Petition — Massachusetts v. Dustin

.

7” Supreme Court, U. S,-

FILED

JAN 30 1978

1

In the MICHAEL RODAK, JR., CLERK |

Supreme Court of the United States.

OctTosBer TERM, 1977.

No. 77-1076

COMMONWEALTH OF MASSACHUSETTS,

PETITIONER,

v.

DANIEL L. DUSTIN,

RESPONDENT.

Petition for a Writ of Certiorari to the Supreme Judicial

Court of the Commonwealth of Massachusetts._

Francis X. BELLOTTI,

Attorney General,

STEPHEN R. DELINsKY,

Assistant Attorney General,

Chief, Criminal Bureau,

Barsara A. H. SMITH,

Assistant Attorney General,

Chief, Criminal Appellate Section,

Criminal Bureau,

One Ashburton Place,

Boston, Massachusetts 02108.

Of Counsel: (617) 727-2240

L. JEFFREY MEEHAN,

Special Assistant District Attorney.

Lita HEIDEMAN,

Legal Intern.

‘I

BATEMAN & SLADE, INC. BOSTON, MASSACHUSETTS.

Table of Contents.

Opinion below

Jurisdiction

Questions presented

Constitutional provisions involved

Statement of the case

Statement of the facts

Reasons for granting the writ

Introduction

I. The decision of the Supreme Judicial Court

constitutes a final judgment under 28 U.S.C.

§ 1257(3).

II. The court below improperly extends Mi-

randa v. Arizona, 384 U.S. 436 (i966), to

apply to a situation in which no custodial in-

terrogation exists.

A. The Supreme Judicial Court applies an

incorrect standard for determining a know-

ing, intelligent and voluntary waiver.

B. The proper inquiry is whether the de-

fendant’s statements were voluntary.

Conclusion

Appendix A: Massachusetts General Laws, c. 278,

§ 28E

Appendix B: Opinion of Supreme Judicial Court

Appendix C: Findings of fact and rulings of law on

defendant’s motion to suppress in Superior Court

oor WO NN ND

9a

ii TABLE OF AUTHORITIES CITED.

Table of Authorities Cited.

CASES.

Berman v. United States, 302 U.S. 211 (1937) ies

Brewer v. Williams, 430 U.S. 387 (1977) 11, 12

California v. Stewart, 384 U.S. 436 (1966) 7, 8,9

Carroll v. United States, 354 U.S. 394 (1957) . 8

Cohen v. Beneficial Industrial Loan Corp., 337 U.S. -

541 (1949) 8,9

Commonwealth v. Dustin, __. Mass. ____._ (1977),

Mass. Adv. Sh. (1977) 2302 1, 3, 4, 8n, 10, 12

DiBella v. United States, 369 U.S. 121 (1962) 8

Frazier v. Cupp, 394 U.S. 731 (1969) 14

Holloway v. United States, 495 F. 2d 835 (10th Cir.

1974) 1]

Miranda v. Arizona, 384 U.S. 436 (1966)

4, 6, 9, 10, 11, 13, 14

Oregon v. Mathiason, 429 U.S. 492 (1977) 14

People v. Tomita, 66 Cal. Rptr. 739 (1968) 11

Procunier v. Atchley, 400 U.S. 446 (1971) 13

Stack v. Boyle, 342 U.S. 1 (1951) 9n

State v. Chabonian, 185 N.W. 2d 289 (Wis. 1971) 11

State v. Taylor; 343 A. 2d 1] (Me. 1975) 11

United States v. Powers, 444 F. 2d 260 (5th Cir.

1971) 1]

United States v. Standing Soldier, 538 F. 2d 196 (8th

Cir. 1976) 10

—— ee

TABLE OF AUTHORITIES CITED. iii

CONSTITUTIONAL AND STATUTORY PROVISIONS.

United States Constitution

Fifth Amendment 2

Fourteenth Amendment 3

28 U.S.C.

§ 1257(3) 2, 7, 8,9

§ 1291 8

Mass. Gen. Laws c. 278, § 28E 3, 4

In the

Supreme Court of the United States.

OctToser TERM, 1977.

No.

COMMONWEALTH OF MASSACHUSETTS,

PETITIONER,

v.

DANIEL L. DUSTIN,

RESPONDENT.

Petition for a Writ of Certiorari to the Supreme Judicial

Court of the Commonwealth of Massachusetts.

| . Opinion Below.

The opinion of the court below (App. B) is reported at

Mass. Adv. Sh. (1977) 2302.

2

Jurisdiction.

The decision of the court below was entered on Novem-

ber 7, 1977. The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(3).

Questions Presented.

I. Whether the decision of the Supreme Judicial Court

affirming the order of a trial judge which allowed a motion

to suppress evidence in a criminal case is a final order under

28 U.S.C. § 1257(3)?

II. Whether the Supreme Judicial Court applied correct

federal standards in requiring the exclusion from evidence

of a defendant’s statements even though the court found

that they were voluntarily made, bore indicia of reliability

and were found not to have been the product of any inten-

tional violation of constitutional standards?

Constitutional Provisions Involved.

FirtH AMENDMENT.

“No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when

in actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

3

compelled in any criminal case to be a witness against

‘himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.”

