Opinion
15-P-433
05-06-2016
COMMONWEALTH v. CARL KLIPP.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Carl Klipp, was charged with unlawful possession of a firearm. The defendant filed a motion to suppress statements he made at the Stoughton police department together with the aforementioned firearm, which the defendant contends was recovered by police as the unlawful "fruit[]" of those statements. The defendant claimed that his statements were made involuntarily because (1) law enforcement personnel employed an improper combination of threats and inducements during his interrogation; and (2) "the police preyed on the defendant's relationship with an investigating officer in order to" elicit those statements. After an evidentiary hearing, the judge denied the defendant's motion to suppress. The defendant was subsequently convicted. He appeals, claiming that the judge erred in denying his motion to suppress. The defendant also raises an additional claim on appeal not raised in his motion to suppress: he contends that law enforcement personnel made misstatements of fact and law during the interrogation that contributed to the involuntariness of the defendant's statements. We affirm.
The defendant had also claimed in his motion to suppress that he did not voluntarily waive his Miranda rights because he was under the effects of Percocet at his first interview. The defendant's appellate counsel conceded that issue at oral argument before this court by saying, "I'd like to acknowledge that . . . I'm not challenging the issue of the Miranda warnings. I do believe [that the defendant's] waiver was voluntary." Accordingly, we need not reach his earlier Miranda waiver claim. Cf. Commonwealth v. Ruci, 409 Mass. 94, 96 n.3 (1991) (limiting court's review to consideration of issues that were not conceded by defense counsel at oral argument in appeal of first degree murder conviction).
1. Discussion. a. Standard of review. In opposing a defendant's motion to suppress, "[t]he Commonwealth must prove beyond a reasonable doubt that 'in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was [not] overborne,' but rather that the statement was 'the result of a free and voluntary act.'" Commonwealth v. Libby, 472 Mass. 37, 41 (2015), quoting from Commonwealth v. Baye, 462 Mass. 246, 256 (2012). Accord Commonwealth v. Magee, 423 Mass. 381, 387-388 (1996). We may consider "[r]elevant factors [such as those raised by the parties, including] 'promises or other inducements, conduct of the defendant, . . . physical and mental condition [of the defendant], the initiator of the discussion of a deal or leniency (whether the defendant or the police), and the details of the interrogation, including the recitation of Miranda warnings.'" Id. at 388, quoting from Commonwealth v. Selby, 420 Mass. 656, 663 (1995). "In reviewing the judge's action, we 'accept[] the judge's subsidiary findings of fact absent clear error, give[] substantial deference to the judge's ultimate findings and conclusions of law, but independently review[] the correctness of the judge's application of constitutional principles to the facts found.'" Magee, supra at 384-385 (1996) (alterations original), quoting from Commonwealth v. Mello, 420 Mass. 375, 381 n.8 (1995). "We recite the facts as found by the motion judge, supplemented by certain undisputed facts and by our own viewing of a video recording of the [first] interrogation." Baye, supra at 247.
b. The defendant's will was not overborne at the first police interview. The judge found that the defendant's will was not overborne by the interview tactics employed by Sergeant Moran and Trooper Russell during the defendant's first interview. We agree. Tellingly, and most importantly, the defendant never succumbed to the tactics employed. He did not admit to either possessing an unlicensed firearm or having any knowledge about the shooting of Stephen Erving during that interview. Moreover, Moran and Russell never made express or "implied promises of leniency" to the defendant. Commonwealth v. Tolan, 453 Mass. 634, 643 (2009). The defendant was also read his Miranda rights at the beginning of the first interview which is another factor that we consider in determining whether his statements were made voluntarily. See Magee, supra at 388. RA 54.
Although we principally rely on the contents of the video of the interview of the defendant conducted by Moran and Russell, which was reviewed by the motion judge, we allow the defendant's unopposed motion to expand the record with a transcript of that video, and we have referenced that transcript as well.
