Commonwealth v. Melo

NOTICE: All slip opinions and orders are subject to formal

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SJC-11513

COMMONWEALTH vs. NELSON MELO.

Bristol. February 6, 2015. - July 23, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, & Hines, JJ.

Homicide. Felony-Murder Rule. Evidence, Admissions and

confessions, Voluntariness of statement. Practice,

Criminal, Capital case, Admissions and confessions,

Voluntariness of statement, Assistance of counsel, Waiver.

Constitutional Law, Admissions and confessions, Waiver of

constitutional rights, Arrest, Probable cause, Assistance

of counsel. Arrest. Telephone. Search and Seizure,

Arrest, Probable cause, Fruits of illegal arrest. Probable

Cause. Attorney at Law, Withdrawal.

Indictment found and returned in the Superior Court

Department on February 9, 2010.

A pretrial motion to suppress evidence was heard by E.

Susan Garsh, J., and the case was tried before Robert J. Kane,

J.

Jeanne M. Kempthorne for the defendant.

Mary O'Neil, Assistant District Attorney, for the

Commonwealth.

HINES, J. On November 3, 2009, Chad Fleming (victim) was

killed during a robbery (or attempted robbery) of drugs that he

2

had planned to sell to the defendant, Nelson Melo. The

defendant and Aaron Morin were charged with murder in the first

degree in the death of the victim. The Commonwealth contended

that the defendant acted as a joint venturer with Morin, who was

tried separately. In November, 2012, a jury convicted the

defendant of murder in the first degree on the theory of felony-

murder.1,2 Represented by new counsel on appeal, the defendant

argues (1) error in the partial denial of his motion to suppress

statements he made to police; (2) error in the denial of defense

counsel's motion to withdraw from the case two days before

trial; and (3) ineffective assistance of trial counsel. We

conclude that the defendant's motion to suppress statements made

after being taken involuntarily to the police station should

have been allowed in its entirety because these statements were

the inadmissible fruits of an unlawful arrest. Because the

defendant did not seek suppression on this ground, however, we

review to determine if the error created a substantial

likelihood of a miscarriage of justice, and conclude that it did

1

The jury did not indicate the predicate felony on which

the verdict was based. The possible predicate felonies were

armed or unarmed robbery, or the attempt to commit armed or

unarmed robbery.

2

The Commonwealth argued also that the murder was

deliberately premeditated and committed with extreme atrocity or

cruelty, but the jury did not find the defendant guilty under

these theories.

3

not. We reject as well the other claims of error and,

therefore, affirm the order denying defense counsel's motion to

withdraw and affirm the defendant's conviction.

Background. We recite the facts the jury could have found.

The victim, who was twenty-five years of age, lived in Florida

and regularly supplied the defendant with Percocet for the

defendant's drug dealing business. On November 3, 2009, the

victim flew to Providence, Rhode Island, rented an automobile,

and drove to Massachusetts to meet with the defendant to supply

him with Percocet. He telephoned his girl friend to let her

know that he had safely landed. She never heard from him again.

The defendant and his wife3 were both involved in the sale

of Percocet and both developed a dependency on the drug. The

defendant supplied pills to his friend Morin, and also to

Michael Stenstream4 and Stenstream's friend Brandon George.5

About one week prior to the murder on November 3, the

defendant's wife and George drove to Florida to purchase pills

from the victim. The defendant's wife gave the victim $42,000

in cash. The victim telephoned the defendant because the amount

3

The defendant's wife testified pursuant to a grant of

immunity.

4

Michael Stenstream testified pursuant to a grant of

immunity.

5

Brandon George testified pursuant to a grant of immunity.

4

was short of what he had expected. Nevertheless, the victim

supplied the defendant's wife with about 4,000 Percocet pills

that she brought home to the defendant.

Before this trip to Florida, Morin told the defendant that

the victim was dealing to other people in Massachusetts. The

defendant expressed disbelief, so Morin, in the defendant's

presence, telephoned a man and put him on speakerphone. The man

confirmed what Morin had stated.

On the morning of November 2, the day before the murder,

Morin visited the defendant at the defendant's wife's home,

where they were then living. The defendant's wife had been

sleeping. She woke up and heard Morin whisper something about

"hitting" someone and something about a black hat. She also

overheard Morin say, "I'll take care of the other two" or "They

will take care of the other two."

During the late afternoon of November 2, Morin met with his

friend Michael Matteson. Matteson owed Morin money, and Morin

offered him an opportunity to repay the debt. Morin told

Matteson that he was going "to rob his connect's connect and

make some money." Morin's "connect," or drug supplier, was the

defendant. Morin explained that the defendant's "connect" would

be arriving to sell Percocet and they were going to rob him;

"they" included Morin, a person named Walter Babcock, and the

defendant. Morin explained further that the defendant's

5

"connect" would be at an apartment owned by the defendant,6 and

Morin would receive a telephone call when he arrived. The

"robbers" would go through the back door, Matteson would take

the money and drugs, Babcock would grab the defendant's

"connect," and Morin would make it look like he was holding down

the defendant. Matteson said he would think about it, but

ultimately decided not to participate.

On November 3, the defendant and his wife expected the

victim to visit them at their apartment. The defendant had his

wife help package between $42,000 and $58,000 in cash. The

defendant's wife heard him ask someone over the telephone

whether he was "going to get it back." Shortly after 8 P.M.,

the defendant left the apartment wearing a black hat.7 He took

the money with him. Approximately thirty minutes later, the

defendant's wife was speaking with the defendant on the house

telephone when the victim telephoned her on her cellular

telephone. After communicating with her husband, the

6

The defendant became a part owner of his parents' two-

family home on Bay Street in Taunton. The defendant's sister,

Lucia Rodriguez, and her husband, Gabriel Rodriguez, lived in

the first-floor apartment of the home. The defendant, in

October, 2009, rented the second-floor apartment to Stenstream.

7

Stenstream had seen the defendant earlier outside his

(Stenstream's) apartment, between 6:30 and 7 P.M. Stenstream

told the defendant that he had dinner plans later with his girl

friend. The defendant remarked, "You should go out to dinner."

Stenstream and his girl friend left for dinner sometime between

8:30 and 8:45 P.M.

6

defendant's wife told the victim that the defendant wanted him

to go to Stenstream's apartment. See note 6, supra.

At the Bay Street residence, the defendant's sister, Lucia

Rodriguez, and her husband, Gabriel Rodriguez,8 were in the

living room of the first-floor apartment. See note 6, supra.

After Gabriel had settled in to watch a television program that

commenced at 9 P.M., the defendant came into the apartment and

spoke with Lucia. The defendant told her that he was going

upstairs to speak with the victim.

Soon thereafter Lucia heard the footsteps of multiple

people heading upstairs. Gabriel heard more than one set of

footsteps coming from above. The defendant came down from the

second-floor apartment and went into the kitchen with Lucia. He

told her to stay downstairs then "bolted" back upstairs. While

the defendant was speaking to her, Lucia heard a "big rumbling."

Gabriel then heard what sounded like multiple people

running down the back stairs of the second-floor apartment.

Looking outside a window, he saw an automobile leave his home

quickly. Lucia heard people run out and saw a gray automobile

departing with two people in the front and one person in the

back. She heard the voice of another person that she did not

recognize upstairs with her brother.

8

Because the defendant's sister and her husband share the

same last name, we shall refer to them by their first names.

7

The defendant came downstairs, took some ice packs from the

refrigerator, told Lucia he would be "right back," and returned

upstairs. After a few minutes the defendant asked Lucia to

check on the victim because he was not responding. From the

kitchen, Gabriel heard something about a fight and heard the

defendant say, "I think he got hurt."

Upstairs, Lucia discovered the victim lying on his back on

a bed in the spare bedroom. There were ice packs on his neck.