FOURTEENTH AMENDMENT.

Section 1. “. . . nor shall any State deprive any

person of life, liberty, or property, without due process

of law....”

Statement of the Case.

In April, 1976, the defendant was indicted for murder by

a grand jury sitting in the County of Hampden, Massachu-

setts. Prior to trial, the defendant filed a motion to sup-

press statements made to a police officer while in custody.

A judge of the Superior Court allowed the motion to

suppress.

Pursuant to Massachusetts General Laws, c. 278, § 28E

(App. A), the Commonwealth appealed to a Single Justice

of the Supreme Judicial Court of the Commonwealth.

The Single Justice having determined “that the adminis-

tration of justice would be facilitated thereby” allowed an

interlocutory appeal from the decision of the Superior Court

and reported the appeal to the Full Court for hearing.

On November 7, 1977, the Supreme Judicial Court af-

firmed the Superior Court, ruling “that the defendant did

not make the voluntary and intelligent waiver of his con-

stitutional rights required by controlling Federal precedent.”

Commonwealth v. Dustin, __.. Mass. __. (1977), Mass.

4

Adv. Sh. 2302 (App. B). The court remanded the case to

the Superior Court for further proceedings.

Statement of the Facts.

The trial court, following an evidentiary hearing on the

motion to suppress, made findings of fact and ralings of law

(App. C). Based upon those findings, the facts surrounding

the statements in question may be summarized as follows:

On Saturday, April 17, 1976, an incident occurred at a

bar in Holyoke, Massachusetts, which resulted in the death

of Carlton Bausch. Later that day officers of the Holyoke

police department went to the home of the defendant to

execute a search an arrest warrant. The defendant was

placed under arrest and read his Miranda rights from a

card. The defendant indicated that he understood his

rights and did not “wish to talk about it.” The defendant

was transported to a Holyoke police station, booked, and

again read his Miranda warnings. He again indicated that

he did not wish to make a statement. He was informed

that he would have unlimited access to the telephone. He

called his parents and was advised that they had secured an

attorney. The attorney came to the station and conversed

with the defendant for 10 to 15 minutes, and advised the

defendant not-to talk with anyone. The defendant was

then put in a cell and informed by police that since Monday

was a holiday, he would have to stay in jail two or three

days awaiting arraignment.

Later that day the defendant made a telephone call to a

friend who suggested he retain another attorney. Dustin

then, by telephone, discharged his first attorney. At ap-

proximately 10 to 10:30 p.m. on Saturday the second

5

attorney arrived at the police station and advised the de-

fendant of his rights and told him to say nothing to the

police.

The officers sent out for any food which the dezendant

wanted, at his own expense, and allowed free access to the

telephone, which he used several times. For security

reasons, the defendant was observed around the clock by

officers on a “watch” basis.

The trial judge found:

“Except for the incident here in question, I find that

the police engaged only in general, unrelated conversa-

tion with him, occasionally even playing cards.”

(App. C, p. lla, infra.)

The specific findings of the trial judge on the incident in

question are set out below:

“On Sunday, April 18, 1977, Police Officer William

Tallman was assigned to watch the defendant in his

cell from 4:00 p.m. to 6:00 p.m. and 9:00 p.m. to mid-

night. At approximately 4:30 p.m. the defendant asked

this officer, ‘If I tell you something about the incident,

will I be admitting my guilt?’ (Tr. p. 38) The officer

replied, “You are not on the stand and you are not

under oath. You can tell me anything you want to.’

(Tr. p. 39) The defendant’s response was that if the

officer repeated what he was told, Dustin would say

that he had lied. (Tr. p. 48)

“The defendant then proceeded to admit what

happened during the time period that Carlton Bausch

was killed. It is this entire statement that is the sub-

ject of this Motion to Suppress.

6

“The defendant was frightened, confused and cried

periodically while in the cell. He was arraigned on

Tuesday, April 20, 1977.

“Officer Tallman testified that when the defendant

made inquiry as to the ramifications of his statement,

the Miranda warnings came to mind (Tr. p. 39) as

having been studied in school, but he did not advise

the defendant of any of his constitutional rights. There

was no evidence that Officer Tallman’s reply to the

defendant’s inquiry was prompted by evil motive, an

intent to deceive, or could be categorized as an attempt

to interrogate.

“After listening to the defendant’s statement, Officer

Tallman filed a report which contained the incrimina-

ting statements together with the initial inquiry by the

defendant and his response.” (App. C, pp. lla-12a,

infra. )

Reasons for Granting the Writ.

INTRODUCTION.

The petitioner argues the following reasons why this peti-

tion for writ of certiorari should be granted.

1. The issues raised by the petition are serious and funda-

mental to the further conduct of the case.

2. The decision of the court below is based upon an un-

warranted expansion of Miranda v. Arizona, 384 U.S. 436

(1966), which is in conflict with other state and federal

decisions. |

3. The decision of the court below is based on an errone-

ous legal standard for determining the admissibility of a

voluntary statement.

