Commonwealth v. Tremblay

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SJC-12493

COMMONWEALTH vs. RANDALL TREMBLAY.

Suffolk. May 10, 2018. - October 3, 2018.

Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.

Constitutional Law, Admissions and confessions, Voluntariness of

statement, Waiver of constitutional rights, Search and

seizure. Evidence, Admissions and confessions,

Voluntariness of statement, Intoxication, Scientific test.

Waiver. Intoxication. Search and Seizure, Clothing.

Practice, Criminal, Admissions and confessions,

Voluntariness of statement, Motion to suppress, Waiver,

Property seized at time of arrest.

Indictments found and returned in the Superior Court

Department on March 10, 2015.

A pretrial motion to suppress evidence was heard by Kenneth

W. Salinger, J.

Applications for leave to prosecute interlocutory appeals

were allowed by Hines, J., and Cordy, J., in the Supreme

Judicial Court for the county of Suffolk, and the appeals were

consolidated and reported by them to the Appeals Court. After

review by the Appeals Court, the Supreme Judicial Court granted

leave to obtain further appellate review.

Patrick Levin, Committee for Public Counsel Services, for

the defendant.

2

Janis DiLoreto Smith, Assistant District Attorney, for the

Commonwealth.

LENK, J. The defendant stands accused of murder in the

first degree in connection with the beating death of a woman who

had obtained a restraining order against him. The Commonwealth

appeals from an order suppressing both the statements that the

defendant made during custodial interrogations and the forensic

testing results obtained from his bloodstained clothing.

The motion judge heard testimony from police witnesses and

watched an audio-video recording of a second custodial

interrogation, which took place soon after the police realized

that they inadvertently had failed to record the defendant's

first interrogation. The judge concluded that the defendant was

too intoxicated during both interviews to make a knowing,

intelligent, and voluntary Miranda waiver. Consequently, the

judge determined that the Commonwealth had not met its burden of

proving beyond a reasonable doubt that the defendant validly

waived his Miranda rights at the unrecorded first interview.

See Commonwealth v. Hoyt, 461 Mass. 143, 149 (2011).

As to the suppression of the defendant's statements, the

case calls upon us first to examine unsettled aspects of the

standard of review to be applied to the judge's subsidiary

findings, some of which were drawn from documentary evidence.

We decline to adopt the Federal approach, which does not permit

3

a reviewing court to make an independent assessment of pertinent

documentary evidence, and instead requires deference to all

subsidiary fact findings that are not clearly erroneous. See

Anderson v. Bessemer City, N.C., 470 U.S. 564, 574–575 (1985).

We instead reaffirm the long-standing principle that an

appellate court may independently review documentary evidence,

but should accept subsidiary findings based partly or wholly on

oral testimony, unless clearly erroneous. See Commonwealth v.

Hoose, 467 Mass. 395, 399 (2014). In such circumstances, the

case should be decided "upon the entire evidence," see Berry v.

Kyes, 304 Mass. 56, 57-58 (1939), giving "due weight" to the

judge's subsidiary findings when required. See Edwards v.

Cockburn, 264 Mass. 112, 120–121 (1928).

In the recording of the second interrogation, the judge saw

a man then so intoxicated that his level of sobriety one hour or

so earlier -- the pertinent time for assessing the validity of

the Miranda waiver -- could only have been much worse. The

recording of the second interview thus formed part of the

predicate for the judge's conclusion that the defendant had been

too intoxicated at the beginning of the unrecorded first

interview to give a valid waiver. Our de novo review of that

documentary evidence instead reveals that, for the duration of

the recording of the second interview, the defendant appeared to

be lucid, coherent, responsive, and in control of his mental

4

faculties. Thus, the judge's findings regarding the defendant's

condition during the second interview -- and, to the extent that

they are premised on extrapolations from that interview, his

findings concerning the defendant's capacity validly to waive

his Miranda rights during the first interview -- are not

supported by that evidence and cannot stand.

Mindful that the judge also made findings relating to the

defendant's condition that are based on oral testimony, and to

which we must defer, the case on appeal is to be decided on the

"entire evidence." See Berry, 304 Mass. at 57-58. We therefore

must weigh our de novo review of the second interview along with

the judge's assessment of the oral testimony. Doing so presents

unique challenges in these particular circumstances, where the

findings focus largely on a comprehensive documentary record of

the wrong time period. We do not know the extent to which the

recording of the second interview may have had an impact on the

judge's other factual findings and credibility determinations,

or what else the judge might have found if he shared our view of

the recording. Additionally, the judge failed to make factual

findings or credibility determinations regarding certain

material evidence. We are thus not confident that the remaining

findings as to the testamentary evidence that are entitled to

deference allow for meaningful review of the entire evidence in

this case.

5

This being so, it is the better part of wisdom to remand

this case so that the judge can make findings and credibility

determinations regarding all pertinent evidence in light of our

de novo assessment of the recording of the second interview.

Cf. Commonwealth v. Jones-Pannell, 472 Mass. 429, 438 (2015);

Commonwealth v. Isaiah I., 448 Mass. 334, 338 (2007). Depending

on the findings made on remand as to the defendant's condition

and level of sobriety at the pertinent time, and recognizing

that intoxication alone does not preclude a valid waiver,

Commonwealth v. Wolinski, 431 Mass. 228, 231 (2000), a remand

will also afford the opportunity to clarify any such nexus, and

allow the judge as well to determine the voluntariness of the

statements.

