NICASTRO LAW, L.L.C.

COMMONWEALTH v. COLEMAN

Published: 2000

NOTICE FROM THE COURT: The slip opinions and orders posted here are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. This preliminary material will be removed from the Bulletin Board once it is printed in the Official Reports advance sheets. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, Room 1407, Boston, MA 02108; (617) 557-1030.

COMMONWEALTH

v.

COLEMAN

Appeals Court

COMMONWEALTH vs. TITUS COLEMAN.

No. 98-P-1330.

Suffolk. November 18, 1999. - April 21, 2000.

Present: Porada, Kaplan, & Gillerman, JJ.

Constitutional Law, Admissions and confessions. Practice, Criminal, Admissions and confessions, Voluntariness of confession. Evidence, Admissions and confessions.

Complaint received and sworn to in the South Boston Division of the District Court Department on February 21, 1997.

A pretrial motion to suppress evidence was heard by Robert C. Rufo, J., and, on transfer to the Dorchester Division, the case was tried before Sarah B. Singer, J.

Christine M. Nicastro for the defendant.

Kristine Luongo Tammaro, Assistant District Attorney, for the Commonwealth.

KAPLAN, J.

The defendant Titus Coleman appeals from his District Court conviction under G. L. c. 269, Sect. 10(a), for illegal possession of a handgun. Agreeing with the defendant's contention, we hold that the judge erred in failing to suppress statements secured by the police from the defendant in the course of a custodial interrogation conducted without the necessary Miranda warnings. Accordingly, we shall reverse the conviction for a new trial.[1]

1. Sergeant Mark Gillespie, the sole witness for the Commonwealth at the suppression hearing, testified that around 6:00 P.M., January 6, 1997, he and other Massachusetts Bay Transportation Authority officers, including officers Christopher Baker and Michael Adamson, responding to a call, went to the Andrew Square "T" station and commenced efforts to find the person who had fired a weapon in the station.

The police continued to work on the case, and some two weeks later, on January 19, 1997, Gillespie and the two other officers already named went to 5 Dever Street, in the Dorchester section of Boston, the address of Janice Flemon, the defendant's aunt, with whom the defendant was then living. Entering the living room of the house, Gillespie introduced himself to Flemon and told her the purpose of the visit, to speak with the defendant. There were others in the living room and hallway. The defendant was out of the house on an errand, but soon appeared.

Gillespie asked Flemon whether a more private place was available and she directed him to a bedroom nearby. The defendant entered with the officers.[2] The room measured eleven by twelve feet. The defendant sat on the edge of the bed with Officer Baker sitting alongside. Gillespie and Officer Adamson remained standing, blocking the door of the room, now closed. The officers were white men, about six feet tall, the defendant black, aged nineteen, educated to grade eleven.

Gillespie testified that by the time of this interview the defendant Coleman had become "the focus of th[e] investigation." In effect he communicated this fact to the defendant by stating promptly that he had a "theory" of the case about which he was confident, namely: the defendant had fired a handgun in the station intending to scare members of the Columbia Point Dogs gang who were pursuing and threatening him, but without intending, so Gillespie said, actually to strike anyone. The gun used, with four unspent rounds, had been retrieved on the night of the episode at a street near the site.

As proof of his theory, Gillespie produced a fingerprint card which, he told the defendant, showed the defendant's fingerprint taken from the clip of the gun. In truth, as Gillespie conceded in his testimony, the Commonwealth had no such fingerprint evidence; Gillespie had knowingly uttered a falsehood (in which the other officers presumably acquiesced).[3] The defendant responded to the fingerprint ruse by admitting he had "touched" the gun. He continued denying he had fired it.

Gillespie said he did not believe the defendant's denial, and he repeated he believed the defendant had fired the gun. However, said Gillespie, the defendant could be confronted with much more serious charges than untargeted firing. He said the police were trying to find Christopher Jaundoo, a member of the Columbia Point Dogs gang, a formidable enemy, much feared. Jaundoo might decide to "cooperate" with the police and assert that the defendant had fired at him intending to strike and kill him.[4] Even if the police did not themselves believe this assertion, they might charge the defendant, and be justified in charging him, with an assault with intent to murder in line with Jaundoo's claim.[5] Gillespie went on to urge the defendant to tell the truth, to confess, in order to avoid grave peril. Quite clearly, the defendant was to realize that if he confessed, he need not fear the intervention of Jaundoo; the police would take care of it.