7

-I. Tue Decision OF THE SuPREME JupicIAL Court Con-

STITUTES A FINAL JUDGMENT UNDER

28 U.S.C. § 1257(3).

Mass. Gen. Laws c. 278, § 28E, provides for an inter-

locutory appeal by the Commonwealth or the defendant

from an order of the Superior Court determining a motion

to suppress evidence prior to trial, if the administration of

justice would be facilitated thereby. The statute further

provides that a Single Justice may hear the appeal or report

it to the Full Bench. In the instant case, the matter was

reported to the Full Bench for decision. Petitioner concedes

that the posture of this case does not technically constitute a

final judgment in the sense that in a criminal proceeding

the final judgment is the sentence. Berman v. United

States, 302 U.S. 211 (1937). However, the posture of the

case is similar to California v. Stewart, 384 U.S. 436

(1966).

In Stewart, the California Supreme Court had ordered a

retrial because the defendant’s rights to counsel and to

remain silent had been violated. This Court denied the

defendant’s motion to dismiss the writ of certiorari for lack

of a final judgment, stating:

“After certiorari was granted in this case, respond-

ent moved to dismiss on the ground that there was no

final judgment from which the State could appeal since

the judgment below directed that he be retried. In the

event respondent was successful in obtaining an acquit-

tal on retrial, however, under California law the State

would have no appeal. Satisfied that in these circum-

stances the decision below constituted a final judg-

ment under 28 U.S.C. § 1257(3) (1964 ed.), we denied

the motion. 383 U.S 903.” 384 U.S. at 498 n. 71.

8

In the instant case, the decision of the Full Bench is final

in that the issue is not capable of further review regardless

of the outcome of the trial.' The decision is conclusive of

the issue and the people of the Commonwealth will have no

opportunity for review. This result is anomalous in that,

had the court ruled against the defendant, he would still

have further opportunity for review should a conviction

result. However, the Commonwealth will be denied any

review of this substantial constitutional question if the order

of the court is not reviewed on certiorari.

Petitioner acknowledges that this Court has held, in

another context, that Congress did not intend that a federal

district court’s ruling on a motion to suppress be appealable

to the Court of Appeals under 28 U.S.C. § 1291. DiBelle

v. United States, 369 U.S. 121 (1962). Carroll v. United

States, 354 U.S. 394 (1957). However, the Commonwealth

of Massachusetts has established a mechanism for appeal of

such orders and in this case the highest court of the Com-

monwealth has decided the issue.

Petitioner suggests that the finality requirements of 28

U.S.C. § 1257(3) are satisfied where the highest court has

ruled on a substantial constitutional issue. Moreover, an

appeal under § 1291 is of right, while § 1257 involves a dis-

cretionary grant of review capable of more flexibility and

easily limited to review of only those cases raising sub-

stantial and fundamental issues, as was demonstrated in

California v. Stewart, supra.

Given that a mechanism for appeal exists, the judgment

of nonadmissibility of statements made by a defendant falls

into that category of cases covered by Cohen v. Beneficial

‘The Supreme Judicial Court itself recognized this result and suggested

application to the federal court for review. Commonwealth v. Dustin,

supra, at 2307.

9

Industrial Loan Corp., 337 U.S. 541 (1949).* In Cohen,

the Court recognized that there are some judgments which

fall into

“that small class which finally determine claims of

right separable from, and collateral to, rights asserted

in the action, too important to be denied review and

too independent of the cause itself to require that ap-

pellate consideration be deferred until the whole case is

adjudicated.” Id. at 546.

In the instant case, the ultimate issue to be determined is

the guilt or innocence of the defendant. The issue sought

to be reviewed here (and only capable of review here and

now) is whether certain evidence must be excluded from the

trial of the ultimate issue.

Therefore, the Commonwealth urges this Court to apply

to the instant case the ultimately practical and sensible

interpretation of the finality requirements of § 1257(3) that

it applied in California v. Stewart, supra.

Il. THe Court BeELow IMPROPERLY EXTENDS MIRANDA V.

Arizona, 384 U.S. 436 (1966), ro AppLy To A SITUATION

IN WHICH No CusTopIAL INTERROGATION EXISTs.

In Miranda v. Arizona, 384 U.S. 436 (1966), this Court

established certain prophylactic rules which must be

followed prior to any custodial interrogation. Custodial in-

terrogation was defined as “questioning initiated by law

*The reasoning of Cohen has been applied to criminal cases. Stack v.

Boyle, 342 U.S. 1 (1951).

10

enforcement officers after a person has been taken into

custody or otherwise deprived of his freedom of action in

any significant way.” 384 U.S. at 444. In the instant case,

the defendant, having been twice given the Miranda warn-

ings by a police officer and twice told by his attorneys not

to talk, initiated a conversation with an officer who was

merely assigned to watch his cell. The court below, in

fact, found “there was no ‘interrogation’ of the defendant

such as would trigger Miranda v. Arizona, 384 U.S. 436

(1966).” Dustin, supra, at 2303.

Nonetheless, the court below adopts the position that in

this situation the officer should hz.ve repeated the Miranda

warnings. The court formulates « new standard that

expands Miranda to require that a reiteration of warnings is

necessary each time a defendant volunteers a statement

regardless of whether an interrogation is occurring. Miran-

da, however, specifically disavows any such requirement.

