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Anthony Baye Motion to Suppress

Anthony Baye Motion to Suppress

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Baye, on



suppressing statements a

Sergeant evidence on two separate grounds. after clearly and asserts requested an

rights guaranteed by the Article that of the Massachusetts

cannot meet its heavy as

statements are inadmissible under the Due Process Clause of as

practice." follow, undersigned counsel demonstrate to a


Baye's shoes would not have felt at



right counsel,



a series psychological ploys, cnmes was not a free




of December 27, 2009, a

2. 3. Place

proved Baye,

two residents a brief interaction

17 on

Northampton. Corey

the defendant on Bancroft Road. 5. detected signs that consensual searches of defendant car been no evidence of to


December 29-30,2009.
6. 11 a.m. on December 29, Department at request Detective went to was


to speak

agam. Northampton Police was


was taken to


during this interview,


1 a

expressed concern phone




interview, Mazza time meet. out

12. to



at 10



not meet him. after ended

come to




next four and a


near constant surveillance. Miranda Warnings. 16. 4th, case was eight days enforcement anyone else) to Police a room a no

or eyewitnesses linking 17. the defendant arrived at and

18. 19.

a seat across a seat at the end there. You're right?" ; 10:12:55 a arrest.


proceeded to

Mr. Baye 13:13.)



right to stop to a


Baye agreed to



asked a series of short, open-ended went and people



whom he associated. (117-52; 1

errors. respect to second "Anything you say can be used against



forty-seven its contours

encounter was not answers



defendant said 1:30 to 3:30 a.m., ass movie," (1/24-26; scene from movie


a short discussion a

10:38:30 - 1

expressing believing Street.

10:59:33 - 10:59:45). 29. 30. conversation circled back to Hangover." (1/53-56; 1 -11:11 a.m., Zipper began asking questions. (1/51; 11 -11

The Interview Ends and the Interrogation Begins. 31. approxrmatelv 11: 18 a.m., questioning. 32. 33.

stopped talking


(1/62; 11:18:21 -11:18:35.) interrogation changed

nature of ceased making open-ended
Uv.l .... .u.UUJLU

to statements





and tone of Mazza's voice became


11: 19 a.m., Mazza started sharing

36. car was observed on voice to a whisper, placed " (1/65;11:21 37. a fire at 2:02 a.m. (1/65; 11:22:56 - 11:23 38. stated: I you "(1165-66; 1:24: on road at a.m.,

- 11:22: 11.)


Mazza began a remarkable fifty

monologue a


(1/66-2/3; 11:25:00 - 12:15

featured two basic thernes'

Mazza had positioned himself a and At approximately 11:22, Mazza stopped at a spot that permitted to the defendant's access to the door.

was more or chair defendant


Baye's 42. the defendant

as a foregone

... by things: you way they were started." you at several fires .... "

11:3 :17-

enough to fires." (1/69; 11 :32:20 - 11:32:28);




were out and ... on a ... mission to create some 11:34:16 - 11:34:23); I know it


that I have







it or (1/75; 11:52:13 -11:52:1


that's alreadv

been determined."

Tony, Tony, it is you. Tony, it is

" (1/75; 11 :52:58 - 1

interrogation, Mazza ntroduced nrormnent: namely, this 1172 ("Tony, here's the is the day and I, Okay?".)


" ... I got you, not from shoddy work, cops ... I've come to 43. minimized the gravity of

collective "

"These [we ]re not intended ... we would refer to as

big fires. "(1/67;11:28:06-

were 1:28:

"The guy that started fire, I can " 11 :29:33 - 11:29:40); "[SJomebody on. This the - 11:30:1 is ringing doorbells at a 11:30:20);

equate to a kid on







I can together as 11:30:35);

is Cabbage Night

" (1/68; 11


is ... where you need me, okay? ... because I don't want to see get a 1:32:39); want to lose get credit and not to the District Attorney, we have here. ,-,-,uu.!.,-,u to ... portray tome. don't have a monster. ... ' I am as not a bad guy,



accounts ... , they can be used to guy that's to portray for 11 :36:17);
... a

as a are."

on a ...


11:37:06 -11:37:
absolutely need me today.

a bad guy."
intentions were of, screwing "



is most favorable to you. help yourself but I can't do 11 12); not gonna ... let you get lost be overwhelmed by ... the gravity okay? not this .... " (1171; 11







can convince everybody. . . was nothing more intentions of what kids do on Cabbage Night." 1 :1 was a hell night type ... event." (1172; 11 - 11 :1


" •••

I can allow ... the powers be to portray or I can portray it the way I think it needs to be right?" (1/72-73; 11:44:13 -11:44:26);

they want to deserves to


trying to say to you is 'let's not let get out keep this where it is." (1173; 11:45:31 - 11:45:39); goofing off.



it is." (1173; 11:47:47 - 1

gonna ask me, 'What should we do gonna give them my recommendation .... I



a pranking, mischevious manner, goes to a ten galloons of gas (1/74; 11:51 - 11:51 on " (1/75; 11:53:32 -11:53 not

not same of because a bigger house " (1/76; 11:56:21 - 11:56:30); went you had a couple better of you


beers going out having some " (1/76; 11 :56:46 -

not gonna my colleagues ... treat " was <OF"..,."''' to a great of damage .... " 1 :59:19); " ... I can make it better by portraying to intention was . . . . that's " (1/78; 12:04:24 - 12:04:36); me a lot of me .... Not too long ago, I was went out ... the night before Halloween I got .. quite to this behavior, okay, the trees, right? And I was you and don't forget where I came was your night for did. Don't let it be going out and being more than s

wanna show whole world you're not a monster. on my soap box and I say, people have 1 11-12:10:24); need your help. I need to 12:48 - 12:12:53); and you. You need to





"This was

described as a spur-of-the-moment of these statements, Mazza

event .... " on



an e.g., :18,

right arm and

11:36:53, 11:37:13, 11:37:24, 11 :39:57, 11 :23, 12:02:02, and 12:12:49.)

17, 11:42:22,


fifty minutes from 11:25 a.m. to 12:15 nothing. 12:13 Mazza apparently

. 12:12:55-12:13:1 48. 49. anticipated admission not materialize, Mazza resumed at the Baye (although the video footage shows otherwise) shake 50. cnmes announcement 12:1 - 12:14:45.)7 had observed the defendant head, no. (2/3; 12:13:24 - 12:13:45.) by a suggestion an " II seen

equating fifteen fires "Cabbage Night tomfoolery," to you. not trying minimize anything. " (emphasis segment of the video reveals arm holding no head shaking by defendant. the interrogation, time an unsuccessful attempt to convince defendant


The Defendant's Multiple Requests (or a Lawyer. 51. concluded his monologue the following:


" " (2/3; 12:15 - 12:15:03l


I wauna

to a


Mazza clearly recognized




the defendant's to

- 12:15:11.) 55. damage ; 12:15:33 - 12:15 56. 12:16 (12:16:30 - 12:16:50.) room

body from telling the Anthony, was it? You're shaking your head yes. the defendant takes exception to by Commonwealth, which indicates of anything. I wanna talk to a lawyer." (2/3 (emphasis


"Nope -

cU ..,\",'UJ\._A.<


57. he been given at

approximate outset

Baye (2/4;


investigators departed, seconds using it to send a text and/or

on text messages.

less 16:50 -

59. you'd like be to you .... 18:20.) course

Zipper returned to we could I can't talk to you unless to wanna some more. us." (2/4;

next sixty seconds,

proposed this " 1

we have to say" so that 1

pitch, Zipper expressed confidence " (2/4; 12:18:53 - 12:18:57.)

