SJC rules “off the record” statements admissible

For the complete Supreme Judicial Court opinion go to Commonwealth v. Tremblay on the SJC opinions page.

Even though a State Trooper coaxed a statement out of a suspected arsonist by promising that the conversation was “off the record” the SJC ruled the statements admissible.

Harold Nelson lived in a home adjacent to a lake in Chelmsford. He was the owner of a twenty-foot Bayliner boat. On April 27, 2002, the boat was atop a trailer on land that was across the street from where Nelson lived. That evening, the defendant, who owned a home next door to Nelson, was hosting a small gathering at his house. At around 11:20 P.M., while Nelson was at home in bed, his boat erupted in flames. The fire caused extensive damage to the vessel, and investigators concluded that it had been intentionally set.

Trooper Peter Cummings of the Massachusetts State police, who was working for the fire and explosion investigation section of the State fire marshal’s office, was assigned to assist personnel from the Chelmsford police and fire departments with their investigation of the fire. On May 8, 2002, Cummings and Chelmsford fire investigator Henry Houle conducted interviews with various individuals, including several who had attended the defendant’s gathering on April 27. Principally as a result of their conversation with one of the party guests, the defendant became the focus of the investigation.

Defendant, Mark D. Tremblay, was indicted by a grand jury on charges of malicious burning of personal property in violation of G.L. c. 266, § 5, damage to property for the purpose of intimidation in violation of G.L. c. 265, § 39, and a civil rights violation under G.L. c. 265, § 37. The defendant filed a motion to suppress statements that he made to the police during the course of their investigation. After a hearing, a judge in the Superior Court denied the motion, and the case proceeded to trial. A jury returned guilty verdicts on all three charges. The Appeals Court affirmed the convictions, concluding that none of the statements made by the defendant to a State trooper was involuntary, and, therefore, the motion to suppress was properly denied. The SJC granted the defendant’s application for further appellate review. Tremblay contends that his motion to suppress should have been allowed because statements that he made “off the record” during his interview with the State trooper were not voluntary.

In Commonwealth v. Tremblay, the Court wrote

“As a general matter, law enforcement officials must exercise caution when employing deception or trickery or when giving assurances to a suspect during an interrogation. With respect to the former, we have, over the years, expressed our disapproval of police tactics that employ the use of false statements during an interrogation because such tactics cast doubt on the voluntariness of any subsequent confession or admission. See Commonwealth v. DiGiambattista, supra at 432, and cases cited. Nonetheless, we also have repeatedly held that such deception or trickery does not necessarily compel suppression of the confession or admission but, instead, is one factor to be considered in a totality of the circumstances analysis.”

The Court went on to state that “assurances made by the police to a suspect for the purpose of securing a confession or admission may render the suspect’s statements involuntary. Such assurances frequently arise in the context of a suggestion by the police that the defense would benefit from a confession.” In this case, the investigator, Trooper Cummings did not engage “in trickery or [in] making assurances that a statement will benefit the defense…Cummings simply was acquiescing to the defendant’s request that certain of his comments not be included in the written statement that Cummings was preparing with the defendant’s agreement and cooperation. By not including those comments in the written statement, Cummings fulfilled his promise to the defendant and, therefore, did not engage in trickery or deception.”

The Court did, however, close with an important warning to any officers that may wish to try this tactic in the future:

“We do not foreclose the possibility that, in different circumstances, if a law enforcement officer tells a suspect that his statements will be “off the record,” a tactic that should be avoided, subsequent statements by the suspect may be deemed involuntary because of the presence of indicia of coercion. Here, however, based on the totality of the circumstances surrounding the defendant’s May 8 interview with Trooper Cummings, that is not the case.

About Attorney John J. MacLaughlan

John MacLaughlan is Massachusetts licensed attorney as well as a Boston police officer. John is currently assigned to the Youth Violence Strike Force (Gang Unit). He is a graduate of the Massachusetts School of Law with a concentration in Labor Law. He holds a Master’s Degree in Criminal Justice from the University of Massachusetts at Lowell as well as a Bachelors Degree in Political Science from the University of Massachusetts at Amherst. John has taught Defensive Tactics, Firearms, Use of Force, Applied Patrol Procedures, and Police Response to Active Shooters to sworn police officers and police academy recruits. Prior to becoming a Boston Police Officer, John served for 9 years as a police officer in Lowell, where he was a member of the Police Dive Team and Patrol Rifle Team.
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