juvenile and the two others were inside the house. When the juvenile denied taking a bicycle, his mother told police, “That [one of the other suspects] would have rode his ass on a bike all the way to Mattapan.”

The interview turned to questions regarding the juvenile's participation in earlier break-ins. The mother's participation increased during this discussion, including asking the juvenile, “[H]ow many houses have you broken into?” and, “Who lives in Mission Hill?” She told the officers, in regard to jewelry that the juvenile eventually admitted stealing, that “[h]e don't go in [to the pawn shops].... I know that for a fact, because the adult ... he been around, I know he don't go in there. He can't....”

At some point in the discussion concerning with whom the juvenile was associating, the mother said to the detectives, “Ask him who shot ... up where I live at now.” The judge found that she then “went into a three-minute discussion with the juvenile about the circumstances surrounding an incident at their house where someone started shooting a gun, and her daughter was nearly hit by gunfire. There were nine shell casings found at...