COMMONWEALTH v. HOOD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The defendant appeals from his convictions of involuntary manslaughter, G. L. c. 265, § 13; unlawful possession of a firearm, G. L. c. 269, § 10 (a); and unlawful possession of a loaded firearm, G. L. c. 269, § 10 (n). The first two issues we must address are insubstantial. First, the defendant argues that his firearms convictions are duplicative in violation of the double jeopardy clause of the Fifth Amendment to the United States Constitution, but we rejected this argument in Commonwealth v. Charles, 81 Mass. App. Ct. 901, 902 (2012). Second, the defendant argues that the fact that the jury acquitted him of unlawful discharge of a firearm within 500 feet of a building but convicted him of involuntary manslaughter, and that the only discharge of a firearm that could have killed the victim was within 500 feet of a building, means that they returned legally inconsistent verdicts. Assuming without deciding the correctness of the argument's factual premises, the defendant's conclusion is incorrect. Legally inconsistent verdicts occur when, “removed from the factual context of the particular case, the government could not possibly have proved the elements of both crimes with respect to the defendant.” Commonwealth v. Elliffe, 47 Mass. App. Ct. 580, 584 (1999). Because, in different factual circumstances, the government could have proved that the defendant committed both offenses, the verdicts with respect to them were not legally inconsistent.

Nonetheless, the judgments must be reversed and the verdicts set aside because the judge erroneously denied the defendant's motion to suppress portions of his interrogation, which were then submitted to the jury, in which he stated that he was holding a gun when it went off during a struggle with the victim, immediately fled, and disposed of his blood-stained shirt in a dumpster. All of the evidence relevant to the suppression issues presented on appeal is contained on a video recording of the police interrogation, which we have examined. We are in as good a position as the motion judge to review this documentary evidence, and our review of it is therefore de novo. See Commonwealth v. Tremblay, 480 Mass. 645, 656 (2018).

Analysis. The defendant raises a number of arguments in favor of suppression. He argues that the police violated his right to a prompt presentment. See Commonwealth v. Rosario, 422 Mass. 48, 57-58 (1996). He argues that the police violated his right to counsel by continuing to question him after he invoked it. See Commonwealth v. Thomas, 469 Mass. 531, 539 (2014). And he argues that various statements made by the police during the interrogation indicating that this was his “only time to tell us your side of the story” overbore his will and rendered his statements involuntary. See Commonwealth v. Durand, 457 Mass. 574, 595-596 (2010).² Finally, he argues that the police did not honor the defendant's unequivocal assertion of his right to remain silent.

Without deciding whether any of the first three arguments have merit, we conclude the judge erred by not suppressing the defendant's statements for this latter, fourth reason: At the beginning of the interview, the defendant was read his Miranda rights. Partway through the interview, but before he made any of the statements referenced above, the defendant made a statement that was difficult to decipher on the recording and that was incorrectly transcribed. The statement was made after the police insisted that they knew that the defendant had a cell phone on him on the day of the shooting. He became increasingly agitated by their insistence, which he said was wrong. The defendant then made a statement that the parties agree was incorrectly transcribed as, “I'm going to ask you a question because I don't know, I'm confused now.” The parties and the motion judge concluded that the defendant said, “I'm done answering questions because I don't know, I'm confused now.” Given the context and our repeated listening, the statement sounds to us like, “I'm done answering questions because I don't want to argue with youse now.” But whether he said, “I'm done answering questions because I don't know, I'm confused now,” or “I'm done answering questions because I don't want to argue with youse now,” the difference is immaterial. He unambiguously stated that he was done answering questions. It does not matter what reason he gave.

One of the interrogating detectives responded with the following:

“Well, so now you understand. We have a lot of information that puts you there, and we're trying to give you the opportunity to tell you your side of the story, what happened․ Was it a weed deal gone bad? Was it a robbery that went bad? A kid was killed. You're being charged with murder, and as of right now, you're the only one that's looking at a murder rap. You know why? Because everybody's talking because somebody died. Everybody's talking.

“You think JT wants to sit in fucking jail? [He] don't want to sit in jail. You think Kiki wants to sit in jail? He doesn't want to sit in jail. Everybody on your phone. Not your phone, on the phone that you were using that day we have talked to. Everybody told us the same thing. They want to save their own asses. This is your only time to tell us your side of the story: What the fuck happened on Belmont Street?”

