Commonwealth v. Simon, SJC-10437 (Mass. 3/12/2010)

• Decision Date: 12 March 2010
• Docket Number: SJC-10437.
• Parties: COMMONWEALTH <I>vs.</I> Wally Jacques SIMON.
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1

COMMONWEALTH
vs.
Wally Jacques SIMON. SJC-10437. Supreme Judicial Court of Massachusetts. March 12, 2010. November 2, 2009.

Constitutional Law, Admissions and confessions, Waiver of constitutional rights, Confrontation of witnesses. Practice, Criminal, Admissions and confessions, Motion to suppress, Confrontation of witnesses, Motion in limine. Evidence, Admissions and confessions, Testimonial statement, Spontaneous utterance.

INDICTMENTS found and returned in the Superior Court Department on December 13, 2007.

A pretrial motion to suppress evidence was heard by Hiller B. Zobel, J., and an order denying a motion to exclude testimonial hearsay was reported by him to the Appeals Court.

An application for leave to prosecute an interlocutory appeal of the pretrial motion to suppress evidence was allowed by Cowin, J., in the Supreme Judicial Court for the county of Suffolk. The Supreme Judicial Court on its own initiative transferred the reported order from the Appeals Court.

Aviva E. Jeruchim for the defendant.

Marian T. Ryan, Assistant District Attorney (Fawn D. Balliro Andersen, Assistant District Attorney, with her) for the Commonwealth.

David H. Mirsky, for Committee for Public Counsel Services, amicus curiae, submitted a brief.

Present: Marshall, C.J., Ireland, Spina, Cowin, Cordy, Botsford, & Gants, JJ.

COWIN, J.

In this interlocutory appeal, we determine that the presence of counsel during police questioning of a suspect, when the suspect has had an opportunity to consult with counsel beforehand, substitutes adequately for the giving of Miranda warnings, see Miranda v. Arizona, 384 U.S. 436, 444 (1966) (Miranda). We affirm the Superior Court judge's decision denying the defendant's motion to suppress statements he made during such questioning. In addition, since most of the statements made by the victim during an emergency call to a 911 dispatcher were made to obtain urgent medical attention and, therefore, were nontestimonial, we affirm the denial of the defendant's motion in limine with respect to those statements. However, we conclude that certain statements in response to the dispatcher's inquiries were testimonial, and order those portions redacted.

1. Background and prior proceedings.

We recite the facts found by the Superior Court judge following evidentiary hearings on both the defendant's motion to suppress statements and motion in limine to exclude testimonial hearsay,¹ supplemented by other undisputed evidence in the record, and reserving some facts for later discussion. Although the parties dispute the judge's legal conclusions, the content of the victim's 911 telephone call and the essential facts concerning the questioning of the defendant in his attorney's office are not disputed.

In the early morning of October 24, 2007, police responded to the scene of a shooting of two brothers in their home in Winchester; police had been notified of the home invasion by an emergency 911 cellular telephone call by one of the victims, Bryan Barbaro. The caller stated that he had been robbed; that he and his brother had been shot; that his brother was on the ground and not breathing well; and that he himself was bleeding profusely. The caller was able to provide his full name and address; he repeatedly urged that emergency responders should go to the second floor to treat his brother first before attempting to reach him on the third floor, and at one point exclaimed that his brother might already have died. At some points, the caller recounted the events of the shooting calmly, while at other times he was clearly in dire distress and on the verge of losing consciousness. When police arrived at the address, they found the brother unconscious on the second floor of the house, and the caller, who had been shot in the chest, on the third floor. The brother, Christopher Barbaro, died; the caller was seriously wounded but survived.²

During his conversation with the emergency dispatcher, the caller stated that he recognized his assailant. The caller provided the dispatcher with the assailant's first name (Wally), a physical description, and a description of the assailant's car; he stated also that the assailant worked out at Mike's Gym and that police could obtain further information, including the assailant's last name, by contacting staff at that gym.