Gillespie pushed further to induce a confession: if the defendant persisted in denials, he would be arrested and handcuffed and taken in on the spot in front of his aunt and others; if he confessed, he would not be arrested but would rather be summoned into court "without handcuffs or shackles on him."

Gillespie testified he told the defendant up to three times he could leave the room if he wished. After thirty minutes, the defendant began to weep and told a story, as recounted by Gillespie and noted in the margin, which, in the end, contributed to his conviction at trial.[6] (Also set out in the margin is the tenor of the testimony of the defendant, sole witness for the defense at the hearing.[7])

2. The issue on this appeal is whether the colloquy described by Sergeant Gillespie figures as a "custodial interrogation" of the defendant, the term being defined as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 444 (1966). A situation of custodial interrogation would call for "procedural safeguards effective to secure the [person's] privilege against self-incrimination": thus the safeguard of Miranda warnings about constitutional rights. Ibid.

We follow the customary four-point approach to questions of this order suggested by Commonwealth v. Bryant, 390 Mass. 729, 737 (1984).[8]

(1) Place of interrogation. As the questioning, haranguing, and confrontation began and wore on on January 19, there was a measure of physical oppressiveness caused by the presence and deployment of the three officers in a small room, with the way to the closed door shadowed by the questioner himself. The situation was to a degree "isolating and coercive." See Commonwealth v. Gallati, 40 Mass. App. Ct. 111, 113 (1996).

(2) Focus on defendant. Gillespie testified that the police investigation had become focused on the defendant -- the police, in other words, believed the defendant to be presumptively responsible for the shooting. However, "the subjective beliefs held by law enforcement officers are irrelevant in the determination whether a person being questioned is in custody for purposes of the receipt of Miranda warnings, except to the extent that those beliefs influence the objective conditions surrounding an interrogation." Commonwealth v. Morse, 427 Mass. 117, 123-124 (1998). See United States v. Ventura, 85 F.3d 708, 711-712 (1st Cir. 1996). "[A] police officer's subjective view that the individual under questioning is a suspect, if undisclosed, does not bear upon the question whether the individual is in custody for purposes of Miranda . . .[s]ave as they [the suspicions] are communicated or otherwise manifested to the person being questioned . . .." Stansbury v. California, 511 U.S. 318, 324 (1994). Again, "[a]n officer's knowledge or beliefs may bear upon the custody issue if they are conveyed, by word or deed, to the individual being questioned," but "[t]hose beliefs are relevant only to the extent they would affect how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her 'freedom of action.'" Id. at 325, quoting from Berkemer v. McCarty, 468 U.S. 420, 440 (1984).

In the present case, the officers' belief that the defendant was guilty of firing the gun was unmistakably and forcefully conveyed to him. Gillespie announced at the beginning he had a theory that the defendant had committed a crime, and he supported this theory by the false attribution of the fingerprint. At once the defendant would understand he was the prime suspect. His "freedom" was thus threatened and limited. This was followed by the defendant's admission that he had in fact handled the gun; further sustained pressure elicited the final, full confession. (3) Nature of interrogation. The questioning was aggressive and persistent. The defendant's denials were scorned and overridden. Indeed, the interview was largely one-sided; there was little contribution by the defendant. Although voices may not have been raised, and a conversational tone maintained, the substance of what was said was harsh and intended by the questioner to be so. The interrogatory part of "custodial interrogation" looks to "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect," Rhode Island v. Innis, 446 U.S. 291, 301 (1980), and such was the interrogation here.

(4) Possibility of ending interview. The consequences of the defendant's simply getting up and leaving the room in the midst of the interrogation (if permitted), were so dire and so plainly put to the defendant, that he was effectively tied down by psychological forces.[9] For if the defendant reached the outdoors, he would be arrested and handcuffed on the spot and would then face the prospect of confronting very serious charges in addition to the obvious one of unlawful possession. The police manipulation with the fingerprint card suggests that their search for Jaundoo and the threat of his accusation may also have been fabrications, but the defendant could not bank on this. The Jaundoo story, true or false, acted as another lock on his freedom to act.[10] In this setting any suggestions to the defendant that he might leave would be meaningless mouthings.