She tried to see whether he was breathing. The victim was not

moving, and she told the defendant to telephone 911. The

defendant insisted that he wanted his wife.

At about 8:45 or 9 P.M., Morin, out of breath, telephoned

the defendant's wife, asking for the defendant. Morin asked

her, "Do you know what happened?" He added, "Man, that kid was

tough." The defendant's wife told Morin that the defendant was

not there. The defendant's wife asked, "What's going on?" and

Morin replied, "I've got to call [Lucia]." The defendant's wife

then telephoned Lucia, who stated that she did not know where

the defendant was. Soon thereafter Lucia arrived and insisted

that the defendant's wife and their daughter accompany Lucia

back to the Bay Street apartment. The defendant's wife agreed.

Stenstream and his girl friend returned to his apartment at

approximately 9:45 P.M. He sent a text message to the defendant

to confirm whether the defendant was still there. The defendant

8

did not respond. There was an unfamiliar automobile in the

driveway (the victim's rental vehicle). Stenstream's girl

friend waited in his automobile. He then went up to his

apartment and shortly thereafter returned to the automobile.

Stenstream brought his girl friend upstairs to his apartment and

instructed her to go straight to his bedroom, to keep her head

down, and not to look around. As she made her way through the

apartment, she observed blood on the floor and on the couch.

Stenstream found the defendant and the victim in a spare

bedroom. The victim was lying on his back, his eyes and mouth

were open, and he was not moving. The defendant was holding a

package of peas or ice to the victim's head and was telling the

victim to "wake up." Stenstream asked what was going on. The

defendant replied, "Don't worry about it. Close the door."

Stenstream left, but returned shortly thereafter suggesting that

the defendant telephone an ambulance.9 Stenstream asked again

what was going on. The defendant said, "Fucking Ace."10

Stenstream again asked the defendant to arrange for an

9

Stenstream noticed blood on the sofa and carpet in the

living room. He also picked up some zip ties on the living room

floor, one of which appeared to have blood on it, and threw them

in the garbage. He disposed of some clothing in a dumpster

outside. He attempted to use "cleaning solution" to clean the

apartment.

10

"Ace" was Aaron Morin's nickname.

9

ambulance. The defendant said, "I'll take care of it. We

should get him to the hospital."

The defendant lifted the victim and started carrying him

down the stairs. The defendant was struggling and asked

Stenstream for help. Stenstream was reluctant, but agreed.

Gabriel came out of his apartment. He could not find a pulse

and noted that the victim was not moving. Stenstream observed

that the victim's chest was blue and his legs were stiff.

Gabriel opened the door to the back seat of the victim's rental

vehicle, and the defendant and Stenstream put the victim inside.

The defendant went to Lucia's apartment, where he spoke

with his wife, who by then had arrived. After inquiring about

the victim, the defendant's wife went out to the victim's rented

automobile where she saw him in the back seat. She observed

that the victim's eyes were open and he was not moving; his

wrist was by his forehead in a fixed position. She started

crying and screaming, and yelled at the defendant, "He's dead!"

The defendant drove off with the victim.11

The defendant's wife went inside Stenstream's apartment,

and he gave her the victim's jacket, shoes, and wallet. She saw

blood "everywhere" in the living room, including on the walls

11

Stenstream testified that after they moved the victim to

the automobile, the defendant waited twenty to twenty-five

minutes before leaving.

10

and on the floor. After about five to ten minutes, she went to

Morton Hospital in Taunton, where the defendant had taken the

victim.

While in the entrance area to the emergency room, the

defendant attempted to perform chest compressions on the victim.

Medical personnel took over and brought the victim into an

examination room. It became immediately clear to the staff that

the victim was in a state of rigor mortis and was dead. A

physician pronounced the victim dead at 11:05 P.M. The

physician then spoke with the defendant, who provided the

victim's name and stated that he was his friend from Florida.

The defendant also told the doctor that the victim had gone out

for a cigarette and that, when he did not return about fifteen

minutes later, the defendant went to check on him, finding him

outside on the ground. In response to questions posed by the

doctor, the defendant stated that he did not think that the

victim had ingested any drugs. The defendant was visibly upset.

Police arrived shortly thereafter and, after speaking with

the emergency room physician, talked with the defendant in the

family room.12 In summary, the defendant gave two different

accounts of how the victim came to be injured. In his original

12

The details of the defendant's statements to police at

the hospital and subsequently at the police station are set

forth later in this opinion in the discussion of the motion to

suppress.

11

version of events, the defendant stated that the victim had

taken a handful of pills and then went outside to make some

telephone calls. The defendant stated that, when the victim had

not returned thirty minutes later, he went to check on the

victim and found him outside, lying on the ground and bleeding

from the head. The defendant carried the victim upstairs; tried

to revive him with ice cubes; and when that did not work,

decided about ninety minutes later to bring him to the hospital.

In the subsequent version of events, the defendant stated that

he and the victim were visiting in Stenstream's apartment when

three males arrived to make a drug deal. The men pulled out

guns. The defendant escaped downstairs. After the men left,

the defendant returned upstairs and found the victim with zip

ties around his legs. The victim was alive and stated that he

did not want to go to the hospital, but the defendant brought

him anyway.

Police transported the defendant from the hospital to the

police station, where he was interviewed after being given

Miranda warnings. In keeping with the motion judge's ruling on

the defendant's motion to suppress, a redacted version of the

recorded interview was admitted in evidence and played for the

jury. During that portion of the interview, the defendant did

12

not admit to killing the victim himself or to being involved in

the killing, or robbing (or attempting to rob) the victim.13

The medical examiner who conducted the victim's autopsy

opined that he died as a result of asphyxia by strangulation.

She testified that he suffered multiple blunt force injuries to

his head, neck, and extremities. He had a gaping laceration to

his scalp hidden in his hairline and rib fractures that

perforated his lungs. Toxicology screen results revealed that

the victim did not have any drugs or alcohol in his system.

On November 4, the defendant's wife went to Morin's home.

Morin told her that he owed the defendant money and gave her

$5,000. Morin also said he had done a lot for the defendant.

On November 5, Morin asked Matteson to meet him. Morin told him

that he should say "nothing to anybody."

After speaking to the defendant, the police secured

Stenstream's apartment, where they recovered zip ties from the

kitchen trash and various items in a dumpster in the rear of the

building. They took samples of various red-brown stains from

within the apartment, including in the living room and back

stairwell, which tested positive for human blood.

13

The defendant did admit that there was a "drug

transaction" going on in Stenstream's apartment and that the

victim had given the defendant $1,000 for "using the spot." He

stated that the victim was alive, talking and mumbling, after

the three men had departed.

13

Deoxyribonucleic acid (DNA) testing revealed that the victim's

DNA was present on one of the zip ties recovered. Further,

testing showed that the victim's DNA was recovered from a stain

on the defendant's shirt and a stain on the upper right arm of

the defendant.14

Telephone records admitted in evidence at trial established

that, on the afternoon of November 3, the telephones of the

defendant and the victim were in communication with each other.

In addition, between noon and midnight on that day, there were

thirty-six contacts between the telephones of the defendant and

Morin, including several calls made between 8:45 and 11:30 P.M.

The defendant did not testify. His trial counsel argued

that the Commonwealth's witnesses were not to be believed for

various reasons, including the fact that most had entered into

agreements with the Commonwealth providing for their immunity.

Defense counsel also argued that the defendant's statements were

not voluntarily made and that the police investigation had been

inadequate. Defense counsel argued that the defendant had not

been involved and did not share Morin's intent to rob or to kill

the victim.

14

The statistical significance of the deoxyribonucleic acid

(DNA) testing was presented to the jury. See Commonwealth v.

Ortiz, 463 Mass. 402, 408 & n.10 (2012); Commonwealth v.

