Commonwealth v. Zinkievich
| Decision Date | 12 June 2007 |
| Docket Number | 200600718 |
| Citation | 2007 MBAR 058 |
| Parties | Commonwealth of Massachusetts v. Christopher Zinkievich |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Agnes, Peter W., J.
1. The defendant, Christopher Zinkievich, is charged by indictment with the offenses of Armed Burglary in violation of G.L.c 266, §14A, Armed Robbery in violation of G.L.c. 265, §17, and Breaking and Entering in the Nighttime with the Intent to Commit a Felony in violation of G.L.c. 266, §16. He has filed a pretrial motion to suppress. Based on the credible evidence presented at the evidentiary hearing I conducted, I make the following findings of fact and rulings of law.
2. I generally credit the testimony of Detective William C Marcelonis, Jr. of the Oxford Police Department. On December 28, 2005, at approximately 5: 00 a.m. he commenced an investigation of a breaking and entering crime at a single-family home located at 577 Main Street, Oxford, Mass. The victim, Elizabeth P. Malkowski, age 93, reported that she first awoke about 10: 00 p.m. but fell back to sleep without getting up. About one hour later, she awoke again and went into her kitchen where she was grabbed from behind by two males. She was tied up. Fifty dollars in cash was stolen. She described her assailants as one large and one slender male. The slender male had a "baby face." During their investigation, the police found a distinctive article of clothing at one of the far ends of the victim's property away from her home (a black and gold South Pole sweatshirt). The victim never told the police that one of the perpetrators had worn such a sweatshirt. In the course of their investigation, the police used specially trained dogs who tracked scents detected in the victim's home to an area about 50-60 yards away from the defendant's home. However, this evidence did not cause the police to believe the defendant was involved in the crime at the time.
3. Detective Marcelonis learned of statements by other persons about the defendant's involvement in the breaking and entering. The police investigation led them to believe that the defendant might be able to identify the owner of the sweatshirt. On January 2, 2006, the police went to the defendant's home at 53 Plantation Road at approximately 8: 30 a.m. At this point, the defendant was a definite suspect. The police, who were in plainclothes, were admitted to the home by Wendy Griffin, the defendant's mother. She identified a photograph of the sweatshirt as belonging to her son. She also gave her permission for the police to speak to the defendant who was 17 years old at the time. In her presence, the police showed the photograph to the defendant and asked him if he recognized it. There was no show of force by the police. No one raised his or her voice, and no weapons were drawn. The defendant stated that the sweatshirt belonged to him, that he had not seen it since he left it at Green Brier Park six days ago. The police advised the defendant and his mother that if the defendant knew anything about the break-in, he should tell the police. At this point the police left the defendant's home. The entire interview lasted about 20 minutes.
4. That same day, at approximately 1: 30 p.m., the police went to the home of Terrance Melo in Oxford, Mass. who was one of two friends the defendant told the police he was with when he lost the sweatshirt (the other being Corey Langton). Detective Marcelonis was admitted to the home by Terrance's father. Terrance is 20 years old. Suddenly and unexpectedly, the defendant walked into the room from another part of the home and stated that he needed to speak to the police. The defendant, pointing to the shirt he was wearing, stated that "I had this on" on the night of the incident, and not the sweatshirt that he had identified earlier that day in the photograph. Detective Marcelonis asked the defendant to leave so he could conduct an interview with Terrance Melo. Terrance denied that he and Langton were with the defendant on the night of the crime in question and gave Detective Marcelonis a written statement to that effect.
5. A few minutes later, the defendant entered the room once again. The defendant stated that he was with Terrance Melo on the night of the crime and was wearing the shirt he had on. In the presence of the defendant and Detective Marcelonis, Terrance Melo stated "Why are you lying dude?"
6. At this point, the defendant and Detective Marcelonis went outside to carry on their conversation in private. Detective Marcelonis did not use any force, did not display any weapon, and did not order the defendant to do or say anything. There was no shouting or raised voices. While standing in the Melo's driveway, Detective Marcelonis stated, "What should I believe?" The defendant stated that he had problems at home and that his girlfriend was pregnant. The defendant asked Detective Marcelonis for his business card. At this point, Detective Marcelonis left the area and drove to the defendant's home. Detective Marcelonis had further conversation with the defendant's mother. She told him that she wanted to be present at any subsequent police interviews with her son.
7. Four days later, on January 6, 2006, Detective Marcelonis went to Oxford High School and spoke to the police Resource Officer assigned to the school. The high school is a locked facility during school hours and visitors need permission to speak to students while school is in session. The School Resource Officer located the defendant who accompanied the two police officers to an office. No Miranda warnings were administered. There is no evidence that the defendant was told he was required to speak to the police. The police did not notify the defendant's mother or father that they intended to interview him prior to going to the school. The defendant was not informed he was under arrest or even in custody. The defendant was not informed that he was a suspect, and the police did not say anything or do anything to communicate that fact. The atmosphere was calm. There was no show of force and no aggressive questioning. The interview was brief. Detective Marcelonis asked the defendant where at the Green Brief Park did you leave the sweatshirt? The defendant replied, "On a cement slab at Green Brier." The interview them terminated.
8. After conducting several additional interviews, the defendant was arrested at Oxford High School on January 24, 2006. He was handcuffed and transported to the police station by the school's Resource Officer. He was not advised of his Miranda rights at the time of his arrest. The booking process lasted for about 20 minutes.[1] The defendant was upset and crying. After he was booked, the defendant was brought to Detective Marcelonis's office at the police station. The defendant was informed that he could make a statement. The defendant asked some questions about the differences between misdemeanor and felony charges and the circumstances under which he would be allowed to have visitors while in custody. Detective Marcelonis explained these differences and also offered his views on the differences between serving "House time" and "state prison time." The interview terminated. The defendant was returned to the holding area. About fifteen minutes later, the School Resource Officer told Detective Marcelonis that the defendant wanted to make a statement. Detective Marcelonis retrieved a tape recorder, but did not use it. The defendant asked for a cigarette and one was provided. The defendant asked about the difference between "state and county time." He also asked whether his girlfriend would be allowed to visit him in jail. The defendant then made a remark to the effect that "at least I'll have friends with a clean asshole."
9. First interview of the defendant at his home: not custodial voluntary. The first interview of the defendant conducted by detective Marcelonis took place under circumstances in which the defendant was not in custody, and thus was not entitled to Miranda warnings before police questioning.
Custodial interrogation requiring Miranda warnings has been defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966). Commonwealth v. Coleman, 49 Mass.App.Ct. 150, 153 (2000). Commonwealth v. Damiano, 422 Mass. 10, 13 (1996).
There is no indication that the police exhibited any show of force, coerced or tricked the defendant into making statements, or communicated to him a belief that he was a suspect. See Commonwealth v. Conkey, 430 Mass. 139, 144 (1999) (); Commonwealth v. Harris, 387 Mass. 758, 765-66 (1982) (same). Also, there is no evidence that the defendant was under the influence of alcohol or drugs, or suffering from any disability. Thus, there is no evidence to suggest that these statements were other than voluntary.
10. Second interview of defendant inside Melo home: not custodial; voluntary. The second encounter between Detective Marcelonis and the defendant took place purely by chance when Detective...
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