Opinion
NO. 9973CR0447
October 11, 2000
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION TO SUPPRESS EVIDENCE INTRODUCTION
The defendant, Clyde Thomas ("Defendant"), has been charged with murder in violation of G.L.c. 265, § 1, armed assault with intent to murder in violation of G.L.c. 265, § 18(b), and assault and battery with a dangerous weapon in violation of G.L.c. 265, § 15A(b). The Defendant now moves to suppress any evidence of statements made by him to Attleboro and Massachusetts State Police Officers after his arrest on December 3, 1999 on grounds that this evidence was obtained in violation of the Defendant's rights under the Fifth and Sixth Amendments to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. For the reasons set forth below, the Defendant's motion to suppress is allowed.
BACKGROUND/FINDINGS OF FACT
The Defendant has a history of substance abuse and mental deficiencies. His education level is well-below normal for his age and the Defendant is illiterate. On the day of the interrogation at issue, the defendant was suicidal. Later on December 3, 1999, the Defendant was admitted to the Bridgewater State Hospital and, after evaluation, he was diagnosed as afflicted with significant cognitive limitations.
On December 3, 1999, the Attleboro Police arrested the Defendant and charged him with the murder of his girlfriend, Julie Anne White. At the police station, the officers took the Defendant's clothes, provided him with a blanket and questioned the Defendant in an interrogation room beginning at approximately 7:00 p.m. Trooper Blais and Detective Otrondo conducted the interrogation which was documented on videotape.
At the beginning of the interrogation, Detective Otrondo informed the Defendant of his Miranda rights. When asked to sign the waiver form, the Defendant revealed that he could not read. Trooper Blais then read the form aloud to the Defendant. Then followed the exchange that prompted the instant motion:
TROOPER BLAIS: Well, do you understand your rights?
MR. THOMAS: Somewhat.
TROOPER BLAIS: What don't you understand?
MR. THOMAS: About a lawyer being present. I don't have one.
TROOPER BLAIS: Okay. If you cannot afford a lawyer, one will be appointed for you before questioning, if you wish. It doesn't mean that they have to be appointed. It doesn't mean there has to be one here if you want to talk to us.
Do you understand that now better?
MR. THOMAS: What do you mean? So I don't have to answer nothing right now?
TROOPER BLAIS: No. You can answer without a lawyer if you want.
MR. THOMAS: What I'm saying, though, could I get a lawyer right now?
TROOPER BLAIS: Do you have a lawyer that you want to call?
MR. THOMAS: I don't have a lawyer.
TROOPER BLAIS: In the past have you been represented by any attorneys?
MR. THOMAS: Yeah.
TROOPER BLAIS: Who was that?
MR. THOMAS: I can't remember his name. Gordon (inaudible), whatever his name is.
TROOPER BLAIS: Gordon (inaudible)? Do you know where he is from?
MR. THOMAS: I think out here. I'm not familiar with him. I know he goes to the Attleboro court. Chubby guy.
TROOPER BLAIS: I haven't heard of him.
What we'd like to do is talk to you about an incident that happened last night, okay, with regards to you and Julie.
MR. THOMAS: Okay.
TROOPER BLAIS: That's okay with you?
MR. THOMAS: Uh-huh.
* * * *
DETECTIVE OTRONDO: Clyde —
MR. THOMAS: What?
DETECTIVE OTRONDO: I just want to make clear. You understood what Trooper Blais said in regards to Miranda?
MR. THOMAS: Who?
TROOPER BLAIS: Me.
DETECTIVE OTRONDO: Trooper Blais. Trooper Blais. Do you remember what he said in regards to Miranda, that if you didn't want to talk to us now without a lawyer being present, you didn't have to talk to us?
MR. THOMAS: Right.
DETECTIVE OTRONDO: And right now you're willing to talk to us without a lawyer being present?
MR. THOMAS: Right.
DETECTIVE OTRONDO: You're willing to do that?
MR. THOMAS: Yeah, unless you can get me a lawyer. But if you can't —
DETECTIVE OTRONDO: Well, that's up to you.
MR. THOMAS: Why, can you get one here for me?
DETECTIVE OTRONDO: Well, we can afford you the right to obtain a lawyer.
MR. THOMAS: What's that mean?
DETECTIVE OTRONDO: If you want to make a phone call.
MR. THOMAS: I don't have a lawyer's number to call. That's what I'm saying. That's what I'm trying to get at.
DETECTIVE OTRONDO: Well, did you want to call a lawyer?
