COMMONWEALTH v. FILHO (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a trial in the Superior Court, a jury convicted the defendant, Amadeu Filho, on three indictments charging masked armed robbery. On appeal he argues that the judge erred in denying his motion to suppress statements made without Miranda warnings. He also contends that the cumulative effect of prejudicial errors mandates reversal of his convictions. We affirm.

Background. In the early morning of July 11, 2015, the defendant, Amadeu Filho, accompanied by Erickson Gomes and Jose Gomes,² robbed three stores in southeastern Massachusetts while armed with knives and wearing masks.³ The defendant and Erickson first entered a CVS Pharmacy in New Bedford. They held a knife to a store employee's back, pushed and dragged her to the store office, and stole money from the cash registers. Next, the defendant and Erickson entered a Hess Gas Station ⁴ convenience store in Taunton where they held a knife to an employee's back, struck him in the mouth with the butt of a knife, and stole cash, Newport cigarettes, and Backwoods cigars. Next, they entered Junior's Convenience Store in Assonet, held a knife to the store owner's stomach, and stole money from the cash registers. The store owner recognized the black knife held by the defendant as a “Smith & Wesson knife with a broken tip on it.” Surveillance cameras at each store captured the robberies. The surveillance videos were admitted in evidence and played for the jury.

The victims of the three robberies called 911 or law enforcement. The employee from the Hess Gas Station described the assailants, in part, as “black with white masks.”⁵ Police officers responded to the stores and gathered information about the incidents. Lakeville Police Sergeant Michael Dwyer was on patrol when he heard radio dispatches about the robberies. He drove to Joe's Gas in Lakeville, which was not open, and then drove two miles to a vacant building that formerly housed a small restaurant known as the “A-Frame.” There, Sergeant Dwyer saw two men “walking from a fenced area from behind the [old] restaurant.” He approached them, asked them questions, and checked to see if they had any outstanding warrants. One of the two men, subsequently identified as Erickson, wore a shiny blue jacket. The other man was identified as Jose. Following the brief interaction, and shortly before Jose and Erickson departed the area, Officer Heather Syrett of the Lakeville Police Department arrived in her police vehicle.

Next, as detailed in the comprehensive findings of the judge who heard the defendant's motion to suppress,⁶ the following events transpired:

“The two police officers then decided to return to the area of the ‘A-Frame’ parking lot, a distance of 65 to 70 feet, knowing that the location had been the site of past breaks. As they did, they observed a white vehicle parked on the other side of the fence, near the former automotive repair shop. The fence displayed a ‘no trespassing’ sign. The vehicle was a short distance to the east of where Sergeant Dwyer had first observed Jose and Erickson walking in a westward direction. The two officers exited their cruisers and approached. Neither drew his or her weapon. They observed that the vehicle was a silver-colored Mazda with Rhode Island registration. It was parked slightly to the side of the fence opening and facing outward. Its engine was running. Its lone occupant was seated in the front passenger's seat. He appeared to be sleeping. As the officers drew nearer, they noted that the vehicle's transmission was in the ‘drive’ position and the parking brake was set. They looked at the back seat area and observed a significant amount of U.S. currency appearing as if it had been tossed where it was found. Some of it was bundled with elastic ties. Some of it was inside or partially inside several plastic bags bearing the Hess logo. Directly beside the cash and plastic bags was a silver-and-black colored folding knife with a grip handle. Also on the rear seat, and visible to the officers standing outside the Mazda was what appeared to be a rolled up white mask. On the driver's seat, the officers observed two packs of Backwoods cigars.

“Officer Syrett knocked on the passenger's side window in an attempt to wake the passenger. He did not respond. Opening the door, she then shook him. He awoke, and the officer asked him to step out of the vehicle. He complied and explained that he didn't know where he was or how he got there. He stated that he had earlier been with his brother, ‘Jose,’ and that they had gotten drunk at a club. Officer Syrett noted that the passenger, who identified himself as [the defendant], did not appear to be intoxicated.

