Yesterday I posted the first part of COMMONWEALTH vs. JEROME MCNULTY 458 Mass. 305 (2010) which included the case and decision. I felt that the dissent by Justice Gants was very significant, however and wanted to include that here as well. The same fears, questions, and concerns that police have across the state were captured in his dissent and it should be read. Although it cannot be used as binding precedent, it is a workable legal roadmap to unaswered concerns regarding the impact of Mcnulty. I strongly recommend that the full case (which I linked above) be read along with this dissent. There is no question that the case is a significant blow to law enforcement in trying to do their jobs. However, only by understanding the mechanics of the case will future mistakes be avoided and “good” caselaw produced.
“GANTS, J. (dissenting) . I agree with the court that, under art. 12 of the Massachusetts Declaration of Rights, once an attorney representing a suspect held in custody tells the police that the attorney wants to speak to his or her client to provide legal advice, the police have an affirmative duty immediately to interrupt the interrogation and inform the suspect of the attorney’s efforts to provide legal advice. See Commonwealth v. Mavredakis, 430 Mass. 848 , 859- 861 (2000) (Mavredakis); Commonwealth v. Vao Sok, 435 Mass. 743 , 751 (2002) (Vao Sok). Consequently, I agree with the court and the trial judge that this “duty to inform,” Mavredakis, supra at 860, was triggered by Attorney Raymond Buso’s initial telephone call at 10:31 A.M. to the Salem police station. I differ, however, with the court’s conclusion that the information the police provided to the defendant at approximately 10:45 A.M. was not sufficient to satisfy the “duty to inform.” The police gave the defendant notice that Buso had been appointed to represent him; that he could stop talking to the police and speak to his attorney “at this time”; or that he could continue to speak with the police. I believe that the “duty to inform” is a “duty to inform a suspect of an attorney’s efforts to render assistance.” Id. I do not believe, as the court concludes today, that the duty includes a duty to inform the suspect of the attorney’s legal advice. Because I conclude that the police ultimately satisfied the “duty to inform” and that the defendant, having been so advised, knowingly and voluntarily waived his right to speak to his attorney at 10:52 A.M., I agree with the trial judge that only the defendant’s statements made after the break until his waiver need be suppressed, and that the admission of these statements was harmless beyond a reasonable doubt. Therefore, I respectfully dissent.
Duty to inform. In Mavredakis, supra at 859, we rejected the United States Supreme Court’s assumption in Moran v. Burbine, 475 U.S. 412 (1986), that “information regarding the immediate availability of an attorney has no bearing on a suspect’s ability knowingly and intelligently to waive Miranda rights.” We concluded that “there is an important difference between the abstract right to speak with an attorney mentioned in the Miranda warnings, and a concrete opportunity to meet ‘with an identified attorney actually able to provide at least initial assistance and advice.’ ” Mavredakis, supra, quoting State v. Haynes, 288 Or. 59, 72 (1979), cert. denied, 446 U.S. 945 (1980). “Essentially, the duty to inform a suspect of an attorney’s efforts to render assistance is necessary to actualize the abstract rights listed in Miranda v. Arizona, 384 U.S. 436 (1966).” Mavredakis, supra at 860.
In Vao Sok, supra at 751-752, we clearly informed police what they must do to satisfy the “duty to inform”:
“[W]hen 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. . . . If the suspect accepts the attorney’s offer of assistance, the police must suspend questioning until the suspect consults with the attorney. . . . We acknowledged in Mavredakis, however, that a suspect may choose to decline the attorney’s offer. . . . To this extent, an attorney’s directive to the police to stop questioning the defendant requires only that they terminate questioning long enough to afford the defendant the opportunity to avail himself of the attorney’s advice.” (Citations omitted.)
The police here complied with that guidance. They stopped their questioning of the defendant and informed him that Buso had been appointed to represent him, and that he may stop talking to the police and speak to his attorney “at this time,” or continue to speak with the police. The court concludes that the police “essentially failed” to inform the defendant that Buso “wanted to speak” to him and that the attorney “would be at the station shortly.” Ante at 316. The police, however, owe no obligation to tell a suspect that his attorney “wants” to speak with him; they are required merely to inform him that his attorney is available to speak with him. See Vao Sok, supra at 751-752. Nor can the police be faulted for failing to tell the defendant that his attorney “would be at the station shortly” where they told him that he could speak to his attorney “at this time,” which suggested that the attorney was available immediately to speak with him. [Note Dissent-1]
The court also concludes that the police “essentially failed” to inform the defendant “of the specific advice that the identified attorney, Buso, was already giving, namely, that the defendant should not continue to speak to the police.” Ante at 316-317.