“Volunteered statements of any kind are not barred by the

Fifth Amendment and their admissibility is not affected by

our holding.” Miranda at 478.

Contrary to the Supreme Judicial Court’s position, the

highest courts of other jurisdictions have refused to require

Miranda warnings where a statement was volunteered. The

Eighth Circuit has stated:

“Miranda warnings are required only when statements

are taken from a defendant in a ‘custodial interroga-

tion’. . . . Thus, statements which stem from inter-

views initiated by a defendant need not be preceded

by the warnings required in Miranda.” United States

v. Standing Soldier, 538 F. 2d 196, 200 (1976).

11

Again, the Fifth Circuit has stated:

“The Miranda rules do not forbid the admission into

evidence of spontaneously volunteered confessions or

statements by prisoners held in jail . . . simply because

they happen, as prisoners, to be already in custody.

The Supreme Court’s stress was on interrogation, not

on ‘volunteered statements of any kind’.” United

States v. Powers, 444 F. 2d 260, 261 (1971).

Accord, Holloway v. United States, 495 F. 2d 835 (10th

Cir. 1974); People v. Tomita, 66 Cal. Rptr. 739 (1968);

State v. Chabonian, 185 N.W. 2d 289 (Wis. 1971); State v.

Taylor, 343 A. 2d 11 (Me. 1975). Therefore, the Common-

wealth submits that not only has the Supreme Judicial

Court extended Miranda requirements to an area in which

this Court has never held Miranda to apply, but it has done

so in total conflict with other state and federal decisions.

A. The Supreme Judicial Court Applies an Incorrect

Standard for Determining a Knowing, Intelligent and

Voluntary Waiver.

Again, the Supreme Judicial Court rejects the argument

that there was conduct “tantamount to interrogation” as in

Brewer v. Williams, 430 U.S. 387, 399 n. 6 (1977), but

then imposes the standard for determining voluntariness

enunciated in Miranda and Brewer, regardless of the fact

that there was no interrogation. The court below notes

that the defendant had been informed of his right to

counsel, that he appeared to understand it and that he was

free to disregard the advice of two attorneys who had

12

advised him to remain silent. However, the court then

proceeds to apply to the Commonwealth the rule that it

bears a “heavy burden” to show a knowing and intelligent

waiver. Relying upon Brewer, the court states:

“*But waiver requires not merely comprehension but

relinquishment,’ and his conversation with the police

officer does not support any suggestion that he waived

the right; the officer did not tell him that he had a

right to the presence of a lawyer, and ‘made no effort

at all to ascertain whether’ he ‘wished to relinquish

that right.’” Dustin, supra, at 2306.

Petitioner submits that this standard is applicable only

where there is an interrogation which results in the making

of a statement. This Court was careful to note that the

conduct in Brewer was tantamount to interrogation.’ In-

terrogation is, petitioner submits, a necessary prerequisite

for applying the waiver standard adopted by the court

below and no decision of this or any court has applied such

a standard to a non-interrogation situation.

B. The Proper Inquiry is Whether the Defendant's

Statements were Voluntary.

Since the statements in this case were not offered during

an interrogation, the proper test of their admissibility, as a

constitutional matter, should be governed by a due process

test of voluntariness. Under the circumstances present here,

*The Court both in the majority opinion and in Mr. Justice Powell’s

concurrence emphasized the fact that an interrogation was being con-

ducted; that police officers intended to “obtain as much incriminating

information as possible.” 430 U.S. at 399, 411-413. No such conduct

occurred in the instant case.

13

wherein Miranda, supra, does not apply, petitioner suggests

that the appropriate test is that set forth in Procunier v.

Atchley, 400 U.S. 446 (1971):

“The question was whether the will of the defendant

had been overborne so that the statement was not his

free and voluntary act, and that question was to be

resolved in light of the totality of the circumstances.”

400 U.S. at 453.

The court continued,

“Low intelligence, denial of the right to counsel, and

failure to advise of the right to remain silent were not

in themselves coercive. Rather they were relevant only

in establishing a setting in which actual coercion might

have been exerted to overcome the will of the suspect.

See Darwin v. Connecticut, 391 U.S. 346; Greenwald

v. Wisconsin, 390 U.S. 519; Davis v. North Carolina,

supra.” Id. at 453-454.

The defendant in the instant case was not a juvenile, did

not appear to be of below-average intelligence, was re-

peatedly given the Miranda warnings, was told he would

be held only a few days before arraignment, was not

questioned after he indicated he did not wish to make a

statement, had consulted with two attorneys, and had free

access to a telephone. There were no abusive or coercive

acts on the part of police officials which could possibly be

viewed as overriding the will of the defendant.

The Supreme Judicial Court apparently regards the police

officer's misstatement as the controlling factor on the issue

14

of involuntariness in Dustin’s case. Yet, it can be argued

that the prior warnings were given close enough to the time

of the defendant’s statements so as not to have lost their

protective effect. Moreover, the defendant's response to the

officer’s statement indicated that he was aware that his

statements could be used against him and he had already

thought of a way to counteract any action by the officer.

Indeed, even were the officer’s response deemed deceptive,

albeit innocent, the statements need not be deemed invol-

untary. Frazier v. Cupp, 394 U.S. 731 (1969). Oregon v.

