Recently in COMMONWEALTH vs. PAUL J. TLASEK 77 Mass.App.Ct. 298 (2010) the Mass Appeals Court found that the defendant had validly waived his 6th amendment right to counsel.
In a convoluted decision the court stated “After a jury trial in the Superior Court, the defendant was convicted of trafficking in cocaine in violation of G. L. c. 94C, § 32E(b), and trafficking in cocaine in a school zone in violation of G. L. c. 94C, § 32J. In a companion memorandum and order issued pursuant to Appeals Court Rule 1:28, as amended, 73 Mass. App. Ct. 1001 (2008), we conclude that reversal of these convictions is required by the United States Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts, *299 129 S. Ct. 2527 (2009).
Commonwealth v. Tlasek (No. 2), post 1111 (2010). For purposes of a potential retrial, we separately address the defendant’s claim that incriminating statements he made to the Canton police should have been suppressed as a violation of his right to counsel under the Sixth Amendment to the United States Constitution. For the reasons set forth below, we affirm the denial of the defendant’s motion to suppress.
Discussion. As noted above, the principal ground on which the motion judge relied was that the defendant’s Sixth Amendment right to counsel was not even implicated because the Canton police came to question the defendant about the Canton housebreak, not about the drug offenses. The defendant argues that this conclusion is erroneous, in essence, because the Canton police knew or should have known that their interrogation could easily lead him to make statements that would incriminate him on the drug charges. See United States v. Bender, 221 F.3d 265, 268 (1st Cir. 2000) (where it was obvious that questioning would lead to incriminating statements on pending charges, and those statements “were deliberately elicited post-indictment, and were obtained in the absence of counsel . . . they were obtained in violation of the Sixth Amendment and were rightly suppressed by the district court”). We need not address the merits of the defendant’s argument, because it is plain that the defendant waived his Sixth Amendment right to counsel before he spoke with the Canton police.
At the time of the motion judge’s ruling, case law clearly established that, absent the consent of counsel, the police could not initiate an interrogation regarding a charge for which the Sixth Amendment right to counsel had attached and been asserted, regardless of whether they had secured a valid Miranda waiver. See Michigan v. Jackson, 475 U.S. 625, 636 (1986) (“holding] that, if police initiate interrogation after a defendant’s assertion . . . of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid”). However, in May, 2009, the United States Supreme Court effected a sea change in the law when it overruled Michigan v. Jackson. See Montejo v. Louisiana, 129 S. Ct. *3022079, 2091 (2009). Under Montejo, a valid Miranda waiver suffices to waive one’s Sixth Amendment right to counsel.
Here, the defendant was read his Miranda rights, and he signed a standard Miranda waiver form. We discern no error in the motion judge’s conclusion that this was a valid Miranda waiver, and Montejo therefore compels us to conclude that the defendant waived his Sixth Amendment right to counsel when he agreed to speak with the Canton police.
We recognize that the defendant’s waiver of his Sixth Amendment right does not mean that he also necessarily waived his parallel right under art. 12 of the Massachusetts Declaration of Rights. Although the defendant asserted his art. 12 right below, on appeal he relied entirely on the Sixth Amendment in arguing that his statements to the Canton police should have been suppressed, even though Montejo had been decided a month before his brief was filed. Moreover, despite the fact that the Commonwealth cited to Montejo in its opposition brief, the defendant did not file a reply brief seeking to raise art. 12 issues. We therefore conclude that the issue whether the defendant waived his art. 12 right to counsel, and the issue whether the questioning by the Canton police infringed upon that right, are not properly before us.
3. Conclusion. For the reasons stated above and in the companion memorandum and order, Commonwealth v. Tlasek (No. 2), post 1111 (2010), the judgments on indictments 07-00359-001 and 07-00359-002, charging trafficking in a controlled substance, and trafficking in a controlled substance in a school zone, are reversed, and the verdicts are set aside. The judgment on indictment 07- 00359-005, charging resisting arrest, is affirmed.”
The defense counsel attempted to argue that the defendant being questioned post arraignment/indictment for a separate offense would lead to the offense to which they had been arraigned or indicted on.
Attorney Ronald A. Sellon