Commonwealth v. Tewolde

88 Mass.App.Ct. 423

38 N.E.3d 1027

COMMONWEALTH

v.Yonas TEWOLDE (and five companion cases¹ ).

No. 13–P–1689.

Appeals Court of Massachusetts, Suffolk.

Argued Jan. 5, 2015.

Decided Oct. 1, 2015.

Cailin M. Campbell, Assistant District Attorney, for the Commonwealth.

Elda S. James, Dorchester, for Karl Prescott.

Matthew A. Kamholtz, Boston, for Yonas Tewolde.

Present: KATZMANN, SULLIVAN, & BLAKE, JJ.

Opinion

KATZMANN, J.

This is an interlocutory appeal taken from rulings in a suppression proceeding, and presents the following questions: whether a statement, given in an interview prior to grand jury testimony by a defendant who had been subpoenaed to testify after previously asserting that he did not wish to speak without an attorney, was voluntary; whether testimony before the grand jury was given in violation of the privilege against self-incrimination; and whether cellular tower data and cell site location information were obtained in violation of the protections against unreasonable searches and seizure.

The case arises from the shooting murder of Paul Fagan. The two defendants here, Yonas Tewolde and Karl Prescott, were each indicted on charges of murder in the first degree of Paul Fagan, unlawful possession of a firearm, and unlawful possession of a loaded firearm. They were both subpoenaed to testify before a grand jury; they did so testify, and subsequently moved to suppress that testimony. Tewolde also submitted to an interview on June 7, 2010, prior to his grand jury testimony, and moved to suppress his interview statements. A Superior Court judge (motion judge) allowed both of Tewolde's motions to suppress, suppressing the interview statements on the grounds that Tewolde's submission to the interview was involuntary and suppressing the grand jury testimony on the grounds that he should not have been compelled to testify because it violated his privilege against self-incrimination. Prescott's motion was denied because the motion judge concluded that he testified voluntarily and without objection. Finally, both defendants moved to suppress cellular (cell) tower data and cell site location information (CSLI). The Commonwealth obtained this information by court order to find evidence about the shooting. The motion judge denied these motions.

The Commonwealth now appeals from the motion judge's rulings allowing Tewolde's motions to suppress. Prescott appeals from the denial of his motion to suppress his grand jury testimony.

Both defendants also filed applications for interlocutory review of the denial of their motions to suppress cell tower data and CSLI. We address each individually.

Background. We summarize the facts relevant to the crime as found by the motion judge in his thorough and very thoughtful decision.² The motion judge held an evidentiary hearing on September 5 and 6, 2012, on Tewolde's and Prescott's motions to suppress grand jury testimony and CSLI, as well as a nonevidentiary hearing on September 25, 2012, on Tewolde's supplementary motion to suppress his interview statements.³

On May 2, 2010, at 7:59 p.m. , a police gunshot notification system indicated gunshots fired on Stafford Street in the Roxbury section of Boston. Witnesses told the police that they saw two dark-skinned African–American males, one with “loose dreadlocks” and the other with “tighter braids,” fire several gunshots on Stafford Street. The police found the victim, Paul Fagan, on Stafford Street with multiple gunshot wounds in the chest and back. He died later that night from the wounds.

Witnesses told the police that the shooters were standing next to a gold Cadillac motor vehicle with a brown top, which “was on Stafford Street near the intersection of Dennis Street,” and that the shooters fled in the Cadillac. At 8:00 p.m. that same night, “a gold Cadillac hit a woman on Clifford Street in a hit-and-run accident. The hit-and-run accident happened about three-tenths of a mile from the shooting scene.” Two witnesses (one of the shooting and the other of the hit-and-run) reported the Cadillac's registration plate numbers, their accounts varying only by one number.

The next day the police responded to Langford Park in Roxbury. When they arrived, a witness told them that he saw three males in their late teens and early twenties around a Cadillac, wearing gloves. They wiped down the Cadillac with wipes from a container of cleaning wipes. One of the males told the police that a man he did not know offered them $100 to clean the Cadillac. He said that the man gave them gloves and cleaning wipes to use. The police photographed and took custody of the Cadillac. They took several items that they found in the Cadillac and in the vicinity of Langford Park. Several of these items,

including a black plastic bag found near the Cadillac, were preserved. Tewolde's fingerprints were found on this bag.

