Recently, the SJC decided a significant case on Miranda based interviews in COMMONWEALTH vs. JEROME MCNULTY 458 Mass. 305 (2010). The decision took the old rules under Comm v. Mavredakis (duty to inform the defendant of attorneys attempts to contact him) and expanded its scope as well as the duties on police. I have left most of the facts of the case in this post so they can be read as well. The crucial portion of the decision isn’t just the end result but also the facts that led to the results, so that police can ensure they don’t make future mistakes. I also included the dissent by Justice Gants, which includes some strong language which may prove helpful in the future. That portion will be posted tomorrow due to the length.
The court in deciding the case stated “The defendant, Jerome McNulty, appeals from his conviction of murder in the first degree, G. L. c. 265, § 1, as well as from two convictions of assault and battery by means of a dangerous weapons (a knife), G. L. c. 265, § 15A. [Note 1] He also appeals from the denial of his motion for a new trial. We conclude that the defendant’s right under art. 12 of the Massachusetts Declaration of Rights to be informed by the police of his attorney’s attempts to provide assistance was violated. See Commonwealth v. Mavredakis, 430 Mass. 848 , 859-860 (2000) (Mavredakis). We further conclude that the error in admitting in evidence the defendant’s entire, signed, statement to the police was not harmless beyond a reasonable doubt in relation to the conviction of murder in the first degree. We therefore reverse that conviction and remand that portion of the case for a new trial. We affirm the convictions of assault and battery by means of a dangerous weapon, but remand for sentencing.
2. Claimed violation of right to assistance of counsel. a. Additional background. The defendant challenges on appeal the denial of his motion to suppress his statement to Sergeant Marks and Detective Page. In his motion, he claimed that the police had obtained his statement in violation of his rights to the assistance of counsel protected by art. 12 as interpreted in Mavredakis, 430 Mass. at 859-861, and also that his statement was not voluntary. We summarize the motion judge’s findings of fact regarding the claimed Mavredakis error, according them deference absent clear error, and referring to other evidence as necessary to provide context for the discussion. [Note 6] We make constitutional assessments based on those facts independently. Commonwealth v. Diaz, 453 Mass. 266 , 272 (2009).
At approximately 9:12 A.M. on March 29, 2001, the defendant’s custodial interview with Sergeant Marks and Detective Page began. Before the interview, the defendant again was read his Miranda rights, and was asked to acknowledge whether he understood the rights. Marks wrote down the defendant’s statements as he spoke. The group took a break from approximately 10 A.M. until 10:15 A. M., during which time the defendant was given a soda and a cigarette. The interview resumed at 10:15 A.M.
At 10:27 A.M., Attorney Raymond Buso was appointed by the Committee for Public Counsel Services to represent the defendant, and began driving from the South Boston Division of the Boston Municipal Court Department to the Salem police station. According to Buso’s telephone records, Buso telephoned the Salem police station at 10:31 A.M., [Note 7] and identified himself as the defendant’s attorney. Officer Patricia Murphy, who answered the telephone, neither confirmed nor denied the defendant’s presence, even though she had been the booking officer. Murphy transferred Buso’s call into Detective Sergeant Prosniewski’s voice mail. Prosniewski was the public information officer for the police department. Buso telephoned the police department a second time at 10:34 A.M., after disconnecting from Prosniewski’s voice mail, reached Murphy, and explained to her that he needed to speak to a “live body.” Murphy transferred him to Officer Baglioni. Baglioni was acquainted with Buso and, although he confirmed the defendant was at the station, told Buso that he needed to speak to Sergeant Griffin, and gave Buso a different telephone number. Over the next four or five minutes, Buso attempted to reach that number. When he eventually got through to Griffin at 10:42 A.M., he identified himself as counsel for the defendant, and told Griffin that he wanted to speak with his client. Griffin confirmed that the defendant was at the station, but told Buso that he could not speak to the defendant at that time. Buso asked Griffin “to tell the defendant not to talk to the police and that he would be there shortly”; Griffin said, “O.K.” Before relaying any message, however, Griffin called the first assistant district attorney, and was advised to inform the defendant that counsel had been appointed and wanted to speak to him, and that the defendant could end the interview and speak to counsel if he wanted to.
At approximately 10:45 A.M., Griffin relayed this message to Marks and Page outside the interview room. By this time, the defendant had finished his statement and the officers were reviewing it with him. Marks told the defendant that Buso had been appointed to represent him; that the defendant could stop speaking to the officers and speak to Attorney Buso at that time or could keep speaking to them; and that it was his choice. The defendant stated that he wished to keep speaking to the officers. Marks memorialized what he had conveyed to the defendant about counsel on the piece of paper on which he was writing the defendant’s statement and, at 10:52 A.M., the defendant acknowledged through his signature “that the statement accurately reflected what he had been told concerning Attorney Buso.” Between 10:52 A.M. and 11 A. M., Marks read the entire statement to the defendant. At approximately 11 A.M., the defendant signed each page of Marks’s handwritten notes, acknowledging the written words were his statement.