“With [the defendant] out of the vehicle, the officers were able to observe through the window that on the floor in front of his seat were a gray sweatshirt, a black glove and a black mask.[7] Sergeant Dwyer then handcuffed [the defendant] and placed him into the rear seat of Officer Syrett's cruiser.

“Sergeant Dwyer notified his headquarters of these activities and thereby learned that a neighbor had reported on the ‘911’ line that he or she had observed two black males watching the officers approach the Mazda and then observed the two males running off into the woods. Sergeant Dwyer also spoke to Lieutenant Joyce of the Taunton department, who stated that he had viewed surveillance video of the Hess Gas Station robbery and noted that one of the robbers had been wearing a blue jacket at the time. Stills from this video were transmitted by police to Sergeant Dwyer's cellphone, and he was able to make these observations himself. The sergeant subsequently informed [the defendant] that he was being placed under arrest for armed robbery and read to the defendant his Miranda warnings from a printed card issued by the Lakeville Police Department.

“Sergeant Dwyer later discovered a second knife upon the property adjacent to and south of the ‘A-Frame’ parking lot. This second knife was located near where Jose and Erickson had been when they had first encountered the officer. It was similar in size and appearance to the knife found inside [the] Mazda, and the sergeant seized it.” (Footnotes omitted.)

Among items seen in the vehicle in which the defendant sat were the “Hess bag with money in it” and the black knife, both located in the backseat. After the defendant was handcuffed and placed in the backseat of Officer Syrett's cruiser, Sergeant Dwyer was “given photos of surveillance from Juniors Convenience” and “one of the descriptions that came back with it was a black knife with a broken tip.” Sergeant Dwyer then confirmed that the tip of the knife seen in the backseat of the car was indeed broken. Law enforcement officials subsequently located and arrested Erickson and Jose. Erickson was still wearing the same blue jacket. Officers located approximately $325 in Erickson's pockets, and more than $4,000 in Jose's pockets.

Discussion. 1. Motion to suppress statements. The defendant claims that the judge erred in denying his motion to suppress his statements because the officers subjected him to custodial interrogation, without providing Miranda warnings, when they blocked the vehicle in which he sat, shook him, and issued the exit order.⁸

“In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.’ ” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). Miranda warnings are only necessary where one is the subject of “custody and official interrogation.” Commonwealth v. Larkin, 429 Mass. 426, 432 (1999), quoting Illinois v. Perkins, 496 U.S. 292, 297 (1990). In determining whether a defendant was subjected to custodial interrogation, the court considers the following factors:

“(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest.”

Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). “Rarely is any single factor conclusive.” Commonwealth v. Bryant, 390 Mass. 729, 737 (1984).

We first note that although the defendant's motion to suppress lists the failure of the police to inform him of his rights pursuant to Miranda as a basis for suppression, it is not clear that he pursued this claim in the Superior Court. The defendant referenced neither the Miranda claim nor the “Groome factors” in his posthearing memorandum of law or in the three-day evidentiary hearing on the motion to suppress. Rather, the defendant's arguments in the Superior Court hinged on claims that the officers lacked a sufficient basis to stop the vehicle in which the defendant was a passenger, lacked justification to issue the exit order, and lacked probable cause to arrest the defendant.

Nonetheless, even assuming that the defendant properly preserved the issue for appeal, the claim is unavailing, as the defendant did not meet his burden to show that he was in custody at the time that he made the challenged statements. See Larkin, 429 Mass. at 432. At the time that the officers first approached the vehicle,⁹ they had already observed suspicious behavior from Jose and Erickson, who emerged from an area near the A-Frame in the wake of the three nearby armed robberies. They then located the defendant, either asleep or feigning sleep, in the passenger seat of a motor vehicle, with the transmission in drive and the emergency brake on, in a fenced-in area marked “no trespassing,” and saw in plain view money, a knife, mask, white “Hess” bags containing money, and other items scattered on the back seat, and Backwoods cigars on the driver's seat. By this point in time, Sergeant Dwyer was aware of two of the robberies and “knew the one in Taunton was a Hess Gas station.” Based on all the circumstances known to the police officers at this time, the approach to the vehicle, knocking on the window, waking of the defendant, and preliminary questioning constituted, at most, “a valid Terry-type stop, with an initial, brief inquiry into the suspicious transactions that a police officer believed he had seen.” Commonwealth v. Cawthron, 479 Mass. 612, 616 (2018). As here, “[s]uch stops are permissible where an officer has a reasonable suspicion that a crime has been, is being, or is about to be committed.” Id. “At that point, the interaction is casual, and generally no Miranda warnings are necessary.” Id., citing Commonwealth v. Borodine, 371 Mass. 1, 4 (1976).