62. defendant

comments not "wanna listen to

noting that I to say,"

not want to "go

by asking for a lawyer again: "If you have somethin' to wanna to a lawyer, just so "

2:1 '19 - 12:19:27.) 63. wishes.


64. 12:1 65. .)

now "whatever we could do

you is ... past."

1 19:39-


interrogation (or ask

his efforts to persuade Mr. Baye to assent to


advantageous to

"discussed some
" (2/5; 12:19:48 - 12:19:52.)


confided that he harbored no desire "to further conversation "might clear 1 " (2/5;

68. counsel, to pounce on 69. not defendant]." people" return

(2/5; 12:20:37 -12:30:39l the bizarre done was out

string of comments

"accused ... of anything"; all he and Mazza believe happened."

(2/5; 12:21 :08 - 12:21:09.)10

accurately reflects Zipper's statement concerning to pounce on the defendant. However, the language that, when included, makes defendant's Specifically, Zipper did not say: "That's we the Instead, he stated: "That's why we got some people out to to you." (12:20:37 - 12:20:43.) clear vv,.uu,,,,,", talking to us or get pounced on by other officers whose antmatnv incapable of participating in a conversation. contrast to said he not want to "ruin [the defendant's] life." (2/5;




Baye responded that it "sure no matter 4 - 12:21:15 he 12:21 :23 - 12:21 :24.) not " (2/5;

advised now stated:




am tellin' you we can clear this

...I can't

I, I can

" (2/5; 12:21:29 - 12:21:32.) sat

made a startling proposition: "if we don't accuse us 73. Mazza went a step further: " (2/5; 12:22:44 - 12:22:47.) want to a lawyer ... ?" (2/5; 12:21 :54 - 12:22:44.)



cross-examined regarding interrogation of a suspect exchange defense counsel: went there, you never mtencec "Of course we did. That's have a conversation




to be. We suspect?"
'+ t,

you knew he was a

on the fact we were going to do a...n yes. I witnesses and people walking by, no. We interrogate v. DiGiambattista, 55 Mass. App. Ct. 1112, *1 (2002)




defendant asked Mazza to make explicit accuse me or charge me tome these things, then, you - 12:23:12.) a lawyer, you, agree to can

whatever you'd like." (2/5; 12:23 " Mazza answered, "With - ...



right." (2/6; 12:22:13 - 12:22:20.)

anything, Zipper Mazza accompanied him outside The Resumption ofthe Interrogation. 77. interrogation resumed, Mazza he "didn't car was spotted - 12:35:19.) 78. defendant acknowledged asked: start 79. possibility assurances do I get you car on not gonna the movie at house" that it to be" seen. (217; a smoke

the locations where Mazza reported

fire?" (2/9; 12:37:51 - 12:38:07.) been promised that he would not be accused or charged the defendant not take issue underlying premise s 12:38:25


and gave him his word that he would not start fires

-1 80. interrogation proceeded, Zipper and Mazza took turns exploring for the defendant's conduct Zipper suggesting it was response to an


and Mazza sticking




81. at

exercise, according to

was not to bosses

simply to give the investigators tools to "argue to

silliness is done." (2/14; 12:47:46 - 12:47:48.)
82. portion of the interrogation, Zipper repeatedly referred to life that would leave a reasonable person of responsibility would not lead to 83. and hous[es],"
~V-'.U~_'H!-,'-'~'H-'F> UOJ'vV~HU_''''


Baye would appreciate

dismay Zipper

the prospect

returning to the Pioneer Valley "every

bunch of more fires." (2/14; 12:46:39 - 12:46:41 and 12:46:28 84. resume asked the defendant when classes at Holyoke Communrty he intended to continue working at Semester. (2/20; 12:56:49 - 12:57:06.) Sierra


The Fair Street Fire. 12:58 Mazza brought on

1; 12:58:08 - 12:58:12.) 86. broaching this subj ect, Mazza speculated that the reason forthcoming was his understandable concern that

not been of two

could lead to charges of murder. (2/22; 12:59:00 - 12:59:25.)



Mazza completely misrepresented he not be charged with

of homicide he not

12:59:44 - 12:59:52.)

he could "help" by demonstrating defendant's

intentions. (2/22.)
mounting evidence defendant's to cast

deaths on the Amherst (2/22-23; 90. 13:02:30 - 13:02:49) happen to the defendant answered - 13:03:57.) "he should be


set the away along " (2/23;




arsonists deserving people

prison sentences were fires they set. (2/23; 13

1 J. 93.


Mazza's Second Monologue. 1:04 personally possessed to decide the defendant's fate. (See 13 3



Attorney's office was currently conducting a


he could call it off by saying: "Whoa. It'san accident [he's] not gonna start more fires." (2/23; 13



are exceptions

96. 97.

defined an "accident" as

an accident."

(2/25.) one outcome

influence with prosecutors, Mazza stated, with the excenuon the last twenty years, his recommendations case. (2/25; 13:10:44 - 13:11:06.)



stood ready to submit a report concluding

it was not


99. 100.

you," Mazza warned,

not gonna

" (2/25.) a "life" (2/26; Mazza

Baye's acceptance of responsibility (2/25; 13:12:21 - 13:12:23), prevent any 13:1 Attorney "not treat as a essence Baye not


to Mazza,

was of



Mazza issued

following warnings:



regularity. 13:04:29 -

the interrogation, Mazza began to use word "accident" example, during one 100 second span, he used the word

. . mcreasmg (2/23;



today, after you have been given opportunity to I fucked it was an accident' then it becomes a murder and that's how they're going to treat it cause they're you had opportunity." (2/25; 13:11:32 -13:11:44); "[T]oday's the day. Today's the day." (2/26; 13:14:58 "The accidental scenario is given to me by you because I



later when
13:16:23 - 13:16:34);

the rats are . UIHI--.nu

not gonna get the accidental scenario They're, not going to offer it to offering it to you right now." 13:08:09 - 13:18:18); "[Ajfter we leave here today, never get never. You'll be facing a double homicide, ." (2/27; 13:22:31 - 13:22:40).


K. 103.

"This was an Accident" Becomes the Primary Interrogation Theme. break, the investigators continued to stress their cause task force members to to dogs and 3/3;

" (3/2; 13:37:27 - 3


described the United States as a country the defendant was the most encountered candidate

the last ten years. (3/4; 13:44:38 - 13:44:51.) to act - 3:47:26.) other made as



order for Mazza to "call the dogs off," the defendant to offer assistance did not "go beyond today." (3/6; 13:47:

1 cases

Mazza explained, the defendant would make this case where "people ma[ d]e mistakes" and "were treated as




Mazza succeeded

getting (3/1 13:58:05 - 13

to :1

[should] be treated like an accident." 1

course of the next several minutes, Mazza use the word the defendant world, the softest possible voice to give (3/13; 13:58:11 chance to

was an accident.'"

1. 109.

Working Magic. 2:03, Mazza leaned forward "advocate" and "champion [his] cause." chair to to be


proceeded to gently place his right over a minute. (14:05:15-14:06:1



begged the defendant for "a morsel, Something so that we can :05 - 14:18:10.)

dogs off."


was nothing more needed was

"beer- fueled silliness ... defendant's "assurances (3/13; it was a

able to "do damage control." 113. Zipper said,

18:58-14: 19:50.) was an 14:22:50 -

he and Mazza could "work some magic." The Defendant Breaks. 11 last twenty minutes of "questioning," (as asking for counsel),

to the

talking was done by Mazza and


hmm" (and his agreement

an an accident like an


2:27 p.m., Mazza asked the (3/16; 14:27:15 - 14:27:23.)

118. followed

really." by suggesting the defendant anybody." been want to anyone

fires, Mr. Baye said: "I never want to 119. took this as "the explanation" 1 - 14:28:08.)