Police learned from the victim's relatives that the victim was a member of the Mike's Gym located in Medford. The police were informed by staff at that gym that the defendant, one of two members named Wally, matched the description given during the 911 telephone call. They obtained the defendant's address and motor vehicle registration, located his vehicle, and undertook surveillance of it in unmarked cars. Nevertheless, based on the fact that the defendant abruptly changed direction several times, the police believed, as the judge found, that the defendant was aware that he was being followed. Six or seven police officers followed the defendant from Medford to a parking lot in Boston, where the defendant got out of his vehicle while talking on his cellular telephone. The parking lot was across the street from a commercial building in which the defendant's attorney maintains an office.

Trooper Michael Banks of the State police approached the defendant, stated that he wanted to talk to him, and pat frisked him; the other officers stood nearby on the sidewalk. The defendant responded that he was speaking with his attorney on his cellular telephone and did not want to talk to police until his attorney came downstairs. A few minutes later, attorney Daniel Solomon approached the group. Banks, who knew Solomon, said that the police wanted to question his client about an "incident in Winchester." Solomon informed Banks that he and the defendant would go up to his office, and that Solomon would then notify the police whether the defendant would speak with them. Banks gave Solomon his cellular telephone number and Solomon and the defendant went into the building.

The officers waited nearby in a location from which they could observe the entrance to the office building. Forty-five minutes to an hour later, Banks received a telephone call from investigators who had spoken with the surviving victim at the hospital; Banks was informed that the surviving victim had identified the defendant as the shooter. As two police officers, Trooper Scott McCormack and Detective Paul Deluca, were on their way upstairs to arrest the defendant, Banks telephoned Solomon to see if the defendant would talk to police, and Solomon said that he would. Banks spoke with the two officers who were in the building and told them not to handcuff the defendant yet since he was willing to speak with the police.

The two officers met Solomon at the door to his office and were invited into a conference room. Solomon and the defendant sat on one side of a conference table, and the two officers sat on the other side. McCormack stated that a double shooting and home invasion had taken place in Winchester the previous night, that one of the victims had died, and that the surviving victim had identified the defendant from a photographic array. McCormack, Solomon, and the defendant then conducted an interview in conversational tones; Deluca observed but did not take part in the questioning. Police did not give the defendant Miranda warnings prior to or during the questioning, and Solomon made no representations that he had advised the defendant of the Miranda warnings. The defendant denied that he had anything to do with the shootings and provided an alibi for the time during which they occurred.

Five or ten minutes after the interview began, Banks entered the conference room and asked to speak with McCormack; the two officers spoke privately for a few minutes. Solomon then left the conference room and told Banks that he was ending the interview. Police told Solomon that they were going to arrest the defendant, and proceeded to do so. The defendant was read the Miranda warnings during the booking process at the police station.

The defendant was indicted on charges of murder, home invasion, armed robbery, assault and battery by means of a dangerous weapon causing serious bodily injury, and possession of a firearm without a license. He filed a motion to suppress the statements made to the police in his attorney's office on the ground that they were not made willingly, knowingly, and voluntarily because police had not provided him the Miranda warnings prior to the questioning.³ The judge denied the defendant's motion because he concluded that the presence of the defendant's attorney during the questioning, coupled with the defendant's opportunity to speak with his attorney for forty-five minutes prior to questioning, was an adequate effective safeguard and satisfied constitutional requirements. Pursuant to G.L. c. 278, § 28E, and Mass. R.Crim. P. 15, as appearing in 422 Mass. 1501 (1996), the defendant filed an application for interlocutory appeal; a single justice in the county court allowed the appeal, and the case was entered on the docket of this court.

While the interlocutory appeal was pending, the defendant filed a motion in limine to exclude the content of the 911 telephone call and a motion to dismiss. The motion to dismiss, filed two weeks after Bryan Barbaro's death, asserted that without his testimony there was insufficient evidence to support a conviction. The same judge who had ruled on the motion to suppress denied the defendant's motion in limine; he took no action on the motion to dismiss. The judge also reported his decision on the motion in limine to the Appeals Court. We transferred the appeal from the Appeals Court on our own motion, and consolidated the two appeals.

2. Motion to suppress statements.

The defendant contends that the motion judge erred in denying the motion to suppress his statements made to police on the morning of the shootings. The...