NOTICE: The slip opinions and orders posted on this Web site are subject to formal revision and aresuperseded by the advance sheets and bound volumes of the Official Reports. This preliminary material willbe removed from the Web site once the advance sheets of the Official Reports are published. If you find atypographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court,John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030;SJCReporter@sjc.state.ma.usCOMMONWEALTH
vs.
Anthony P. BAYE.SJC-11044.November 9, 2011. - May 21, 2012.
Constitutional Law,
Admissions and confessions, Voluntariness of statement, Waiver of constitutionalrights.
Practice, Criminal,
Admissions and confessions, Voluntariness of statement, Waiver.
Waiver.Evidence,
Admissions and confessions, Voluntariness of statement.INDICTMENTS found and returned in the Superior Court Department on February 23, 2010.A pretrial motion to suppress evidence was heard by
Constance M. Sweeney,
J.An application for leave to file an interlocutory appeal was allowed by
Gants,
J., in the Supreme JudicialCourt for the county of Suffolk.
David P. Hoose
(
Thomas Lesser
with him) for the defendant.
Brett J. Vottero,
Special Assistant District Attorney (
Thomas H. Townsend & Matthew D. Thomas,
AssistantDistrict Attorneys, with him) for the Commonwealth.Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly, & Lenk, JJ.LENK, J.The defendant stands indicted on multiple felony counts arising out of a series of arson fires. A judge in theSuperior Court denied the defendant's motion to suppress certain incriminatory statements he made in thecourse of nearly ten hours of police interrogation, and a single justice of this court allowed his subsequentapplication for interlocutory review. The defendant contends that these statements were obtained inviolation of his right to counsel under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. He contends further that certain tactics employed by hisinterrogators were sufficiently misleading and coercive so as to render his statements involuntary. For thereasons set forth below, we conclude that the statements should have been suppressed.1.
Background.
We recite the facts as found by the motion judge, supplemented by certain undisputedfacts and by our own viewing of a video recording of the interrogation. See
Commonwealth v. Novo,
442Mass. 262, 266 (2004).Between 2 and 3:15 A.M. on December 27, 2009, Northampton suffered a series of fifteen firesconcentrated around the city's third ward, a largely residential area. The fires provoked an emergency thatthe motion judge described as "severe and unprecedented," requiring the activation of regional emergency
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plans and overwhelming the capabilities of Northampton's emergency dispatch center. The most severe of the fires killed two men, a father and son, who were inside their home on Fair Street when it burned to theground. The defendant had two interactions with police officers in the vicinity of the fires, both between3:20 and 3:30 A.M. that morning. The defendant or his automobile were also observed by other policeofficers at or near the scene of certain fires as they were being extinguished. As a result, the defendantquickly became a target of the investigation.The defendant met with police officers three times in the days following the fires, each time at theNorthampton police station. He made the challenged statements during the last of these interviews, onJanuary 4, 2010. This interview consisted of a ten-hour interrogation, during which the defendant admittedresponsibility for several of the fires, and which terminated in the defendant's arrest. The interrogation wasrecorded in its near entirety,
[FN1] and the recording was played at the evidentiary hearing on the defendant's motion tosuppress.The January 4 interrogation was conducted by two experienced State troopers, Michael Mazza andPaul Zipper. [FN2] It began at 10:12 A.M. and was terminated when a third police officer informedthe defendant at 8:06 P.M. that he was "now ... under arrest."At the beginning of the interrogation, Mazza informed the defendant that he was "not underarrest," pointing him to the door should he wish to leave. Mazza then read the defendant theMiranda warnings. After a few minutes of casual conversation, Mazza began to ask the defendantabout his activities on the night of the fires. These questions were initially informal and guided bythe defendant's answers. However, once the troopers had elicited the defendant's account of thenight, the atmosphere of the interrogation changed markedly.Mazza informed the defendant that he had photographic evidence that contradicted thedefendant's account. [FN3] Speaking in hushed tones, leaning close into the defendant--who hadbeen seated against a wall--and frequently touching the defendant's arm and back, Mazza thenbegan an hour-long near monologue. Mazza likened his view of the defendant's conduct to the sortof mischief, pranking and "tomfoolery" that could take place on "cabbage night." [FN4] Herepeatedly characterized the deaths and damage caused by the fires as an unplanned "accident,"fueled by alcohol rather than by an intent to do harm.Further, Mazza