Mathiason, 429 U.S. 492 (1977).

Therefore, where there is no abusive or coercive police

conduct, where the defendant has been previously given

Miranda warnings, and where there is no interrogation, the

Supreme Judicial Court has applied erroneous constitution-

al standards to require suppression of the statements in

question. It has improperly extended Miranda require-

ments to a non-interrogational situation in conflict with

other state and federal decisions cited above.

“_— —*

15

Conclusion.

For the reasons stated above, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

FRANCIS X. BELLOTTI,

Attorney General,

STEPHEN R. DELINSKY,

Assistant Attorney General,

Chief, Criminal Bureau,

BARBARA A. H. SMITH,

Assistant Attorney General,

Chief, Criminal Appellate Section,

Criminal Bureau,

One Ashburton Place,

Boston, Massachusetts 02108.

(617) 727-2240

Of Counsel:

L. JEFFREY MEEHAN,

Special Assistant District Attorney.

“Lina HEIDEMAN,

Legal Intern.

16

la

Appendix A.

MASSACHUSETTS GENERAL LAws, CHAPTER 278.

§ 28E. [Appeals by Commonwealth. |

An appeal may be taken by and on behalf of the com-

monwealth by the attorney general or a district attorney

from the superior court to the supreme judicial court in all

felony cases from a decision, order or judgment of the court

(1) allowing a motion to dismiss an indictment or complaint,

or (2) allowing a motion to grant appropriate relief under

the provisions of section forty-seven A of chapter two

hundred and seventy-seven. On application for an appeal

in a felony case by and on behalf of the commonwealth by

the attorney general or a district attorney, or by the defend-

ant, a single justice or the chief justice of the supreme

judicial court may, upon determining that the administra-

tion of justice would be facilitated thereby, grant an inter-

locutory appeal from a decision, order or judgment of the

superior court determining a motion to suppress evidence

prior to trial and a single justice shall hear the same or shall

report the same to the full court or to the appeals court for

hearing; provided, that if such application is denied, or if

such application is granted but the interlocutory appeal is

heard by a single justice, the determination of the motion to

suppress evidence shall be open to review by the full court

after trial in the same manner and to the same extent as

determinations of such motions not appealed under the

interlocutory procedure herein authorized. An appeal shall

be taken or an application for appeal shall be filed under

this section within ten days after such order, decision or

judgment has been entered, and in any case before the de-

fendant has been placed in jeopardy under established rules

of law. The appeal, or application and appeal if granted,

2a

shall be diligently prosecuted, and trial shall be stayed

pending prosecution and determination thereof.

If the appeal or application therefor is taken on behalf of

the commonwealth the defendant shall be released on

personal recognizance, and shall be reimbursed his costs of

appeal together with reasonable attorneys’ fees, subject to

the approval of the court.

Rules of practice and procedure with respect to appeals

authorized by this section shall be the same as those now

applicable to criminal appeals under sections thirty-three A

through thirty-three G, inclusive.

3a

Appendix B.

SUPREME JUDICIAL COURT

COMMONWEALTH vs. DaANiEL L. DusTIN.

Hampden. September 13, 1977. — November 7, 1977.

Present: Hennessey, C.J., Qumuco, Braucuer, Kapcan, & Wicains, JJ.

Admissions and Confessions. Constitutional Law, Admissions and con-

fessions.

INDICTMENT found and returned in the Superior Court on

April 22, 1976.

A motion to suppress evidence was heard by Alberti, J.

The Commonwealth’s application for an interlocutory

appeal was allowed by Wilkins, J., and the appeal was

reported by him.

L. Jeffrey Meehan, Special Assistant District Attorney, for

the Commonwealth.

William K. Danaher, Jr. (John F. St. Clair with him) for

the defendant.

BraucHeR, J. The defendant was indicted for murder in

the first degree and for assault and battery with a dangerous

weapon. A judge of the Superior Court allowed his motion

to suppress statements made by him to a police officer while

in custody, and a single justice of this court allowed an

interlocutory appeal to this court by the Commonwealth

pursuant to G. L. c. 278, § 28E. We uphold the judge's

ruling that the defendant did not make the voluntary and

intelligent waiver of his constitutional rights required by

controlling Federal precedent.

1. The judge’s findings. We summarize the judge's

findings of fact, which are supported by the evidence. An

incident about 1 a.m. on Saturday, April 17, 1976, resulted

4a

in the death of the victim. The defendant was arrested

about 7:30 p.m. the same day pursuant to an arrest warrant.

He was given Miranda warnings twice that evening, and

each time indicated that he understood his rights and did

not wish to make a statement. Later the same evening he

consulted with two attorneys, having retained the second

after discharging the first. Both advised him not to talk to

the police. Because Monday the 19th was a holiday, he

was told that he would be in jail for two or three days

awaiting arraignment.

About 4:30 p.m. on Sunday the 18th, the defendant asked

the officer assigned to “watch” him, “If I tell you something

about the incident, will I be admitting my guilt?” The

officer replied, “You are not on the stand and you are not

under oath. You can tell me anything you want to.” The

defendant said that if the officer repeated what he was told,

the defendant would say he had lied. The defendant then

made the siatements now in issue.