, 6'


Mazza raised his voice as he recounted his efforts to somebody's on side," side."

whether he believed this to be


defendant 1:12 - 14:31:

perceive Mazza as being on his side. (3118;

defendant was "right on the edge," Mazza asked anyone. (3/18; 14:32:08 - 14:32:15.)

Cf v. Gonzalez, No. 2009-00639, 1 649942, at *6 2011) also is significant that the police interrogation primarily questions. Very little], any,] of any incriminating statements defendant were not supplied by the police." (citing State v. Retettenberger, (Utah 1





defendant answered agreed

" Mazza asked


it was. (3/19; 14:35:17 - 14:35:59.) on


suffered a momentary set back (3/18; 14:36:06 - 14:36:08.)


when Mazza (3/18; 14:36:35.)

to say

N. 126.

Testimonv of Alan Hirsch a lawyer/professor at Williams College, gave and confessions, as it related to the case before the court. 127. written extensively on interrogation techniques including Law Journal, North Dakota Law Berkeley the of


the states of Georgia, South Carolina, and Mississippi.


case, Hirsch was requested to review Baye interrogation.

video footage and


the police officers take different approaches to technique is called the "Reid technique."


testified that the two major interrogation techniques are "



133. to conclusively proven

evidence connecting are guilty."


135. 136. 137. as it can 138. is significant, Hirsch testified, because people are more times something is stated as fact,

suspect is
responsive to


more likely people are to level

Baye interrogation, Hirsch testified was used extensively.

more than five examples of times the defendant was been conclusively proven.



to Hirsch, minimization occurs when suspect confesses, things

interro gator, be so bad.

or indirectly,

140. As

can be


can range from a lower degree - "it -- to the highest degree - "if you confess to "


your best things,


to face

confrontation, the more times it is used, the more likely it to resist.




the interrogation ofMr. Baye, was as high as he has ever seen more extensively.

testified the transcripts that

was a mere was caused was consumption; (3) it stress; it

to his youth; (5) it involved no planning; were just small fires; (8) poorly constructed house),


it was an accident, which should not lead to injuries were merely an accident, which is treated

actions. interrogation case


testified that the primary problem interrogators'

statements either explicitly or impliedly said the



at all if he confessed.

many other statements would have led the




minimally, ifhe confessed.

147. be

testified that one section of the Reid manual is entitled

techniques have been labeled as "Approaches to be Avoided" led to confessions being found inadmissible.



to the case at bar, Mazza and Zipper used three of the "

to be


150. moral blame 151. states that, "Through

" a suspect own

court. investigator cannot be



responsible for a guilty suspect's suspect such

no time should the investigator state or

152. consequences associated with not absolve crime. Consequently an " 153. 154. Mazza and Zipper used all examples, including episode be " confesses) a not

needn't disrupt your life," that the defendant "deserves get a chance," that, if he confessed, he could "move on," " that did not justify criminal prosecution, it was just an "accident" that should (and 155. were to 156. Hirsch testified that the interrogation type of techniques that experts have found break confessions. Hirsch testified that the concern the an relentless ,."',.,"'"", be treated as an used a 's




" used by Mazza and Zipper, is that they can result



is the Appropriate Remedy for the Violation of the Defendant's Right to Counsel. 1. When the Defendant Invoked his Right to Counsel he was in Custody. a. Standard of Review.
v. Arizona, 384 U.S. 436 (1966), the Supreme

afforded settings

Amendment are not limited to criminal court proceedings, an individual's "freedom of action" is case, it is undisputed prior to conversing the defendant on at

question, Zipper defendant progeny, counsel, he was not not apply.

custody and therefore the dictates

custody if a reasonable person

position would not


leave." Yarborough v. Alvarado, 541 U.S. 652, (quoting falls on omitted). determine whether a defendant is consider initially articulated custody" Massachusetts courts 984),
v. Smith,

Commonwealth v. DeI'eiza, 449 Mass. 367, 375-76

Commonwealth v. Bryant, 390

Commonwealth v. Groome, 435 Mass. 201 456 Mass. Mass. 1 478 (2010) (citing Groome, 435 Mass. at 211-212; 121-27 (1998); and Bryant, 390 Mass. at 737). These factors are:

v. Morse, 427


place of interrogation; whether officers have conveyed to person being belief or opinion that that person is a suspect; nature of the interrogation, including whether the aggressive or, instead, informal and influenced its contours person being interviewed; and whether, at the the incriminating statement was made, to end the interview by leaving the locus of the evidenced by whether the interview terminated an arrest. Id. at




was as

courts often focus exclusively Coleman, to

these factors, see, e.g.,


App. Ct. 150, 153-54 (2000) (following "the customary order suggested by Commonwealth v. Bryant"), a

"[t]here is no specific formulation on which [courts] can rely as an aid


Mass. at 736 (quoting Commonwealth v. Haas, 373 Mass.


second there is at 737). relevant to

Mazza established.

Groome, 435 Mass. 201 (2001), the Bryant court as "whether the investigation has begun to focus on the suspect, . cause to arrest the suspect." 435 Mass. at 212 n.13 (quoting factor has since been modified to reflect that an officer's custody inquiry only if those suspicions have been communicated (citing Stansbury v. California, 511 U.S. 318,323-324 be discussed, in this case, far more suspicions were repeatedly advised the defendant that his guilt had been





v. Mahmood, 415 F. Supp. 2d 13,17

Mass. 2006)


consider numerous, case-specific factors ....

question is "whether a reasonable person experience v. Larkin, Morse, 427 environment which the interrogation took place as coercive."


426,432 (1999) (citing Stansbury v. California, 511 U.S. 3 at 123-24). Argument. the Groome factors to the facts of the present case, the scales




respect to the first factor, it is well-settled element inherent in an interview at a police station."



Bookman,3 possess

Mass. 657, 660 (1982) (Liacos, C.J.). For "at a advantages." Kent B. Smith, 30 Mass.


relevant factors include "the number of scene," see United States v. Nishnianidze, 342 F.3d 6, 13 st Cir. 2003), interrogation, see Commonwealth v. Magee, 423 Mass. 381, 385 996); 816 F .2d st Cir. 1987), whether the suspect was isolated see Mahmood, 415 F. Supp. at 17, whether enforcement "'"'IVH'''> suspect was free to leave, see Thompson v. Keohane, 516 U.S. 99, 103 police "physical contact with the subject," United States v. Jones, 523 and whether Miranda warnings were administered, see Martinez, Mass. 684,696 (2011) (noting that Miranda warnings are "not of custody" added». As noted the defendant's preliminary Martinez, rejected the proposition that unnecessary administration warnmgs a non-custodial encounter into a custodial one. See Smith,456 476,479-80 (2010) (encouraging "police to give Miranda point at an encounter becomes custodial rather 'wait exact moment when warnings are constitutionally required." (citations omitted). It is less certain, wake Martinez, the Miranda warnings are now "a factor to be considered whether a has been placed custody under the Amendment." So.3d 1 1 (Fla. 2010) (collecting cases).