The situation is otherwise as to the suppressed forensic

testing results. The police lawfully seized the defendant's

clothing incident to arrest, and thereafter did not need a

separate warrant to test the clothing for the presence of human

blood. See Commonwealth v. Arzola, 470 Mass. 809, 816-817

(2015), cert. denied, 136 S. Ct. 792 (2016). Accordingly, the

order suppressing the results of the forensic testing of the

defendant's clothing must be reversed.

1. Background. a. Findings of fact. The judge held an

evidentiary hearing on the defendant's motion to suppress at

which three officers testified and an audio-video recording of

6

the defendant's second interview was submitted.1 The judge did

not make any explicit adverse credibility findings, but stated

that he credited the officers' testimony "to the extent it [was]

consistent with [his] explicit findings of fact." The judge

found as follows. Shortly after 2 A.M. on November 18, 2014,

Boston police received a 911 call stating that the victim had

died at her apartment. Her body was found, covered with a

blanket, on a "very bloody" couch; her face was bruised and

bloodied. Two of the defendant's friends were in the apartment

when the officers arrived, but the defendant was not present.

One friend appeared to be intoxicated; the other, who did not,

had telephoned 911.

Sergeant Scott Yanovitch of the Boston police department

requested a dispatch to all relevant units; the dispatch went

out around 2:50 A.M. Officer Shawn Roberts heard the dispatch

1 The remaining evidence presented consisted of the

defendant's Miranda waiver form, a restraining order obtained by

the victim against the defendant, a video recording of the wrong

interrogation room, photographs of the crime scene, and a video

recording of the defendant with his friend at a Massachusetts

Bay Transportation Authority (MBTA) station more than four hours

before he was interrogated. At the hearing, the witnesses also

referenced video surveillance from a liquor store more than five

hours before the defendant was interrogated, but that footage

was not played or submitted. The judge did not discuss these

other pieces of evidence in his findings. Although the record

on appeal does not include the video recordings of the defendant

with his friend at the MBTA station and the liquor store, these

materials would not aid our analysis, because they were recorded

four or five hours before the defendant's first interrogation.

7

and recognized the address because he had responded there to

some previous complaints by the victim of domestic violence by

the defendant. Roberts used his mobile data terminal to perform

a search of the prior police reports regarding that address,

found the defendant's name, and checked his criminal record.

Roberts discovered that an active restraining order was in place

requiring the defendant to stay away from the victim's

residence, and that there was an outstanding warrant to arrest

the defendant for failing to register with the Sex Offender

Registry Board. Roberts also examined the defendant's booking

photographs.

Over the next hour or so, Yanovitch saw a man who was later

identified as the defendant "hanging out" near the victim's

apartment. The first time, Yanovitch briefly stepped outside

the victim's apartment to get some fresh air and saw the

defendant walk past him, talking and mumbling to himself. The

second time, when Yanovitch escorted one of the defendant's

friends outside the apartment to smoke a cigarette, the

defendant approached and asked the friend for a cigarette.

Around the same time, Roberts completed his research and

contacted Yanovitch over the police radio to tell him what he

had learned about the defendant. Yanovitch asked Roberts to

come to the scene to determine if the friend that he had

escorted outside to smoke was the person Roberts had researched.

8

Roberts arrived, confirmed that the friend was not the same

individual, and left.

Back inside the apartment, Yanovitch heard the defendant,

standing on the sidewalk, yelling loudly; he was yelling

statements such as "What's going on in there?"; "I know what

happened"; and "She was my friend." Yanovitch went outside

again. The defendant approached him, asked, "What's going on in

there?" and repeated, "She was my friend." Yanovitch asked the

defendant for his name, and the defendant responded, "What, are

you going to run me?" Yanovitch then asked Roberts to return to

the scene to determine if the defendant was the person he had

researched; by this time it was approximately 3:40 A.M.

When Roberts returned and approached the defendant, Roberts

smelled alcohol. He identified the defendant and placed him

under arrest pursuant to the outstanding warrant. The defendant

stated that he had paperwork showing that the arrest warrant had

been recalled, but the paperwork concerned a different warrant.

Roberts read the defendant the Miranda rights; the defendant did

not indicate whether he understood. Roberts and another officer

then drove the defendant to Boston police headquarters. During

the drive, the defendant repeatedly asked if he would be

released because the warrant was a mistake; he said nothing

about the victim.

9

Sergeant Detective Michael Stratton interviewed the

defendant for approximately one hour, starting at around

4:30 A.M., while Roberts observed. Stratton told the defendant

that they were being recorded, but, for the duration of the

defendant's interview, the officers inadvertently recorded a

different interrogation room. Stratton read the defendant the

Miranda rights from a preprinted form, and the defendant

initialed the form and signed his name.2,3 The defendant then

made statements implicating himself in the victim's death; the

defendant said that he and the victim had gotten into an

argument and that he had hit her in the head twelve to fifteen

times. The defendant said that he "got her good," and, "I think

I killed her."

The defendant also said that, when he woke up the next

morning, the victim's body was cold and he thought she was dead.