Lanigan, 419 Mass. 15, 20 (1994).

14

Discussion. 1. Motion to suppress statements. a.

Background. The defendant filed a motion to suppress statements

he made on November 3 and 4 at the hospital and at the police

station, claiming, on State and Federal constitutional grounds,

that his statements should be suppressed because they were not

preceded by an adequate recitation of the Miranda warnings. He

also argued that he did not make a knowing, intelligent, and

voluntary waiver of the Miranda rights and that his statements

were not voluntary because of his state of exhaustion, drug

ingestion, and drug withdrawal. Last, the defendant asserted

that police failed to honor his invocation of his right to

counsel. After an evidentiary hearing, the motion judge, who

was not the trial judge, made the following relevant findings of

fact, which we supplement where necessary with evidence in the

record that is uncontroverted and that was implicitly credited

by the motion judge, see Commonwealth v. Isaiah I., 448 Mass.

334, 337 (2007), S.C., 450 Mass 818 (2008), and with the video

recording of the interview of the defendant, which was admitted

in evidence at the motion hearing.15

15

When a defendant's interview is video recorded, we are

"in the same position as the motion judge in viewing the

videotape," Commonwealth v. Hoyt, 461 Mass. 143, 148-149 (2011),

quoting Commonwealth v. Prater, 420 Mass. 569, 578 n.7 (1995),

to determine what occurred therein and therefore independently

make that determination. We have reviewed the video recording

that forms the basis of this appeal.

15

In the late evening of November 3, 2009, Dr. Peter Bosco,

an emergency room physician at Morton Hospital, encountered the

defendant and the victim, who was slumped over in a wheelchair.

The defendant was attempting to perform chest compressions on

the victim. The defendant told Dr. Bosco that he had been at

the same residence with the victim; that the victim went outside

to smoke; and that, when the victim had not returned after

fifteen minutes, the defendant went to check on him, finding him

there. The defendant did not tell the doctor that he had

brought the victim upstairs after finding him. The defendant

was agitated and upset, which the doctor construed as

appropriate for someone who cared about another.

After examining the victim, Dr. Bosco spoke with the

defendant in the family room. He informed the defendant that

his friend was dead and that something did not "add up" because

rigor mortis already had set in, suggesting that the victim had

been dead for several hours. The defendant appeared to be in

disbelief; he was distraught and upset. His speech was clear,

but he was agitated. As the defendant spoke with Dr. Bosco, he

recovered his composure and pleaded with the doctor to do

something to resuscitate the victim. Dr. Bosco brought the

defendant into the examination room to see the victim. Around

this time, shortly after 11 P.M., Taunton police Officer Ralph

Schlageter and Detective Robert Schwartz separately arrived in

16

uniform at the examination room in response to a dispatch of a

report that someone had brought a deceased person to the

hospital's emergency room.

Dr. Bosco escorted the defendant to the family room. He

explained to the defendant that, because the victim's death was

suspicious, it would need to be investigated by the police and a

medical examiner would take over custody of the body. He asked

the defendant to stay so police could speak with him. The

defendant was agreeable. No police officers were in the family

room at this time. Dr. Bosco had not been asked by police to

speak to the defendant.

Dr. Bosco left the family room and informed Schlageter that

the victim had a head wound and was in state of rigor mortis

when he arrived, and that the defendant was the person who had

brought the victim to the hospital. Dr. Bosco did not suspect

the defendant of any involvement in the death and did not

communicate any such suspicion to Schlageter or to any other

officer.

Schlageter then spoke with the defendant in the family

room. No one else was present. The defendant was disheveled

and visibly upset. He was crying, was almost hysterical, and

put his head in his hands. When Schlageter spoke with the

defendant, Schlageter viewed him as a concerned friend, not as

someone who had been involved in the victim's death. The

17

defendant did not appear to have been drinking, but seemed to be

"on something."

After a couple of minutes, the defendant calmed down so

that Schlageter could understand him. They spoke for

approximately five minutes. The defendant was coherent and

clear. He identified himself and provided his date of birth as

well as the victim's full name. The defendant gave Schlageter

the following account. Around 9:30 P.M., the victim had visited

the defendant in Stenstream's apartment. Sometime later, the

victim announced that he wanted to go outside to smoke and to

make telephone calls. About twenty to thirty minutes later, the

defendant went downstairs to check on the victim and found him

on the ground beaten up. The defendant carried the victim

upstairs back to the apartment. Because the defendant knew that

the victim had a history of drug use, the defendant thought that

he may be overdosing, so he laid him on a bed and tried to

revive him with ice. The defendant became concerned when he saw

the victim's skin turn blue. Schlageter did not question the

defendant further. Schlageter left the room, leaving the

defendant alone inside. Schlageter did not give any Miranda

warnings to the defendant before or during their conversation.

Taunton police Detectives Susan Dykas and Shawn Mulhern

arrived at the hospital. They were not in uniform. They viewed

the victim, observing the large cut on his head, and learned

18

that he had been dead for a significant period of time.

Schlageter informed the detectives that the defendant had

brought the victim's dead body to the hospital and was in the

family room. Schlageter also told the detectives the substance

of his conversation with the defendant.

The detectives entered the family room, where they found

the defendant alone and crying. The detectives did not give any

Miranda warnings to the defendant before speaking with him, or

at any time while they spoke with him at the hospital.

Mulhern recognized the defendant from the defendant's

previous employment as a bouncer at a nightclub and asked what

was going on. The defendant gave the following account of what

had occurred earlier that day. The defendant had been

"chilling" at a second-floor apartment with the victim, who was

a friend visiting from Florida. The victim went downstairs to

make a telephone call, and when he did not return, the defendant

went downstairs and found him unconscious and bleeding from the

head. The defendant dragged the victim back upstairs and tried

to revive him with ice packs. The defendant took the victim to

the hospital when he was not doing well.

Mulhern was the primary questioner and expressed disbelief

that the defendant had dragged the victim upstairs. The

defendant then gave a different account of what had occurred.

In this version, the defendant stated that the victim came from

19

Florida to use the apartment for a drug deal. Two white males

and one black male entered the apartment and argued with the

victim and brandished guns, at which point the defendant went

downstairs to his sister's apartment. When the commotion was

over, the defendant returned upstairs, where he discovered that

the victim had been beaten up, his legs bound with zip ties, and

his mouth gagged. The victim initially was conscious, but when

he lost consciousness, the defendant carried him downstairs with

the help of the defendant's sister and brother-in-law, and drove

him to the hospital. The defendant did not make any statements

that suggested in any way that he was responsible for the

victim's death.

The detectives were aware of the defendant's and the

victim's prior involvement with drugs, and suspected that the

defendant had more information, but not that he was responsible

for causing the victim's death. With the defendant's

permission, they searched his cellular telephone and noticed

numerous calls to a single number (Morin's).

The detectives spent thirty to forty minutes with the

defendant in the family room. During this time, he squirmed

quite a bit and appeared visibly nervous and upset. He

alternated between calmness and lucidity, and incoherency. The

defendant's eyes were somewhat bloodshot, and he appeared to be

under the influence of drugs.

20

After they finished speaking with the defendant, Mulhern

told the defendant, "We're going to go back to [the] police

station and finish this interview because we have to sort

through this." Mulhern directed Schlageter to drive the

defendant to the police station. Schlageter escorted the

defendant to the back seat of a marked police cruiser, which

locked and could not be opened from the inside. He did not

handcuff the defendant. He did not give Miranda warnings prior

to or during the transport to the station, he did not ask the

defendant any questions on the way there, and the defendant did

not make any statements along the way or on his arrival at the

police station.