14 Other



§ 6.19 (3d

0) (citations omitted); see also Miranda, 384 U.S. at 450 The atmosphere suggests

office, forces

investigator possesses all the advantages. ofthe


omitted)). stationhouse questioning tends to be regarded as less coercive a suspect


" see Commonwealth v. Hilton, 443 Mass. 597, completely

Baye's apoearance at the police station was something less conclusion further


December 30 interview, Mazza made it abundantly clear to would occur; it was only a matter of when.

speaking, [the defendant] went to the station But ... was prompted by two officers arriving at [his place of employment] asking to return to the station for further questioning .... suggesting that defendant] was pressured to attend, of [his] visit to the station is less of a mitigator against State v. 760 N.W.2d 35,61 (Neb. 2009). to the second factor, this is obviously not a case involving suspicions." Groome, 435 Mass. at 212 n.l3 (citation At the one

Mr. Baye was responsible for fifteen fires the loss the defendant: • "So frankly, I have enough to show for these fires." you are lives. Commonwealth v. Coleman, 49 Mass. App. Ct. 150, 155

to fact,




435 Mass. at 214 ("The fact that an interview takes place at a police station brand an interrogation as custodial." (quotation marks and omitted)).


know you did this fire. I know it and you know


investigation has conclusively determined you're responsible for these fires. That's, that's over and done "Tony, the, the part about whether determined. " did it or do

"Tony, I'm telling you I can tie you to all fires based on locations, your car. I can absolutely do that. I can


directed at "clarifying and confirming" details statement


Opp'n at 3), and the unrelenting, accusatory During the interview portion of the encounter, the atmosphere was

Groome factor uses the terms "interview" and "interrogation" interchangeably, recognized the difference between a "nonaccusatory interview" custodial interrogation." Commonwealth v. Hilton, 443 Mass. 597, 3 (2005). Moreover, difference" as "it is discussed in leading interrogation texts materials, even in basic police academy training," Charles 96 CAL. L. REv. 1519, 1531 (2008) (footnotes is non-accusatory, "free flowing and relatively is to gather information. . . . interrogation, on " conducted "in a controlled environment," and involves During an interview, police establish use verbal and non-verbal information (often including "behavior to gather information. . . . contrast to interviewing, ,~.n+"""process." ... Together, interviews and +",,,_,.,,+~,ti and theoretically seamless sequence.
0~U_'-HVU." ••••••


Id. at 1531-32 (footnotes and citations omitted); see also Brian R. Gallini, the Room: Seventy Years of Pseudo-Psychological Interrogation Confessions, 61 HASTINGS 529,537 (2010) ("The LHV'.HvH v-'-_u_vv-'- elects to conclude an interview and commence an interrogation is


of the conversation. involving WayneR. However, once the interrogation commenced, it was "close questions and the discounting of the suspect's denials of et aI., 2 Proc. § 6.6(f) (3d ed. 2010) (stating that, custody" (citations omitted)). "controlled parameters 996) " circumstances,

a "reasonable person would conclude he was defendant's contributions conversation." Once the responsibility, Mazza made it clear only additional Although it was

Commonwealth v. Gallati, 40 Mass. App. Ct. 111, 115

Mr. Baye's guilt had been conclusively time, exercised

investigators had was why he did it. During

physical contact was not of a hostile nature, or appreciated. Cf United States v. Nishnianidze, 342 F.3d 6, 14 not 2003) contact

custody due, in part, to fact that "[t]he agents with


himself once stated, "I don't interrogate witnesses .... note 1


17 One leading manuals on interrogation techniques contains an entire entitled, "Avoiding Contact." DAVID ZULAWSKI&DOUGLAS WICKLANDER,PRACTICAL ASPECTSOFINTERVIEW ANDINTERROGATION 364-65 (2d Ed. 2002). According to while touching the suspect could form a bond between the interrogator and conduct "is legally ... unacceptable." Id. (suggesting that "the gesture," out to place a hand on the shoulder never complet[ing] " "allows physical contact can achieve, without the liabilities").


the prosecution attempts to downplay third interview,"



by drawing attention to Mazza's statement, "at the very outset suggestion was free to leave. (Commonwealth Opp'n at 7.)18 The the setting can

prosecution's perspective, is the law's recognition that "a previously become


" Commonwealth v. Hilton, 443 Mass. 597, 611-12 (2005); see

v. Cruz, 373 Mass. 676, 683-84
defendant case" is precisely

977) (setting became he was a an arson

went to police station voluntarily "was informed

communicated their belief that "defendant was not answering occurred this case. interview to resulted

footage makes clear, the transition lila

Commonwealth, by gesturing in the of the door, defendant that he was not custody. (See Commonwealth Opp'n at 7 ("Mazza's door is the functional equivalent of telling Anthony Baye was free to leave.").) the prosecution's interpretation of Mazza's words gesture is not unreasonable, it is by no means inescapable. An alternative interpretation considers following facts. First, when Mazza pointed to door, he also police defendant was "at a police station." Second, the last time the defendant was at station, enforcement officers subjected him to hostile questioning Third, encounter, when Zipper stated that other officers were room ready to pounce, Mr. Baye did not appear surprised. person defendant's shoes may well have taken Mazza's words as a 're not under arrest if you go out that door, you are going to encounter other officers more hostile than us.



Lavendier, 'sea change'

Mass. App. Ct. 501, 505 (201 tenor

marks and


character of the interview would indicate to a Instead, a reasonable person would have State v. 'as 760N.W.2d

that he ... was not free to go .... as he 35,55-56

[the officers] would renew their accusations." 2009) (citation and footnote omitted).

and Zipper] had again informed Defendant encounter] that he was not under arrest or he and go home at any time, [one might] readily conclude was not in custody during the [interrogation] .... As it is, again provide such information after ... the prolonged at times, ontrontanonal questioning of Defendant tend to support a finding a person in Defendant's position would have believed he was not he had given answers satisfactory to interrogatorsj.r"



United citations

v. Toliver, 480 F. Supp. 2d 1216, 1240 (D. Nev. 2007) (Foley,

respect to the remaining factors set above, none require extensive Baye was a windowless room two officers over

effort to acknowledge this transformation acknowledging Commonwealth states that, at some point, Mazza's "questioning Opp'n at 3.) Suffice it to say, this constitutes a


It appears at least one of the defendant's interrogators had previously in another case. See Commonwealth Br. & Supp. R. Appx, Commonwealth v. P-958, 2007), available at 2007 WL 833476, at *27-29 (depicting "Zipper the defendant," as the questioning turned accusatory "that still the defendant "could leave any he to").
vHl.HH.<VU U.IJI-'h'v''''-.


After H"~."~U"'Eo observation set forth above, Magistrate Judge Foley went on to recommend that the Court find that the defendant was not custody. Toliver, 480 2d at 1240. Judge Pro ultimately rejected this portion of the magistrate and recommendation and held that the defendant was custody. Id. at 1218-20.


responsibility and

setting any of the fires. The interrogation continued for an arrest. See Simon, 456 Mass. at 288. All these factors



2. Once the Police Advised the Defendant that He Had a Right to Seek the Assistance of Counsel, the Defendant Possessed that Right Regardless of Whether he was in

memorandum, the defendant acknowledged the encouraging becomes police to "give Miranda warnings prior to the point at (See Def.' s Preliminary Mem. in Supp. The an

UC> \lUW_L" t.

Mot. to Suppress 7 n.3 (citing SJC to address the

v. Smith, 456 Mass. 476, 479-80 (2010».

a premature administration of Miranda warnings is Mass. 506 rights that case, Justice Kaplan held that when the police read situation became custodial," they did so of abundant

Alicea, 376

to counteract the

any coercive element inhering in an interview at a police station." Id. at 513 stationhouse given). invoke a in Oregon v. Mathiason, 429 U.S. 492 977), where no

there was no allegation in Alicea that the defendant right; instead, defense counsel argued (unsuccessfully)

to an


suggests that Mr. Baye was permitted to use cell phone brief fostered with the outside world cuts against a finding of custody. Opp'n at 8 (citing United States v. Lebrun, 363 F.3d 715,722 note that officers never authorized him to use the phone to tum it off at the start of January 4 interrogation (after permitting his prior interviews). addition, the dispositive question is a in the defendant's shoes would have felt free to depart at the moment to counsel. As the video evidence makes clear, Mr. Baye's not take out his interrogators left the room in response to his invocation


obligation to re-administer the rights once the defendant's "noncustodial

... passed into

Subsequent cases featuring the gratuitous giving of warnings have claims


their waiver of Miranda rights was Lawrence, 404 Mass. 378, 385-87

See, 424 985);

989); Commonwealth v.