MR. THOMAS: No. Go ahead. I'll answer this freely. I got nothing to hide.
The interrogation continued and produced the admissions now sought to be suppressed.
DISCUSSION
"It is well established that, if an individual in custody states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning.'" Commonwealth v. Judge, 420 Mass. 433, 448 (1995) (quoting Miranda v. Arizona, 384 U.S. 436, 474 (1966)). Massachusetts law further provides that "[t]he rule is that the defendant's decision to cut off questioning must be `scrupulously honored.'" Commonwealth v. Pennellatore, 392 Mass. 382, 386 (1984) (quoting Commonwealth v. Brant, 380 Mass. 876, 882, cert. denied, 449 U.S. 1004 (1980)). Once a defendant makes an affirmative request for an attorney, all questioning must cease, unless the defendant himself initiates further communication. Judge, 420 Mass. at 448 (citing Edwards v. Arizona, 451 U.S. 477, 484-485 (1981)). In the event that the police continue questioning the defendant in the absence of counsel, all statements are presumed involuntary and, therefore, inadmissible at trial, regardless of whether or not the defendant has executed a waiver form. Id. at 448 (quoting McNeil v. Wisconsin, 501 U.S. 171, 177 (1991)). Finally, it is the Commonwealth's burden to prove beyond a reasonable doubt that, if the defendant invoked his right to counsel, his subsequent election to confess, without first consulting an attorney, was reached independently of police influences. Judge, 420 Mass. at 450-451 (citing Commonwealth v. Day, 387 Mass. 915, 920-921 (1983)).
A. The Invocation
The Defendant's statement, "[w]hat I'm saying, though, could I get a lawyer right now?", constituted an invocation of his right to counsel, and thus the officers were obligated to cease their interrogation of the Defendant. (Ex. M-1, p. I-8 at ¶ 19-20). Under the Edwards holding, the police may continue communications with a defendant after such an invocation, but only if the defendant is the one who initiates the communications. Edwards, 451 U.S. at 484-485; see also Judge, 420 Mass. at 448. In the case at bar, it was the police who, post-invocation, continued the discussion by asking the Defendant if he had a lawyer to call (Ex. M-1, p. I-8 at ¶ 21-22) and, while that question may have been innocuous, it was, nevertheless, a police initiated resumption of the exchange and, in the circumstances, lead to impermissible questioning. All subsequent interrogation ought to have been avoided until counsel appeared or defendant elected to waive his right to counsel with unmistakable clarity.
In addition to the aforementioned request for an attorney, the Defendant, later in the interview, made another, albeit somewhat inarticulate, request for counsel. (Ex. M-1, p. I-12 at ¶ 6-7). In response to Detective Otrondo's inquiry as to the Defendant's willingness to speak without the presence of an attorney, the Defendant answered, "[y]eah, unless you can get me a lawyer. But if you can't . . . ." Id. Again, the officers responded to the Defendant's statement by asking him if he had a lawyer he might call and eventually continued questioning the Defendant regarding the incident. Id. at 15-16. Defendant's acquiescence is, in these circumstances, not a constitutionally effective reversal of his precedent expression of interest in obtaining counsel.
The Commonwealth contends that the Defendant's statements do not constitute requests for an attorney, directing the Court's attention to several cases in which the Supreme Judicial Court found that the defendants' references to an attorney were not sufficient to be considered affirmative requests for counsel. See Commonwealth v. Todd, 408 Mass. 724 (1990) (defendant "wondered aloud about the advisability of having a lawyer"); Commonwealth v. Corriveau, 396 Mass. 319 (1985) (defendant stated "[i]t's beginning to sound like I need a lawyer"); Commonwealth v. Pennellatore, 392 Mass. 382 (1984) (defendant stated "I guess I'll have to have a lawyer for this" in response to the seriousness of the charges). Those cases, however, are notably distinguishable from the matter at bar. The instant Defendant's statements cannot be fairly characterized as mere pondering or musing about whether he wanted an attorney. On the contrary, the Defendant's statements clearly demonstrate that he desired to consult with an attorney prior to the interrogation, but did not know whom to call. Accordingly, this Court concludes that the utterances by the Defendant constitute unambiguous expressions of disinclination to proceed with interrogation in the absence of an attorney.
