# Petition — Massachusetts v. Dustin

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 943

## Text

.

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0411%3A1. Public record. Not legal advice.