COMMONWEALTH v. REGAN (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

Following a jury trial in the Superior Court, the defendant was convicted of armed robbery, G. L. c. 265, § 17, and assault and battery by means of a dangerous weapon, G. L. c. 265, § 15A (b). The convictions were based on evidence that the defendant and a coventurer attacked and beat the victim with a stick and took twenty-five dollars from him. On appeal, the defendant claims that his motion to suppress his statements should have been allowed and that the judge abused his discretion when he admitted in evidence the victim's prior consistent statement regarding his description of his attacker. We affirm.

Discussion. 1. Motion to suppress. Before trial, the defendant moved to suppress a recorded statement he gave to a Worcester police officer, claiming that the waiver of his Miranda rights, and his subsequent statements, were involuntary due to his intoxication from alcohol. The motion judge, who was not the trial judge, held an evidentiary hearing and made detailed factual findings. The following factual summary is drawn from the judge's findings and from undisputed facts in the record that were implicitly credited by him. Commonwealth v. Jones-Pannell, 472 Mass. 429, 436 (2015).

The defendant was arrested while shoveling snow at his residence approximately two years after the robbery. After being transported to the police station, the defendant was advised of his Miranda rights, waived those rights, and agreed to a recorded interview. The interviewing officer, whose testimony the judge credited, testified that he saw no signs that the defendant was under the influence of alcohol. His speech was not slurred, his eyes were not glassy, and he did not emit an odor of alcohol. The defendant appeared to understand the questions and gave rational responses. He was “cooperative and talkative in response to the interviewer's very conversational and ‘low key’ tone.” The judge found that the defendant was rational, coherent, alert, animated, and exhibited a “logical approach to minimizing his guilt.” Based on these findings, the motion judge concluded that the defendant's waiver of his Miranda rights was knowing, intelligent, and voluntary. Consequently, he denied the defendant's motion to suppress those statements.

We accept the judge's factual findings unless they are clearly erroneous. See Commonwealth v. Welch, 420 Mass. 646, 651 (1995). However, we “make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v. Mercado, 422 Mass. 367, 369 (1996). Waiver of Miranda rights and the voluntariness of statements, although related, involve separate questions. Waiver of Miranda rights concerns whether the rights were “scrupulously observed” and “knowingly, intelligently and voluntarily waived.” Commonwealth v. Garcia, 379 Mass. 422, 428 (1980). The voluntariness finding concerns whether “the statements were made freely and voluntarily when considering the totality of the circumstances.” Id. The Commonwealth bears the burden to prove beyond a reasonable doubt that the defendant's statements were made voluntarily. Commonwealth v. O'Brian, 445 Mass. 720, 724 (2006). A statement is voluntary if it is “the product of a rational intellect and free will.” Commonwealth v. Jackson, 432 Mass. 82, 85 (2000).

We have carefully reviewed the videotaped interview of the defendant and see no reason to disturb the motion judge's ruling. We agree that the defendant showed no physical signs of intoxication. The tone of the interview was conversational and the defendant's responses were appropriate. Indeed, at one point the defendant attempted to negotiate with the officer by offering to trade information for lenient treatment. This demonstrated a level of control and thoughtfulness inconsistent with the defendant's claim that he “blacked out” during the interview. Simply put, we agree with the motion judge's conclusion that the defendant knowingly, intelligently, and voluntarily waived his Miranda warnings and that his statements were voluntarily made.¹

2. Prior consistent statement. During direct examination, the victim described the attacker with the stick as a tall, skinny, white male, probably six feet tall. On cross-examination the victim was impeached with his prior statement to the police in which he described the attacker as “somewhere between five-six and five foot eight inches tall.” Later in the trial, the judge permitted the Commonwealth to rehabilitate the victim with evidence of his prior consistent statement to a police officer that “the first suspect was a white male, eighteen to twenty, about six feet tall.” Because the defendant objected at trial, we review for prejudicial error. See Commonwealth v. Aviles, 461 Mass. 60, 67 (2011).

Generally, prior consistent statements are inadmissible. Mass. G. Evid. § 613 (b) (1) (2016). “However, an exception exists where a trial judge makes a preliminary finding (1) that the witness's in-court testimony is claimed to be the result of a recent fabrication or contrivance, improper influence or motive, or bias; and (2) that the prior consistent statement was made before the witness had a motive to fabricate, before the improper influence or motive arose, or before the occurrence of the event indicating a bias.” Commonwealth v. Caruso, 476 Mass. 275, 284 (2017). Trial judges have broad discretion in determining whether witnesses may be rehabilitated by prior consistent statements. Id. at 285.

Here, although the judge did not make explicit preliminary findings, they were implicit in his ruling. See Caruso, 476 Mass. at 284. The judge was aware from cross-examination of the victim that defense counsel had challenged the victim's credibility based on his prior inconsistent description of his attacker. The judge could reasonably conclude that the purpose of this impeachment was to suggest to the jury that the victim's trial testimony was the result of recent fabrication. The judge could also reasonably conclude that the victim's prior consistent statement, which was made on the night of the robbery, came before any improper motive or bias arose. In these circumstances, we discern no abuse of discretion or other error in the admission of the victim's prior consistent statement.

Even were we to conclude that it was error to admit the prior consistent statement, there was no appreciable prejudice where the prior consistent statement did not exceed the victim's trial testimony and the other evidence against the defendant, including the defendant's videotaped admission to being at the scene of the robbery, was strong.

Judgments affirmed.

FOOTNOTES

1.   While the motion judge did not explicitly conclude that the defendant's statements were voluntarily made, such a conclusion was implicit in his detailed findings.