Com. v. Harris

916 N.E.2d 396

75 Mass. App. Ct. 696

COMMONWEALTH v. Michael HARRIS.

No. 07-P-1496.

Appeals Court of Massachusetts, Hampden.

Argued June 2, 2009.

Decided November 5, 2009.

Cathryn A. Neaves, Boston, for the defendant.

Dianne M. Dillon, Assistant District Attorney, for the Commonwealth.

Present: CYPHER, McHUGH, & MILKEY, JJ.

CYPHER, J.

The defendant, Michael Harris, appeals from the judgments entered after a jury-waived trial in the Superior Court in May, 2006. He was found guilty of trafficking in cocaine with a weight of twenty-eight grams or more, but less than one hundred grams, G.L. c. 94C, § 32E(b)(2); unlawful distribution of cocaine, G.L. c. 94C, § 32A(c); and resisting arrest, G.L. c. 268, § 32B.¹ We affirm the convictions.

Background. We summarize the facts the judge could have found, reserving more details where relevant to our discussion of the issues. Springfield police and an undercover State trooper conducted a controlled purchase of cocaine from the defendant outside an apartment building on Franklin Street in Springfield on June 3, 2005. The trooper arranged, by telephone, to meet the defendant, drove up to the apartment building, and parked. When the defendant emerged from the apartment building, showing the trooper packages of cocaine called "twenties," the trooper said instead he wanted two "eight balls" of cocaine. The defendant returned to the apartment building and emerged a few minutes later with a baggie containing the "eight balls." After the exchange of money and the cocaine, the defendant became aware of police closing in and fled, hiding in the shrubbery of a nearby church. He soon was found, taken into custody, and returned to Franklin Street, where the police were securing apartment 3 of the apartment building. Here, the defendant made a statement that was later ordered suppressed after a pretrial hearing.

The defendant was taken to the police station where, after having been given Miranda warnings, he made a written statement. In that statement the defendant sought to exonerate his cousin, with whom he had been staying in the apartment, by acknowledging that he knew about the cocaine because it was his, that his cousin "had nothing to do with it," and that he had sold cocaine from the apartment earlier that night. Advised of his right to use a telephone, the defendant was told that he could use one during the booking process because there was no telephone in the interview room. During this time and after having obtained a search warrant, the police conducted a search of apartment 3, accompanied by a drug-sniffing dog, and discovered a large block of cocaine. The motion judge denied the defendant's motion to suppress this second statement and the cocaine.

On appeal, the defendant argues that (1) the second statement he made to the police should have been suppressed because it was tainted by his first statement and because the police violated his right to use a telephone; (2) the Commonwealth's entry after trial of a nolle prosequi on the subsequent offender portion of the distribution charge effected an acquittal of the entire indictment because the defendant was indicted on a distribution of cocaine charge as a subsequent offender; (3) his conviction violated his right to due process where the police lost material evidence that was favorable to him; and (4) his conviction on the distribution charge violated his right to a grand jury indictment and to confront witnesses against him. Arising from that last argument, the defendant claims that the recent decision of the United States Supreme Court in Melendez-Diaz v. Massachusetts, ___ U.S. ___, ___, 129 S.Ct. 2527, 2532, 174 L.Ed.2d 314 (2009), entitles him to a reversal of his convictions.

Discussion. 1. Alleged tainted second statement and use of telephone. The defendant argues that the second statement, which he made at the police station, was tainted by the first statement, was made involuntarily, and should have been suppressed. As an additional ground to suppress the second statement, he claims that the police intentionally deprived him of the use of a telephone before he made the statement. Based on the admissibility of his second statement, the defendant seeks a reversal of his trafficking conviction.

There is no dispute that the motion judge properly allowed the motion to suppress the first statement made by the defendant, shortly after he had been apprehended and returned to the scene. There was no evidence that the defendant received Miranda warnings, voluntarily waived those rights, or consented to talk to the police. See Commonwealth v. Martin, 444 Mass. 213, 218, 827 N.E.2d 198 (2005).

