COMMONWEALTH v. WATSON (2020)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The Commonwealth brings this interlocutory appeal from a January 14, 2019, order allowing a motion to suppress all statements made by the defendant, Kiewann Watson, and from an order on the Commonwealth's subsequent motion for clarification.² We affirm the January 14, 2019, order for all statements after page thirteen, line fifteen of the interrogation transcript and reverse as to all prior statements.

Discussion. In reviewing the grant of a motion to suppress, we “assess the correctness of the [motion] judge's legal conclusions” de novo. Commonwealth v. Bell, 473 Mass. 131, 138 (2015). Where, as here, the motion judge relies “almost exclusively” on documentary evidence we are “in the same position as the [motion] judge” with respect to the evidence and therefore review the factual findings de novo. Commonwealth v. Novo, 442 Mass. 262, 266 (2004), quoting Commonwealth v. Prater, 420 Mass. 569, 578 (1995).

Here, the motion judge relied on a videotape of the police interrogation of the defendant to find that the interrogation violated the defendant's Constitutional rights. The judge specifically pointed to two improper types of statements: a “now or never” tactic and minimization of the crime.

“Now or never” tactic. The Supreme Judicial Court has held that this tactic, in which police officers tell interrogation subjects that if they do not speak now to the police, they will never have an opportunity to explain themselves to a jury, is “a particularly egregious intrusion on rights that art. 12 [of the Massachusetts Constitution] declares to be fundamental.” Novo, 442 Mass. at 269. Here, the interrogating officers told the defendant, “[t]his is your one opportunity to tell us why it happened.” Soon after, Sergeant Detective Doherty stated the following:

“[I]s a jury gonna think that Kiewann Watson is a coldblooded, calculated, manipulative killer, or are they gonna think something else about you. And you're gonna give us the reasons why, to something that we can understand. Sometimes people make choices they regret and they want to be honest about it and they want to get it off their chest. People understand that.”

This interrogation was materially similar to that in Novo, wherein the officers told Novo that the interrogation was his only opportunity to tell his story and shortly thereafter, informed him that if he did not offer an explanation, he would never be able to explain to the jury. Id. at 267-268. The detectives here, as in Novo, made similar statements multiple times during the interrogation. Compare Commonwealth v. Miller, 486 Mass. 78, 93-94 (2020) (rejecting argument that detectives used “now or never” theme in questioning where statements were “nuanced and not misstatements of the law” and defendant was not “misinformed about his ability to testify at trial”).

Though the defendant did not ultimately confess to the crime, this does not mean that his will was not overborne. “No distinction can be drawn between statements which are direct confessions and statements which amount to ‘admissions’ of part or all of an offense. The privilege against self-incrimination ․ does not distinguish degrees of incrimination.” Commonwealth v. Garcia, 379 Mass. 422, 431 (1980), quoting Miranda v. Arizona, 384 U.S. 436, 476 (1966).

Because we conclude that the repeated misrepresentation of the defendant's right to present a defense at trial tainted his interrogation irredeemably, the remainder of his statements were properly suppressed and we need not determine whether any minimization of the crime crossed the line of Constitutional permissibility. See, e.g., Commonwealth v. Monroe, 472 Mass. 461, 472 (2015).

However, on the record before us, all statements prior to the improper questions were voluntary. The defendant has not argued that his Miranda waiver was not knowing and voluntary. Thus any statement the defendant made before page thirteen, line sixteen of the interrogation transcript is admissible. See Novo, 442 Mass. at 270. Our conclusion here is consistent with the requirement that the defendant bears the initial burden of producing evidence to show that his statements were not voluntary. See Commonwealth v. Hilton, 450 Mass. 173, 177 (2007).

Conclusion. The motion judge properly suppressed the defendant's statements beginning on page thirteen, line sixteen of the interrogation transcript,³ as all prior statements were voluntary beyond a reasonable doubt. We therefore reverse the January 14, 2019, order as to statements made before page thirteen, line sixteen of the interrogation transcript.

So ordered.

FOOTNOTES

2.   Given our disposition of the motion to suppress, we need not rule on the order on the Commonwealth's motion for clarification.

3.   In Novo, the Supreme Judicial Court suppressed the defendant's statements from the first reference to the jury; therefore, here, we do the same. See Novo, 442 Mass. at 270.