Commonwealth v. Tremblay

• Decision Date: 20 July 2011
• Docket Number: SJC–10845.
• Citation: 460 Mass. 199,950 N.E.2d 421
• Parties: COMMONWEALTHv.Mark D. TREMBLAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

460 Mass. 199

950 N.E.2d 421

COMMONWEALTH

v.Mark D. TREMBLAY.

SJC–10845.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued April 4, 2011.Decided July 20, 2011.

Robert L. Sheketoff (David Yannetti with him), Boston, for the defendant.Melissa Weisgold Johnsen, Assistant District Attorney, for the Commonwealth.Present: IRELAND, C.J., SPINA, CORDY, BOTSFORD, & GANTS, JJ.SPINA, J.

During the evening of April 27, 2002, a boat owned by a man we shall call Harold Nelson ¹ was damaged extensively by fire. Following an investigation by police and fire officials, the defendant, Mark D. Tremblay, was indicted by a grand jury on charges of malicious burning of personal property in violation of G.L. c. 266, § 5; damage to 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 statements that he made to the police during the course of their investigation. After a hearing, a judge in the Superior Court denied the motion, and the case proceeded to trial. A jury returned guilty verdicts on all three charges. The Appeals Court affirmed the convictions, concluding that none of the statements made by the defendant to a State trooper was involuntary, and, therefore, the motion to suppress was properly denied. See Commonwealth v. Tremblay, 77 Mass.App.Ct. 318, 318–319, 931 N.E.2d 54 (2010). We granted the defendant's application for further appellate review. He now contends that his motion to suppress should have been allowed because statements that he made “off the record” during his interview with the State trooper were not voluntary. For the reasons that follow, we affirm.

1. Background. We begin with a summary of the motion judge's findings, supplemented by uncontroverted testimony from the suppression hearing that was implicitly credited by the judge. See Commonwealth v. Washington, 449 Mass. 476, 477, 869 N.E.2d 605 (2007).

Harold Nelson lived in a home adjacent to a lake in Chelmsford. He was the owner of a twenty-foot Bayliner boat. On April 27, 2002, the boat was atop a trailer on land that was across the street from where Nelson lived. That evening, the defendant, who owned a home next door to Nelson, was hosting a small gathering at his house. At around 11:20 p.m., while Nelson was at home in bed, his boat erupted in flames. The fire caused extensive damage to the vessel, and investigators concluded that it had been intentionally set.

Trooper Peter Cummings of the State police, who was working for the fire and explosion investigation section of the State fire marshal's office, was assigned to assist personnel from the Chelmsford police and fire departments with their investigation of the fire. On May 8, 2002, Cummings and Chelmsford fire investigator Henry Houle conducted interviews with various individuals, including several who had attended the defendant's gathering on April 27. Principally as a result of their conversation with one of the party guests, the defendant became the focus of the investigation.

At around 4 p.m. on May 8, Trooper Cummings telephoned the defendant's residence and spoke with his wife. Cummings identified himself and the purpose of his call, namely, that he wanted to speak with the defendant in connection with the fire investigation. The defendant's wife told Cummings that the defendant was at a ballfield, and she gave him the defendant's cellular telephone number. Cummings proceeded to telephone the defendant, identified himself, and stated the purpose for his call, which the defendant said that he had been expecting. Cummings asked the defendant if there was some place where they could get together to talk about whatever information the defendant could provide, and Cummings offered to drive to the ballfield. The defendant said that he preferred not to meet there because numerous distractions would make conversation difficult. Trooper Cummings suggested, as an alternative, the Chelmsford central fire station, and they agreed to meet at that location in five to ten minutes.

When Cummings and Houle, who were traveling in an unmarked vehicle and were casually dressed, arrived at the fire station, the defendant was already there, waiting in his car. After introductions, the three men went inside the fire station and upstairs to a conference room on the second floor. The room had several windows, two doors (one of which provided access to the roof), and a conference table where the men sat; a section of the room that was used as a bedroom for firefighters was partitioned off from the conference area.