The motion judge found very different circumstances leading to the defendant's statement at the police station. The motion judge determined that the defendant validly waived his Miranda rights after he was carefully informed of those rights, as well as the right to use a telephone under G.L. c. 276, § 33A, and the right to prompt arraignment. He signed waiver forms. The motion judge concluded that the second statement was not tainted by the first statement. However, the defendant argues that the motion judge reached this conclusion without conducting a proper analysis. We undertake such an analysis based on the judge's findings. See Commonwealth v. Prater, 420 Mass. 569, 581-582, 651 N.E.2d 833 (1995).

In Massachusetts, the taint of an illegally obtained statement is presumed to remain with subsequent statements, as Massachusetts does not follow Oregon v. Elstad, 470 U.S. 298, 318, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985) (subsequent administration of Miranda warnings automatically removes remaining taint). Even so, "[i]t has never been the law that once the police fail in their obligations under Miranda all subsequent uncounseled statements by an accused must be excluded. The taint of a Miranda violation is not ineradicable." Commonwealth v. Larkin, 429 Mass. 426, 436-437, 708 N.E.2d 674 (1999). "According to our cases, the taint of an earlier Miranda violation may be removed if either (1) sufficient time has elapsed and there has been a sufficient break in the course of events to allow the conclusion that the taint has been dissipated [citation omitted], or (2) the pre-Miranda interview led to no inculpatory statement [emphasis original]." Id. at 437, 708 N.E.2d 674. Here, the defendant's first statement, acknowledging his link to the cocaine found in the apartment, was inculpatory. We therefore focus on the first line of analysis.² "The focus and ultimate goal of undertaking either or both lines of analysis is a determination of the voluntariness of the later confession." Commonwealth v. Prater, 420 Mass. at 581, 651 N.E.2d 833. These two lines of analysis are designed to help the court determine if the later statements made by a defendant are voluntary or the result of coercion. Commonwealth v. Smith, 412 Mass. 823, 830, 593 N.E.2d 1288 (1992). "The burden of proof is on the government to show such voluntariness by a preponderance of the evidence." Commonwealth v. Mahnke, 368 Mass. 662, 680, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976).

In the "break in the stream of events" analysis, the focus "is on external constraints, continuing or new, which may have overborne the defendant's will." Commonwealth v. Smith, supra. At the time the defendant was taken in custody and returned to Franklin Street, he complained of difficulty in breathing, and an ambulance was called, but he refused treatment.³ At the police station, the judge found that the defendant "appeared coherent, cooperative, and responsive, [and] appeared alert and awake at the time that he was provided his Miranda warnings and that he waived them." The motion judge did not credit the defendant's testimony that "he was so distraught or in distress that he was unable to appreciate the rights that were provided to him or the impact of consent to waive those rights." Moreover, we think the passage of almost two hours between the two statements and intervening circumstances, such as the interview away from the scene of Franklin Street at the police station and the involvement of different police personnel, constituted a "break in the stream of events sufficient to insulate the second [statement] from the circumstances of the first [statement]." Commonwealth v. Prater, supra at 582, 651 N.E.2d 833. In addition the fact that the second statement was written further supports the conclusion that the second statement was insulated from the circumstances of the first statement.

The second line of analysis "looks more specifically to the effect of the previous [statement] on the defendant's will." Commonwealth v. Smith, supra at 830, 593 N.E.2d 1288. "Fear, continuation of coercive effects, and a sense of futility of attempting to `get the cat back in the bag' are the objects of the analysis." Commonwealth v. Mahnke, 368 Mass. at 688, 335 N.E.2d 660. The defendant's cooperative demeanor and almost matter-of-fact statement that he lived in the apartment, knew cocaine was there because it belonged to him, and sold cocaine from the apartment earlier that evening, simply demonstrate that the second statement was not tainted or affected by the first. Moreover, the defendant appears to have been motivated to exonerate his cousin, with whom he shared the apartment. We conclude that "as a whole, the interview reveals a defendant whose decision to talk to the police was not based on a sense of futility brought on by having made previous statements." Commonwealth v. Pileeki, 62 Mass.App.Ct. 505, 510, 818 N.E.2d 596 (2004).

There is also no merit in the defendant's assertion that the police intentionally violated his right to use a telephone under G.L. c. 276, § 33A.⁴ The motion judge ruled that the defendant properly was informed of that right through a printed form which was part of the Miranda warning form that the defendant signed...