Commonwealth v. Tremblay., 08-P-1618.

• Decision Date: 05 August 2010
• Docket Number: No. 08-P-1618.,08-P-1618.
• Parties: COMMONWEALTH v. Mark D. TREMBLAY.
• Court: Appeals Court of Massachusetts

77 Mass.App.Ct. 318

931 N.E.2d 54

COMMONWEALTH

v.Mark D. TREMBLAY.

No. 08-P-1618.

Appeals Court of Massachusetts,Middlesex.

Argued Dec. 10, 2009.

Decided Aug. 5, 2010.

Further Appellate Review Granted Oct. 27, 2010.

Robert L. Sheketoff, Boston, for the defendant.

Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.

Present: LENK, DUFFLY, & McHUGH, JJ.

McHUGH, J.

On the night of April 27, 2002, a boat parked on a trailer near a lake in Chelmsford was extensively damaged by a fire. Police later determined that the fire had been deliberately set. An investigation led to the indictment of Mark D. Tremblay, the defendant, who was convicted by a Superior Court jury of malicious burning of personal property, damage of property for the purpose of intimidation, and a civil rights violation. On appeal, the defendant claims that the motion judge (who was not the trial judge) improperly denied his motion to suppress certain oral statements he made to a State trooper “off the record.” After careful review of the record, we affirm.

Background. In summarizing the pertinent facts, we draw on the judge's findings on the motion to suppress, supplemented by uncontested testimony from the suppression hearing that was implicitly credited by the motion judge. See Commonwealth v. Washington, 449 Mass. 476, 477, 869 N.E.2d 605 (2007); Commonwealth v. Porter P., 73 Mass.App.Ct. 85, 86, 895 N.E.2d 775 (2008), S.C., 456 Mass. 254, 923 N.E.2d 36 (2010). Those sources reveal that in April, 2002, a man we shall call Harold Nelson ¹ lived in a house near a lake in Chelmsford. Nelson owned a motor boat that he kept on a trailer parked on his lot. The defendant owned the house next door to Nelson's and, on the evening of April 27, was holding a small party for some friends. At about 11:20 p.m., Nelson's boat suddenly erupted in flames and was extensively damaged.

State Trooper Peter Cummings, who worked with the fire and explosion section of the State fire marshal's office, investigated the case and quickly determined that the fire had been intentionally set. As a result of an interview Cummings conducted on May 8, 2002, the defendant became the investigation's principal target.

At about 4:00 p.m. on May 8, Cummings telephoned the defendant's home and spoke with his wife, explaining that he wanted to speak to the defendant as part of his investigation. In reply, Ms. Tremblay told Cummings that her husband was at a baseball field, and gave Cummings a cellular telephone number where the defendant could be reached. Cummings telephoned the defendant, identified himself, told the defendant why he was calling and said he would like to meet with him. In response, the defendant said that he had been expecting the call.

Cummings asked where and when the defendant would like to meet, and offered to come to the ballfield. The defendant said that he preferred to meet elsewhere, so Cummings suggested the Chelmsford central fire station. They agreed to meet there in five to ten minutes. As planned, Cummings and his colleague, Chelmsford fire investigator Hank Houle, met the defendant at the fire station a few minutes later. The trooper and the investigator were in an unmarked vehicle and were dressed casually.

In the conference room at the fire station, Cummings told the defendant that he wanted to discuss the boat fire. Cummings also said that he wanted to obtain a written statement from the defendant, and that he would write the statement in the first person for the defendant's review and signature. The statement, Cummings said, had to contain specifics. Cummings did not tell the defendant that he was a suspect or a target of the investigation. Moreover, having determined that the defendant was not in custody, he did not give the defendant the so-called Miranda warnings.

During the interview, which lasted a little more than one hour, the trooper's demeanor was sympathetic. The defendant, who was fifty years old at the time, was cooperative and appeared relaxed, focused, and coherent. On multiple occasions, he left the conference room to engage in cellular telephone conversations. The interview included small talk, during the course of which the defendant discussed work he had performed moving equipment for professional sports teams and installing “kill” switches in police cruisers. At one point Cummings told the defendant that he could leave to pick up his son and resume the interview later if he wished, but the defendant decided to stay and finish the interview.