B. The Waiver
The two requests by the Defendant for an attorney were sufficient to trigger Miranda's preclusion of further questioning and required the officers to cease interrogation until the Defendant had the opportunity to consult with an attorney or waived his right so to consult. However, Trooper Blais' and Detective Otrondo's continued questioning of the Defendant after he had asserted his right to counsel and absent waiver violated the Edwards precept. Accordingly, the Defendant's post-request statements must be excluded from evidence at trial.
The Commonwealth has failed to prove beyond a reasonable doubt, that, subsequent to invoking his right to counsel, the Defendant abandoned his previous request for counsel and independently decided to speak with the police regarding the incident. See Judge, 420 Mass. at 450-451 (citing Commonwealth v. Day, 387 Mass. 915, 920-921 (1983)). Although the Commonwealth need not provide evidence of express assertions in order to show an adequate waiver by the Defendant, the Commonwealth's burden of proof on the waiver of counsel issue remains quite demanding. Corriveau, 396 Mass. at 330 (citingCommonwealth v. Westermoreland, 388 Mass. 269, 275 (1983)).
In the case at bar, the Defendant requested an attorney on two separate occasions, and after both requests, the police asked him if he knew an attorney he might call. (Ex. M-1, p. I-8 at ¶ 19-22 and p. I-12 at ¶ 6-7, 15-16). On both occasions, the Defendant indicated that he did not know whom to call. (Ex. M-1 at p. I-8, ¶ 23-24 and p. I-12 ¶ 17-19). The transcript of the police interview of the Defendant demonstrates that the Defendant did not have a clear understanding of what his right to counsel meant. It appears that the Defendant believed that the exercise of his right to counsel hinged upon his knowing the name of an attorney to call at the moment the officers were offering him the opportunity to do so. The transcript does not suggest that the Defendant understood that he could wait for an attorney before answering any more questions by the police. Compare Commonwealth v. Hussey, 410 Mass. 664, 667 (1991) (after the defendant attempted to call his uncle, an attorney, who did not answer, the defendant stated, "I'm not going to wait. All right. I'll tell you what happened."). A fair reading of the interview transcript at bar supports this court's view that the Defendant misapprehended his counsel right as wholly depended on his ability to supply the name of an attorney who might service him at the interrogation. Corriveau offers an instructive contrast to the case at bar. In Corriveau, the defendant asserted that police intentionally confused and "whipsawed" him into confessing. Corriveau, 396 Mass. at 331. Therefore, the defendant argued, his waiver of his rights was not knowing, intelligent or voluntary. Id. at 331. The Supreme Judicial Court rejected that contention, finding that the defendant was "an experienced and well-educated businessman" who understood what was going on and made statements to the police after a voluntary and knowing waiver of his Miranda rights. Id. at 330-332.
We note also that the substantive correctness of the officers' initial advisement of the counsel right is quite suspect ("It doesn't mean that [counsel] has to be appointed.").
In Corriveau, the defendant claimed that he had invoked both his right to remain silent and his right to counsel. Id. at 330-331.
Unlike the defendant in Corriveau, the Defendant is not a savvy, educated businessman. See Corriveau, 396 Mass. at 330. The Defendant has a history of substance abuse problems, learning disabilities, illiteracy, and mental illness. His suicidal tendencies provide further cause for concern as to his mental health. Despite the fact that the Defendant claimed he understood hisMiranda rights, and does appear to have understood some of them, the suspect quality of Defendant's capacity to make a knowing, intelligent and voluntary waiver of his right to counsel is well illumined by the present transcript of the police interview of the Defendant. (See Ex. M-1). Corriveau is not persuasive precedent for the Commonwealth's position at bar.
It does appear that the Defendant understood what the right to remain silent means. (Ex. M-1, p. I-6 at ¶ 24, I-7 at ¶ 1).
In light of the evidence of the Defendant's educational and mental deficiencies and the evidence of the police interview, viewed in its entirety (eschewing, as we must, a nice parsing of isolated utterances by the Defendant to massage them into expressions of waiver), this Court is unpersuaded that the Defendant made a knowing, intelligent and voluntary waiver of his right to counsel. The Commonwealth has failed to meet its burden of proof beyond a reasonable doubt on the issue of counsel waiver, and the Defendant's statements, post-invocation, are, therefore, inadmissible. See Judge, 420 Mass. at 450-451 (citing Commonwealth v. Day, 387 Mass. 915, 920-921 (1983)).
ORDER
For the foregoing reasons, it is hereby ORDERED that the Defendant's motion to suppress evidence be ALLOWED .
(By the Court, Toomey, J.)
______________________________ Joseph Vincent Assistant Clerk Magistrate