COMMONWEALTH v. RUBEN SEMEDO BRAUN (2026)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a trial in the District Court, a jury convicted the defendant of carrying a firearm without a license and carrying a loaded firearm without a license.² On appeal, the defendant raises three issues. First, he argues that statements he made to police should have been suppressed because he was not advised of his Miranda rights. Second, he argues his counsel was ineffective for failing to raise other, potentially successful, suppression issues. Third, he argues the trial judge abused her discretion because she did not hold a voir dire after receiving a report that “a couple of jurors were dozing” off during a witness's testimony. After review, we affirm.

Background. Based on the evidence presented at trial, the jury could have found the following facts. Around midnight on February 19, 2022, police officers responded to a ShotSpotter alert that signaled a gunshot had been detected in the backyard of a house in Brockton. Officers arrived to find a man in the backyard and asked him some questions before canvassing the area for any signs of a gunshot. In the backyard, a nine-millimeter shell casing was found next to a detached garage, which stood at the end of a driveway.

Hearing movement in the garage, the officers knocked on the door and a man opened it; eight to ten people were inside, including the defendant. The officers ordered everyone out and had them stand outside along the wall of the garage. After a patfrisk of all the individuals revealed no firearms, the officers obtained consent to search the garage and found a firearm underneath a mattress on the floor. Upon further inspection, the officers learned that the firearm was a Ruger semiautomatic, nine millimeter with three rounds in the magazine.

Outside the garage, the officers discussed whether to call for gunshot residue testing, when someone called out, “No need to. It's mine.” An officer turned to the people standing along the wall and asked, “Who said that?” The defendant responded, “I did. That's mine.” The officer asked, “What is?” The defendant said, “The gun is.” The defendant told the officer that the gun was a Ruger, that he had just “let one off,” and that none of the other people along the wall were involved. The defendant further stated that he did not have a license to carry a firearm. The defendant was placed under arrest.

Discussion. 1. Statements. The defendant moved to suppress, among other things, statements he made to the police at the scene. After an evidentiary hearing, the motion judge found that the defendant's initial statements, to the effect that the police did not need to do a gunshot residue test because the gun was his, “were blurted out and not elicited by any interrogation by [p]olice.” The judge also found that the police subsequently asked what kind of a gun it was. The judge considered this to be a custodial interrogation without Miranda warnings and therefore suppressed the defendant's response, “It was a nine millimeter.” On appeal, the defendant acknowledges that his initial admission that the gun was his was spontaneous. He argues, however, that every other statement was in response to a question and therefore should have been suppressed as statements obtained subject to a custodial interrogation.

In reviewing a decision on a motion to suppress, “we accept the judge's subsidiary findings of fact absent clear error ‘but conduct an independent review of [the judge's] ultimate findings and conclusions of law’ ” (citation omitted). Commonwealth v. Gonzalez, 465 Mass. 672, 674 (2013). The premise of the defendant's argument is that Miranda warnings were required to be given at some point during the defendant's exchange with the police. However, “Miranda warnings are only necessary where one is subject to ‘custodial interrogation’ ” (citation omitted). Commonwealth v. Mejia, 461 Mass. 384, 389-390 (2012). The court considers several factors in determining whether a defendant was subjected to custodial interrogation:

“(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. Cawthron, 479 Mass. 612, 617-618 (2018), quoting Commonwealth v. Groome, 435 Mass. 201, 211-212 (2001). No single factor is conclusive. Cawthron, supra at 418.

Here, the motion judge made no specific findings on the issue of custody, moving directly to the issue of interrogation. The evidence showed, however, that the place of interrogation was outside, in a residential area. See Commonwealth v. Tejada, 484 Mass. 1, 9 (2020) (questioning at public parking lot not coercive). Prior to the defendant's spontaneous statement, the officers did not communicate anything to him; rather, the defendant interjected after overhearing the officers talking among themselves. See Commonwealth v. Estabrook, 496 Mass. 467, 472 (2025) (interrogation is express questioning or its functional equivalent); Commonwealth v. Ferrer, 68 Mass. App. Ct. 544, 546-547 (2007) (exchange of remarks initiated spontaneously and voluntarily by defendant could not properly be considered custodial interrogation).