Mass. 382,

393 n.9 (1997); Commonwealth v. Medeiros, 395 Mass. 336,
v Phinney, 416 Mass. 364, 370-71

993). One notable

<'"F""' ..... '·uvn


present case, is Commonwealth v. Barnes, 20 Mass. App. Ct. the defendant went to the police station and

warnmgs concernmg a was officer for analysis.

fact that he was not in custody. hit-and-run, the defendant stated:

response to subsequent don't remember being an accident. I investigating to station

sooner talk to my lawyer." Id. at 749_24 At

appeal, Justice Dreben found that the police

no obligation


23Other include Commonwealth v. Bryant, 390 Mass. 729 (1984) permits court to side-step ramifications of incomplete recitation of rights), Bookman,3 Mass. 657, 659-61 (1982) (defendant's invocation of right to c u"'u.'h fact that he was not .... custody and warnings were only given


24No unambiguous

was apparently offered by the Commonwealth that this was unequivocal assertion of the defendant's right to counsel.

but an


Amendment 982)).25

to counsel. Id at 752 (citing Commonwealth v. King, 387


defendant contends that Barnes was wrongly decided and its SJc. recitation foreclose and Bautista, 1


.r s: ....


never been

Accordingly, while SJC precedent plainly precludes

can transform a non-custodial setting into a custodial one, it argument that "law enforcement officers are not free to give ignore a suspect's attempt to invoke any F.3d 1140, 1151 Oth Cir. 1998). on January 4, thereunder. " warning States v.

2010, clearly actual

maintains that "[wjhen police ... informed one of those rights, .... the police [had to] honor that right C~~""'VH'"

United States v. Mees, No. 4:09CR00145



defendant claimed that the trial court erred in admitting statements made at after attempted to invoke his right to counsel. The critical cnrerence between is that, King, the police did not administer Miranda to the

interview. Justice Sosman did cite Barnes for the proposition that the "failure" honor rights, does not result in suppression of a voluntary noncustodial " 443 Mass. at 608-09. However, because Hilton failure on of the police, this statement is clearly dicta, i.e., "an does not the resolution or determination of the court, and made consideration point." Michael Sean Quinn, Argument and Authority in Advocacy and Adjudication: An Irreducible Pluralism of Principles, 74 71 0 (1 omitted). The precedential value of individual dictum U"-'!-''-'HI ....o which is a "mere remark made in passing," or judicial dicta a consideration elaboration upon a legal norm" ... "made for the guidance bar." at 713-14 (citations omitted). Here, Justice Sosman's reference to constitutes dicta, and therefore, its "value even as persuasive authority is 713.



at *24 explained:

June 10,2009) (Noce, M.J.) (citation omitted).

As the



state were free to a suspect that he had the right to an UI-'IJv~~n'-'u. while continuing to interrogate, refuse to provide the lawyer on suspect was not actually in custody, the suspect no request for counsel would be honored. The coercive interrogation would thus be greatly increased because the

that the police "promises" to provide suspect's were untrustworthy, and the police would continue to violate rights as they wished, regardless of assurances to contrary. Tukes v, 911 F.2d 508, 516 n.1I (1 Cir. 1990). Ex parte Comer, 591 13 (Ala. her

has not been lost on other courts. 1991), a rights at

officer questioning a business owner suspected of arson read

state introduced counsel. officer whether inconsistent statements she made to the police over the appeal, the Alabama Supreme Court concluded that "the mere

defense a police

[the defendant] at the fire department office is not enough to at 15 was

questioning was a custodial interrogation as defined under However, to our holding Comer court went on to state this case." Id. According to Chief Justice

a police officer informs a person of his or her rights wider must honor that person's exercise of those rights even if the custody .... Although the Miranda warnings may not have been . , once police officer advised [the defendant] of her rights he was exercise ofthose rights. Id. at 15-1 at *5 n.8 see also United States v. Roberts, No. 2:09-CR-0033-RWS-SSC,




warnmgs police suspect App.1999)

not convert "an otherwise non-custodial interview not ignore unequivocal request for counsel once they chose "to read non-custodial rights" (citations omittedj);" State v. Astello, 602 N.W.2d 1 defendant's] interrogation on June 18 was preceded by 196 (Iowa



is accordingly inconsequential."

(citation omitted)); 23 C.J.S.

§ silent, the is not in

1235 (201 officer is custody .... As

a police officer informs an accused of his or her right to to honor the accused's exercise of those rights, even he or


greater detail below, the SJC has found


regarding administer Miranda warnings, they are, in effect, stating suspect choices and that the police must act accordance with

(2004)?8 provides the choices right to


the right to consult with an attorney. He is not


Magistrate Judge Cole went on to find that the defendant did not unequivocally invoke his right to when he said: "1 think I need to talk a lawyer." Id. at *6. Judge Story subsequently rejected this portion of her Report and Recommendation. generally United v. Roberts, No. 2:09-CR-00033-RWS, 2010 WL 672856 (N.D. 19,2010).

Commowealth v. Nero, 14 Mass. App. Ct. 714, 717 982) is always relevant to, and a warning signal for, the issue n<o'''"' ... of the right to remain silent .... ").

dispensed has been a


disregard (whatever

rights with impunity unless a court some day concludes means) at the moment he attempted to exercise police attempted to inform defendant



questioning." the officer

at 271. However, in administering this "so-called 'fifth' the right by "impllying] that the only reason a defendant a

warning," terminate officer

questioning is to speak to an attorney." Id (emphasis in original), is not warmng to give the fifth Miranda warning," Justice Cordy wrote, gets it wrong, the incorrect statement of rights may affect the Id. (emphasis in original).

of the

defendant's confession."

to give


warnings when the suspect is not custody, if the officer gives right invoked; otherwise it will affect the voluntariness


must respect confession.

3. The Defendant's Invocation of his Right to Counsel was Unconditional, Unambiguous, and Unequivocal. a. Standard of Review.

makes it clear that a suspect who initially agrees to speak at any time thereafter. "The mere fact he may have

can assert some right to refrain

questions or volunteered some statements on his own does not deprive from consents to further inquiries questioned." he has consulted with an attorney

Miranda, 384 U.S. at 444-45. Where a suspect,

midst ofa Supreme

custodial interrogation, unequivocally asserts his right to counsel, the United


Court has 435 Mass. 1 23 (200 (citing Edwards v. Arizona, 451 U.S. 477, 484-85

v. Contos,


an accused has invoked his right to have counsel present during a valid waiver of that right cannot be established by responded to further police-initiated custodial interrogation even been advised of his rights .... [A]n accused, having expressed his desire police only through counsel, is not subject to further interrogation until counsel has been made available to him, unless initiates further communication, exchanges, or conversations
.... U


the warnmgs present No. BRCR2008-00970, and

Miranda obtained a voluntary, knowing and intelligent waiver of the v. Sarourt Nam, 426 Mass. 152, 157 (1997); 2009 WL 996951, at *2 (Mass. Super. Mar. 30,2009) counsel


whether a suspect has unequivocally invoked would a request an attorney"? Davis v. United States, 512 U.S. 452,459

right to

is objective:

statement to be a 994). Fishman

determining whether an accused sufficiently involved the right to are mindful that many suspects, given their individual characteristics and circumstances of the interrogation, may not "request an attorney most