He stated that he then left the apartment and found his friend,

2 The defendant's waiver form states that his waiver was

obtained at 5 A.M. The judge credited the time stamp on the

recording that was taken of the wrong interview room, however,

which indicated that the first interview began at 4:30 A.M. We

defer to this finding, which also is consistent with the fact

that the interview lasted for approximately one hour and was

followed by a ten-minute cigarette break before the defendant

was reinterviewed at 5:50 A.M.

3 References to the "unrecorded" waiver denote the fact that

the defendant's waiver process was not captured on an audio-

video recording, and are not meant to suggest that the defendant

failed to sign a waiver form.

10

and they drank beer together before returning to the victim's

apartment. Once there, the defendant mopped puddles of blood

from the floor and took out the trash. He then drank more beer,

finishing the last of the beer as his other friend telephoned

911. Throughout the interview, the defendant also repeatedly

insisted that the warrant was a mistake and asked when he would

be released.

When he learned of the mistake in recording, Stratton asked

the defendant if he would agree to a second interview; the

defendant assented, but wanted a cigarette first. During the

ten-minute cigarette break, the defendant continued to ask when

he would be released.

Stratton interviewed the defendant a second time beginning

at around 5:50 A.M. This interview was audio-video recorded.

The judge found that the defendant was "quite intoxicated"

throughout the interview, and that Stratton knew this but did

not attempt to discern the defendant's level of intoxication.

The judge found that the defendant was "stumbling around and

very unsteady on his feet" when he re-entered the interview

room, and that he "sound[ed] drunk and seem[ed] to have trouble

speaking clearly." The defendant paid "very little attention

while Stratton tried to review the Miranda form with him," and

"reached across the table and started playing with Stratton's

pen and papers." The judge found that, at that point, the

11

defendant still did not realize that he had incriminated

himself, as he was again arguing that the warrant was only a

"straight warrant," a "mistake," and asking if he would be

released. The defendant also made statements such as, "She's

dead because of me," and, "I did whack her." The judge stated

that, "[s]ince it is apparent that [the defendant] was quite

intoxicated throughout the second police interrogation, the

Court infers and therefore finds that he was even more drunk

during the first interview."

After the second interview, Stratton arrested the defendant

for murder. Stratton also seized all the defendant's clothing

after he noticed apparent bloodstains on the defendant's shoes

and socks. The officers had not obtained a warrant to seize or

test the clothing. Every piece of clothing the defendant had

been wearing tested positive for the presence of human blood.

b. Prior proceedings. The defendant was indicted on

charges of murder in the first degree, G. L. c. 265, § 1, and

violation of an abuse prevention order, G. L. c. 209A, § 7. He

moved to suppress all statements he had made to police and all

evidence seized from him. The judge allowed the motion to

suppress in part. He ordered suppressed all statements the

defendant made once he had been transported to the police

station, but found that suppression was not required for

statements made before the defendant had been transported to the

12

police station. The judge found that the Commonwealth had not

met its burden of demonstrating beyond a reasonable doubt that

the defendant had validly waived his Miranda rights. The judge

also ordered that the results of forensic testing of the

defendant's clothing be suppressed, because no warrant had been

obtained to test the clothes; he denied the motion to suppress

the clothing itself, on the ground that the seizure was

permissible under the exigent circumstances exception to the

warrant requirement.

A single justice of this court allowed the Commonwealth's

petition for interlocutory review of the partial allowance of

the motion to suppress. The defendant's motion for leave to

file a cross appeal of the partial denial of the motion to

suppress also was allowed, and the appeals were consolidated and

reported to the Appeals Court. The Appeals Court reversed the

judge's partial allowance, Commonwealth v. Tremblay, 92 Mass.

App. Ct. 295, 313 (2017), and this court then allowed the

defendant's application for further appellate review.

2. Discussion. a. Standard of review. "In general, 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" (quotation, citation, and alterations

omitted). Commonwealth v. Clarke, 461 Mass. 336, 340 (2012).

13

Massachusetts appellate courts have traditionally declined to

defer to subsidiary findings based wholly on documentary

evidence, however. See, e.g., Berry, 304 Mass. at 57-58.

Because the judge's subsidiary findings rested on both

testimonial and documentary evidence, we must first settle the

open question whether our long-standing practice of

independently reviewing documentary evidence survives in light

of more recent legal developments.

i. Origins. Traditionally, "[g]reat weight is justly

given to the conclusions on questions of fact of the justice who

hears the case." Chase v. Hubbard, 153 Mass. 91, 92 (1891).

This is because the judge "has [had] an opportunity to observe

the conduct of the witnesses, their fairness and intelligence,

and can judge better than the full court possibly can of the

degree of credibility to be given to their testimony." Id. If

a judge's subsidiary findings are drawn from documentary

evidence, however, we have reasoned that "the reason of the rule

largely disappears." Id. Thus, for over a century,

Massachusetts appellate courts have distinguished between

findings drawn from testimonial evidence and those drawn from

documentary evidence. See Olivieri v. Atkinson, 168 Mass. 28,

30 (1897); Chase, supra.

