COMMONWEALTH OF MASSACHUSETTS v. JAMES FOLEY (2011)

OF THE TRIAL COURT

ESSEX, ss.

MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION TO SUPPRESS STATEMENTS

I. INTRODUCTION :

The defendant, James Foley (Mr. Foley), is charged with perjury based on statements he made to a grand jury that he took a series of Emergency Medical Technician (E.M.T.) refresher classes at the Essex, Massachusetts Fire Department in November of 2006.   Mr. Foley moves to suppress his statements claiming they were involuntary because state police misled him as to whether he needed an attorney, and as to whether he was a target of the grand jury.

The court finds that police statements to Mr. Foley about his right to counsel were accurate, and that police correctly told him he was not a target.   The court denies the motion.

II. FINDINGS OF FACT :

Based on the evidence presented and reasonable inferences from the evidence, the court makes the following findings of fact:

1.  As of June of 2009, State Police Lieutenant Michael Cooney (Lt.Cooney) was the second most senior state police officer assigned to the Department of the Attorney General.

2. Mr. Foley was a retired Lieutenant Detective of the Wenham Police Department.

3. They were both from Salem, and over their multi-decade law enforcement careers they had met members of each other's families, and had a superficial but friendly social relationship.

4. There was no animosity whatsoever between them.

5. Lt. Cooney was working with Financial Investigator Paul Stewart and multiple Assistant Attorney Generals including James H. O'Brien and Molly Parks on an investigation into suspicions that certain E.M.T. re-certification seminar credits were fraudulently granted.

6. Despite the relatively small amount of funds potentially involved in this case, the Attorney General Office gave it high priority because it represented an issue of the integrity of Hamilton Police Chief Walter Cullen (Chief Cullen).

7. This was an issue of significant concern to the Attorney General's Office given the question of the honesty of a senior criminal justice official.

8. All Department of the Attorney General's personnel that had major roles in this case were at the senior level, including prosecutors, police and investigators (Investigators).

9. As of June 26, 2009, the Investigators, without exception, had strong suspicions of misconduct by Chief Cullen and his teacher, David Mastrianni, Chief Cullen's son-in-law.

10. In order to conduct a thorough investigation, and as a matter of common sense, Investigators looked at other seminar credits that Chief Cullen had received.

11. They turned to credits that he received for classes allegedly conducted at the Essex Fire Department, sponsored by Lyons Ambulance, and taught by Henry Michalski.

12. There were nine rosters involved, one master and eight individual.

13. Mr. Foley's name appeared frequently on the rosters, and five of the rosters contained only Mr. Foley and Chief Cullen's names.

14. Naturally, Investigators first turned to Mr. Foley.

15. There was no special interest in him, in the sense that Investigators did not think that he had engaged in any wrongdoing.

16. Investigators thought that they were investigating misconduct by Chief Cullen, and did not suspect that the alleged misconduct was relatively widespread among other lower rank law enforcement and public safety officials of lower rank.

17. On June 24, 2009, Lt. Cooney left a subpoena at Mr. Foley's home.

18. Using contacts he gained when he was a police officer, Mr. Foley obtained and called Lt. Cooney's cell phone, leaving a voicemail.

19. Lt. Cooney returned the telephone call and the two spoke.

20. Mr. Foley wanted to know why he was served with a John Doe subpoena.

21. Lt. Cooney told him that they were investigating E.M.T. training at the Hamilton Police Department.

22. Lt. Cooney told him that he was not in trouble and not to worry.

23. Mr. Foley asked if he needed a lawyer.

24. Lt. Cooney said that he would have to make that decision.¹

25. Mr. Foley testified before the Grand Jury on June 26, 2009

26.  He repeatedly denied that Chief Cullen was present at the various classes for which the rosters indicated that they took classes together.

27. In the context of this case, this would be an exculpatory statement.²

28. Although Mr. Foley was struggling with his memory, the statements were knowing, voluntary and intelligent, and made while retaining the presence of mind to exculpate himself.³

29. The statements were voluntary.⁴

30. As of the end of Mr. Foley's grand jury testimony, Investigators did not suspect wrongdoing by Mr. Foley.

31. Soon after, Investigators contacted each of the persons listed on the training rosters.

32. One of those persons, a Melrose firefighter, indicated that he might invoke his Fifth Amendment rights.

33. This put into motion a chain of events that widened Investigators' suspicions beyond Chief Cullen.

34. These events were unrelated to Mr. Foley but caused prosecutors to conclude, after the fact, that Mr. Foley perjured himself.