Trooper Cummings again informed the defendant that he was investigating the fire on Nelson's boat, that he was collecting information from several people, and that he wanted to hear about the defendant's activities and observations during the evening of April 27. Cummings told the defendant that he wanted to take a written statement from him, and, assuming that the defendant had no objections, Cummings would write the statement in the first person and then the defendant could review and sign it. Cummings told the defendant that he wanted him to be as specific as possible in his recollections of the evening. 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, Cummings did not advise him of his Miranda rights. The defendant expressed his willingness to cooperate.

During the interview, which lasted for a little more than one hour, the demeanor of Trooper Cummings was sympathetic and understanding. He did not yell at or threaten the defendant, and the tone of his voice was conversational. At one point, he closed the windows because of outdoor construction noise, but there was no indication that the room became uncomfortable. The defendant, then approximately fifty years old, appeared relaxed, focused, and coherent. On two or three occasions, he left the conference room to engage in cellular telephone calls. The interview included small talk, and Trooper Cummings told the defendant that if he needed to leave to pick up his son from a ball game, then the interview could be continued at a later time. The defendant chose to stay and finish the interview. At no point did he ask to leave.

The defendant first discussed with Cummings and Houle his two jobs, one working for a company that moved equipment for professional sports teams, and the other installing so-called “kill switches” in police cruisers. Houle did not ask the defendant any questions, but, when Cummings left the room for several minutes to answer a page, he did engage the defendant in a brief conversation about his work and about the Red Sox. At some point during the interview, Trooper 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 asked to elaborate, the defendant suggested that Cummings probably had heard about some of the “gay activities” going on at Nelson's house, but the defendant was reluctant to describe those activities for a written statement. Instead, he expressed a preference for having a discussion about Nelson's activities “off the record.” Trooper Cummings responded, “Fine, you know, we'll go off the record.” ² Speaking in an increasingly agitated manner and using some profane language, the defendant proceeded to express his anger about openly sexual conduct purportedly occurring at Nelson's house in plain view of the defendant's home, and about the reluctance of the defendant's son to spend time at their lake house because of those activities. As agreed, Trooper Cummings did not include these particular comments and opinions in the written statement.

The interview ultimately resulted in the production of a five and one-half page written statement consisting largely of nonincriminating recollections and observations of the defendant's own activities during the evening of April 27. Trooper Cummings persuaded the defendant to include in the written statement a “watered-down version” of his “off-the-record” comments about Nelson's so-called “gay activities.” ³ The written statement also set forth the defendant's opinion that the fire “may have been caused by a lover's quarrel” between “same-sex partners” who have “frequent arguments between them.” The written statement was reviewed by the defendant as Cummings read it aloud, corrections were made and initialed by the defendant, and the statement was signed by the defendant, Cummings, and Houle. The written statement did not include the defendant's “off the record” comments, which the defendant sought to suppress, to the effect that the defendant's son did not want to stay at their lake home any longer because of the sexual activities described in the written statement; that the defendant did not approve of such activities; and that he was “fucking pissed” about what was going on in Nelson's yard.⁴

After the defendant had signed the statement, Trooper Cummings became more confrontational and told the defendant that, based on his conversations with several party guests and his examination of the fire scene, he did not believe parts of the defendant's story. Cummings further told the defendant that he would not listen to the defendant's “bullshit” anymore, but that if the defendant wanted to tell the truth, then Cummings would listen. Cummings then asked the defendant about a conversation between the defendant and one of the party guests, during which the defendant allegedly told the guest that he had changed his shirt during the evening of April 27 because he had spilled gasoline on himself. The defendant insisted that he did not know what Cummings was talking about. When asked about the location of the shirt, the defendant said that he assumed it was at his house and offered to produce it, but he never...