Initially, this court held that, where the record consists

entirely of documentary evidence, it is "proper to re-examine

14

the evidence, and determine if on the whole the judgment was

right." Olivieri, 168 Mass. at 30. Later, this rule was

expanded, such that, within a given case, subsidiary findings

based on documentary evidence were not entitled to deference,

but subsidiary findings "based wholly or partly upon oral

testimony are not to be set aside unless plainly wrong." Berry,

304 Mass. at 57–58. Even then, however, the case "is to be

decided upon the entire evidence," giving "due weight" to the

judge's subsidiary findings based on testimonial evidence.

Edwards, 264 Mass. at 120–121.

ii. Rule 52 (a) of the Massachusetts Rules of Civil

Procedure. The standard of review for subsidiary findings based

on documentary evidence originated in civil cases, but such

cases were later relied on in the criminal context as well.

See, e.g., Commonwealth v. Novo, 442 Mass. 262, 266 (2004)

(citing civil cases such as Berry, 304 Mass. at 57-58, for

standard of review); Commonwealth v. Wiseman, 356 Mass. 251,

256–257 (1969), cert. denied, 398 U.S. 960 (1970) (same). Civil

cases like Berry, supra, however, appear to conflict with

Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996),

which was adopted in 1974. See, e.g., Robertson v. Gaston Snow

& Ely Bartlett, 404 Mass. 515, 525, cert. denied, 493 U.S. 894

(1989) (recognizing, but not resolving, conflict between

traditional standard of review for findings based on documentary

15

evidence and rule 52 [a]); Rapp v. Barry, 398 Mass. 1004, 1005

n.3 (1986) (same). We take this opportunity to resolve this

apparent conflict, affecting the standard of review in both

civil and criminal cases.

Rule 52 (a) provides, in relevant part, "[f]indings of fact

shall not be set aside unless clearly erroneous, and due regard

shall be given to the opportunity of the trial court to judge of

the credibility of the witnesses." It does not exempt findings

drawn from documentary evidence.4

The Massachusetts Rules of Civil Procedure were "patterned

on the Federal Rules of Civil Procedure." Van Christo Advert.,

Inc. v. M/A-COM/LCS, 426 Mass. 410, 414 (1998). For this

reason, "[i]n construing our rules, we follow the construction

given to the Federal rules absent compelling reasons to the

contrary or significant differences in content" (citation and

quotation omitted). Id. At the time that Mass. R. Civ. P.

52 (a) was adopted, its language was identical to the cognate

Rule 52 (a) of the Federal Rules of Civil Procedure. See Chance

4 Nonetheless, in the four decades since the adoption of

rule 52 (a), Massachusetts courts have continued the practice of

reviewing de novo subsidiary findings based wholly on

documentary evidence. See, e.g., Commonwealth v. Hoose, 467

Mass. 395, 399 (2014); Meschi v. Iverson, 60 Mass. App. Ct. 678,

681 n.7 (2004); Guempel v. Great Am. Ins. Co., 11 Mass. App. Ct.

845, 848 (1981).

16

v. United States, 415 F.2d 330, 331 (5th Cir. 1969) (discussing

prior wording of Fed. R. Civ. P. 52[a]).

Since 1985, Federal courts have not independently reviewed

documentary evidence, and instead have applied the "clearly

erroneous" standard to all lower court findings.5 See Anderson,

470 U.S. at 574–575. See also Maine v. Taylor, 477 U.S. 131,

145 (1986) (applying Anderson, supra, to all findings of fact by

Federal District Courts in criminal cases, other than ultimate

findings of guilt). The United States Supreme Court did not

provide this clarification, however, until more than ten years

after Massachusetts adopted rule 52 (a). Until then, in

applying Fed. R. Civ. P. 52, Federal courts were split as to

whether findings based purely on documentary evidence were

entitled to deference. See Advisory Committee Notes (1985) to

Fed. R. Civ. P. 52(a) (collecting cases).

5 The United States Supreme Court held that the clearly

erroneous standard should apply to all lower court findings, not

just those involving credibility determinations, because trial

judges have expertise in fact finding, and "[d]uplication of the

trial judge's efforts in the court of appeals would very likely

contribute only negligibly to the accuracy of fact determination

at a huge cost in diversion of judicial resources." Anderson v.

Bessemer City, N.C., 470 U.S. 564, 574–575 (1985).

Additionally, "the parties to a case on appeal have already been

forced to concentrate their energies and resources on persuading

the trial judge that their account of the facts is the correct

one." Id. at 575. "[T]rial on the merits should be the main

event . . . rather than a tryout on the road" (quotations and

citation omitted). Id.

17

Furthermore, one month after the Supreme Court's decision

in Anderson, 470 U.S. at 574–575, the Federal rule was amended

to reflect the clarification that the "clearly erroneous

standard" applied even when findings were based on wholly

documentary evidence. See Fed. R. Civ. P. 52(a) (amended April

29, 1985, effective August 1, 1985). Thus, Rule 52(a)(6) of the

Federal Rules of Civil Procedure now states, "Findings of fact,

whether based on oral or other evidence, must not be set aside

unless clearly erroneous, and the reviewing court must give due

regard to the trial court's opportunity to judge the witnesses'

credibility" (emphasis added). Rule 52 (a) of the Massachusetts

Rules of Civil Procedure, by contrast, remains unchanged. Since

the meaning of Fed. R. Civ. P. 52(a) with regard to documentary

evidence was not clarified until after Massachusetts adopted

rule 52 (a), and there is currently a "significant difference[]

in content" between our rule and the Federal rule, we expressly

decline to depart from the long-standing practice in

Massachusetts of independently reviewing documentary evidence in

favor of the Federal approach (citation omitted). See Van

Christo Advert., Inc., 426 Mass. at 414.