During this monologue the detective's intonation got progressively more aggressive, with particular emphasis on the curse words. The defendant responded, “Yeah, I don't know. I don't know.”

“Once he has been advised of the protections afforded by Miranda, ‘the responsibility for invoking the protections guaranteed by [Miranda] and art. 12 [of the Massachusetts Declaration of Rights] rests squarely in the hands of [the] criminal defendant[ ].’ After waiving those protections, the defendant bears the burden of showing that his subsequent invocation of his right to remain silent was clear, unequivocal, and unambiguous.” Commonwealth v. Hearns, 467 Mass. 707, 717 (2014), quoting Commonwealth v. Baye, 462 Mass. 246, 252 (2012). Here, the defendant's statement, “I'm done answering questions” is a clear, unequivocal, and unambiguous assertion of that right. Police must “scrupulously honor[ ]” such a request by “cut[ting] off” interrogation (citations omitted). Commonwealth v. Clarke, 461 Mass. 336, 343 (2012).

The officers in the interrogation room did not do that. Once the defendant invoked his right to remain silent, the officers were bound to honor it. The statements following the defendant's invocation of his right therefore should not have been admitted at trial.

The Commonwealth argues otherwise by citing three cases distinguishable on their facts. In the first, Commonwealth v. Raymond, 424 Mass. 382, 394 (1997), after denying the police's allegations, the defendant crossed his arms and shook his head, which the court held was an implication that he was continuing to deny the allegations, not an invocation of his right to remain silent. Our case involves nothing of the sort. Second, Commonwealth v. Almonte, 444 Mass. 511, 518-519 (2005), held that, in the context of that case, the statement, “I believe I've said what I have to say,” was not an unequivocal invocation of the right to remain silent because the detectives' follow-up question “sought to ascertain whether the defendant was in fact exercising his right to remain silent,” and the defendant, “without hesitation, agreed to answer the detectives' questions.” In the case before us, the detective's follow-up was not designed to ascertain whether the defendant was invoking his right. Instead, by telling the defendant that they had “a lot” of inculpatory information, that other individuals want to “save their own asses,” and that this was the defendant's “only time to tell [them] [his] side of the story,” the detective attempted to persuade the defendant to continue talking, perhaps in recognition of the fact that he had invoked his right to remain silent and that the officer's technique of insisting they knew the defendant had a cell phone on him the day of the shooting might have backfired. Thus, unlike in Almonte, that the defendant continued to answer demonstrates nothing.

Third, in Commonwealth v. Bradshaw, 385 Mass. 244, 265 (1982), the defendant's statement, “I don't want to talk,” was not even heard by the police. Further, the court held that the statement was not an unequivocal invocation of the right to remain silent because, after being asked only, “And then what?” the defendant continued answering questions “without any apparent hesitation.” Id. What is more, following this exchange, the Bradshaw defendant thrice tried to stop the police from ending the interview. See id. at 266. Here, by contrast, the detectives clearly heard the defendant's comment and pushed him to talk, the defendant's response, “Yeah, I don't know. I don't know,” demonstrated considerable hesitation, and the defendant did not subsequently act in a manner inconsistent with having invoked his right to remain silent. The motion to suppress should have been allowed.³

The judgments are reversed, and the verdicts are set aside. The Commonwealth, however, is entitled to determine whether to retry the defendant consistent with this memorandum and order.

So ordered.

Reversed.

FOOTNOTES

2.   Two of these statements, which the defendant likens to improper misrepresentations of his trial rights, made by the same detective, were, “But if you were there, and you have something to tell us about it, you gotta tell us now, because once this is over, and you're sitting down in Plymouth saying[,] ‘Oh fuck, I should have told my side of the story,’ it's not going to come out. It's not going to come out the way you want it to come out,” and, “This is your only time to tell us your side of the story: What the fuck happened on Belmont Street?” See Commonwealth v. Novo, 442 Mass. 262, 268-269 (2004).

3.   In light of our disposition of this case, we need not address the defendant's arguments that the prosecutor's closing argument was improper and that the judge improperly answered the jury's question regarding self-defense.