We conclude that on all counts taken together the record discloses a custodial interrogation where Miranda warnings were required but unfortunately not given. The judge's findings supporting a contrary view were in a material part unfaithful to the testimony at the suppression hearing.[11] The judge stated, "I did not credit the testimony of the defendant that he was told he would be charged with attempted murder if he did not confess to shooting the gun at Andrew Station . . . ." This overlooks and makes no mention of the testimony by Gillespie himself that he had told the defendant he could be prosecuted for assault with intent to murder on Jaundoo's putative claim he had been shot at. So also the judge found that Gillespie said he would not arrest the defendant, but omits that this treatment was conditioned on the defendant's confessing. The findings accept an unrealistically bland interpretation of the interview, suggesting that the defendant was at liberty to leave at any time: lacking was analytic attention to the forces evident in the testimony that operated on the defendant and tended to immobilize him. The conclusions of law cite the Bryant case but without a pursuit of the Bryant factors, point by point, that would, we think, have led the judge to an opposite result.

"The basic inquiry is whether, from the point of view of the defendant, the interrogation took place in a coercive environment." Commonwealth v. Conkey, 430 Mass. 139, 144 (1999). It did so in the present case.

The order denying the motion to suppress is reversed. The judgment is reversed and the verdict is set aside.

So ordered.

Criminal

Unlawful Possession Of Firearm - 'Consciousness Of Guilt' Evidence

Published: April 3, 2000

Where a defendant has been convicted of unlawful possession of a firearm and ammunition, the convictions must be reversed and judgments entered for the defendant, as it was improper to convict the defendant solely on the basis of "consciousness of guilt" evidence.

Court's Analysis

"The defendant [Bruce Montrond] asserts that his motion for a required finding of not guilty of unlawful possession of a firearm in violation of G.L.c. 269, Sect. 10(a), and of possession of ammunition in violation of G.L.c. 269, Sect. 10(h), was wrongly denied. We agree.

"Proof of possession requires "'control and power," ... exclusive or joint ..., or, in the case of "constructive possession," knowledge coupled with the ability and intention to exercise dominion and control.' ... The record reflects abundant circumstantial evidence of suspicious activity or consciousness of guilt on the part of the defendant. 'Actions ... that indicate consciousness of guilt on the part of the defendant ... together with other evidence, may be sufficient to prove guilt.' ... Here, however, there was no other evidence to prove guilt. ... The defendant's behavior alone lacked the evidentiary basis required to establish ability and intention to exercise dominion and control.

 

"The defendant's conviction must therefore be reversed because 'our cases have stated consistently that a defendant may not be convicted solely on the basis of consciousness of guilt evidence.' ...

"Judgments reversed. Verdicts set aside. Judgments for the defendant."

Commonwealth v. Montrond (Lawyers Weekly No. 81-238-00) (2 pages) (Appeals Court - Unpublished) (No. 98-P-2022) (March 29, 2000).

Employment  

Age Discrimination - Pharmacists

Published: August 7, 2000

Where two complainant pharmacists have alleged that they were wrongfully fired by a respondent health care provider in violation of G.L.c. 151B because of their age, I find their claim to have merit and that the stated non-discriminatory reasons for the terminations put forward by the respondent are merely pretextual.

Discussion

"M.G.L. chapter 151B, section 4(1B) prohibits discrimination on the basis of age in the workplace. Pursuant to the analysis set forth in Blare v. Husky Injection Molding Systems Boston, Inc., 419 Mass. 437 (1995), complainant has the burden of establishing a prima facie case of age discrimination in employment. Complainants must show evidence that: (1) they are members of a class protected by G.L.c. 151B; (2) they performed their job at an acceptable level; (3) they were terminated; and (4) their employer sought to fill their position by hiring another individual with qualifications similar to the complainants.

"Complainants [Elsie and the now-deceased John Galgani] were members of a protected class based on their ages as of September 27, 1994. Both were performing their jobs at an acceptable level.

"Complainants allege that [supervisor Ken] Amato terminated them from their permanent part-time pharmacist positions at their September 27, 1994, meeting, and that, although respondent [Bethany Health Care] offered them per diem work, its offer was only for sporadic and occasional work, and not a steady one day a week position. Respondent alleges it did not terminate complainants, but rather eliminated their part-time position and offered them the option of a per diem position. I conclude, based on the evidence, that respondent terminated complainants from their permanent, part-time positions and offered them the opportunity to come in on an 'as needed' basis merely as a face saving afterthought.

"I also conclude that subsequent to complainants' termination, respondent sought to fill their positions by hiring another individual with similar qualifications as a replacement for complainants. Complainants have thus established prima facie cases of age discrimination.