We now affirm the principle that an appellate court may

independently review documentary evidence, and that lower court

18

findings drawn from such evidence are not entitled to deference.6

See Clarke, 461 Mass. at 340-341. By contrast, findings drawn

partly or wholly from testimonial evidence are accorded

deference, and are not set aside unless clearly erroneous.7 Id.

Accord Hoose, 467 Mass. at 399-400; Mass. R. Civ. P. 52 (a).

The case "is to be decided upon the entire evidence," however,

giving "due weight" to the judge's findings that are entitled to

deference. Edwards, 264 Mass. at 120–121.

While there is no direct counterpart in the Massachusetts

Rules of Criminal Procedure to Mass. R. Civ. P. 52 (a), we also

defer to subsidiary factual findings in criminal cases unless

they are clearly erroneous. See, e.g., Commonwealth v. Leahy,

445 Mass. 481, 485 (2005). Thus, our pronouncement that the

clearly erroneous standard set forth in Mass. R. Civ. P. 52 (a)

6 This principle was articulated differently in Commonwealth

v. Novo, 442 Mass. 262, 266 (2004), which explained that we

independently review evidence that is "reduced to a tangible

form." The discussion in that case was referring to documentary

evidence, such as "transcripts of deposition testimony" or

"photographs." See id. The case did not extend the rule

regarding findings based on documentary evidence to include all

forms of physical evidence.

7 "A finding is 'clearly erroneous' when although there is

evidence to support it, the reviewing court on the entire

evidence is left with the definite and firm conviction that a

mistake has been committed.'" See Building Inspector of

Lancaster v. Sanderson, 372 Mass. 157, 160 (1977), quoting

United States v. United States Gypsum Co., 333 U.S. 364, 395

(1948).

19

does not apply to subsidiary findings based on documentary

evidence extends to the criminal context as well.

We emphasize, however, that this does not give appellate

courts carte blanche with respect to fact finding. "[A]s our

long-standing jurisprudence makes plain, in no event is it

proper for an appellate court to engage in what amounts to

independent fact finding in order to reach a conclusion of law

that is contrary to that of a motion judge who has seen and

heard the witnesses, and made determinations regarding the

weight and credibility of their testimony." Jones-Pannell, 472

Mass. at 438, citing Clarke, 461 Mass. at 340–341, and cases

cited.

b. Suppression of statements. In order for a defendant's

statements to be admissible at trial, the Commonwealth bears the

"particularly heavy burden" of proving beyond a reasonable doubt

that the defendant's Miranda waiver was valid. See Hoyt, 461

Mass. at 152, citing Commonwealth v. Day, 387 Mass. 915, 920

(1983). A waiver is valid when it is made "voluntarily,

knowingly, and intelligently." Hoyt, supra at 153. This

determination is based on the "totality of the circumstances,

including the characteristics of the accused and the details of

the interrogation." Id. "[T]he judge may consider, among other

things, the defendant's age, education, intelligence, physical

and mental stability, and experience with and in the criminal

20

justice system," Commonwealth v. Anderson, 445 Mass. 195, 203

(2005), as well as his "outward behavior,"8 Commonwealth v.

Sarourt Nom, 426 Mass. 152, 159 (1997).

The Commonwealth does not appear to have presented evidence

concerning most of the aforementioned factors, such as age,

education, or intelligence, nor did the judge address them. The

evidence primarily concerned the defendant's outward behavior

and demeanor, particularly with regard to his intoxication. The

judge, in turn, concentrated his findings and conclusions on the

defendant's level of intoxication, without establishing the

nexus between the defendant's intoxication and his ability

validly to waive his rights. Expressly relying on the audio-

video recording, the judge concluded that the defendant was

"quite intoxicated" during the second interview, and inferred

that the defendant therefore must have been even more

intoxicated during the first interview.

i. The recording. As the recording is documentary

evidence, the judge's findings drawn from it are not entitled to

deference and we may review such evidence de novo. See, e.g.,

Commonwealth v. Monroe, 472 Mass. 461, 464 (2015) (recorded

interrogation constitutes documentary evidence); Clarke, 461

8 The fact that the defendant's waiver was documented in

writing is not dispositive; the validity of a waiver depends on

the totality of the circumstances. See Commonwealth v. Magee,

423 Mass. 381, 387 n.8 (1996).

21

Mass. at 341 (same); Hoyt, 461 Mass. at 148 (same). We take a

view quite different from what the motion judge did as to what

the recording reveals about the defendant's condition.

As the judge noted, at the beginning of the audio-video

recording, the defendant was a bit unsteady on his feet when he

was led into the interrogation room; this unsteadiness

dissipated quickly, however. For example, the defendant was

able to stand and pantomime hitting the victim repeatedly,

without any instability or stumbling. He also spoke coherently;

as he entered the interrogation room he was clearly arguing with

the officers about the warrant for his arrest, and was insisting

that it was a "straight warrant" rather than a "default."

