In February, the Supreme Judicial Court found that a defendant had validly waived his Miranda rights when questioned in COMMONWEALTH vs. MELVIN MARTINEZ 458 Mass. 684 (2011). The court found during the murder trial, that there was no error in the admission of a defendant’s statement to the police, where the statement was taken within the six-hour safe harbor period following his arrest. Keep in mind it was during, not after the 6 hour safe harbor period and after that would have required an additional waiver of prompt presentment.
In deciding they stated “b. Voluntariness of the defendant’s waiver of Miranda rights and of his second statement. The defendant contends that, contrary to the motion judge’s ruling, he did not knowingly and voluntarily waive his Miranda rights, and his tape-recorded second statement to the police was involuntary. “In reviewing a judge’s determination regarding a knowing waiver of Miranda rights and voluntariness, we ‘grant substantial deference to the judge’s ultimate conclusions and we will not reject a judge’s subsidiary findings if they are warranted by the evidence.’ . . . However, we will make an independent inquiry ‘to ascertain whether the judge properly applied the law in a given case.’ ” (Citations omitted.) Commonwealth v. Mandile, 397 Mass. 410 , 412-413 (1986) (Mandile), quoting Commonwealth v. Benoit, 389 Mass. 411 , 419 (1983). The questions we must answer are: “(1) whether there has been a knowing and intelligent waiver of the Miranda requirements; and (2) whether, in the totality of the circumstances, the [statements] given were the product of a free will, and not the result of coercion or intimidation.” Commonwealth v. Mello, 420 Mass. 375 , 383 (1995) (Mello), citing Commonwealth v. Parham, 390 Mass. 833 , 838 (1984).
With respect to the Miranda waiver, the defendant takes no issue with the motion judge’s determination that Sergeant Perez provided a full description of the Miranda rights or, apparently, with her implicit conclusion that the defendant waived them voluntarily, knowingly and intelligently when he was informed of those rights at 9:15 P.M. on July 23, 2002. The defendant’s claim is rather that when he gave his second statement around 3 A.M. on July 24, he had been “held” for more than six hours at the police station, had not had any sleep, and had already incriminated himself in his first statement; and that at the beginning of his second interview, the police confronted him that his earlier statement was not true. These circumstances, the defendant argues, vitiated the effectiveness of his original Miranda waiver and required the police to administer Miranda warnings again for any waiver to be valid at the time of his second statement.
“In determining whether a waiver was made voluntarily, the court must examine the totality of the circumstances surrounding the making of the waiver.” Commonwealth v. Edwards, 420 Mass. 666 , 670 (1995), citing Commonwealth v. Medeiros, 395 Mass. 336 , 345 (1985). The court may look at such factors as “promises or other inducements, conduct of the defendant, the defendant’s age, education, intelligence and emotional stability, experience with and in the criminal justice system, [and] physical and mental condition.” Mandile, 397 Mass. at 413.
We have recognized that Miranda warnings, once given, are not effective in perpetuity. Commonwealth v. Cruz, 373 Mass. 676 , 687 (1977), quoting United States v. Hopkins, 433 F.2d 1041, 1045 (5th Cir. 1970), cert. denied, 401 U.S. 1013 (1971). However, “there is no requirement that an accused be continually reminded of his rights once he has intelligently waived them.” Mello, 420 Mass. at 386, quoting Biddy v. Diamond, 516 F.2d 118, 122 (5th Cir. 1975), cert. denied, 425 U.S. 950 (1976). The principal inquiry remains whether the defendant, “with a full knowledge of his legal rights, knowingly and intelligently relinquish[ed] them.” Commonwealth v. Cruz, supra, quoting Miller v. United States, 396 F.2d 492, 496 (8th Cir. 1968), cert. denied, 393 U.S. 1031 (1969). In Mello, we held that the passage of nearly six hours between the giving of Miranda warnings and the defendant’s challenged statement did not necessitate fresh Miranda warnings. Id. at 386-387. The defendant in that case, like the defendant here, did not request an attorney or exercise his right to remain silent at any point in the hours between statements. Id. at 386. And as in this case, there was ample evidence that the defendant fully understood his Miranda rights and made a knowing, intelligent, and voluntary waiver of them. Id.
Citing Mello, the defendant acknowledges that the passage of six hours after Miranda warnings were first given would not alone require a second administration of the warnings. He argues, however, that the other circumstances he points to made new Miranda warnings necessary, such as the fact that he had been at the police station for many hours without sleep and that by 3 A.M., he had made statements that the police knew were false and about which they had confronted him. We disagree. If the making of false or incriminating statements and being confronted by them were to undermine and render ineffective an otherwise valid Miranda waiver, police would be obliged to repeat Miranda warnings whenever a defendant in an interrogation moves toward inculpating himself. This is not the law. Moreover, the record reflects no evidence of “unfair techniques or tactics” on the part of police that could be said to subvert the validity of the waiver. Commonwealth v. Williams, 388 Mass. 846 , 853 (1983), citing Commonwealth v. Silva, 388 Mass. 495 , 503 (1983). In sum, while six hours between the administration of Miranda warnings and a defendant’s statement is certainly a lengthy period, on the record before us, we find no error in the motion judge’s conclusion that the defendant’s waiver of his Miranda rights in relation to his second statement was voluntary, knowing, intelligent, and therefore valid.
We turn to the voluntariness of the defendant’s second statement itself, a distinct question from the validity of the Miranda waiver. Commonwealth v. Leahy, 445 Mass. 481 , 486-487 (2005), citing Commonwealth v. Magee, 423 Mass. 381 , 387-388 (1996) (“Due process requires a separate inquiry into the voluntariness of a statement, apart from the Miranda waiver”). A court must determine whether the statement was made freely and voluntarily given the totality of the circumstances in which it was made, “to ensure that the defendant’s confession . . . was not the product of inquisitorial activity which had overborne his will.” Commonwealth v. Magee, supra at 388, quoting Commonwealth v. Mahnke, 368 Mass. 662 , 680 (1975), cert. denied, 425 U.S. 959 (1976). As with the determination of voluntariness of a Miranda waiver, the court may consider a variety of factors, including a defendant’s age, experience with the criminal justice system, educational level, and mental status, among others. Commonwealth v. Anderson, 445 Mass. 195 , 203 (2005), citing Commonwealth v. Magee, supra at 388. The finding of voluntariness, if made, “must appear from the record with unmistakable clarity.” Commonwealth v. Tavares, 385 Mass. 140 , 152, cert. denied, 457 U.S. 1137 (1982), quoting Sims v. Georgia, 385 U.S. 538, 544 (1967).
The defendant argues that because he was young, came from El Salvador, spoke limited English, was alone at the police station, and was kept awake through the early morning hours, his second statement was involuntarily made. The findings of the motion judge, however, included determinations that the defendant was questioned in Spanish, his native language; he was not restrained; he was coherent; he did not appear to be under the influence of either drugs or alcohol, or stress; and he never indicated he wanted to end the interview or stop cooperating with the police. These findings support the judge’s ultimate conclusion that the defendant’s statements, including his second, were voluntarily made, and weigh against a conclusion that the defendant’s “will was overborne to the extent that [his] statements were not the result of a free and voluntary act.” Commonwealth v. Sneed, 440 Mass. 216 , 222 (2003), citing Commonwealth v. Selby, 420 Mass. 656 , 663 (1995). There was no error in the denial of the defendant’s motion to suppress and subsequent admission of his second statement at trial.”
Attorney Ronald A. Sellon