Buso arrived at the Salem police station about 11 A.M. He identified himself as counsel for the defendant, and asked to speak to the defendant “right away.” About three or four minutes later, Griffin met with Buso. Although Buso asked to speak with the defendant, Griffin denied the request, stating that “he had informed [the defendant] that an attorney had called and that he had passed the message on that I asked him to, and that [the defendant] wished to continue talking.” It was not until about twenty minutes after his arrival at the police station that Buso was permitted to speak to the defendant, which was about fifty minutes from the time he had first contacted the Salem police department. The motion judge found that while the police should have been “more aggressive” in responding to Buso’s inquiries, the police had not been “purposefully dilatory.”
Based on these findings, the motion judge ruled that Sergeant Griffin was obligated, once he had spoken to Buso at 10:42 A.M., to inform the defendant immediately of Buso’s attempts to offer assistance, rather than contacting the first assistant district attorney. See Commonwealth v. Vao Sok, 435 Mass. 743 , 753 (2002). The judge, however, concluded that the information conveyed to the defendant at 10:45 A.M. about Buso’s appointment and availability satisfied the requirements of Mavredakis. Accordingly, the judge concluded that because nothing of substance transpired between 10:42 A.M. and 10:45 A.M., the error did not prejudice the defendant and did not require suppression of any part of the statement. The judge denied the defendant’s motion to suppress.
b. Analysis. In Mavredakis, this court held that under art. 12, when an attorney representing a suspect held in custody makes it known to the police that the attorney is seeking to reach his or her client to provide legal advice, the police have an affirmative duty to inform the suspect immediately of the attorney’s efforts. Mavredakis, supra at 859-860. Failure to do so ordinarily requires suppression of statements made by a defendant thereafter, because the prior waiver becomes ” ‘inoperative’ for further admissions.” Id. at 861, quoting Commonwealth v. McKenna, 355 Mass. 313 , 324 (1969). The principles outlined in Mavredakis have been part of our law for many years. See Commonwealth v. Sherman, 389 Mass. 287 , 296 (1983) (police failure to inform defendant of attorney’s request to be present “vitiated the defendant’s waiver of his Miranda rights”); Commonwealth v. McKenna, supra at 323-324 (police failure to inform defendant of attorney’s request to be present during interrogation rendered any previous Miranda waiver by defendant “inoperative”). See also Commonwealth v. Mahnke, 368 Mass. 662 , 691-693 (1975), cert. denied, 425 U.S. 959 (1976) (statements made after police knew defendant’s attorney urgently sought to contact principal police officer on case, but did not so inform defendant, properly suppressed as part of prosecution’s case-in-chief; statements could be used to impeach defendant if he testified). [Note 9]
The duty to inform described in Mavredakis is one that attaches immediately after the attorney communicates to the police that he or she represents a suspect in police custody and seeks to communicate with the suspect in order to provide legal advice. See Mavredakis, 430 Mass. at 852, 861-862 (defendant’s statements made any time after 10:15 P.M., when defendant’s first attorney telephoned police station and asked to speak to defendant, should have been suppressed); Commonwealth v. McKenna, 355 Mass. at 324-325. See also Commonwealth v. Vao Sok, 435 Mass. at 751, 753 (“when an attorney identifies himself or herself to the police as counsel acting on a suspect’s behalf, art. 12 requires the police to stop their questioning and inform the suspect of the attorney’s availability immediately”; improper for police lieutenant first to contact assistant district attorney about attorney’s attempts to assist defendant rather than directly informing defendant of attempts, but in circumstances of case, error harmless beyond reasonable doubt). Accordingly, in the present case, the failure of the police to inform the defendant of Buso’s telephone call immediately after Murphy received Buso’s original call at 10:31 A.M., was improper; the trial judge, in deciding the defendant’s motion for a new trial, correctly ruled that all state ments made by the defendant after 10:31 A.M. should have been suppressed. We also agree with the trial judge that, in the particular circumstances of this case, where there was no way to determine from Sergeant Marks’s handwritten memorialization of the defendant’s statement exactly what the defendant said between 10:15 A.M. and 10:31 A.M., and what he said between 10:31 A.M. and 10:45 A.M., every statement of the defendant memorialized between 10:15 A.M. and 10:45 A.M. was subject to suppression.
That there was a duty to inform the defendant concerning Buso’s efforts to contact him as of 10:31 A.M. leaves open the question what information the police were required to convey. Both the motion judge and the trial judge, in deciding the defendant’s motion to suppress and motion for a new trial respectively, concluded that the information conveyed by Marks to the defendant about Buso’s message satisfied Mavredakis, and that the defendant, in stating at some point between 10:45 A.M. and 10:52 A.M. that he would continue to speak with the police after hearing Marks’s information, validly waived his right to the assistance of counsel. We disagree.