The recording also shows that the defendant was paying

attention while Stratton reviewed the Miranda rights, and told

Stratton he already knew what Stratton was going to say. The

defendant did not "play" with Stratton's pen and paper, as the

judge found, but rather grabbed them while stating that he would

sign the Miranda waiver form again. He indicated that he

understood each right and remembered his earlier waiver, stating

"I understand everything. . . . I initialed everything, I

signed it, and I dated it." When Stratton asked if the

defendant understood that he had a right to remain silent, he

exclaimed, "I'll tell you whatever you want!"

22

Throughout the recording, the defendant was very responsive

to questions. He was able to recall details of the incident,

such as times, locations, and the specific bus he took, and even

corrected a few of Stratton's statements. His account of

hitting the victim repeatedly in the head was consistent with

his statements during the first interview, and he made some of

the same incriminating statements. When Stratton asked for the

defendant's friend's last name, he declined to provide it. The

defendant also minimized his culpability, insisting that he only

hit the victim in the face with an open hand, and that he had

her permission to be in the apartment and had not stolen her

keys.

The defendant was cooperative and cordial throughout the

interview, but when asked pointed questions about the victim,

his demeanor would become more grave and reticent, and he made

statements such as, "It shouldn't have happened," and "I fucked

up." Thus, although the defendant repeatedly asked when he

would be released, and disputed the technicalities of the prior

outstanding warrant, he also, contrary to the judge's findings,

understood the gravity of the situation. In addition, he

understood that he had incriminated himself; regarding the

victim's condition, he made statements such as, "You're not

going to let me go now, are ya?"; "I'm going to jail, aren't

I?"; and "Are you going to charge me with something?"

23

In sum, our de novo review of the audio-video recording

reveals that, during the second interview, the defendant's

demeanor was lucid, coherent, and responsive, and he appeared to

be in control of his mental faculties. Although intoxication

"bears heavily on the validity of a Miranda waiver," and there

is no dispute that the defendant drank at least some alcohol in

the hours prior to his arrest and interrogation, intoxication is

"insufficient alone to require a finding of involuntariness"

(citation omitted). See Wolinski, 431 Mass. at 231. See also

Holton v. Boston Elevated Ry. Co., 303 Mass. 242, 246 (1939)

("Liquor affects individuals in various ways," and "it is

sometimes difficult to determine degrees of intoxication"). In

this case, the recording demonstrates that the defendant's level

of intoxication at that point did not appear to impede his

capacity knowingly, intelligently, and voluntarily to waive his

rights during the second interview.

This conclusion, however, is not sufficient to resolve the

matter.9 The recording captured the defendant's condition more

9 The Commonwealth contends that the defendant validly

waived his rights before both interviews. The recording instead

demonstrates that at the start of the second interview, the

defendant and the officers simply reviewed the waiver form he

signed during the first interview. In any event, even if the

defendant had waived his rights at the start of the second

interview, the Commonwealth would still be required to prove

beyond a reasonable doubt that the first, unrecorded waiver was

valid. "In this Commonwealth, there is a presumption that a

24

than one hour after he had made the waiver, when the effects of

his intoxication presumably had declined to an unknown extent.

Unlike in Clarke, 461 Mass. at 337 n.1, 338-340, 343, and Novo,

442 Mass. at 263, 267-268, where the audio-video recordings were

dispositive, here the recording itself does not show the

defendant's condition when he made the waiver and cannot be

conclusive. We must accordingly consider the recording in light

of the "entire evidence," Berry, 304 Mass. at 57-58, to

determine whether the Commonwealth met its heavy burden. Hoyt,

461 Mass. at 152.

ii. The entire evidence. "It is the motion judge's

responsibility to make credibility assessments, weigh the

evidence, and make findings of fact; it remains the

responsibility of an appellate court to evaluate whether those

findings are clearly erroneous." See Jones-Pannell, 472 Mass.

at 431 n.3. In this regard, it is also the motion judge's

statement made following the violation of a suspect's Miranda

rights is tainted, and the prosecution must show more than the

belated administration of Miranda warnings in order to dispel

that taint" (quotations and citation omitted). Commonwealth v.

Osachuk, 418 Mass. 229, 235 (1994). "This presumption may be

overcome by showing that either: (1) after the illegally

obtained statement, there was a break in the stream of events

that sufficiently insulated the post-Miranda statement from the

tainted one; or (2) the illegally obtained statement did not

incriminate the defendant, or, as it is more colloquially put,

the cat was not out of the bag." Id. Here, the second

interview began ten to twenty minutes after the first interview

ended; this is insufficient to constitute a "break in the stream

of events." See id.

25

responsibility to find adequate facts pertinent to the matter at

hand; those facts "should be stated clearly, concisely and

unequivocally, and be worded so that they are not susceptible of

more than one interpretation." Isaiah I., 448 Mass. at 339.

Our ability fairly to assess the entirety of the evidence

in this case is complicated by two factors. First, we do not

know the extent to which the recording had an impact on even

those findings that did not expressly rely on it. Second, the

judge failed to address certain testimony plainly material to

the issue before him, calling into question the adequacy of the

facts found to support his conclusion as to the ultimate issue

in this case, i.e., the defendant's capacity validly to waive

his Miranda rights at the time of the first interview.