The defendant was frightened and confused, and cried

periodically. There was no evidence that the officer’s reply

to the defendant’s inquiry was prompted by evil motive or

an intent to deceive. There was no attempt to interrogate.

But the defendant’s question “clearly indicated that he was

confused about the legal consequences of making a state-

ment,” and he “was effectively, though not intentionally,

deceived by the officer’s response.”

The judge ruled that there was no “interrogation” of the

defendant such as would trigger Miranda v. Arizona, 384

U.S. 436 (1966), and that in the absence of interrogation

there was no violation of the Sixth Amendment rights set

forth in Brewer v. Williams, U.S. , (1977) [97 S.

Ct. 1232, 1240]. But, he ruled, the defendant “did not

make a voluntary and intelligent waiver of his fifth amend-

ment rights.” The officer's “deceptive statement” dis-

5a

tinguished this case from Commonwealth v. Frongillo, 359

Mass. 132 (1971). Moreover, in the “novel situation”

presented, “the officer should have given the Miranda

warnings to the defendant.”

2. Voluntariness of the statements. The Commonwealth

vigorously asserts that the defendant’s statements were

voluntary, citing Commonwealth v. Borodine, Mass. ,

(1976) [Mass. Adv. Sh. (1976) 2153, 2159], cert. denied,

429 U.S. 1049 (1977), and Commonwealth v. Sousa, 350

Mass. 591, 598-599 (1966). See Commonwealth v. Harris,

364 Mass. 236, 241-242 (1973), and cases cited. We

assume, without deciding, that the traditional test of volun-

tariness was met, and the statements would have been

admissible in evidence before the decision in the Miranda

case, notwithstanding the deceptive statement by the police

officer. Frazier v. Cupp, 394 U.S. 731, 739 (1969). They

might also have been admissible if made to private persons

rather than to police officers, if made by a defendant not in

custody, or if offered only to impeach the credibility of the

defendant as a witness. Commonwealth v. Mahnke, 368

Mass. , - , - (1975) [Mass. Adv. Sh. (1975) 2897,

2913-2916, 2943-2947], cert. denied, 425 U.S. 959 (1976).

See Garner v. United States, 424 U.S. 648, 657-658 (1976).

3. Waiver. The Miranda decision requires that warnings

be given prior to any questioning of a person in custody and

that he be given a continuous opportunity to exercise his

rights during any custodial interrogation. See Common-

wealth v. Mahnke, 368 Mass. _ , (1975) [Mass. Adv.

Sh. (1975) 2897, 2936], cert. denied, 425 U.S. 959 (1976);

Commonwealth v. McKenna, 355 Mass. 313, 323-325

(1969). If interrogation continues and a statement is taken,

“a heavy burden rests on the government to demonstrate

that the defendant knowingly and intelligently waived his

privilege against self-incrimination and his right to retained

6a

or appointed counsel. ... Moreover, any evidence that the

accused was threatened, tricked, or cajoled into a waiver

will, of course, show that the defendant did not voluntarily

waive his privilege.” Miranda v. Arizona, 384 U.S. 436,

475-476 (1966).

The judge found that there was no such interrogation as

to trigger the Miranda rule. We reject the defendant's

argument that there was conduct “tantamount to interroga-

tion” as in Brewer v. Williams, Sa -« n.6 (1977)

[97 S. Ct. 1232, 1240 n.6]. But the defendant was in

custody, and had been for more than twenty hours. He

had been given Miranda warnings twice and each time had

indicated that he wished to remain silent. “At this point he

has shown that he intends to exercise his Fifth Amendment

privilege; any statement taken after the person invokes his

privilege cannot be other than the product of compulsion,

subtle or otherwise.” Miranda v. Arizona, 384 U.S. 436,

474 (1966). Nevertheless, subsequent statements may be

admissible if his “right to cut off questioning” has been

“scrupulously honored.” Michigan v. Mosley, 423 U.S. 96,

103-104 (1975). See United States v. Olof, 527 F.2d 752,

754 (9th Cir. 1975). Here the defendant asked, in effect,

whether if he made a statement it could be used against

him. The police officer’s response carried an implication

that it could not be. This was directly contrary to the

required Miranda warning that anything the defendant said

could and would be used against him in court.

Moreover, the defendant had been visited by two

attorneys while in custody, as the police knew; each had

advised him to remain silent. He had been informed of his

right to counsel and appeared to understand it, and he was

free to disregard the advice of counsel. “But waiver

requires not merely comprehension but relinquishment,”

and his conversation with the police officer does not support

7a

any suggestion that he waived the right; the officer did not

tell him that he had a right to the presence of a lawyer,

and “made no effort at all to ascertain whether” he “wished

to relinquish that right.” See Brewer v. Williams, U.S.

, « (1977) [97 S. Ct. 1232, 1242-1243].