If this determines that the defendant was in custody unequivocally to counsel, statements made thereafter must be suppressed since it is and Zipper resumed their interrogation of the defendant prior to obtaining a





or legally proper form .... Because suspects may not or paragons of clarity in their use of language, ... the observed that a suspect need not speak with the discrimination



marks and citations omitted). Argument. time the defendant uttered the words "I wanna a


immediately recognized the statement for what it was and conceded that Mr. right.,,30 25,201 rights" accord Commonwealth v. Green, No. 0803, 2010WL 3038733, at *6 the reaction interrogators "after purported one's omitted)); of

a role in evaluating the objective sufficiency v. Hannon, 636 N.W.2d 796,804-05 (Minn. 2001) ("[T]he

invocation of his right to counsel was supported by the interrogating officers to [his] request, namely the fact that the record indicated consider request to be equivocal." (citation omitted)); than follow through on his stated "talk to a withdraw who to permit not

" Mazza "engaged in an impermissible effort to persuade request for counsel'r" by reiterating his belief that Mr. Baye was set fires at the spur-of-the-moment. Zipper soon followed of guy" you want to

"This is not a case where the officers ... were left scratching u'-'~.VH'-'u.ULCI meant." Anderson v. Terhune, 516 F.3d 781,787 (9th

State v.

659 N.W.2d 736, 742 (Minn. 2003).


have a say, I

you can have a lawyer," he said. "But,

you'd like to listen to

we have to

gonna like ... what we can do." Significantly, neither HH-,-,LL,UnOr Zipper an attorney."

"attempt] ed] to clarify this purportedly equivocal request
Contos, 435

19,30 (2001).32 invocation of counsel referenced the first. Specifically, want to to a

"If you

something to say you can say it, but I'd

decision to (reco gnizing

counsel. Commonwealth v. Lopes, 455 Mass. 147, 163 n.l5 this right "must be more scrupulously honored than the another parry,"

to silence"). Instead, this second request for counsel was met


asking a suspect his reason for requesting an attorney."). Commonwealth's contention that the defendant merely "made at 10) is

to a both the

lawyer" facts and

never actually requested one (Commonwealth

As previously noted, Mr. Baye's first "reference" to a lawyer came after

32As Judge Agnes recently noted, clarification is not difficult: "A simple and this is to a question such as: 'Sir, do you wish to continue to answer our we end interview right here; it's up to you?''' Commonwealth v. Rodriguez, 2010 3433267, at *3 (Mass. Super. Aug. 10,2010).

way to do or should 2008-01630,


repeated premeditation. talk to a

for an acknowledgment that the events at issue unfolded response, the defendant said: "Nope. I'm being accused of " The transcript furnished by the prosecution places the I wanna between to resolve.


Baye is confident that this is a dispute

must be resolved

attorney' accusmg me

the following words: "But I still want to talk to a lawyer something." (Commonwealth Opp'n at 10 (emphasis supplied

gonna be

Commonwealth); see also id. at 13.) As the recording and the prosecution's make I'd still wanna Mr. Baye actually said was: "If you have somethin' to say, to a lawyer, just so I'm not accused of something."

both can say

Of course, even if Mr. Baye had used the word "if' when talking about obtain Girouard, this would not be a "conditional invocation" case analogous to Mass. 657 (2002). (See Commonwealth Opp'n at 11.)

desire to

Girouard, detectives investigating a homicide went to a correctional defendant was serving a sentence for an unrelated parole violation. Id. at 660-61. After asked whether defendant was under arrest. Id. at 662. "The officers replied that he was not." "IfI am under arrest, I want an attorney." Later, the

officers stood and began collecting their papers. Trooper the "'""',cvH .... nt that ifhe wanted them to leave, they would do so. The ~V'.VH~~'.i. a was under arrest, and Trooper Loiselle told that he was said, "I'll talk to you ifI'm not under arrest," Trooper Loiselle asked the defendant ifhe would provide a statement.


Id. at 662-63. statements and tried case on theory that the defendant made the statements as a a defendant's

psychological impairment that rendered them involuntary. Id. at 664. Following


had not occurred, namely, his arrest." Id. at 666.

that Mr.

was responsible for the fires under investigation. more appropriate case for this Court's consideration is Contos. decision, the by the


following exchange: happened in that house?" see or hear anything in that house."

five words Mr. Baye maintains that his first assertion of counsel was not qualified at that preceded statement, "I wanna talk to a lawyer," were offered as an I-nu."~U-C'~H as to why he had no he wanted a Of course, as a layperson, Mr. Baye had no way of knowing one. See obligation to provide an explanation or that his interrogators had no right to ask Nom,426 at 158.



you went in?"

A.: me."

we're going to stop, and I think I'm going to get a lawyer. is the way this is going, you're either accusing me or charging

not charging you. I'm asking you what happened." Well, at this point, we're going to stop." 12:04, September 28th." A.: ahead, you can stop." defendant gestured to the tape recorder.] don't want to talk anymore? You don't want to talk on tape?" want to talk off tape," want to talk off tape?" questions I would like to ask."


435 Mass. at 27-29 (footnote omitted) (emphasis supplied by SJC). According to Justice Spina, "the phrase, 'I think I'm going to get a "[i]n parlance, ... an acceptable and reasonable way to frame a request" , constituted, counsel. Id.

to why

"to get a lawyer": to prevent the police from either "accusing ... or charging


" provide subjective seek clarification. Neither asked the suspect what he
n7" .... "f<c',.,


disingenuous) statements regarding the goals of the interrogations. Commonwealth v. Hayden, No. BRCR2008-00970, 2009 WL 996951 Super. invoked

Mar. 30, his right to

issue was whether the defendant unambiguously and the course of the following exchange: Actually, I believe that I should have a lawyer present before I say this. Are you asking for a lawyer? Yes. It seems that I'm the culprit. Seems like I need a lawyer.

ld. at *4. the Commonwealth's claim that the phrase "It seems

an ambiguity," Justice MacDonald found that the statement "was officer's] central graphically just graphically drawn a scenario in which the defendant was, " Id. at *5. scenano this case, Mr. Baye's invocation of counsel came which he was, in fact, the only culprit. Under the response to a circumstances,


Made by the Defendant were not the Result of Free and must be Suppressed. 1. Standard of Review. to ratifying the prosecution's use of a defendant's statements,

Acts and

court must


the statements were voluntarily made. See Commonwealth v. Ortiz, 431


Mass. 134, 1 (1854), "under Id. at 462-63 facts commented

(2000) (citation omittedj."

In Commonwealth v. Morey, 67

Gray) 461

Justice Shaw explained that the rationale for excluding confessions favor, or threats of injury" stemmed from the unreliability statements. to admit to him, without regard to their truth"). United States Court has of enforcement. (citations

addition to being unreliable, coerced confessions are

"fundamentally unfair" practices and should be suppressed as a deterrent to Hon. Kent omitted); see 30 Mass. Prac., Criminal Practice & Procedure § 6.68 (3d Commonwealth v. Harris, 371 Mass. 462, 468 976).

test for voluntariness is whether, in light of the totality of the surrounding making of the statement, the will of the defendant was to extent

that the statement was not the result of a free and voluntary act." Commonwealth v. Durand, 457 Mass. 574, Jackson, (2010) (quotation marks and citations omitted); see also Mass. 82, 85 (2000) (characterizing a voluntary statement as


is not

to a defendant to establish involuntariness."

Commonwealth v. prosecution heavy

DiGiambattista, 442 Mass. 423, 439 (2004). To the contrary, burden

demonstrating voluntariness by proof beyond a reasonable doubt.