On arrival, at about 12:45 A.M., Schlageter brought the

defendant into the station through the front lobby and to an

interview room. There, Mulhern and State police Trooper Anthony

Spencer spoke with him. The interview was audio and video

recorded, and the defendant was aware that the interview was

being recorded. The interview lasted about two hours and forty-

five minutes, excluding a one-hour break after two and one-half

hours into the interview.

At the beginning of the interview Mulhern read the

defendant the Miranda warnings from a preprinted form. The

defendant nodded that he understood. After, at 12:55 A.M., the

defendant signed a waiver of rights from a notification of

21

rights form, which he did not read. Under the signature line on

the form, the form stated: "Person in Custody."

After signing the form, the following exchange between the

defendant and Mulhern occurred.

Defendant: "I would feel more comfortable if I had a

lawyer right now talking, but if you want to

show me pictures and names, I'll give it to

you. Because, honestly, like obviously I do

not want to get more in a jam than this. I

will show you who did it and everything. I

just want out."

Mulhern: "Okay. So, why do you -- you feel like you

want to -- if you don't want to talk, that's

your right --"

Defendant: "The thing is I don't know."

Mulhern: "-- but if you feel like you need a lawyer,

you know --"

Defendant: "I don't know what to do. Like, honestly,

I'll help you but it seems like what do I

say."

Mulhern: "Okay. Why don't we ask you questions --"

Defendant: "Alright."

Mulhern: "-- and we can go from there. We can find

out the story first."

Defendant: "Alright."

For the first hour of the interview, the defendant did not

appear to be particularly tired, but he was experiencing some

pain in his groin. He told the officers that he had stopped

dealing drugs and went "cold turkey" two or three months earlier

because his marriage and job were being affected. He admitted

22

that if he could "make a quick buck here and there," he would

sell drugs, but that he did not "touch anything."

After about one hour of questioning, the defendant appeared

nervous and jumpy. As Mulhern began to convey a high degree of

skepticism of the defendant's statements, the defendant

increasingly slouched. The defendant remained alert and

consistently resisted suggestions from the officers and

confrontational harangues from Mulhern. He insisted that he was

not part of the drug deal and that he did not personally

struggle with the victim.

Around this time, the tenor of the interview changed.

Mulhern frequently interrupted the defendant and, for a period

of about twenty minutes, screamed at him in an accusatory tone.

The defendant hung his head, but did not buckle. At this point,

now about ninety minutes into the interview, the defendant

appeared to be tired and started answering some questions with

his head down. He adamantly insisted that he did not push or

"tussle" with the victim or put his hands on him accidentally or

during an argument. The defendant was not easily led by the

officers and spontaneously clarified several matters.

At one point the officers left the defendant alone for

several minutes, during which time he sniffled and his legs were

shaking. The defendant rubbed his eyes and looked exhausted.

When the officers returned, the defendant continued to give

23

coherent, exculpatory responses although visibly tired. For

example, when confronted with the fact that bedding (from the

apartment) had been stripped and left in a dumpster, the

defendant denied having done that. He stated that he had not

touched the bedding and that cameras at the location would show

that he "didn't do shit." He also did not let himself be

trapped by Mulhern's mischaracterizations of what he had said.

After about one hour and fifty minutes of questioning had

elapsed, the defendant reiterated his statement that he had

bolted from the apartment. Although his legs were shaking and

he was tired, the defendant was sufficiently alert after two

hours of interrogation to divulge the password on his cellular

telephone and to go through photographs shown to him by police,

indicating what persons he did and did not recognize. He was

also careful to identify one person as "looking like" one of the

men who had been in the apartment fighting with the victim.

The defendant had self-protective explanations for, among

other things, the pain in his groin, the money found in his

pocket ($1,600), the injury to his upper lip, a fresh scratch,

the blood on his clothes, the time discrepancies in his

statements, and his delay in taking the victim to the hospital.

From the defendant's responses, it was clear that he understood

what the officers were asking him and saying to him. He showed

himself to be quick-witted and consistently self-protective.

24

While he added details as the interview proceeded, the defendant

did not at any point admit any involvement in the victim's

death.

After viewing the photographs, the defendant's exhaustion

began to overcome his ability to speak in a fashion such that

his statements could be considered the product of a rational

intellect and free will. The defendant's physical state,

compounded by Mulhern's shouting, made it unlikely that the

defendant's statements from this point onward were the result of

his free and willing act.16 When left alone for two minutes, the

defendant moaned and mumbled. His legs shook badly, and his

head lolled back and forth. When the officers returned, about

two and one-half hours into the interview, the defendant

continued speaking, but his head was usually facing down and

leaning to the side. His legs were constantly shaking. He did

not make much eye contact with the officers, and his responses

were often too inaudible to be coherent. His demeanor was so

indicative of someone who had lost his ability to focus that

Mulhern commented, "I mean you're falling apart . . . doing

drugs and dealing drugs . . . ." The defendant was half-asleep,

and he rubbed his eyes often, yawned, and barely was able to

16

The judge specified the page of the transcript of the

video recording, which had been admitted in two parts at the

evidentiary hearing, and would have been approximately two hours

and six minutes into the first recording.

25

keep his eyes open. The questioning, however, did not stop.

When a few minutes later the defendant asked if they could

finish the interview the next day, he was rebuffed. As the

defendant continued to insist that he was "exhausted out of

[his] mind," Mulhern started to scream at him again.

After about two hours and thirty-six minutes of

questioning, the defendant twice asked for a lawyer, which

Mulhern and Spencer simply ignored. Spencer finally ended the

interview, at which point the defendant was arrested for

misleading a police officer under the witness intimidation

statute. He later was charged with murder in the first degree.

The motion judge concluded that the defendant had not been

in "custody" for purposes of the requirements of Miranda v.

Arizona, 384 U.S. 436, 444 (1966), until Mulhern instructed that

the interview at the hospital would continue at the police

station and directed a uniformed officer to take the defendant

there.17 The judge further determined that the defendant was in

custody at the station when he was given Miranda warnings. The

judge concluded that after the defendant was given the Miranda

warnings, he voluntarily, knowingly, and intelligently waived

17

Although the defendant did not receive Miranda warnings

before being escorted to the police cruiser, the judge noted

that he was not asked any questions and did not make any

statements during the ride or before the Miranda warnings were

given to him at the police station.

26

them. She did not consider his initial statement that he would

"feel more comfortable" with a lawyer as an unambiguous

invocation of the right to counsel.

Noting that the defendant's initial waiver of the Miranda

rights does not irretrievably bind him, the judge pointed out

that the Commonwealth conceded that the defendant unambiguously

invoked his right to counsel when he stated after two hours and

thirty-six minutes of questioning that he needed a lawyer.

While the judge agreed that the defendant had invoked his right

to counsel at this point, she determined that somewhat earlier

in the interrogation (see note 16, supra), the defendant's

statements were no longer voluntary. The judge based her

conclusion on the circumstances of Mulhern's shouting at the

defendant, the defendant's state of exhaustion, and the after-

effects of whatever substance the defendant had ingested during

the day. Suppression of the defendant's statements from that

point of the interview and onward therefore was necessary.

Based on these findings, the motion judge denied in part and

allowed in part the defendant's motion to suppress.

b. Standard of review. "We review de novo any findings of

the motion judge that were based entirely on the documentary

evidence, i.e., the recorded interviews of the defendant."

Commonwealth v. Thomas, 469 Mass. 531, 539 (2014). "We accept

other findings that were based on testimony at the evidentiary

27

hearing and do not disturb them where they are not clearly

erroneous." Id. "However, we 'make an independent

determination as to the correctness of the judge's application

of constitutional principles to the facts as found.'" Id.,

quoting Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011).

c. Validity of waiver of Miranda rights. The defendant

argues that his waiver of Miranda rights was invalid because it

was not knowingly and voluntarily made. Because the defendant

was advised of, and waived, the Miranda rights, the issue

becomes whether the Commonwealth has proved "the validity of a

Miranda waiver beyond a reasonable doubt." Commonwealth v.