In this context we apply the rule that the Commonwealth

bears a “heavy burden” to show a knowing and intelligent

waiver, notwithstanding the absence of interrogation. The

intention to waive constitutional rights must be made clear,

without implication, inveiglement or subtlety, as it was, for

example, in Commonwealth v. Frongillo, 359 Mass. 132,

137 (1971). The judge who saw and heard the witnesses

concluded that there was no voluntary and _ intelligent

waiver, and we cannot say he was plainly wrong. See

Commonweelth v. Hosey, 368 Mass. , - (1975)

[Mass. Adv. Sh. (1975) 2732, 2741-2743]. Even an in-

nocent misrepresentation of the Miranda rights of .the

defendant renders suspect a claim that he waived those

rights. See Commonwealth v. Jones, 457 Pa. 423, 435

(1974). The statement of the police officer is not easily

characterized as “scrupulously” honoring Miranda rights; it

seems rather to be “heedless” of those rights. See Com-

monwealth v. Mahnke, 368 Mass. _, (1975) [Mass.

Adv. Sh. (1975) 2897, 2935], cert. denied, 425 U.S. 959:

(1976).

The facts of this case do not fall squarely within the hold-

ing of any binding Federal precedent. But we think faith-

ful adherence to the spirit of the Federal cases we have

cited and quoted requires us to uphold the judge’s decision.

The result is to exclude the defendant’s statements from

evidence, even though they were voluntarily made, even

though they bear indicia of reliability, and even though

they are found not to have been the product of any inten-

tional violation of constitutional standards. If that result

8a

is thought undesirable, the remedy must be sought in a

Federal forum. As to the jurisdiction of the Supreme Court

to review such a case, see Miranda v. Arizona, 384 U.S.

436, 498 n.71 (1966).

The order of the judge allowing the motion to suppress

evidence is affirmed. The case is remanded to the Superior

Court for further proceedings consistent with this opinion.

So ordered.

9a

Appendix C.

COMMONWEALTH OF MASSACHUSETTS.

SUPERIOR COURT.

COMMONWEALTH v. DANIEL L. DUSTIN.

Nos. 76-1645, 76-1646.

FINDINGS OF Fact AND RuLincs oF LAW ON DEFENDANT'S

MOTION TO SUPPRESS.

The defendant Daniel L. Dustin was indicted for first

degree murder and assault and battery with a dangerous

weapon. In relation to both these indictments, the defend-

ant filed a Motion to Suppress a statement given by him to

a police officer, together with any and all evidence ob-

tained as a result of that statement on the grounds that his

fifth, sixth and fourteenth amendment rights were violated.

A full evidentiary hearing was conducted on this motion on

April 19, 1977, and accordingly, I find the following facts.

Findings of Fact

On Saturday, April 17, 1976, at approximately 1:00

A.M., an incident occurred at The Pig’s Ear, a bar in Hol-

yoke, that resulted in the death of Carlton R. Bausch. On

the same day, at approximately 7:30 P.M., Sergeant Stephen

Donoghue of the Holyoke Police Department, together with

several other officers, went to 6 Cycle Street, Westfield (the

defendant’s residence) in order to execute a search warrant

for the premises and an arrest warrant for the defendant,

both relating to the homicide earlier that day. Sergeant

Donoghue, after informing the defendant of his identity and

10a

purpose, placed the defendant under arrest and read to him

his Miranda warnings from a card. The defendant af-

firmatively indicated that he understood his rights and did

not “wish to talk about it.” The other officers searched the

premises, and by consent, the defendant’s automobile.

Nothing of consequence was found.

The defendant was first transported, in accordance with

standard operating procedure, to the Westfield Police Sta-

tion, and then to the Holyoke Sargent Street Station. Upon

arrival in Holyoke, the defendant was booked by a Sergeant

Neil and for the second time, read his Miranda warnings.

Again, the defendant protested his innocence and indicated

that he did not wish to make a statement.

Sergeant Donoghue informed the defendant that he

would be afforded unlimited access to the telephone. The

defendant called his parents who stated that they had

retained Attorney Jerome Farrell, who later came to the

station. Farrell and the defendant conversed for approxi-

mately 10-15 minutes, and Farrell advised the defendant

not to talk to anyone. The defendant was then transported

to the annex in the “old” police station and put in a cell.

He was informed that because of the Monday Patriot’s Day

holiday, he would have to stay in jail for two or three days

awaiting arraignment.

Dustin, somewhat later that day, used the phone to talk

with a friend who suggested Attorney Paul Kokonowski

(now deceased) to him. The defendant then called Attor-

ney Farrell and discharged him. Attorney Kokonowski

arrived at approximately 10:00-10:30 P.M. on Saturday and

advised the defendant concerning his rights. He also

informed him to say nothing to the police.

The physical condition of the defendant’s cell was

adequate except that he was not allowed to have a blanket

for security reasons. The officers obliged the defendant by

lla

sending out, at his own expense, for any food which he

wanted and also allowed him free access to the phone

which he used several times. Also for security reasons, the

defendant was observed around the clock by police officers

on a regular “watch” basis. Except for the incident here in

question, I find that the police engaged only in general,

unrelated conversation with him, occasionally even playing

cards.