This must be undertaken whether or not the court concludes that the a custodial interrogation, See Commonwealth v. Durand, 457 (2010) (assessing issue ofvoluntariness after determining defendant was not also Commonwealth v. Benoit, 410 Mass. 506, 511 (1991) (recognizing to a civilian are inadmissible); Commonwealth v. Carp, 47 (same).

statements came 574,595 custody); see


Sheriff, 425

186, 193 (1997); Commonwealth v. Tavares, 385 Mass. voluntariness, if made, must appear from the record




Commonwealth v. Martinez, 458 Mass. 684,693 (2011) (quotation marks ensure that the defendant's confession ... was not the product of activity ... , citations stability; the and mental condition; conduct of the defendant; who initiated experience and the criminal justice system; the details conversation court may consider a variety of factors .... " at 694

interrogation, including recitation of Miranda rights; and whether any promises or inducements were made (citations "the length police." Commonwealth v.Moran, 75 Mass. App. Ct. 513, see also Commonwealth v. Tolan, 453 Mass. 634, 643 (describing

interview" as "one factor inthe over-all voluntariness assessment"). orncer may suggest broadly that it would be "better" for a suspect to indicate that the person's cooperation would be brought to officials or others involved, or may state general terms has been considered favorably by the courts past. if a confession is to stand, is an assurance, express or .n<,-,,-,, the defense or result a lesser sentence.
HU, .

v. Meehan, 377 Mass. 552, 564 (1979) (footnotes omitted). the SJC condemned the "minimization of crimes and suggestions leniency," (2004)), v. Novo, 442 Mass. 262,267-70 (2004)), and general "psychological coercion," 996)). Mass. at 596 (citing Commonwealth v. Ditiiambattista, 442 423, 435-436

id. (citing Commonwealth v. Magee, 423 Mass. 381, 388 2. Argument.


a. Background Facts. year-old high school effects of aware at initiated was taking classes at Holyoke Community College. He was not under or alcohol and did not suffer from any physical or mental

he was was

of the questioning. He had no prior criminal record. The police and lasted ten and a half hours." Prior to questioning,

administered Miranda warnings, including the so-called fifth Miranda right questioning. implying attorney." advising the defendant of this particular right, Mazza misstated only reason that a defendant may terminate questioning is to 442 Mass. at 271 (emphasis in original). law by to an

makes that conclusion unavoidable are "the interrogation employed investigating officers." Scoggins, 439 Mass. at 576. Promise of Immunity after the Invocation of Counsel. break in questioning occurred at approximately 12: 16 p.m. the first exited supposedly ambiguous "references" to an attorney. At this time, room. Upon Zipper's return, he attempted to convince the defendant


Baye made interrogators it would be featured


The admission of responsibility for the fires under investigation occurred approximately two hours and twenty-six minutes into the interrogation when Baye assured interrogators there would be no more fires. The first arguable direct admission of responsibility occurred approximately two hours later when the defendant agreed Mazza's of the case was correct.


a number "clear Mr. an attorney. that he then added they

promises of leniency"

For example, he told the defendant

they could

and that the defendant would "like ... what we can do." did not bite. Instead, he made a second supposedly ambiguous "reference" to

had discussed things that would be "very advantageous" to

defendant. He

this up completely." promises of leniency failed to bring about the desired of the


defendant did not immediately respond, Mazza invited a telling proposed that he and Zipper would "acquiesce to anything."


by defendant Zipper would Mazza

At this

exchange for his agreement to resume the discussion, Mazza

said, "Okay." before, during, nor after these negotiations did investigators disabuse defendant of the notion that Mazza possessed the power to make for, the defendant," had just "h] e]ld himself out" as having such authority when to

The legal implications of these, and other, implied promises of leniency below.



willingness to acquiesce to anything. Commonwealth v. O'Brian, 445 Mass. (affirming offer of suppression motion where detective did not suggest he defendant's cooperation to attention of district attorney). - a twenty-five year-old with no firsthand knowledge of the systempreVIOUS Baye no way of discerning Mazza's actual authority when Mazza had could: (i) prevent the defendant from getting "a bad rap"; getting "overwhelmed in the gravity of all this"; (iii) "convince

727 (2006) anything


... that "make it it

bears noting

Mazza made his original offer to not "accuse" the defendant

anything after

keep the conversation going by any means necessary.

if the promises are not kept .... " United States v. Walton, 10 F.3d 1024, 1 (quoting States v. Shears, 762 F.2d 397,402 (4th Cir. 1985»). When a defendant to make a to

1993) officer choice the pros States v. Lall, even "[a]n

promises non-prosecution.Y he makes it "impossible for as to and cons 607 F.3d

to confess - [he] ma[kes] it in other words impossible for confessing and go with the balance as it appears at the time." 1286

Cit. 2010) (citation omitted) (emphasis in original).

37 A review caselaw reveals that promises of non-prosecution by police Much more common are claims of statements induced by promises that they at trial. generally Commonwealth v. Tremblay, 77 Mass. App. Ct. 318


implied confession."

of immunity from prosecution is sufficient to compel suppression


676 F.2d 524, 527

1th Cir. 1982) ("[E]vidence of guilt induced by a government promise

immunity is 'coerced' evidence and may not be used against the accused."). case, the promise of non-prosecution paid almost immediate police As noted Baye assured his interrogators that there would be no more given the deal the defendant had just negotiated with Mazza,he no for fires the past there is a clear causal connection between Mazza's promise and

c. Implied and Express Promises of Leniency. an interrogation surrounding a child's death tossing a child's Durand, the


in the victim's direction the day before the homicide 457 Mass. at 590. Prior to the making ofthis inculpatory

following exchange occurred: SERGEANT NETO: "Eric listen to me. But there's also a "",,,"',.,,,.., you give them a little shove and they could their head on the counter and something Does that make me a murderer, Eric?" "No, it does not." "Of course it doesn't make me a murderer. accident happen? Yeah an accident happened. I go to jail for that? No. Should you go to No .... " an


Id. at 590



leniency, and that the promise the defendant would not go to jail shark." Id at 590. On appeal,

over to when SJC deemed

this ruling correct and reversed the defendant's conviction based on the improper the Mr. Baye's case does not concern an isolated implied promise However, it defendant's be helpful to begin by considering a single example. Just before direct admission, Mazza stated: leniency."

like to see you get the breakyou deserve and I you deserve a break, deserve a break this is that second chance kind of type of was never intending on hurting anyone or not going beyond, 's how I should handle it and not treat you as a criminal, as a care, care, as a 00, young adolescent guy who made a mistake recommendation to the district attorneys office and I think I'm right. (Emphasis Comparing these comments to the ones deemed impermissible in Mazza's criminal were more egregious. Obviously, the prosecution can and ("treat" an individual "as a criminal") without seeking a it is clear does pursue incarceration

(endeavoring to send the individual "to jail"). Thus, an implied promise to keep a suspect out of

Unlike the detective in Durand, who simply stated that, if an accident occurred,



As noted Alan Hirsch testified that the degree of minimization interrogators was as high as he has ever encountered, and the technique was extensively as well.




should not go to charges result.

Mazza indicated that if Mr. Baye never intended to

no criminal

the statement in Durand, though unquestionably improper, been little more an expression of the interrogator's personal opinion.


to have the

he held (or pretended to hold) any particular sway within the Bristol County office. case, prior to informing the defendant of his recommendation not to

Attorney's as as an as

a criminal," Mazza claimed that there had only been one occasion, in his investigator, to what. . .