Additionally, because the first interview lasted less than an hour and questioning stopped for approximately eleven minutes during that time, and because the defendant was offered water during and after the interview, the physical conditions the defendant faced during the interview were not as burdensome as they were in police interviews in other cases where this court or the Supreme Judicial Court has concluded that a defendant's will was overborne. Contrast Baye, supra at 257 ("[T]he troopers employed multiple problematic tactics, many of which they used repeatedly throughout the nearly ten-hour interrogation."); Commonwealth v. Ortiz, 84 Mass. App. Ct. 258, 259, 267 (2013) ("Although not extreme in its length, the nearly three-hour interview, conducted without a break or a glass of water, was taxing and left the defendant visibly exhausted").
The defendant also claims on appeal that Sergeant Moran misrepresented certain facts about the Blanchard investigation as well as some applicable law to the defendant during the interview which rendered his later confession to Detective Tracey involuntary. This issue was initially raised and considered sua sponte by the motion judge, who nevertheless found that the defendant's confession was voluntary. As the defendant's will was in no way overborne in the first interview and we conclude in our analysis of Tracey's confession that follows that there was a sufficient break between the first and second interviews to dissipate the effects of any improper tactics in the first interview, we need not and do not resolve whether the issue of police misrepresentations in the first interrogation is properly before us and whether the judge's fact-findings regarding misrepresentations are supported by the record. We do note, however, that even the misrepresentations identified by the motion judge appear not to rise to the level of police misconduct found in other cases where a defendant's will was overborne and suppression of inculpatory statements was found warranted. Contrast Baye, 462 Mass. at 247-265; Ortiz, supra at 262-271.
In reaching the issue of the alleged misrepresentations, the motion judge considered a recording of a police interview with Blanchard that was not introduced in evidence at the motion to suppress hearing to compare what Blanchard actually said during that interview with what Moran had represented to the defendant about the Blanchard interview. The parties have not provided us a copy of that recording that would allow us to review the judge's findings based on the Blanchard interview. We note, however, that in the Commonwealth's memorandum opposing the defendant's motion to suppress, the Commonwealth conceded that at least two of Moran's statements scrutinized by the motion judge did, in fact, contain "inaccuracies."
c. The defendant's statements made to Detective Tracey outside the station were voluntary. The defendant claims on appeal that his confession to Detective Tracey was not voluntary because (1) Tracey improperly offered leniency in exchange for the confession and (2) the conversation with Tracey overbore the defendant's will because it occurred shortly after the first, more aggressive interview with Moran and Russell. These claims are not supported by the record.
The motion judge made the following findings and drew the following conclusions regarding Detective Tracey's interactions with the defendant:
"[Although] Tracey had known the defendant and his family for many years[, this fact alone] does not suggest that [the defendant's] confession was involuntary. There is no evidence that Tracey abused the defendant's trust by suggesting that he would receive special consideration or leniency if he spoke to Tracey. That the defendant felt more comfortable with Tracey and more inclined to be truthful in responding to his questions, does not support a claim that his statements were involuntary."We agree. Detective Tracey's actions were entirely proper. Tracey's mere admonition that the defendant should "tell the truth" because lying to the police might result in some additional charge against him was not an improper offer of leniency and did not render the defendant's subsequent confession to him involuntary. See Commonwealth v. Meehan, 377 Mass. 552, 564 (1979), cert. dismissed, 445 U.S. 39 (1980).
The defendant's claim that his interactions with Detective Tracey ultimately overbore his will because of the pressure that the defendant experienced during the first interview is similarly unpersuasive. We have already concluded that the defendant's will was never overborne during the first interview, and given that the defendant's contact with Tracey did not occur until almost two hours after the end of the first interview, after the defendant had had the opportunity to smoke a cigarette and meet with his mother outside of the police station, this was adequate time to dissipate any lingering pressure from the first interview that might have rendered the defendant's subsequent confession about the firearm to Tracey involuntary. Cf. Commonwealth v. Prater, 420 Mass. 569, 580 (1995) (describing break in stream of events); Commonwealth v. Harris, 75 Mass. App. Ct. 696, 700 (2009) (discussing effect of two-hour break).
2. Conclusion. We conclude from our review of the totality of the evidence before us that the Commonwealth has met its burden and established that the defendant's confession made to Detective Tracey was voluntary. See Libby, 472 Mass. at 41.
Judgment affirmed.
By the Court (Kafker, C.J., Wolohojian & Maldonado, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 6, 2016.