Edwards, 420 Mass. 666, 669 (1995). See Commonwealth v. LeBeau,

451 Mass. 244, 254-255 (2008). "To be valid the waiver must be

made voluntarily, knowingly, and intelligently." Edwards, supra

at 670. "In determining whether a waiver was made voluntarily,

the court must examine the totality of the circumstances

surrounding the making of the waiver." Id. "Relevant factors

to consider include, but are not limited to, 'promises or other

inducements, conduct of the defendant, the defendant's age,

education, intelligence, and emotional stability, experience

with and in the criminal justice system, physical and mental

condition, the initiator of a deal or leniency (whether the

defendant or police), and the details of the interrogation,

including the recitation of Miranda warnings.'" Commonwealth v.

28

Jackson, 432 Mass. 82, 86 (2000), quoting Commonwealth v.

Mandile, 397 Mass. 410, 413 (1986).

The defendant challenges the judge's conclusion that his

waiver was valid for several factual reasons, including that he

had not been asked whether he wished to waive his rights; he had

not been asked whether he wished to speak with police; and the

fact that his signature on the notification of rights form

indicated only that he was advised of the Miranda warnings, not

that he had waived them. The defendant also argues that he

"obviously" was undergoing drug withdrawal. We conclude that

the judge's findings and conclusions are supported by the

evidence.

The defendant signed the notification of rights form, which

expressly indicates that the person signing understands the

Miranda rights and "knowingly waive[s]" those rights; heard the

recitation of the Miranda warnings; and nodded, which reasonably

could be inferred as indicating that he understood them.

Thereafter, he engaged in discussion with the officers. "This

conduct hardly expressed an unwillingness to continue speaking

with police that could be 'considered tantamount to the exercise

of the right to remain silent.'" Commonwealth v. Garcia, 443

Mass. 824, 833 (2005), quoting Commonwealth v. Selby, 420 Mass.

656, 662 (1995). Further, during the admitted portion of the

interview, the defendant appeared alert, coherent, calm for the

29

most part, and appropriately responsive, and appeared to

understand the situation and what was asked of him. He was

drinking a beverage, and the interview was conducted in an

interview room as opposed to a cell. Although the defendant

very well may have been under the influence of drugs, there was

no evidence that the defendant's resulting physical condition

was so disabling as to render his waiver invalid. The judge

thoroughly considered the evidence concerning the defendant's

likely drug use, which does not compel a conclusion that his

Miranda waiver was invalid. See Commonwealth v. Howard, 469

Mass. 721, 728 n.7 (2014), and cases cited; Commonwealth v.

Walker, 466 Mass. 268, 274-275 (2013). See also Commonwealth v.

Brown, 462 Mass. 620, 625-627 (2012). The evidence supports the

judge's conclusion that the defendant's Miranda waiver was

valid.18

d. Invocation of right to counsel. The defendant contends

that the motion judge erred in concluding that his statement,

made after he was given the Miranda warnings, "I would feel more

comfortable if I had a lawyer right now talking, but if you want

18

Based on our independent review of the video recording of

the interview, the judge was warranted in concluding beyond a

reasonable doubt that the defendant's statements, made up until

the point where she suppressed them, were made voluntarily. See

Commonwealth v. Medeiros, 395 Mass. 336, 343 (1985) (although

voluntariness and Miranda waiver and voluntariness of statement

are distinct inquiries, totality of circumstances test under

each analysis is same).

30

to show me pictures and names, I'll give it to you," was an

ambiguous and therefore ineffective invocation of the right to

counsel. We reject the defendant's contention.

During a custodial interrogation, "[i]f the accused

indicates that he wishes to remain silent, 'the interrogation

must cease.' If he requests counsel, the interrogation must

cease until an attorney is present." Commonwealth v. Santos,

463 Mass. 273, 285 (2012), quoting Edwards v. Arizona, 451 U.S.

477, 481 (1981). The request or invocation of counsel must be

"a sufficiently clear statement such 'that a reasonable police

officer in the circumstances would understand the statement to

be a request for an attorney.'" Commonwealth v. Hoyt, 461 Mass.

143, 150 (2011), quoting Davis v. United States, 512 U.S. 452,

459 (1994).

Here, the defendant's statement, when viewed in context,

was not an unambiguous request for counsel and reflected a

desire ultimately to go forward with questioning without an

attorney. "When a suspect's statement . . . simply reflects his

musing about the possibility of stopping the questioning until

he has spoken with an attorney, we have consistently found the

statement to be too ambiguous to constitute an unequivocal

invocation of the right to counsel." Commonwealth v. Morganti,

455 Mass. 388, 398 (2009), S.C., 467 Mass. 96, cert. denied, 135

31

S. Ct. 356 (2014). We conclude that the defendant's statement

falls into this category.

The defendant further argues that, even if his invocation

of the right to counsel had been ambiguous, the police were

required under art. 12 of the Massachusetts Declaration of

Rights to clarify the defendant's intent before proceeding with

questioning. In support of this contention, he cites to

Commonwealth v. Clarke, 461 Mass. 336, 349 (2012), and Santos,

463 Mass. at 286. Those cases, however, do not support the

defendant's argument that such a clarification was required

here. In Santos, supra at 285-286, we suggested clarification

as the better practice because the defendant initially had

unequivocally invoked his right to counsel but then continued,

without any intervening comment or question by police, to speak.

We concluded that, in those circumstances, the police could have

been uncertain concerning the nature and scope of the

defendant's invocation, and before recommencing questioning

would be "entitled to ask a question to clarify the defendant's

intent." Id. at 286. In Clarke, supra at 343, we dealt with a

defendant's unequivocal invocation of his right to remain

silent, not an invocation of a right to counsel. No

clarification is required where, as the judge found here, the

defendant equivocated, stating only that he would "feel more

comfortable with an attorney."

32

e. Statutory right to a telephone call. We reject the

defendant's argument that his statements during the interview

should be suppressed because the police did not afford him his

statutory right under G. L. c. 276, § 33A, to use the telephone

when he arrived at the police station or after questioning had

exceeded one hour. This right "did not accrue until he was

formally arrested." Commonwealth v. Hampton, 457 Mass. 152, 159

(2010). See Commonwealth v. Dagley, 442 Mass. 713, 719 (2004),

cert. denied, 544 U.S. 930 (2005); Commonwealth v. Rivera, 441

Mass. 358, 374-375 (2004).

f. Detention of the defendant. For the first time on

appeal the defendant argues that his involuntary transport to

the police station for questioning amounted to an unlawful

arrest under the Fourth and Fourteenth Amendments to the United

States Constitution and art. 14 of the Massachusetts Declaration

of Rights because it was not supported by probable cause.19 He

asserts that the entirety of his interview with police therefore

should be suppressed as the fruit of the illegal arrest. Last,

the recitation of the Miranda warnings, he contends, did not

purge the taint of the illegal arrest. Because the defendant

did not raise this claim below, we review for error and, if so,

19

The defendant does not argue that art. 14 of the

Massachusetts Declaration of Rights affords him any greater

protection than that afforded by the Fourth and Fourteenth

Amendments to the United States Constitution.

33

whether the error caused a substantial likelihood of a

miscarriage of justice. See Commonwealth v. Tu Trinh, 458 Mass.

776, 782-783 (2011).