Discussion. 1. Suppression of Tewolde's statements in the interview and grand jury testimony. The motion judge determined that Tewolde's submission to the interview was involuntary and that the order to compel him to testify before a grand jury violated his rights against self-incrimination under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. “In reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law.” Commonwealth v. Howard, 469 Mass. 721, 726, 16 N.E.3d 1054 (2014) (quotations omitted). “We make an independent determination of the correctness of the judge's application of constitutional principles to the facts as found.” Ibid. (quotations omitted).

a. Tewolde's interview statements. On June 2, 2010, Sergeant Detective Daniel Duff and Detective Joshua Cummings went to Tewolde's home.⁴ Although Tewolde initially spoke to them, he refused to continue and told them he would not answer any more questions. He said that if they wanted to speak with him, they “would have to get a warrant”⁵ and declared that he wanted a lawyer.⁶ In response to that statement, the detectives proceeded to get a subpoena. Detective Cummings testified that upon leaving Tewolde's home, they “printed out” the subpoena and returned to serve Tewolde that same day.

Tewolde went to the courthouse on June 7, 2010, as the subpoena required, and a detective met him in the lobby. The detective ushered him through security and into the offices of the District Attorney. They proceeded into a small interview room

where the prosecutor, Detectives Paul MacIsaac and Cummings, and Sergeant Duff engaged Tewolde in an interview lasting thirty to sixty minutes prior to his grand jury testimony.⁷ At the end of the interview, the prosecutor told Tewolde that he would be going into the grand jury room to testify and that he had a right to an attorney. Tewolde then asserted his right to counsel, as he had done five days earlier.

With respect to Tewolde's statements during the interview prior to the grand jury testimony, the main question before us is whether they were voluntary.⁸ The Commonwealth bears the

“heavy burden of establishing that [the defendant's statements were] voluntary. In meeting this burden, the 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. Baye, 462 Mass. 246, 256, 967 N.E.2d 1120 (2012) (quotations omitted). See Commonwealth v. Molina, 467 Mass. 65, 75–76, 3 N.E.3d 583 (2014). The motion judge found that Tewolde's statements in the interview prior to his grand jury testimony were involuntary and therefore allowed his motion to suppress. The motion judge based his decision on the special circumstances leading up to the interview and the testimony of the detectives, which he did not find credible.

Specifically, the motion judge was not convinced that Tewolde was informed of his right to counsel prior to the end of the interview.⁹ The motion judge found that this was the first time Tewolde was informed of his right to counsel and that he invoked it at that time. The motion judge concluded that Tewolde believed that he was required to speak to the police sergeant, the detectives, and the prosecutor when he arrived at the courthouse pursuant to his subpoena, and that his submission to the interview was thus involuntary. Considering the totality of the circumstances, we conclude that the motion judge did not err in his determination that Tewolde reasonably believed he was required to submit to the interview, that no one informed him otherwise until the end of it, and that therefore he submitted to it against his will.

The Commonwealth argues that the motion judge's findings were clearly erroneous because the detectives testified that Tewolde was informed earlier. This argument ignores the fact that the judge can make credibility determinations. See Commonwealth v. Scott, 440 Mass. 642, 646, 801 N.E.2d 233 (2004) ; Commonwealth v. Baye, supra at 255, 967 N.E.2d 1120 (“The weight and credibility to be given oral testimony is for the judge”); Commonwealth v. Bernard, 84 Mass.App.Ct. 771, 774, 3 N.E.3d 1113 (2014). The conflicting testimony regarding

when Tewolde was informed was for the motion judge to resolve. See ibid. As here, where the motion judge wrote,

“[a]t the motion hearing, the witnesses' memories were not clear on whether the assistant district attorney also informed [Tewolde] at the beginning of the interview of the right to counsel. The court is not persuaded by the evidence that this warning was also given at the beginning of the interview,”

it is apparent that the motion judge, in his resolution of the conflicting testimony, only credited portions of the testimony and discredited others. See ibid.

We note that under many circumstances, eliciting...