While the court recognizes that the police are not required to “deliver verbatim to a defendant the message given by his attorney,” ante at 317, quoting Vao Sok, supra at 752, the court now requires the police to inform a defendant of the substance of the “specific advice” that the attorney asked the police to pass on to the defendant. The court appears to believe that this is not a new addition to the “duty to inform,” but it is. The court has never before declared that the “duty to inform” includes a duty to communicate an attorney’s specific legal advice to a suspect.
The court finds support in three cases for adding a duty to communicate the attorney’s legal advice to the “duty to inform,” but none actually provides such support. First, the court quotes the language in Mavredakis that “the duty [the court] announce[s] concerns solely the obligation ‘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). But this assertion in Mavredakis did not mean that the police had an obligation to pass on the legal advice the suspect’s attorney wished to convey; the specific communication from the two attorneys in Mavredakis asked simply to speak with the defendant. Mavredakis, supra at 852- 853. [Note Dissent-2] Moreover, this assertion in Mavredakis came in response to the Commonwealth’s argument that the “duty to inform” “would create administrative difficulties”; it was intended to emphasize the limited nature of the duty, and to clarify that the court did not “mean that the police have a duty to provide information such as the ‘nature and quality of the evidence’ that the investigation has amassed against the suspect.” [Note Dissent-3] Id. at 860-861, quoting Oregon v. Elstad, 470 U.S. 298, 317 (1985).
Second, the court cites Vao Sok, supra at 752, where, in finding the defendant’s waiver of his right to counsel to be valid, we noted that the police had told the defendant that an attorney had said he did not want the polygraph test to continue, that he was attempting to locate the defendant on behalf of the defendant’s attorney, and that he wanted all questioning of the defendant to end. The issue in Vao Sok was whether the defendant’s waiver was invalid because the police did not tell the defendant that his own attorney had wanted to speak with him and be present for any further questioning. Id. In concluding that the duty to inform had been satisfied, we did not focus on the transmission of the other attorney’s legal advice but on the transmission of information regarding “the availability of an identifiable attorney,” concluding that the defendant “was made aware not only that an attorney was attempting to assist him, but that he could stop the questioning and speak with a specific attorney if he so wished.” Id. Moreover, as noted earlier, in Vao Sok we specifically defined the “duty to inform,” and that duty did not include a duty to communicate an attorney’s legal advice. Id.
Third, the court cites Commonwealth v. Anderson, 448 Mass. 548 (2007), where the police told the defendant before commencing the interrogation that Attorney Bruce Ferg was going to represent him on an indictment for murder and that the attorney wished he not speak to anyone. Id. at 552. We concluded that the defendant’s waiver of his right to consult with counsel and to have counsel present before speaking to the police was intentional, knowing, and voluntary, but added that the waiver might not have been knowing and intelligent under art. 12 if the police had not fully informed the defendant of his attorney’s entry into the case and the attorney’s request that the defendant not be interviewed. Id. at 555-556. This dictum does not suggest that we intended to amend the duty to inform by adding a duty to communicate an attorney’s legal advice.
Three circumstances in Anderson are not commonly found in cases that raise the so-called Mavredakis issue: the defendant initiated the interview; the defendant was already under indictment for the crime about which he was questioned; and the defendant was serving a State prison sentence in Maine, where the interview occurred. Commonwealth v. Anderson, supra at 552-553, 555. In addition, Ferg had not been told that the police were going to visit the defendant at the Maine prison, id. at 552, and the police did not inform the defendant that Ferg was available to speak with him. Rather, the police told the defendant that Ferg had been assigned to represent him on the charge under indictment, and that Ferg was advising the suspect not to speak to the police about that charge. In these circumstances, where the duty to inform as defined in Vao Sok, supra at 751-752, had not been satisfied, the court reasonably considered the totality of the circumstances, including Ferg’s advice that the suspect should not speak to the police, in deciding that the suspect’s waiver of his right to counsel was knowing and voluntary.
The duty to inform was meant to be a straightforward “bright-line rule,” Mavredakis, supra at 860, requiring only that the police inform a suspect of an attorney’s availability, but its bright line will be dulled if it includes a duty to inform a suspect of the attorney’s legal advice. Once the court opens that door, it cannot be assured that the legal advice an attorney will ask to be forwarded will always be as simple as “don’t speak to the police.” It potentially could include advice as to what the client should do or say if he intended to disregard the attorney’s advice to remain silent, or what subjects the client should not discuss. Do the police owe a duty to inform a suspect of all legal advice provided by the attorney? What if the police incorrectly relayed some of that legal advice? The court has not before needed to address these questions because of the limited scope of the duty to inform; the court will soon need to now that it has expanded that scope to include a duty to communicate legal advice.