Generally speaking, there are three categories of police-

citizen encounters: "(1) consensual encounters which do not

implicate the Fourth Amendment;[20] (2) investigative detentions

which are Fourth Amendment seizures of limited scope and

duration which must be supported by a reasonable suspicion of

criminal activity[,21 Terry v. Ohio, 392 U.S. 1 (1968);] and (3)

arrests, the most intrusive of Fourth Amendment seizures and

reasonable only if supported by probable cause." United States

v. Madden, 682 F.3d 920, 925 (10th Cir. 2012). Here, the

judge's decision did not address the issue (because the

20

Submission to a claim of authority is not synonymous with

voluntary consent. See Kaupp v. Texas, 538 U.S. 626, 631

(2003); United States v. Perez-Montanez, 202 F.3d 434, 438 (1st

Cir.), cert. denied, 531 U.S. 886 (2000). There was no evidence

that the officers told the defendant that he was free not to

enter the cruiser to go to the police station.

21

The parameter of an investigatory stop is exceeded if it

"continues indefinitely[;] at some point it can no longer be

justified as an investigative stop." United States v. Sharpe,

470 U.S. 675, 685 (1985). While "the brevity of the invasion of

the individual's Fourth Amendment interests is an important

factor in determining whether the seizure is so minimally

intrusive as to be justifiable on reasonable suspicion," United

States v. Place, 462 U.S. 696, 709 (1983), the Supreme Court has

emphasized "the need to consider the law enforcement purposes to

be served by the stop as well as the time reasonably needed to

effectuate those purposes," Sharpe, supra.

34

defendant did not make the argument below), but her findings

instruct our conclusion.

The judge found that once Mulhern determined that further

questioning would continue at the police station and directed an

officer to transport the defendant there, the defendant was in

custody, albeit for purposes of Miranda. She further found,

based on the notification of rights form designating the

defendant as a "person in custody," and statements made by the

interviewing officers, that a reasonable person in the

defendant's position would not have felt free to leave. We

agree with the defendant that, in these circumstances, his

involuntary transport and detention for interrogation purposes

amounted to a "seizure" for Fourth Amendment purposes and became

the functional equivalent of an arrest.22

In Kaupp v. Texas, 538 U.S. 626, 629 (2003), the United

States Supreme Court stated the settled rule that "involuntary

22

The judge expressly discredited Taunton police Detective

Shawn Mulhern's testimony that the defendant acquiesced or

actually agreed to go to the police station for questioning.

Cf. Commonwealth v. Cruz, 373 Mass. 676, 683 (1977) (no illegal

detention of defendant where defendant consented to enter police

cruiser and go to station for questioning). We add that there

was no evidence that Mulhern sought to relocate the defendant to

the police station for safety or security issues. Cf. Florida

v. Royer, 460 U.S. 491, 504-505 (1983) ("there are undoubtedly

reasons of safety and security that would justify moving a

suspect from one location to another during an investigatory

detention, such as from an airport concourse to a more private

area").

35

transport to a police station for questioning is 'sufficiently

like arres[t] to invoke the traditional rule that arrests may

constitutionally be made only on probable cause.'" Id. at 630,

quoting Hayes v. Florida, 470 U.S. 811, 816 (1985). See Florida

v. Royer, 460 U.S. 491, 503 (1983) (concluding that airport

detention exceeded limits of investigatory stop and amounted to

de facto arrest); Dunaway v. New York, 442 U.S. 200, 212 (1979)

(concluding that where petitioner was taken from neighbor's home

to police vehicle, transported to police station, and placed in

interrogation room, detention was "indistinguishable" from

traditional arrest and required probable cause or judicial

authorization); United States v. Ryan, 729 F. Supp. 2d 479, 487

(D. Mass. 2010) (stating that limitation on valid investigatory

stop is that suspect may not be removed to police station

without his or her consent). Indeed, "the line is crossed when

the police, without probable cause or a warrant, forcibly remove

a person from his home or other place in which he is entitled to

be and transport him to the police station, where he is

detained, although briefly, for investigative purposes." Hayes,

supra. "In the name of investigating a person who is no more

than suspected of criminal activity, the police may not . . .

seek to verify their suspicions by means that approach the

conditions of an arrest." Royer, 460 U.S. at 499. "Nothing is

more clear than that the Fourth Amendment was meant to prevent

36

wholesale intrusions upon the personal security of our

citizenry, whether these intrusions be termed 'arrests' or

'investigatory detentions.'" Davis v. Mississippi, 394 U.S.

721, 726-727 (1969). See 2 W.E. Ringel, Searches and Seizures,

Arrests and Confessions § 23:5, at 23-18 (2d ed. 2014) (Supreme

Court has held that when police take suspect involuntarily for

station house questioning, such custodial detention requires

probable cause as it is equivalent to formal arrest;

investigatory detentions not requiring probable cause must be

brief in duration and not lengthy investigation to develop

probable cause). Many United Stated Circuit Courts of Appeals

have followed this precedent.23

23

See, e.g., Centanni v. Eight Unknown Officers, 15 F.3d

587, 591 (6th Cir.), cert. denied, 512 U.S. 1236 (1994) (removal

of suspect from scene of stop generally marks point at which

Fourth Amendment demands probable cause; "there is no such thing

as a Terry 'transportation'"); United States v. Parr, 843 F.2d

1228, 1231 (9th Cir. 1988) (line between investigatory stops and

arrests may be drawn on point of transporting defendant to

police station); United States v. Hernandez, 825 F.2d 846, 851

(5th Cir. 1987), cert. denied, 484 U.S. 1068 (1988) (removal of

suspect from scene of stop to police headquarters usually marks

point when investigative stop becomes de facto arrest); United

States v. Ceballos, 812 F.2d 42, 49 (2d Cir. 1987) (transporting

suspect to police station exceeds limits of Terry-type stop and

becomes unlawful arrest); United States v. Gonzalez, 763 F.2d

1127, 1133 (10th Cir. 1985) (forcing suspect to go to police

station crosses line into de facto arrest).

37

Because there was no probable cause to arrest the

defendant24 or judicial authorization to do so, "well-established

precedent requires suppression of the [statement] unless that

[statement] was 'an act of free will [sufficient] to purge the

primary taint of the unlawful invasion.'" Kaupp, 538 U.S. at

632-633, quoting Wong Sun v. United States, 371 U.S. 471, 486

(1963). See Commonwealth v. Damiano, 444 Mass. 444, 453 (2005).

Demonstrating that the underlying illegality is purged from

taint falls on the Commonwealth. See Kaupp, supra at 633;

Damiano, supra at 454. Relevant considerations include "(1) the

temporal proximity of the admission to the arrest; (2) the

presence of intervening circumstances between the arrest and the

admission; (3) the observance of the Miranda rule subsequent to

the unlawful arrest; and (4) the purpose and flagrancy of the

official misconduct." Damiano, supra at 455. The observance of

the Miranda rule standing alone is insufficient to remove the

taint of an unlawful detention. See Kaupp, supra; Commonwealth

v. Bradshaw, 385 Mass. 244, 258 (1982).

Although the officers recited the Miranda warnings to the

defendant, consideration of the remaining factors reveals little

to no attenuation between the arrest and interrogation. The

defendant was questioned within ten minutes of arriving at the

24

The Commonwealth concedes this point, and the judge's

findings warrant it, as the officers testified that the

defendant had not yet become a suspect in the victim's killing.

38

police station, and no intervening circumstances occurred before

the interview commenced. Further, in transporting the defendant

to the police station for interrogation, the police sought

expediently to confirm or to dispel whether the defendant had

involvement in the victim's death. On balance of the factors,

we conclude that the Commonwealth has not satisfied its burden

here.

Our conclusion that the defendant's statement resulted from

an unlawful arrest does not end our inquiry. We must determine,

under the circumstances, whether the erroneous admission of the

defendant's interview with police (the portion that the motion

judge did not suppress) created a substantial likelihood of a

miscarriage of justice. See Commonwealth v. Gonzalez, 469 Mass.