There was nothing in the record to suggest that the questioning was aggressive; the police did not focus on the defendant until he volunteered that the gun was his, and then only asked him a few questions about the type of firearm and whether he had a license to carry a firearm. Contrast Commonwealth v. Molina, 467 Mass. 65, 75 (2014) (although defendant appeared for voluntary interview, interaction became coercive when officers “peppered the defendant with questions in rapid fashion” and repeatedly accused him of lying to officers).

The defendant was not free to leave, as the police were in the middle of their on-the-scene investigation into the ShotSpotter alert. See Cawthron, 479 Mass. at 618-619 (defendants not free to leave due to Terry stop but environment deemed noncoercive). Although the interaction ended in the defendant's arrest, that was due to the defendant's spontaneous admission. See Commonwealth v. Bryant, 390 Mass. 729, 742 n.15 (1984) (arrest after incriminating statement, by itself, does not “label[ ] as custodial the interrogation that precedes the incriminating statement”). The questions put to the defendant only served to clarify or confirm his admission. See Commonwealth v. Shine, 398 Mass. 641, 648-649 (1986) (on scene inquiry of defendant, designed to identify him and what he knew of crime, were natural preliminary questions and not custodial interrogation).

Because the defendant was not in custody, for Miranda purposes, we conclude that the motion judge did not err in declining to suppress any additional statements.

2. Ineffective assistance of counsel. The defendant argues that his counsel was ineffective for failing to attempt to invalidate the consent search of the garage by arguing that the consent was tainted by the illegality of the warrantless search of the backyard, the warrantless entry into the garage, the patfrisks of the occupants, and the detention of the occupants. See Commonwealth v. Fredericq, 482 Mass. 70, 80-82 (2019) (evidence suppressed where consent to search tainted by prior illegality). Although trial counsel did challenge the consent search of the garage, he did so by arguing that the person who gave consent did not have authority to do so. Because there was no motion for a new trial and no affidavit from counsel, we have no information about the reason counsel chose this strategy.

“[O]ur courts strongly disfavor raising claims of ineffective assistance on direct appeal.” Commonwealth v. Zinser, 446 Mass. 807, 810 (2006). “[A]n ineffective assistance of counsel challenge made on the trial record alone is the weakest form of such a challenge because it is bereft of any explanation by trial counsel for his actions and suggestive of strategy contrived by a defendant viewing the case with hindsight.” Commonwealth v. Peloquin, 437 Mass. 204, 210 n.5 (2002). Although a narrow exception allows a claim of ineffective assistance to be resolved on direct appeal when the factual basis of the claim appears indisputably on the trial record, see Commonwealth v. Adamides, 37 Mass. App. Ct. 339, 344 (1994), that is not the case here.

Relying on testimony from the suppression hearing and trial, the defendant lays out a sequence of events and contends that “these facts are indisputable.” Based on these “indisputable” facts, the defendant contends that there was a high likelihood that a motion to suppress would have been allowed. But “facts” developed from testimony are dependent on the questions asked, and those questions may be framed with particular theories in mind. Thus, the facts may well unfold in a different manner where counsel is pursuing different theories. Moreover, regardless of how the testimony lands, the facts are those credited by the judge. The facts are thus in no sense indisputable. Rather, the defendant's claims are highly fact-dependent, with those facts having not been determined by the motion judge.³