Further, the officers did not exceed the permissible scope of the stop by asking the defendant his name, where he was coming from, or about the individuals who had earlier emerged from the same general area. Applying the Groome factors, the questioning occurred in a parking lot while the defendant sat in the passenger seat of a vehicle. “[T]he defendant[ ] [was] neither handcuffed nor otherwise physically restrained. This environment was not police-dominated.” Cawthron, 479 Mass. at 618, citing Vanhouton v. Commonwealth, 424 Mass. 327, 331-332 & n.7, cert. denied, 522 U.S. 834 (1997). The officers did not convey to the defendant that he was a suspect. There is no indication that the engagement was aggressive, and it occurred in an informal, noncoercive setting. Furthermore, “[t]he interview occurred as part of the [officers]’ ‘brief, preliminary effort to confirm or dispel a suspicion’ ” involving the defendant. Cawthron, supra at 619, quoting Commonwealth v. Kirwan, 448 Mass. 304, 311 (2007). As to the final Groome factor, even assuming that the defendant was not free to leave, “[that] fact ․ does not transform the stop[ ] into [a] custodial interrogation[ ], where the other Groome factors weigh against custody.” Cawthron, supra at 624, and cases cited.

Finally, even assuming, arguendo, that the defendant's statements should have been suppressed, their admission was harmless beyond a reasonable doubt. There is no dispute that the evidence of the defendant's guilt was overwhelming, and the statements did not contribute to the jury's verdicts. Contrast Commonwealth v. Tyree, 455 Mass. 676, 701-702 (2010).

2. Other issues. The defendant contends that a combination of evidentiary errors deprived him of a fair trial. We address each claim, in brief, below.¹⁰

a. Booking video. The defendant claims that the trial judge abused his discretion in allowing a videotape of the booking process into evidence. Because the defendant did not object at trial to the admission of the video, our review is limited to whether there was error, and if so, whether such error created a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).¹¹

The video was relevant, in part, to show the clothing that the codefendants, Erickson and Jose, wore during the booking process, as some of their clothing matched some of the descriptions provided by witnesses at trial and shown in the surveillance videos of the robberies. In addition, it appears that the booking video depicted the defendant wearing the same dark color pants and white shoes worn by one of the individuals in all three of the robbery surveillance videos. Accordingly, some of the video was relevant, and it was not error to admit portions of it into evidence. We further acknowledge that the original hour and fifteen-minute booking video was redacted to the sixteen-minute version admitted in evidence. However, the booking video could have been redacted further in order to avoid showing the details of the defendant undergoing most if not all of the booking process, which was otherwise irrelevant to any live issue at trial. Assuming that the admission of the booking video without further redaction constituted an abuse of discretion, we nonetheless discern no substantial risk of a miscarriage of justice in this case. Here, there was no dispute that the defendant and the codefendants had been arrested and booked. When combined with the overwhelming evidence of guilt, we conclude that the error was not “sufficiently significant in the context of the trial to make plausible an inference that the [jury's] result might have been otherwise but for the error.” Alphas, 430 Mass. at 13, quoting Commonwealth v. Miranda, 22 Mass. App. Ct. 10, 21 (1986).

b. References to Miranda warnings and interview. The defendant contends that a police officer's reference to the defendant's “interview” and another officer's reference to having “read the [defendant] his Miranda rights” allowed for jury speculation. The defendant did not object or move to strike either statement. Although neither comment should have been made, they were brief, isolated, and stemmed from nonresponsive testimony to proper questions. Under these circumstances, the minor errors did not create a substantial risk of a miscarriage of justice. See Alphas, 430 Mass. at 13.