410, 417 (2014). The relevant inquiry is whether the jury's

verdict finding that the defendant was guilty of felony-murder

would likely have been the same had the interview been

suppressed. Id.

The defendant argues that his recorded interview was the

"clearest and least equivocal evidence that any robbery or

attempted robbery actually took place in the apartment." We

disagree. The evidence, apart from the defendant's statements

to the police during the recorded interview, was strongly

supportive of the Commonwealth's theory that the defendant had

participated in a joint venture to rob the victim on the night

39

of the murder. We recount the relevant evidence below to

illustrate the point.

The defendant had already told police at the hospital that

the victim was at the apartment for a drug deal; that three men

entered, some of whom had guns; that the defendant escaped

downstairs to his sister's apartment; and that, after the men

left, the defendant found the victim alive, but badly beaten.

Thus, the purpose of the encounter with the victim did not

derive solely from the defendant's recorded interview.

Although the defendant denied any involvement in the crime,

it was the defendant's wife who firmly placed the defendant in

the midst of the scheme to rob the victim. Her testimony that

the defendant instructed the victim to meet at Stenstream's

apartment instead of his wife's apartment as originally planned;

that the defendant packaged between $42,000 and $58,000 in cash

and took it with him when he left to meet the victim; and that

the defendant questioned someone on the telephone before he left

for Stenstream's apartment as to whether he was "going to get it

back" established the defendant as a willing and necessary

participant in the plot to rob the victim. Also, Matteson's

testimony that Morin, the day before the killing, had informed

him of a plot involving Morin, the defendant, and others to rob

the victim at an apartment owned by the defendant further

corroborated the defendant's wife's extremely damaging

40

testimony. From this testimony, the jury reasonably could have

inferred that the defendant was involved in a robbery or

attempted robbery of the victim.

To be sure, some of the defendant's statements in his

recorded interview added information that the jury did not hear

or learn elsewhere at trial. For instance, in the recorded

interview the defendant stated that the victim told the three

men that they owed him money and that the victim had a large

plastic bag in his pocket that contained drugs. This

information, however, did not implicate the defendant in the

robbery or attempted robbery.

While the defendant's recorded interrogation added for the

first time that one of the men hit the victim with a gun, that

detail did not add anything of significant value, as the

defendant kept to his story that he "bolted" as soon as he had

the opportunity and that he did not have any involvement with

the three men and the incident that occurred.

Also, the defendant's admission in his recorded interview

that $1,000, from the $1,600 discovered on his person that

night, was payment from the victim for use of the apartment was

not relevant to the defendant's participation in a robbery or

attempted robbery of the victim. Rather, the admission

concerning the money only strengthened the Commonwealth's

existing evidence that the defendant was at that time, contrary

41

to his statements, still involved in drug dealing and perhaps

even this particular drug deal. None of the defendant's

statements suggested that the drug deal was a ruse for a robbery

or attempted robbery. That suggestion came from Matteson during

his trial testimony.

We turn now to the information obtained from the

defendant's cellular telephone, which the defendant argues

derived from the illegal interrogation. While at the hospital

when he was not in custody, the defendant granted permission to

police to look at his cellular telephone. From this

examination, police learned that the defendant's cellular

telephone recently had been in communication with Morin's

telephone numerous times. Further, as we have already noted,

the defendant's wife testified about communications between

Morin and the defendant on the day before the victim's death,

and a telephone call from Morin looking for the defendant after

something had "happened" with "that kid" who was "tough." Also,

telephone records of Morin's cellular telephone independently

supported the prosecutor's suggestion that the telephones of the

two men had been in frequent communication before and after the

victim's death. The defendant's telephone records were

cumulative of Morin's records and other evidence, and any effect

on the jury from their admission thus was minimal.

42

A close examination of the defendant's statements in the

recording shows that his statements strengthened the

Commonwealth's claim that the defendant was involved in drugs

and drug dealing, but not in a robbery or attempted robbery of

the victim. Concerning the robbery or attempted robbery, the

interview bore little on the jury's determination that the

defendant was a joint venturer in the robbery or attempted

robbery of the victim. The significant evidence, which the

defendant overlooks, was the testimony of his sister and her

husband regarding what they heard that night above them; his

wife's testimony regarding the events of the night; and

Matteson's testimony that Morin had revealed to Matteson what

had been planned and who was involved the day before the

victim's death. In these circumstances, we conclude that no

substantial likelihood of a miscarriage occurred by the

erroneous admission of the defendant's statements made during

his interview with police.

2. Motion to withdraw. The defendant argues that the

judge erred in "forcing" him to trial with defense counsel who

unsuccessfully had sought to withdraw his representation of the

defendant just two days before trial. He further contends that

he was deprived of the effective assistance of trial counsel

because he was forced to stand trial with defense counsel who

43

did not want to represent him and who purportedly had admitted

to preparing his defense at a "low level."

On October 29, 2012, which was two days prior to trial,

defense counsel, who was retained by the defendant and his

family, filed a motion to withdraw. In support of that motion,

defense counsel filed an affidavit stating the following.

Communication between defense counsel and the defendant had

"broken down." Defense counsel had learned that the defendant

recently had accused him of "jamming him up," not preparing his

case, and forcing him to accept a plea to murder in the second

degree. The defendant had telephoned his office on October 25

and had told an associate that he was dissatisfied with defense

counsel's representation and no longer wished for him to serve

as his trial counsel. Defense counsel indicated that the

defendant felt that counsel was not acting in the defendant's

best interests; that he had not properly prepared the

defendant's case; and that, by advising the defendant to take a

plea, he had abandoned the defendant's case. Defense counsel

stated that the defendant wanted to be heard by the court and

that he had advised the defendant and his family that they

needed to arrange for successor counsel. Defense counsel went

on to state that, notwithstanding the defendant's position, he

was continuing to prepare the case for trial. Defense counsel

also represented that, with several exceptions regarding some

44

specific pretrial preparation (preparing a witness list, for

example), he had been fully prepared for trial prior to the

defendant's telephone call on October 25.

The judge, who was also the trial judge, held a hearing on

October 29. The defendant explained:

"I no longer trust [defense counsel], I lost all my

faith in him. I feel [that he] hasn't taken my best

interest, fifteen to life, when I'm one hundred per cent

innocent. He also told me he'll put no more effort into my

case. I'm indigent. And I have lawyers that state that,

your Honor. On top of that, writing letters that you're

going to proceed on my trial at a low level."

The defendant added that he was dissatisfied because he

requested, but was not afforded, either an expert to review the

medical examiner's autopsy report or a private investigator to

speak with "a few people." The defendant also wanted "some

motions in" after he "lost" the suppression motion.

The letters to which the defendant referred included one

dated October 15, 2012, from defense counsel to the defendant,

which the defendant submitted to the judge. In the one-page

letter, defense counsel expressed concern regarding the large

amount owed for his services and expenditures. Defense counsel

also wrote, "Much work remains on your case although I am ready

on a low level. I feel however you want additional work and I

am willing to provide it subject to me getting paid."

Defense counsel confirmed at the hearing that he had sent

the defendant the October 15 letter. He explained what he meant

45

by the phrase "low level," which included preparing indexes for

every police report, every grand jury hearing, and every other

hearing, including the extensive suppression hearing. "Low

level" preparation, according to defense counsel, did not

constitute extensive trial preparation, which involves working

"day and night" and weekends in order to try the case when the

trial date is firm. When defense counsel authored the letter,

he was not yet conducting actual trial preparation.

Defense counsel told the judge that communication between

him and the defendant deteriorated for several reasons,

including that the defendant refused to accept the impact of our

decision in Commonwealth v. Zanetti, 454 Mass. 449, 466-468

(2009), which effectively erased the distinction between

principal and joint liability with regard to joint venture

liability. In addition, defense counsel informed the judge that

he had consulted at least two doctors to review the autopsy

report, and the defendant did not want to accept their opinions

that there was no basis to dispute the victim's cause of death.