At some point, Cummings asked the defendant if he had any idea who might have been responsible for setting fire to Nelson's boat. The defendant responded that he “had his suspicions.” When Cummings pressed him to amplify, the defendant said that Cummings probably had heard about the “gay activities” at Nelson's house. Expressing reluctance to describe those activities in writing, the defendant said that he would prefer to discuss them with Cummings “off the record.” Cummings said, “Fine, ... we'll go off the record.”

Once “off the record,” the defendant, in an agitated narrative during which he used profanities, expressed his anger about “some of the things that he and his wife [had] been subjected to.” He then described some activities of Nelson's that he claimed to have witnessed, and ended by saying that that he did not want his son looking at Nelson and his “lovers kissing out in the hot tub” at the back of Nelson's house.

As the motion judge noted, after the defendant finished, he agreed, at Cummings's urging, to include in the written statement “a watered-down description of the so-called ‘gay activities,’ including the purported sexually explicit conduct that occurred in plain view of the defendant's house.” The defendant also agreed to include in the statement his suspicion that the fire “may have been caused by a lover's quarrel” between “same-sex partners” who have “frequent arguments.” ² The interview ultimately resulted in a five and one half page handwritten statement that was reviewed by the defendant, Cummings, and Houle. After the defendant signed the statement, Cummings became more confrontational and told the defendant that he did not believe him. Among other things, Cummings asked the defendant about a conversation the defendant had had with Peter Karlson, one of the guests at the defendant's party on the night of the fire, in which the defendant told Karlson that he had changed his shirt during the evening because he had spilled gasoline on himself when he lit the boat on fire. The defendant insisted that he did not know what Cummings was talking about. When Cummings asked if he could see the shirt the defendant had been wearing early on the evening of the fire, the defendant said that he assumed the shirt was at his house and offered to produce it, though he never did.

The interview ended shortly after Cummings asked to see the shirt. As it ended, Cummings told the defendant that he was likely to be indicted for arson, and that “now was the time to start telling the truth.” To that, the defendant responded that he had provided all the help he could, and, accompanied by Cummings's valedictory, “Good luck, you're going to need it,” he left the fire station.

On June 27, 2002, the defendant was indicted for malicious burning of personal property, in violation of G.L. c. 266, § 5; damage of property for the purpose of intimidation, in violation of G.L. c. 265, § 39; and a civil rights violation under G.L. c. 265, § 37. The defendant filed a motion to suppress the “off the record” statements he had made to Cummings. That motion was denied after an evidentiary hearing. In a thorough and careful memorandum of decision, the motion judge, after canvassing and discussing applicable precedent, found that “[w]hile the defendant was likely misled concerning the ultimate use against him of his more offensive description of his neighbor's alleged sexual preference and conduct, the defendant was voluntarily talking with the investigators before any promise or assurance, and the essence of these comments was voluntarily included in his written statement. Indeed, the fact that the defendant was sufficiently savvy to ensure that the version which was potentially more harmful to himself was not included in the written statement is another indication of the absence of coercion.”

Following a jury trial where the evidence included the “off the record” statements, testimony about the defendant's “off the record” request, and testimony about the kind of language the defendant and his friends used when discussing Nelson and his friends, the defendant was found guilty of all three counts of the indictment. ³ On appeal, his sole argument is that the “off the record” statements were involuntary and should not have been introduced at the trial.

Discussion. In assessing the defendant's claim, we start with the familiar proposition that a confession or an admission may be admitted as evidence in a criminal trial only if the defendant made the statement voluntarily. See, e.g., Commonwealth v. Sheriff, 425 Mass. 186, 192, 680 N.E.2d 75 (1997). In turn, the test for voluntariness 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. Souza, 428 Mass. 478, 483-484, 702 N.E.2d 1167 (1998), quoting from Commonwealth v. Raymond, 424 Mass. 382, 395, 676 N.E.2d 824 (1997).

“In evaluating the voluntariness of a defendant's statement, a number of factors are to be considered, including the following: age; education; intelligence; emotional stability; physical and mental condition; conduct of the defendant; who initiated the conversation with the police; experience with and in the criminal justice system; the details of the interrogation, including recitation of Miranda rights; and whether...