On 5/17/2011 the appeals court ruled in COMMONWEALTH vs. JERMAINE HOLLEY 79 Mass. App. Ct. 542 (2011) that a Superior Court judge erred in allowing a criminal defendant’s pretrial motion to suppress statements he made to police during an interview. Regarding the allegation by defense counsel that the Miranda rights were inadequate, i.e., spoken too quickly and difficult to discern, an audio-visual recording of the interview showed that the defendant’s waiver of his Miranda rights was a knowing, voluntary, and intelligent act. Also, in addressing the suggestion (ruse) in two comments by the police that the defendant had been identified near the scene of the crime by two witnesses, the comments did not give rise to such trickery or deception as to have overcome the defendant’s rational intellect and free will so that his statements were not the result of a free and voluntary act. Lastly, an interesting point over whether certain evidence was located and collected from a common area appropriately was also discussed.
The court in ruling stated “There was no error in the denial, without an evidentiary hearing, of a criminal defendant’s pretrial motion to suppress evidence discovered by police in an unsecured box in a common basement area of an apartment building in which the defendant’s girl friend resided, where, even assuming the defendant had standing, the affidavits of neither the defendant nor his girl friend set forth facts that would demonstrate a reasonable expectation of privacy in the box; and where the issue whether the defendant had an expectation of privacy was addressed, in addition to the issue whether the defendant had standing, at the nonevidentiary hearing held on the motion to suppress.
1. The Miranda warnings. The ultimate findings that underlie the first judge’s suppression order, based on a Miranda violation, are subject to heightened appellate review, in that we “conduct an independent review of his ultimate findings and conclusions of law.” Commonwealth v. Jimenez,438 Mass. 213 , 218 (2002). Here, the judge’s ultimate findings were that the Miranda rights were spoken too quickly by State Trooper Eric Swenson and, in the judge’s words, were difficult to discern “in real time.” The judge noted that, while watching the recording he could not “determine, without the transcript, which rights were, in fact, provided.” On this basis, the judge concluded that the Miranda warnings would not have been understandable by the defendant and, therefore, the defendant’s Miranda waiver was not knowingly and intelligently made. Accordingly, the judge suppressed the defendant’s statements from the April 21, 2005, interview.
While we independently review ultimate findings leading to conclusions of law, usually, “[i]n reviewing a ruling on a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error.” Commonwealth v. Scott, 440 Mass. 642 , 646 (2004). In this case, however, “the judge’s findings are based almost exclusively on the [recording] of [the defendant’s interview], and ‘we are in the same position as the . . . judge in viewing the videotape.’ ” Commonwealth v. Novo, 442 Mass. 262 , 266 (2004), quoting from Commonwealth v. Prater, 420 Mass. 569 , 578 n.7 (1995). “Therefore, we will ‘take an independent view’ . . . and make judgments with respect to [the] contents [of the interview] without deference to the fact finder.” Ibid., quoting from Commonwealth v. Bean, 435 Mass. 708 , 714 n.15 (2002). [Note 2] Having reviewed the recording of the police interview, [Note 3] and applying these standards for independent appellate review, we are not persuaded that the oral recitation of the four Miranda warnings by Trooper Swenson would not have been comprehensible to the defendant. Notwithstanding that the trooper spoke at a rapid pace, the defendant in three separate ways acknowledged that he understood the oral warnings, that is (1) immediately following the trooper’s recitation of the Miranda rights, when the defendant was asked whether he understood the Miranda rights that just had been delivered orally, the defendant nodded in the affirmative; (2) after the oral warnings, the trooper indicated that if the defendant understood his Miranda rights, but still was willing to speak to the interviewing officers, the defendant should sign a written Miranda waiver form; again the defendant acknowledged that he understood, and signed the waiver form; and (3) as the defendant signed the Miranda waiver form, the defendant stated, “I know how it goes.” This comment may be considered in light of the defendant’s prior involvement in criminal investigations and the prosecution process, including but not limited to, criminal practice involving the outstanding warrants for which the defendant had been arrested. A defendant’s “experience with and in the criminal justice system” is a factor to consider in weighing whether the defendant understands Miranda warnings, waives them, and gives a statement knowingly, intelligently, and voluntarily. Nova, supra at 267, quoting from Commonwealth v. Mandile,397 Mass. 410 , 413 (1986). Given the foregoing, we conclude that the defendant’s waiver of his Miranda rights was a knowing, voluntary, and intelligent act.
2. The alleged law enforcement ruse and voluntariness of defendant’s statements. In the memorandum of decision allowing suppression of the statements, the first judge referred to the police falsely telling the defendant that he had been identified as being near the victim’s apartment on the night of the murder by two sources, i.e., by a woman hanging out her laundry and by a family.
Although the judge spoke of identification, the references in the police interview do not refer to actual identification per se, but rather are more oblique. Notwithstanding that, we will accept as implicit the suggestion in the police comments that a woman hanging her laundry and a family saw the defendant. Still, the two comments did not, we believe, give rise to such a trickery or deception to have overborne the defendant’s free will, rendering the defendant’s statements involuntary. “A statement is voluntary if it is the product of a ‘rational intellect’ and a ‘free will.’ ” Commonwealth v. Selby, 420 Mass. 656 , 662 (1995), quoting from Commonwealth v. Davis, 403 Mass. 575 , 581 (1988).
“[W]hile the use of false statements during interrogation is a relevant factor on both waiver and voluntariness, such trickery does not necessarily compel suppression of the statement. Rather, the interrogator’s use of trickery is to be considered as part of the totality of the circumstances, the test that is used to determine the validity of a waiver and the voluntariness of any statement. Close analysis of our case law on the subject of trickery suggests that where the use of a false statement is the only factor pointing in the direction of involuntariness, it will not ordinarily result in suppression, but that if the circumstances contain additional indicia suggesting involuntariness, suppression will be required.”
Commonwealth v. DiGiambattista, 442 Mass. at 432-433 (citations omitted). Considering the totality of the circumstances, including the words and actions of the defendant in the police interview recording (and including, but not limited to, the defendant’s acknowledgments that he understood the Miranda warnings), we are unconvinced — even assuming the suggestion of identification by the police — that the defendant’s rational intellect and free will were overcome such that his statements were not the result of a free and voluntary act. See generally Commonwealth v. Selby, 420 Mass. at 662 & n.1 (despite false statement about suspect’s handprint being found at crime scene, Miranda waiver and confession both voluntary where “all other relevant factors specific to the instant case indicate a voluntary waiver was made” and trickery was only factor suggesting involuntariness); Commonwealth v. Edwards, 420 Mass. 666 , 671 (1995) (confession admissible where nothing other than use of trickery would suggest involuntariness). Thus, the first Superior Court judge erred in allowing the defendant’s motion to suppress statements from the April 21, 2005, interview.
C. Conclusion. For the foregoing reasons, the order entered December 17, 2008, allowing the motion to suppress as to the defendant’s statements made on April 21, 2005, at the police station interview is reversed, and a new order shall enter denying the motion in its entirety. The order entered December 15, 2009, denying the defendant’s motion to suppress evidence obtained at the Flint Street address is affirmed. So ordered.”
Attorney Ronald A. Sellon