The court ably characterizes my fears regarding the new requirement that the police inform a suspect of the legal advice that the attorney has asked to be conveyed — the court “will entangle the police and the courts in difficult, and pointless, debates about which specific pieces of advice need to be passed on, and were they passed on correctly” — but concludes that my fears are “misplaced” because the only legal advice that must be conveyed is advice that “essentially embod[ies] the rights already incorporated into the Miranda warnings themselves: the right to remain silent; the right to the assistance of counsel during any custodial interrogation; and the right to stop questioning at any time.” Ante at 318 n.12. This supposed limitation does not assuage my fears where the court provides no guidance to the police (or a judge considering a motion to suppress) as to what it means for legal advice to “essentially embody” the rights provided in the Miranda warnings. Because of this ambiguity, the police risk the suppression of a confession whenever they fail to convey all the legal advice that counsel asks to be conveyed.
Nor is there any logical reason to expand the scope of the duty to inform to include the communication of legal advice. If a suspect wishes to hear the attorney’s legal advice before continuing with the interrogation, he may simply ask to do so. Where he knowingly and voluntarily chooses not to hear it, why would art. 12 require that he be told it anyway?
Harmless error analysis. The court concludes 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.” Ante at 318. Therefore, the court concludes that all the statements the defendant made after the break at 10:15 A.M., including the statements made after the waiver of his right to counsel, were admitted in error. Because I conclude that the police belatedly complied with the duty to inform, I believe that the defendant’s waiver was knowing and intelligent, and that the only statements admitted in error were those made after the break at 10:15 A.M. and before his waiver of counsel at 10:52 A.M. This disagreement is critical to the harmless error analysis because the court’s conclusion that the admission of the defendant’s statements made after the break at 10:15 A.M. was not harmless beyond a reasonable doubt rests heavily on the defendant’s “postbreak” adoption of the statements he made before the break by signing his name to each page of Sergeant Marks’s notes. If I am correct, the defendant’s adoption of his earlier statements was properly admitted, and the harmless error analysis should focus on those few statements the defendant made after the break and before his waiver of the opportunity to speak with attorney Buso. With that narrower focus, I agree with the trial judge that the erroneous admission of that evidence was harmless beyond a reasonable doubt.
Between the break and the waiver of his opportunity to speak with attorney Buso, the defendant made eight statements that were admitted in evidence at trial. The first three concerned his sobriety on the night of the homicide:
1. The defendant did not smoke marijuana that night.
2. The defendant does not “do cocaine” but does smoke marijuana.
3. At 2:30 or 3 A.M., he had five to six ounces of rum but it had no effect on him other than to make him tired.
The final five concerned the defendant’s memory of what happened that night: 4. He never had a knife in his hand on the night of the killing.
5. He touched a knife only when he tried to grab the knife out of the homicide victim’s hand when she was on top of him.
6. He smacked a knife out of Heather Colahan’s hand.
7. The homicide victim tried to hit the defendant with her other hand and even tried to bite him a couple of times.
8. He had no idea how he got the drugs that were found on him, which were in the same pouch that the homicide victim had taken from under the mattress.
As to his memory of the events that night, statement 4 could be inferred from what the defendant told the police before the break, but was stated more clearly after the break. In his testimony at trial, however, the defendant specifically said that he did not remember holding the knife, so the jury heard this information from him directly. [Note Dissent-4] The fifth, sixth, and seventh statements were cumulative of what the defendant told the police before the break.
The eighth statement had not been made to the police before the break. However, at trial, the defendant on cross-examination admitted that the pouch was one of several that the homicide victim kept under the mattress; he denied saying that this particular pouch had been taken from under the mattress. The difference in these two versions is inconsequential to the issue of his criminal responsibility. The only information that the jury heard from the eighth statement alone was the defendant’s assertion that he had no idea how he obtained the drugs in the pouch, but this statement, too, was inconsequential because the Commonwealth did not claim that theft of the drugs was a motive for the killing.
As to the defendant’s drug use, this information was not elicited prior to the break and contradicted his testimony at trial, where he testified that he had used cocaine and marijuana that evening. However, the postbreak statements matched what he initially told Dr. Robert Joss, the defense expert who opined that the defendant suffered from posttraumatic stress disorder on the morning of the homicide. On cross-examination at trial, Dr. Joss testified that the defendant initially told him he had not used marijuana or cocaine before his arrest, but later admitted to smoking five or six “blunts” that night and trying “lines” of cocaine. [Note Dissent-5] Consequently, even without the admission of the post-break statements, the jury would have learned from Dr. Joss that the defendant had contradicted himself as to his prior drug use. [Note Dissent-6]
In assessing whether the admission of these statements was harmless error beyond a reasonable doubt, we ask “whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury’s verdicts.” Commonwealth v. Tyree, 455 Mass. 676 , 701 (2010). Because the erroneously admitted statements made by the defendant between the break and the waiver of his opportunity to speak with Buso were cumulative either of statements made before the break or of information learned by the jury during the testimony of Dr. Joss and the defendant, I am satisfied that the error was harmless beyond a reasonable doubt. [Note Dissent-7]
For these reasons, I respectfully dissent.”
Attorney Ronald A. Sellon