The obligation, defined in Mavredakis, is “to apprise the defendant of a specific communication from his attorney that bore directly on the right to counsel.” Mavredakis, supra at 861, quoting State v. Stoddard, 206 Conn. 157, 169 (1988). Here, according to the motion judge’s findings, Buso made four separate points to the Salem police when he ultimately was connected to Sergeant Griffin: (1) he represented the defendant; (2) he wanted to speak to the defendant; (3) the police were to tell the defendant that Buso said not to talk to the police; and (4) Buso would be at the station shortly. In our view, each of Buso’s four points related directly to the defendant’s right to counsel, see id., and the police here essentially failed to inform the defendant of three out of the four. In particular, as Mavredakis makes clear, the statements that Buso had expressly requested to speak to the defendant and would be at the station “shortly” — the second and fourth points — could be of critical importance in “actualizing” the abstract promise of an attorney provided by the Miranda warning into concrete reality; there is a significant difference between being told that one can stop questioning and speak to an appointed attorney, and hearing that the appointed attorney has already stated that he or she wants to meet and speak, and is in fact due to arrive at one’s side “shortly.” See Mavredakis, supra at 859-860. [Note 10], [Note 11]
The third point was also significant — that is, it was critical for the defendant to be told, which he was not, of the specific advice that the identified attorney, Buso, was already giving — namely, that the defendant should not continue to speak to the police. See Commonwealth v. Vao Sok, 435 Mass. at 752-753 (in concluding that defendant was adequately informed of his attorney’s efforts to render legal assistance, court noted that State police officer informed defendant that defendant’s attorney had indicated he [attorney] wanted ongoing polygraph examination terminated, that he was seeking to locate defendant on behalf of another attorney already representing defendant on another case, and that he wanted all questioning of defendant to cease). See also Commonwealth v. Anderson, 448 Mass. 548 , 552, 556 (2007) (if investigating State police lieutenant had not informed defendant that identified attorney had been appointed to represent him and that attorney had requested defendant not be interviewed, defendant’s waiver of assistance of counsel would not have been valid under art. 12 and Mavredakis). While the police are not required to “deliver verbatim to a defendant the message given by his attorney,” Commonwealth v. Vao Sok, supra at 752, Buso’s particular message — not to talk to the police — fell within the duty to inform because it “bore directly on the right to counsel.” Mavredakis, supra at 861. [Note 12]
In sum, we conclude that, because the police did not convey adequately to the defendant the substance of his attorney’s telephone message and advice, the defendant’s subsequent indication that he would continue to speak to the police did not constitute a knowing or intelligent waiver of his Miranda rights. See id. As a result, evidence of all “postbreak” statements made and actions taken by the defendant in connection with the police interrogation — that is, all statements and actions from 10:15 A.M. until the conclusion of the interview at 11 A.M., including the defendant’s signing every page of the statement — should have been suppressed. See Commonwealth v. McKenna, 355 Mass. at 324-325.
Where, as here, the defendant properly objected to the admission of his statement on Mavredakis grounds, and the Mavredakis errors at issue are constitutionally based, the question we now must confront is whether the admission of the postbreak portions of the statement at trial was harmless beyond a reasonable doubt. See Commonwealth v. Vao Sok, supra at 753 (preserved Mavredakis violations subject to analysis under harmless beyond reasonable doubt standard). [Note 13] See also Commonwealth v. Tyree, 455 Mass. 676 , 701 (2010), quoting Commonwealth v. Rios, 412 Mass. 208 , 214 (1992) (“We have recognized that a constitutional violation gives rise to presumptive prejudice that can be overcome only where the Commonwealth makes an ‘affirmative showing’ of harmlessness beyond a reasonable doubt”). To answer the question, “we analyze the case to see whether the error might have had an effect on the jury or contributed to the verdicts, and whether the Commonwealth’s evidence was ‘ “merely cumulative” of evidence properly before the jury,’ . . . or was overwhelming without the erroneously admitted evidence.” Commonwealth v. Dagraca, 447 Mass. 546 , 553 (2006), quoting Commonwealth v. Sinnott, 399 Mass. 863 , 872 n.8 (1987). See Commonwealth v. Vasquez, 456 Mass. 350 , 361 (2010), quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (“The inquiry ‘is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error’ “).
5. Conclusion. The judgments of conviction of assault and battery by means of a dangerous weapon are affirmed. The judgment of conviction of murder in the first degree is reversed, and the verdict is set aside. The case is remanded for a new trial on the murder indictment, and further proceedings consistent with this opinion.
Attorney Ronald A. Sellon