"In order to rebut the presumption created by the prima facie case, respondent articulates two nondiscriminatory reasons for its treatment of complainants: their lack of computer skills and unwillingness to acquire them as was necessitated by OBRA legislation, and the economics of operating the pharmacy. Respondent presented evidence that it terminated complainants because they lacked the computer skills required for OBRA compliance and were unwilling to be trained on the computer. There was evidence presented that although complainants' part-time positions were eliminated, Amato offered them a per diem position at the September 27, 1994 meeting. Respondent asserts this was a cost effective measure taken for a legitimate business reason: the financial health of the pharmacy.

"Once respondent has offered a legitimate, nondiscriminatory reason for its treatment of complainant, the burden shifts back to complainant to prove discrimination with either direct evidence of respondent's discriminatory animus or evidence to show that respondent's reason is a pretext. ...

"Complainants have demonstrated that respondent's stated reasons for terminating complainants' permanent part time positions were pretexts. With respect to respondent's claim that complainants lacked computer skills and refused to acquire them, a preponderance of the credible evidence showed that this could not have been respondent's real reason for terminating complainants. Complainants' performance evaluations indicated their performance was satisfactory, as did Amato's testimony. The record contains neither documentation nor warnings as to problems with their performance, despite the requirement of the same in respondent's Employee Handbook. What is more, the evidence established complainants were willing to learn to use the computer. Complainant Elsie Galgani's testimony regarding herself, Theresa Lewis's testimony regarding Elsie and John Galgani, and Amato's own notes regarding John Galgani indicate complainants' desire and efforts to acquire relevant computer skills. Respondent made minimal efforts to train them, however, and did not give them meaningful opportunities to acquire necessary skills. Thus respondent's assertion that it terminated complainants because they lacked computer skills and the desire to acquire such skills is inconsistent with respondent's behavior at the relevant time.

"Likewise, respondent's assertion that it terminated complainants to maintain the pharmacy's cost effectiveness is a pretext. The evidence showed that respondent realized no cost saving by terminating complainants' employment, rather than reducing their hours, because it replaced complainants and the costs of operating the pharmacy actually increased.

"Finally, Amato informed complainants at their September 27, 1994 meeting that he wanted them to retire. Although it occurred at a very significant moment, that single remark might not be independently sufficient to support a conclusion that respondent acted out of age bias. But Amato's comment, coupled with the pretextual nature of respondent's asserted reasons for complainants' termination, supports the conclusion that respondent violated the statute.

 

"I conclude that complainants have proven by a preponderance of the evidence that respondent's stated reasons for terminating complainant are a pretext and that respondent terminated complainants' employment  in violation of M.G.L.c. 151B, section 4(1B)."

Remedy

"Pursuant to M.G.L.c. 151B, section 5, the commission is authorized to grant remedies to make a complainant whole. This includes an award of damages to complainants for lost wages and emotional distress suffered as a direct and probable consequence of their termination by respondent. ...

"On the basis of Elsie Galgani's testimony and that of Linda Galgani and Santiago Hernandez, I am persuaded complainant Elsie Galgani suffered emotional distress as a result of being terminated and is entitled to an award of $25,000.00. Additionally, based on the testimony of Linda Galgani and Hernandez, as well as the testimony of Carmen Cortese, I find complainant John Galgani suffered significant emotional distress and that his estate is entitled to an award of $40,000.00 to compensate him for the emotional distress he suffered.

"I also conclude that complainants are entitled to compensation for lost wages. The estate of complainant John Galgani is entitled to an award of $4,335.33, the amount he would have earned working eight hours a week as a per diem pharmacist from September 27, 1994 until November 4, 1995. Complainant Elsie Galgani is entitled to an award of $22,343.47, the amount she would have earned working eight hours a week as a per diem pharmacist from September 27, 1994 until December 1997, when the pharmacy closed.

"Additionally, complainant Elsie Galgani is entitled to the award of the gold pin, awarded by respondent as recognition for twenty-five years of service, that she was months away from receiving at the time of her termination."

Galgani, et al. v. Bethany Health Care (Lawyers Weekly No.

) (15 pages) (Schwarz, Hearing Commissioner) (MCAD) Christine M. Nicastro for the complainants; Francis J. O'Connor for the respondent (Docket Nos. 94-BEM-1990 and 94-BEM-1991).