As to the first complicating factor, to the extent the

judge expressly relied on the recording of the second interview

to make findings concerning the defendant's condition during the

unrecorded first interview, these findings must be set aside in

light of our independent assessment of the recording. To the

extent that the judge made findings about the defendant's

condition that do not rest on the recording, they are drawn from

oral testimony and are entitled to deference. See Clarke, 461

Mass. at 341. We cannot know the extent to which the recording

may have had an impact on these findings, however, and are

unable to evaluate how, if at all, our de novo review of the

26

recording might alter the judge's view of the testamentary

evidence. Additionally, we cannot know whether the judge would

have reached different credibility determinations had he shared

our view of the defendant's condition at the second interview.

As to the second complicating factor, our ability fairly to

evaluate the entirety of the evidence is compromised by the

inadequacy of the findings made as to certain material matters.

For example, the judge credited police officer testimony that,

at the crime scene, approximately one hour before the first

interview, the defendant was talking and mumbling to himself

repeatedly, and yelling statements loudly at the officers such

as, "What's going on in there?"; "I know what happened"; and

"She was my friend." This testimony is not self-explanatory,

however, and the judge made no further findings regarding what,

if any, relationship this bore to the defendant's condition at

the time of the first interview.

Further, the judge did not address certain oral testimony

by the same police witnesses that was plainly material to the

ultimate issue in this case. This would include their testimony

that the defendant did not appear intoxicated at the crime

scene, and that the defendant was cooperative, lucid,

articulate, and even strategic in answering questions during the

first interview. In addition to not making any findings as to

27

this testimony, the judge also did not make any express

credibility determinations as to these three police witnesses.

The judge's prefatory statement that he credited the

officers' testimony "to the extent it [was] consistent with

[his] explicit findings of fact" does not relieve him of his

obligation to make adequate findings. Of course, motion judges

need not make findings with respect to every piece of evidence

in the record, irrespective of pertinence. It is understandable

that busy trial court judges will use brief, prefatory language

as shorthand to indicate that they are aware that the record

contains additional testimonial evidence, but find only certain

portions of the testimony credible or relevant.10 See Jones-

Pannell, 472 Mass. at 431 n.3. While such prefatory language

precludes supplementation of the findings by the reviewing

court, it does not insulate such findings from being reviewed

for their adequacy. Id.

Here, the portion of the officers' testimony that was

omitted from the judge's findings was the only evidence directly

10We are not unaware that the widespread use of such

prefatory language also may have arisen in response to perceived

appellate overreaching in the form of augmented or substituted

fact finding, often to reach a different outcome from that

reached by the trial court. Such perceived overreaching may

occur when the reviewing court supplements findings by relying

upon apparently uncontroverted witness testimony of record that

has not been otherwise specifically discredited by the trial

court judge. See Jones-Pannell, 472 Mass. at 432.

28

addressing the defendant's condition during the unrecorded first

interview. As such, it warranted the judge's attention. While

the credibility of this testimony was for the motion judge alone

to assess, the testimony should have been addressed, and not

ignored. This omission unnecessarily impairs our ability on the

entire evidence to evaluate whether the judge's findings

adequately support his ultimate conclusions of law.

Nevertheless, appellate courts must not overstep our

boundaries by substituting our view of the testamentary

evidence, appearing in a cold transcript, for that of the motion

judge who, as it were, "eyeballed" the witnesses when in a

unique position to assess credibility. See Jones-Pannell, 472

Mass. at 438, citing Clarke, 461 Mass. at 340–341, and cases

cited. Given this, we have little alternative but to remand the

matter for further fact finding, despite the fact that remand is

ordinarily disfavored; it comes at the expense of court and

litigants' resources and time, and prolongs proceedings. Here,

however, remand is prudent to ensure that the judge will have an

opportunity to make findings regarding all pertinent evidence in

light of our assessment of the recording of the second

interview. It will also give the judge an opportunity to

clarify the nexus, if any, between the defendant's intoxication

and his capacity to make a valid waiver during the relevant

period. Cf. Jones-Pannell, 472 Mass. at 437 ("where the facts

29

as found are susceptible of more than one interpretation, and

there is additional evidence in the record, neither implicitly

credited nor discredited by the judge, remand may be

appropriate" [quotation and citation omitted]); Isaiah I., 448

Mass. at 338 (remand for further fact finding necessary where

judge's findings omitted certain evidence and it was unclear

whether omission was result of credibility determination or

clear error).

Because of the unusual circumstances here, including the

factors complicating our ability fairly to assess the entire

evidence, this case is the exception, not the rule. Now, as

before, what is needed from a trial court judge are credibility

determinations as to pertinent matters, and concise, clear, and

adequate findings of fact. See Isaiah I., 448 Mass. at 339.

This will allow a reviewing court to evaluate whether the

findings are clearly erroneous and whether they support the

judge's ultimate findings and conclusions of law.

c. Voluntariness of statements. Remand also is

appropriate here because the judge made no separate findings

concerning the voluntariness of the defendant's statements.