stated at multiple points prior to the lunch break that the defendant's involvementin the fires had been "conclusively determined." Once the defendant realized the "fabulous case"that had been built against him, Mazza maintained, the defendant would recognize that Mazza was"the only person that could help [the defendant] help himself."By Mazza's account, his usefulness to the defendant derived from the weight his opinions carriedwith prosecutors. Mazza told the defendant that during his more than twenty years in lawenforcement, many of them as a fire investigator, district attorneys had uniformly followed hischarging recommendations, with only one exception. [FN5] He suggested that the defendant would"never ... again" get the opportunity to be treated as "somebody [acting] in a pranking,mischievous manner" rather than "a guy who goes to a fire with ten gallons of gas." [FN6] If thedefendant remained silent, it could be "catastrophic for [him]."The defendant remained largely stoic and silent through the first hour of Mazza's entreaties.Nevertheless, forty-five minutes into his monologue, at about 12:15 P.M., Mazza began attributingmotions of assent to the defendant, telling him that he was "shaking [his] head yes." When Mazza
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then asked the defendant to agree verbally to Mazza's statements, the defendant responded:"Nope. If I'm being accused of anything, I want to talk to a lawyer."The troopers did not then cease their questioning. Rather, they informed the defendant that whilehe had the right to speak to a lawyer, if he would instead just talk to them without counsel, "[W]ecan clear this up." Mazza told the defendant that he "still believe[d] that [he was] the kind of guythat meant just not to do" any harm by setting the fires, and almost begged the defendant to"please, please" agree to a continuation of the interrogation.The defendant responded that he'd "still wanna talk to a lawyer, just so I'm not accused of something." Zipper told him, "we haven't accused you of anything." Mazza concurred, telling thedefendant that if the defendant only wanted a lawyer "if we're gonna accuse you of this," then heneed not get a lawyer at that time. In Mazza's words, the troopers would "acquiesce to anything" if the defendant would speak to the troopers without a lawyer, because it would allow them to "worksomething on this case" that would ensure not only that the case would be put to rest, but, asZipper put it, that the fires would not "jam [the defendant's] life up."Although the defendant again responded with skepticism, he eventually agreed to speak with thetroopers if they would not "accuse [him] or charge [him] with these things." The defendantreaffirmed this sentiment after a brief cigarette break. Within moments, the defendant agreed withMazza that, contrary to his earlier accounts of his whereabouts on the night in question, he hadnot watched a movie at his friend's house, and that his vehicle had been seen in a location nearthe fires. Shortly thereafter, he responded to Zipper's question, "What assurances do I get fromyou that you are not gonna start another fire?" by saying, "Well, I won't," and then, "It's just notgonna happen." Approximately one-half hour after requesting counsel and receiving assurancesthat he did not need counsel, at 12:53 P.M., the defendant acknowledged that his alibi was false.After obtaining this admission, Mazza embarked on a second soliloquy, this one lastingapproximately one and one-half hours. Early in this second monologue, Mazza represented to thedefendant, contrary to Massachusetts law, that the deaths caused by the arson would not qualifyas murders if the defendant had not acted "with the intention of killing anybody." [FN7] Shortlythereafter, he reiterated that there were "exceptions in the [murder] laws when there are deathscaused by accident[ ]." Mazza then explained that, with the defendant's help, he could "show ...conclusively" that the deaths in the Fair Street fire had been accidental. After a further fortyminutes spent elaborating his view of the deaths and damage caused by the fires as having beenaccidental, Mazza embarked on a series of insistent pleas that the defendant confirm that he hadnot intended serious harm. The defendant finally responded to a question on whether he "everwanted to hurt anybody" by saying, "Not really." He clarified, "I never want to hurt anybody." Hewas then asked, repeatedly, if he had intended to hurt anyone in the fatal fire:MAZZA: "It was an accident. Wasn't it? It was, yes? Say yes."DEFENDANT: "Yes."MAZZA: "You lit a fire that was more than likely intended on being a small fire. Am I correct? Yesor no? Yes or no?"DEFENDANT: "Yes."Following these admissions, Mazza and Zipper took the defendant out to lunch at a local
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Anthony Baye Evidence Ruling SJC Mass. May 21 2012
Mass. Supreme Judicial Court rules accused arsonsist/murderer Anthony Baye's taped statements to state police investigators "should have been suppressed" by Superior Court Judge Constance Sweeney. At issue; right to counsel under the Fifth Amendment and voluntariness.…
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