On Sunday, April 18, 1977, Police Officer William

Tallman was assigned to watch the defendant in his cell

from 4:00 P.M. to 6:00 P.M. and 9:00 P.M. to midnight. At

approximately 4:30 P.M. the defendant asked this officer,

“If I tell you something about the incident, will I be

admitting my guilt?” (Tr. p. 38) The officer replied, “You

are not on the stand and you are not under oath. You can

tell me anything you want to.” (Tr. p. 39) The defend-

ant’s response was that if the officer repeated what he was

told, Dustin would say that he had lied. (Tr. p. 48)

The defendant then proceeded to admit what happened

during the time period that Carlton Bausch was killed. It

is this entire statement that is the subject of this Motion to

Suppress.

The defendant was frightened, confused and cried

periodically while in the cell. He was arraigned on Tues-

day, April 20, 1977.

Officer Tallman testified that when the defendant made

inquiry as to the ramifications of his statement, the

Miranda warnings came to mind (Tr. p. 39) as having been

studied in school, but he did not advise the defendant of

any of his constitutional rights. There was no evidence that

Officer Tallman’s reply to the defendant’s inquiry was

prompted by evil motive, an intent to deceive, or could be

categorized as an attempt to interrogate.

12a

After listening to the defendant’s statement, Officer

Tallman filed a report which contained the incriminating

statements together with the initial inquiry by the

defendant and his response.

Rulings of Law

in accordance with the above findings of fact, I hereby

rule that: (1) There was no “interrogation” of the defend-

ant by Officer Tallman such as would trigger Miranda v.

Arizona, 384 U.S. 436 (1966) and succeeding federal and

Commonwealth cases modifying and interpreting the same.

The defendant was given his Miranda warnings twice. At

both times he exercised his right to remain silent and all

questioning ceased. Although approximately twenty-two

hours had elapsed since the second set of warnings were

given, there was no questioning initiated by the officer.

Therefore the rule of Miranda v. Arizona, supra, is in-

applicable. Miranda v. Ariz., supra, at 478; Comm. v.

Black, 76 Mass. App. Ct. A.S. 926, 931; Comm. v. Swenor,

75 Mass. App. Ct. 239, 243; Comm. v. Frongillo, 359 Mass.

132, 135-36 (1971). Compare Comm. v. Orton, 76 Mass.

App. Ct. A.S. 1051, 1054; Michigan v. Mosley, 423 U.S.

96, 101-13 (1975).

(2) There was no constitutional error in the police conduct

throughout the arrest, booking and detention procedure

except for thie conduct of Officer Tallman. The error

occurred and the complete thrust of these rulings is con-

centrated on the three-line conversation between the de-

fendant and Officer Tallman (with the full awareness by

the Court that it was initiated by the defendant).

The defendant Dustin did not make a voluntary and

intelligent waiver of his fifth amendment rights. I hereby

rule that he did not intentionally relinquish his right to

13a

remain silent when he spoke to Officer Tallman. See John-

son vo. Zerbst, 304 U.S. 458, 464 (1938). The defendant

was effectively, though not intentionally, deceived by the

officer's response to his question concerning the ramifica-

tions of speaking to him about the incident. It really makes

no difference whether the deceit was or was not intentional.

The defendant believed that he was about to engage in a

private conversation. This view is further enforced by the

defendant’s response to the officer's deception (that he

would say that he lied if the conversation were repeated).

The circumstances do not amount to the type of volun-

tariness which would pass constitutional standards. See

Johnson v. Zerbst, supra, at 464; Brewer v. Williams, 45

U.S.L.W. 4287, 4294 (Feb. 22, 1977). The defendant was

not making a voluntary confestion. [sic] See Brown v.

Mississippi, 297 U.S. 278 (1936); Frazier v. Cupp, 394

U.W. [sic] 731 (1969); Lego v. Twomey, 404 U.S. 477

1972).

: The case of Commonwealth v. Frongillo, 359 Mass. 132

(1971) is clearly distinguishable. In that case, the Court

held that a statement given by the defendant after he was

arrested and given his rights to a police officer passing

through the cell block was admissible in evidence. Id. at

136. Unlike the case at bar, there was no conversation in

Frongillo indicating that the defendant dic not understand

the import of making a statement. More importantly, the

officer in Frongillo did not make a deceptive statement to

the defendant. If in the case at bar, the officer had not

responded at all to the defendant’s question, the result

would be different. It is the affirmative misrepresentation

by Officer Tallman which distinguishes this matter from

Frongillo.

In addition to my above ruling, due to the novel situa-

tion presented in this case, I feel that under these limited

l4a

circumstances the officei should have given the Miranda

warnings to the defendant. Twenty-two hours had elapsed

since the defendant was last advised of his rights. The

question propounded by the defendant clearly indicated

that he was confused about the legal consequences of

making a statement. The officer should have explained his

rights to him. This is the protection of individual rights

that the constitution requires.

(3) The defendant’s sixth amendment right to counsel was

not violated because there was no interrogation of the

defendant by Officer Tallman. (See previous discussion

[sic] in first ruling.) The rule regarding sixth amendment

rights, mostly recently set out in Brewer v. Williams, supra,

at 4291, affords the right to counsel when a person is inter-

rogated once adversary proceedings have begun.

In accordance with the above rulings, it is hereby ordered

that defendant’s Motion to Suppress be allowed.

/s/ Charles R. Alberti

Charles R. Alberti

Justice of the Superior Court

Entered: 4/29/77

Filed April 29, 1977.