"Due process requires a separate inquiry into the voluntariness

of [a defendant's statement] apart from the validity of the

Miranda waiver" (citation omitted). Commonwealth v. Morales,

461 Mass. 765, 776 (2012). This is necessary in order to ensure

30

that the statements were "free and voluntary" and "not the

result of inquisitorial activity that had overborne his will."

Id. "Relevant factors 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 the discussion of a deal or leniency

(whether the defendant or the police), and the details of the

interrogation, including the recitation of Miranda warnings"

(quotation and citation omitted). Id. On remand, the judge

therefore should assess separately the voluntariness of the

defendant's statements.

d. Suppression of clothing and forensic testing. "The

Fourth Amendment [to the United States Constitution] and art. 14

[of the Massachusetts Declaration of Rights] provide that every

person has the right to be secure against unreasonable searches

and seizures of his or her possessions" (quotation and citation

omitted). Commonwealth v. White, 475 Mass. 583, 587 (2016).

Warrantless searches and seizures are presumptively

unreasonable, but may be justified if the Commonwealth can

demonstrate that the search or seizure "falls within a narrow

class of permissible exceptions to the warrant requirement"

(quotation and citation omitted). Id. at 588. For instance,

police may seize a defendant's clothing incident to arrest if

31

they have "probable cause to believe that the [clothing] was

connected to the crime." Commonwealth v. Robles, 423 Mass. 62,

66 (1996). "[P]robable cause requires a substantial basis for

concluding that the items sought are related to the criminal

activity under investigation" (quotations and citations

omitted). Commonwealth v. Kaupp, 453 Mass. 102, 110 (2009).

In this case, the defendant's clothing was validly seized

incident to his arrest. The officers had probable cause to

arrest the defendant even in the absence of his incriminating

statements. See Commonwealth v. Williams, 422 Mass. 111, 119-

120 (1996) (because arrest was proper, police were permitted to

seize as evidence clothing and shoes worn by defendant at time

of arrest); Commonwealth v. Gliniewicz, 398 Mass. 744, 750

(1986) ("Once a defendant has been arrested and is in custody,

clothing that constitutes evidence may be taken from him").

Specifically, although the defendant initially was arrested

at the crime scene pursuant to a warrant for failure to register

as a sex offender, police also had probable cause at that time

to arrest him for the victim's death. That arrest took place

after police observed him standing outside the apartment where

the victim's body had been found, shouting that he knew the

victim and knew what had happened to her. The officers knew

that the defendant had been involved in prior incidents of

domestic violence involving the victim, at the same address, and

32

his proximity to the victim's apartment indicated that he was in

violation of the abuse prevention order. Since the officers

could have arrested the defendant for murder at the crime scene,

their later observation11 of apparent bloodstains on his socks

and shoes provided a substantial basis to conclude that his

clothing contained evidence of the victim's death. See Robles,

423 Mass. at 66-67 (defendant's coat properly seized incident to

arrest where police observed bloodstains on it and defendant was

wearing same clothes he had worn on night of murder).

Once the defendant's clothing was properly seized, the

officers did not need a separate warrant for forensic testing.

We repeatedly have rejected such a requirement in the context of

clothing. See Robles, 423 Mass. at 65 n.8; Commonwealth v.

Varney, 391 Mass. 34, 38–39 (1984). While an individual has a

reasonable expectation of privacy in the clothes he or she is

wearing, that expectation dissipates once the clothes are

lawfully in the possession of the police. See Arzola, 470 Mass.

at 816-817. At that point, clothing is more comparable to

latent fingerprints. Id. In such cases, the "DNA analysis is

not a search in the constitutional sense." Id. at 820. See

Commonwealth v. Aviles, 58 Mass. App. Ct. 459, 463 (2003)

11The officers first noticed the bloodstained clothing

during the booking process after they had arrested the defendant

for murder following the second interview.

33

("where the police have lawfully obtained evidence, it may be

subjected to scientific testing").

The judge's reliance on Kaupp, 453 Mass. at 106 n.7, was

misplaced. That case concerned forensic analysis to search the

contents of a computer that was seized pursuant to the exigent

circumstances exception to the warrant requirement. It is

inapposite here, particularly as the search of a computer can

produce significantly more information than basic forensic

testing of clothing. See Commonwealth v. Keown, 478 Mass. 232,

239 (2017), cert. denied, 138 S. Ct. 1038 (2018) ("Searches of

the many files on electronic devices . . . must be done with

special care and satisfy a more narrow and demanding standard

than searches conducted in the physical world" [quotations and

citation omitted]). Compare Varney, 391 Mass. at 41 ("A white

powder, unlike a film, is not a communicative medium. A

warrantless scientific examination by government agents of white

powder lawfully obtained and plainly visible may confirm the

fact that it is contraband . . . [but] does not, in our view,

implicate any Fourth Amendment privacy interest"). Accordingly,

the suppression of the results of forensic testing of the

defendant's clothing is reversed.

3. Conclusion. So much of the judge's order requiring

suppression of the results of forensic testing of the

defendant's clothing is reversed. So much of the judge's order

34

requiring suppression of the defendant's statements is remanded

for further factual findings, reconsideration of legal

conclusions in light of the further findings, and other

proceedings consistent with this opinion.

So ordered.