c. Illness at trial. The defendant became sick at trial and vomited at least twice in the presence of the jury. He now argues that the jury might have drawn a negative inference from his illness. The argument is unpersuasive and speculative. See Commonwealth v. Vanderpool, 367 Mass. 743, 747 (1975) (where “defendant became ill and vomited when a loud noise was heard in the court room,” there was no error in judge's refusal to allow explanation of incident to be given to jury). In addition, the judge instructed the jurors that they were “not to hold what just happened for or against either party.” He further instructed that “[t]his case is to be decided just on the evidence and the law that I give you, not based on any type of sympathy or anything like that.” The instructions mitigated any risk of prejudice to the defendant. See id. at 748 (noting propriety of cautionary instructions in circumstances where there is danger that jury may consider some extraneous factor).

Judgments affirmed.

FOOTNOTES

2.   Insofar as Erickson Gomes and Jose Gomes share the same surname, we refer to them by their first names herein.

3.   The evidence showed that Jose acted as a lookout and coventurer in the robberies.

4.   The motion judge noted that the gas station had become a “Speedway station,” but that witnesses referred to it as the “Hess station.”

5.   Still photographs from the surveillance videos were admitted in evidence at trial and at the hearing on the motion to suppress. The photographs depict, inter alia, one robber wearing a gray sweatshirt and a black or dark-colored mask. The photographs show the other robber wearing a white mask and a jacket with “dark-colored shiny fabric with its hood up. The hood appears to be blue.”

6.   The evidence at trial did not materially differ from the evidence adduced at the hearing on the motion to suppress.

7.   Forensic testing revealed that the defendant's DNA was consistent with the DNA on the black mask found in the vehicle.

8.   “Miranda warnings seek to protect an individual's ‘fundamental’ right under the Fifth Amendment to the United States Constitution that ‘[n]o person ․ shall be compelled in any criminal case to be a witness against himself.’ ” Commonwealth v. Cawthron, 479 Mass. 612, 616 (2018), quoting Miranda v. Arizona, 384 U.S. 436, 468 (1966).

9.   The defendant claims that a police cruiser blocked the Mazda, thus preventing the defendant from leaving the area, and that the judge's finding to the contrary is clearly erroneous. Although the testimony as to this issue was conflicting and thus left to the motion judge to decide, we need not resolve this contention, as the purported blocking of the vehicle in the present circumstances did not exceed the scope of the Terry-type stop. See, e.g., Commonwealth v. Fitzgibbons, 23 Mass. App. Ct. 301, 308-309 (1986) (in circumstances at issue police officers did not exceed scope of valid Terry-type stop by blocking vehicle with guns drawn).

10.   “Other points relied on by the defendant[ ] but not discussed in this [decision], have not been overlooked. We find nothing in them that requires discussion.” Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).

11.   The defendant moved in limine to preclude the Commonwealth from introducing photographs of the defendant entering the Taunton Police Department, contending that such evidence was “irrelevant and extremely prejudicial.” The motion did not reference any video of the booking process. During the pretrial hearing on the motion in limine, the prosecutor referenced the photographs as well as a sixteen-minute booking videotape, which had been “cut ․ from about an hour and [fifteen] minutes.” The judge did not rule on the motion or the admissibility of the video, said that he would watch the video, and took the motion under advisement. At the outset of the fourth day of trial, defense counsel reminded the judge of the video issue, stated that she wanted the opportunity to review the cut down version of the video, and represented to the judge, “We don't know what our position would be ․ [o]n that without seeing it first.” When the Commonwealth later moved to admit into evidence the DVD containing the sixteen-minute video of the booking process, the judge asked if the defendant had “[a]ny objection.” Defense counsel responded, “No,” and the sixteen-minute portion of the video was admitted as an exhibit and played for the jury without objection. Accordingly, the issue was not preserved for appeal.