The defendant also "reject[ed] entirely" the fact that his wife,

who apparently was not going to testify against him, had changed

her mind and would be testifying "to some major things that are

very problematic." Another damaging fact that the defendant

refused to accept was his sister Lucia's expected testimony

that, on the night of the killing, after the group had run out

46

of Stenstream's apartment, she heard the defendant and another

voice from Stenstream's apartment, which was significant because

the testimony supported an inference that the victim had been

alive and alone with the defendant. Defense counsel stated that

his plea recommendation had nothing to do with "the payment of

fees, but an evaluation of the evidence."25

Defense counsel sought to withdraw, but stated he would "do

[his] best" were the judge to order him to proceed. The judge

ruled that the defendant had the right to bring in new counsel

"provided new counsel is prepared to impanel this case [in two

days]." The judge noted that the case commenced in "the early

portion of 2010" and that the Commonwealth "can be prejudiced by

the denial of a speedy trial as its witnesses' memories may dull

and wane by the passage of time." The judge added that the

motion judge had actually agreed with defense counsel regarding

a portion of the motion to suppress, so that it was not fair to

25

Without citation to any authority, the defendant's

appellate counsel suggests that the defendant's trial counsel

revealed communications that were protected by the attorney-

client privilege. We have stated, however, where a defendant

"essentially accuse[s] trial counsel of incompetence in

circumstances covered by the attorney-client privilege and to

which the only witnesses were the defendant and trial counsel,

the privilege must be deemed waived, in part, to permit counsel

to disclose only those confidences necessary and relevant to the

defense of the charge of ineffective assistance of counsel."

Commonwealth v. Silva, 455 Mass. 503, 529 (2009), and cases

cited. Here, defense counsel acted appropriately, revealing

communications that were responsive and relevant to the

defendant's claims of ineffective assistance.

47

state that the motion had been lost. The judge stated that an

attorney is not to "operate simply as an accommodating party"

and is required to be effective in plea negotiations in addition

to a trial. He validated the challenges defense counsel faced

based on the circumstances and facts of the case. Last, the

judge rejected the accusation that defense counsel had abandoned

the defendant, pointing to his voir dire questions and motions

in limine that had been filed.

The judge declined to continue the case to permit the

defendant to obtain new counsel. The defendant stated that he

did not see how it could be possible to try the case in two days

with new counsel. The judge denied the motion to withdraw.

We review the denial of a motion to withdraw counsel for

abuse of discretion. Commonwealth v. Rice, 441 Mass. 291, 297

(2004). We also review the denial of a request for a

continuance for abuse of discretion. Commonwealth v. Ray, 467

Mass. 115, 128 (2014).

"The Sixth Amendment [to the United States Constitution]

guarantees the right to effective assistance of counsel, but it

'does not invariably require a "meaningful attorney-client

relationship."'" Commonwealth v. Britto, 433 Mass. 596, 600

(2001), quoting Commonwealth v. Tuitt, 393 Mass. 801, 806

(1985). "Freedom to change counsel . . . is restricted on the

commencement of trial." Commonwealth v. Chavis, 415 Mass. 703,

48

711 (1993). "A motion to discharge counsel, when made on the

eve of trial, or on the day on which trial is scheduled to

begin, 'is a matter left to the sound discretion of the trial

judge.'" Tuitt, supra at 804, quoting Commonwealth v. Moran,

388 Mass. 655, 659 (1983). There is no "mechanical test" that

applies. Chavis, supra. A trial judge is to "balance the

movant's need for additional time against the possible

inconvenience, increased costs, and prejudice which may be

incurred by the opposing party if the motion is granted. He

must also give due weight to the interest in the judicial system

in avoiding delays which would not measurably contribute to the

resolution of a particular controversy." Id., quoting

Commonwealth v. Cavanaugh, 371 Mass. 46, 51 (1976).

Turning to requests for continuances, we have explained

that "there is no 'mechanical test' for determining whether the

denial of a continuance constitutes an abuse of discretion

because we must examine the unique circumstances of each case,

particularly the reasons underlying the request." Commonwealth

v. Pena, 462 Mass. 183, 190 (2012). "A judge should grant a

continuance only when justice so requires, balancing the

requesting party's need for additional time against concerns

about inconvenience, cost, potential prejudice, and the burden

of the delay on both the parties and the judicial system." Ray,

467 Mass. at 128. "[C]ognizant of a criminal defendant's

49

constitutional entitlement to assistance of counsel, who 'must

be afforded "a reasonable opportunity to prepare and to present

the defence,"'" id. at 128-129, quoting Cavanaugh, 371 Mass. at

50, we have cautioned that "a trial judge may not exercise his

discretion in such a way as to impair" this right. Ray, supra

at 129, quoting Commonwealth v. Miles, 420 Mass. 67, 85 (1995).

Here, the judge gave the defendant the opportunity to

explain his reasons for his dissatisfaction with defense counsel

and acted within his discretion in denying both the motion to

withdraw and the request for a continuance. See Chavis, 415

Mass. at 712 (judge gave defendant "fair opportunity to explain

the reasons for his dissatisfaction with trial counsel"). The

judge appropriately gave consideration to the facts that the

case was scheduled for trial in two days, the defendant had been

indicted some two years earlier, and he had not engaged

successor counsel. The judge did not misstate the law

concerning a defendant's right to a speedy trial, but rather, in

context, properly considered the defendant's needs against the

legitimate needs of judicial administration, including the need

for witness testimony to be unhindered due to the passage of

time. See Commonwealth v. Gilchrest, 364 Mass. 272, 276 (1973).

The judge could properly take such matters into account even in

the absence of evidence of a calculated effort made by the

defendant to postpone the trial.

50

The judge considered the nature and seriousness of the

conflict between the defendant and his counsel. See Rice, 441

Mass. at 297. Implicit in the judge's conclusion was that he

credited defense counsel's explanation of what he meant by using

the phrase "low level." Further, the judge credited defense

counsel's statements that he was prepared for trial, noting his

extensive trial preparation efforts, namely the motions he had

filed on the defendant's behalf and the filings submitted in

preparation of jury empanelment. Cf. Cavanaugh, 371 Mass. at

48, 57 (error to deny continuance where defense counsel stated

he was not prepared). The judge explored the allegations that

defense counsel had not met all of the defendant's demands,

finding them unreasonable or unsupported in the circumstances.

For these reasons, there is no basis for the defendant's

argument that the judge abused his discretion in failing to

reach a different conclusion, namely, that defense counsel had

"washed his hands" of the defendant and was willing to put in

only minimal effort for trial. See Britto, 433 Mass. at 601

(stating that counsel's failure to meet all of defendant's

demands does not equate with "an irreconcilable breakdown of

communication").

Last, concerning the defendant's claim that he was deprived

of the effective assistance of trial counsel because he was

forced to stand trial with defense counsel who did not want to

51

represent him and who purportedly had admitted to preparing his

defense at a "low level," the "ultimate question is whether the

defendant likely would be denied the effective assistance of

counsel if counsel is not removed." Id. Based on the record

before us, we conclude that the defendant has failed to make the

requisite showing.

3. Ineffective assistance of counsel. The defendant's

ineffective assistance of counsel argument is predicated on the

claims of error we have already addressed and, thus, lacks

merit.

4. Relief pursuant to G. L. c. 278, § 33E. Pursuant to

our statutory duty, we discern no basis to reduce the verdict or

to order a new trial pursuant to G. L. c. 278, § 33E.

Conclusion. We reverse the order denying in part the

defendant's motion to suppress statements. We affirm the order

denying defense counsel's motion to withdraw. We affirm the

defendant's conviction.

So ordered.