35. At all times Investigators were honest with Mr. Foley.

36. It appears that the only person that received any special treatment was a state trooper listed on a roster.5

37. That trooper was approached through state police “channels” or through the state police bureaucracy.

38. This is a much more witness-friendly approach than that employed for the other witnesses and Mr. Foley.

39. This favorable treatment of the trooper took place after Mr. Foley's testimony and had no effect on it whatsoever.

40. There was no intentional police misconduct in the events which are the subject of this motion.

III. DISCUSSION :

a. Voluntariness

Out of an abundance of caution, the court assumes that Mr. Foley argues that his statements were involuntary, based on the totality of the circumstances.   Mr. Foley was a retired police officer of significant rank, and as the grand jury minutes reveal, still employed at a highly demanding job or jobs.   He had the benefit of a friendly and truthful preview of his grand jury testimony from Lt. Cooney, a long-time acquantance.   He gave an exculpatory version of events, whether true or not, which indicated that he was thinking clearly.   Commonwealth v. Jones, 73 Mass.App.Ct. 38, 45 (2009).

b. The Absence of a Target Warning

Mr. Foley argues that Investigators violated G.L. Ch. 277, s. 14A, which provides that grand jury witnesses “will have the right to consult with counsel and to have counsel present” at the grand jury.   The pre-testimony conversation between Lt. Cooney and Mr. Foley was friendly and truthful.   The statement that it was up to Mr. Foley to decide if he needed an attorney cannot be interpreted as a violation of Mr. Foley's right to counsel, as it amounted to a statement that whether to have an attorney was his option.

This case is not like the cases cited in Commonwealth v. Hawkins, 26 Mass.App.Ct. 910, 911 (1988) because Investigators here did not have reason to believe that Mr. Foley would (as prosecutors claim) perjure himself and Investigators did not misrepresent Mr. Foley's rights.   This case is like Commonwealth v. Brown, 55 Mass.App.Ct. 440, 445–6 (2002);  Investigators did not suspect Mr. Foley of a crime, nor did they know that the testimony Mr. Foley was expected to give would later appear to be perjurious.   The comparison to Commonwealth v. D'Amour, 428 Mass. 725, 742 (1999) is similarly unhelpful to Mr. Foley.

V. ORDER

The defendant, James Foley's, motion to suppress statements (paper # 18) is DENIED.

FOOTNOTES

FN1. The court rejects Lt. Cooney's version of the conversation on June 24, 2009, solely as it relates to this subject.   Lt. Cooney admits that on July 29, 2009, he made this same statement to Mr. Foley, and did not document it in his police report.   Mr. Foley's question was a natural question from one experienced in such matters, and the tenor of the June 24 conversation was friendly, based on their longstanding acquaintance.Mr. Foley urges the court to find that Lt. Cooney told him he did not need an attorney, yet offers no evidence to support this finding.Nevertheless, the court is not persuaded that a finding that Lt. Cooney told Mr. Foley that he didn't need a lawyer would change the result.   A statement to a retired police officer of significant rank that he does not need an attorney for a grand jury proceeding should not, in these circumstances, be interpreted as a statement that he does not have a right to have an attorney at the grand jury.These interactions (those between Lt. Cooney and Mr. Foley) were friendly, and were far from a trap.   Lt. Cooney's report related to the July 29 conversation can be read as as indicative of Lt. Cooney's attitude towards Mr. Foley:  friendly..  FN1. The court rejects Lt. Cooney's version of the conversation on June 24, 2009, solely as it relates to this subject.   Lt. Cooney admits that on July 29, 2009, he made this same statement to Mr. Foley, and did not document it in his police report.   Mr. Foley's question was a natural question from one experienced in such matters, and the tenor of the June 24 conversation was friendly, based on their longstanding acquaintance.Mr. Foley urges the court to find that Lt. Cooney told him he did not need an attorney, yet offers no evidence to support this finding.Nevertheless, the court is not persuaded that a finding that Lt. Cooney told Mr. Foley that he didn't need a lawyer would change the result.   A statement to a retired police officer of significant rank that he does not need an attorney for a grand jury proceeding should not, in these circumstances, be interpreted as a statement that he does not have a right to have an attorney at the grand jury.These interactions (those between Lt. Cooney and Mr. Foley) were friendly, and were far from a trap.   Lt. Cooney's report related to the July 29 conversation can be read as as indicative of Lt. Cooney's attitude towards Mr. Foley:  friendly.

FN2. In other words, this could be the statement of an innocent man, or that of one concocting a cover story to mask his participation in wrongdoing.   Either way it reveals clear thinking processes unclouded by coercion or trickery..  FN2. In other words, this could be the statement of an innocent man, or that of one concocting a cover story to mask his participation in wrongdoing.   Either way it reveals clear thinking processes unclouded by coercion or trickery.

FN3. The court makes no finding as to whether the statements were truthful..  FN3. The court makes no finding as to whether the statements were truthful.

FN4. The court makes this finding beyond a reasonable doubt..  FN4. The court makes this finding beyond a reasonable doubt.

FN5. According to the Attorney General's office, this is not known to violate any regulation of that office..  FN5. According to the Attorney General's office, this is not known to violate any regulation of that office.