In any event, the existing record does not support the claim of tainted consent. There is no evident prior illegality, nor is there any apparent exploitation of any illegality leading to the consent given to search the garage. The search of the backyard was supported by probable cause and exigent circumstances derived from the ShotSpotter alert with confirmation from an individual in the driveway of the location. See Commonwealth v. Paniaqua, 413 Mass. 796, 798 (1992); Commonwealth v. Moore, 54 Mass. App. Ct. 334, 338-339 (2002). Police gained entry into the garage when the occupants opened the door after the police knocked. The patfrisk of the occupants was justified based on reasonable suspicion that one of them might have discharged a firearm at the location. See Commonwealth v. Ford, 100 Mass. App. Ct. 712, 719 (2022). Even if any police illegality could be found, nothing came of it. Police gained nothing from the initial entry into the garage. Nothing was found as a result of the patfrisks. Thus, there was no evident connection between any prior illegality and the consent to search the garage. See Commonwealth v. Damiano, 444 Mass. 444, 453 (2005) (in considering remedy of suppression, issue is whether evidence was derived from exploitation of illegality).

3. Report of sleeping jurors. Finally, the defendant argues that the trial judge abused her discretion when, after receiving a report of possibly dozing jurors, she allowed the witness to finish testifying and took a short recess instead of holding a voir dire of the jurors.

A judge's receipt of reliable information that a juror is asleep requires prompt judicial intervention. Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009). “[T]he judge has discretion regarding the nature of the intervention and the remedies for any sleeping that has occurred.” Id. Those remedies include, but are not limited to, taking a short recess, noting the report and monitoring the situation, allowing the jurors to stand up and stretch, or conducting a sensitive voir dire of the juror. See Commonwealth v. Ralph R., 100 Mass. App. Ct. 150, 155-156 (2021). Not every complaint about juror inattentiveness requires a voir dire. See Commonwealth v. McGhee, 470 Mass. 638, 644 (2015). On appeal, the defendant bears the burden of showing that the judge's response to information about a sleeping juror was arbitrary or unreasonable. Id.

Here, at the end of the first day of trial, during the Commonwealth's redirect examination of a witness, the parties went to sidebar concerning an objection. The prosecutor then stated, “And Judge, while I'm up here, I think a couple of the jurors are dozing․ I don't know if they're hot ․ he's in the middle, his eyes have been closed a lot, and he's kind of snapping back up.” The judge stated her intention to allow the prosecutor's examination of the witness, which was about to conclude, to finish and then take a break. She asked the parties, “How's that sound?” The defendant did not object. The prosecutor asked the witness two more questions, the defendant asked no questions, and the judge took a break before the next witness. There was no further mention of any sleeping jurors.

The prosecutor reported to the judge that she thought a couple jurors had been dozing and one juror was “kind of snapping back up.” Under the circumstances, the judge was not required to conduct a voir dire. See Dancy, 75 Mass. App. Ct. at 181 (“If the sleeping is observed at the outset or when the juror is beginning to ‘nod off,’ it is likely that a break or a stretch will suffice”). Cf. Commonwealth v. Alleyne, 474 Mass. 771, 778 (2016) (where juror reportedly was “struggling to stay awake,” judge's decision to monitor situation without voir dire deemed reasonable). The reasonableness of the trial judge's approach is buttressed by the fact that it drew no objection at the time. See Commonwealth v. Lucien, 440 Mass. 658, 664 (2004). Accordingly, the defendant has not demonstrated that the judge's resolution of the issue was arbitrary or unreasonable.

Judgments affirmed.

FOOTNOTES

2.   The jury also convicted the defendant of possession of ammunition without a firearm identification card; however, it was dismissed on the Commonwealth's motion because it was duplicative of the loaded firearm charge.

3.   For example, the defendant contends that statements from the person the police first encountered at the house cannot be factored into the probable cause and exigent circumstances analysis, because the conversation took place within the fenced-in yard. But there is evidence in the record that it took place in the driveway leading to the yard and the judge made no finding on this specific point. Likewise, the defendant contends that the initial police entry into the garage was illegal, but the police knocked on the door and the occupants opened it; the judge made a specific finding that “Nobody objected to [the police's] entry.” See Commonwealth v. Rogers, 444 Mass. 234, 238 (2005) (voluntariness of consent to entry is issue of fact to be determined from totality of circumstances).