"the District Attorney's office" did not "adherej] to his recommendations outcome should be .... "

course, the aforementioned exchange is hardly the only instance

interro gators fires. (See,

e. g., supra ~ first fifty .. with no

(documenting the multifaceted minimization techniques ...... .... ~,.>'"' mcnologuej.jl'' Since the fifteen fires were a product


his silliness. " All

" Zipper suggested it would not be difficult to "do damage

referencing a Telling a suspect he should not go to jail is plainly more problematic than references suspect's for "counseling." However, in IriGiahattista, the SJC found events, the ran the risk suggesting to the defendant that, "if he adopted the troopers' cnme viewed less seriously and could be resolved by mere' counseling. '" 442 Mass. at 436.
39 40

At the outset of his monologue, Mazza's fixation on one photograph of a self-extinguishing fire most significant picture of the thousand pictures ... taken" which intention ever hurting anybody" (1172) - carried "an intimation that the exonerated." Commonwealth v. Meehan, 377 Mass. 552, 565 (1979) (concluding statement, truth is going to be a good defense in this particular case," impression). Later during the interrogation, Mazza returned to the idea that was "gonna save " (2/22.)


interrogators needed to "work some magic" on Mr. Baye's behalf was "a of information saying it was an accident."

a morsel, a piece

course of his interrogation, the defendant was "asked by ... interrogator[s] to confess to ... crime[s] that [were] repeatedly described as understandable, and not

" DtGiabaitista; 442 Mass. at 438. Under such circumstances, a reasonable person result Baye's position would "likely assume that giving the requested treatment." Id.

Confrontation with Conclusive Evidence of Guilt. Commonwealth v. Scoggins, 439 Mass. 571 (2003), comments court observed explicit assurance that

officers characterizing a "conviction" as "certain" coupled

to make a prior to fabulous was "the

choice." Id. at 576-77 (quotation marks and citations omitted). defendant invocation of his right to counsel, Mazza boasted about revealed that his investigation had "conclusively determined" responsible for these fires."

above, "built a Mr. Baye

his requests for a lawyer, Mr. Baye allowed his interrogators to keep talking so criminal as they ceased making these kinds of accusations and promised Minutes after agreeing to these terms, Mazza and Zipper fires. to bring

interrogation based on the presumption that the defendant was the person who set fact, the two

preceding the defendant's first direct admission features numerous references 442

by interrogators to "ostensibly irrefutable evidence of [Mr. Baye's] guilt."


Mass. at


short, once the defendant's encounter with the police turned accusatory, he

was continuously confronted with a supposedly iron-clad case against him. e. Misstatements of Law. As previously noted, the first misstatement of law occurred during Miranda warnings when Mazza implied thatthe defendant could only terminate questioning for the purpose "likely consulting with an attomey.F In Novo, the court determined same error

no effect on the voluntariness of [the defendant's] subsequent statement." 442 Mass. defendant (noting

at 271. However, in reaching this conclusion, the court highlighted the fact "was aware of his Miranda rights from other encounters with the police."

defendant's "demeanor as he mechanically acknowledged each warning"). case, at the time of his questioning, Mr. Baye had never before received Miranda warnings. accusatory, App. Ct. about the he sat in silence for long stretches once the tone of the encounter became never asserted his right to remain silent. See Commonwealth v. 482 (1993) (presuming that because "accused persons hear, 34 Mass. and reason

warnings" flaws in their presentation are "not trivial"). Accordingly, the some

effect on

voluntariness of his subsequent statements.

it just before the talk turned toward Fair Street: "You know, we know, we told ya that everything points to you." (2/19.)

a bunch of

If the court concludes that Mr. Baye had no right to counsel at moments he asked for a lawyer, defense maintains that each Miranda warning given by Mazza was a misstatement of the law collectively, rendered the defendant's statements involuntary. supra note 28 and accompanying text.


legal misrepresentations by Mazza raise even greater concerns. told the Yeskies


that it would be in his best interest to admit that he never


absence of such an intent would prevent "a murder rap."

it to say,

because arson is a felony which "is inherently dangerous to human life," Mello, 420 prosecutions. intended a defendant

375,391 (1995), it frequently serves as a predicate offense such a prosecution, the Commonwealth need not show that death. Rather, it is sufficient for the Commonwealth to to commit the underlying felony. two s



Mazza repeatedly told the defendant that "the tragic loss clearly an more than


and it should be treated as such." (2/25.)



accidental nature of the victims' deaths actually triggered "exceptions to the the law an accident." was specific contravention ofthe proper methods of interrogation set forth "Approaches to be Avoided" section that, "an interrogation theme should not absolve the suspect legal

consequences associated with his crime. Consequently an investigator should not suggest, as a primary

that the crime was committed accidentally." course, accident was nothing but a primary theme. Mazza on that theme one page the

literally of transcript

oftimes in the hour leading up to the defendant's first admissions. Mazza uses the word "accident" over thirty times. (3/10-1 .)


message to and your

defendant was not equivocal. Mr. Baye was told time and will be lenient:

-- confess


it an accident? I promise you an accident will be treated like an a'"",lU',l1 it was an accident. Accidents should be treated like accidents. it was an accident, wasn't it? Anthony. Was it? Was it?"

(3/10). promises of leniency also constituted a second approach to be "Through have been worse, he is due some leniency in court. An investigator cannot be responsible

for a guilty suspect's wishful thinking. But at no time should the investigator state or imply that suspect receive such leniency."

Of course, what the defendant learned about the law on accidents from have been from the truth. An accident defense requires evidence that

could not

act was case was

unintentional, not the outcome of that act. Because the setting of fifteen fires plainly not an "unexpected happening that occurred without intention or design on [perpetrator's] part," MASSACHUSETTSUPERIOR S COURTCRIMINAL PRACTICE INSTRUCTIONS, Vol. II, § 3.13 (MCLE 2003), this Court can rest assured it request for an accident jury instruction from Mr. Baye. In short, Mazza availability responsibility a justification defense in order to suggest to the defendant that the "accidental" deaths of two people would either carry no

receive no


consequences, or at least forestall the most serious charges he now faces. f. Other Evidence of Psychological Coercion.


Once starring defendant intentions offering drama of what was going to happen to Anthony Baye. he told the true

" (1171.)
to Mazza, this "help" would come in the form of a "report," so as to convey Mr. Baye's desire to engage in nothing more by Mazza some

Cabbage your help." behind how they




(1171). But Mazza made it clear: "I won't ... motive

While Mazza might have possessed "the best understanding

" he emphasized that he could "allow the ... powers that be to portray

my word, you have my word that I will, I will put this an "'v""~v.,_.u.c"u manner, okay, that your intention was not to hurt anybody if you want me to. But I'm not gonna do it. (2/25 States v. White, No. 04-20047-01-K, 2004 WL 2182188 (D. 2004), crack A search of the car revealed "a glass pipe residue inside Sept. 21, with a bowl," use." to the crime of write the at

which the arresting officer recognized as being "associated with methamphetamine *1. Back at and the lab police station, the officer "explained that if he sent the glass methamphetamine residue, he could charge defendant Id. The officer "said that the 'deal' was

possessing methamphetamine." police

to reflect a charge of possessing drug paraphernalia, a misdemeanor, or possessing


methamphetamine, cooperation."

a felony." fd. This "deal" depended on "the level of

[subsequent] statements were involuntary," Judge Vratil suppressed them on
comments officer "regarding the manner in which he would write the officer] obtained

ground due
report." fd. statements by

at *3-4. Specifically, the judge held that "[b ]ecause

promising to write a more lenient police report, ... [the] defendant's statements were not voluntary." at *4. case at bar, statements by Mazza regarding the manner in report are exponentially more repugnant. cooperation White, Here, both cases, the officers stated write his absence of

result in official documents less favorable to the defendant. officer's threat was to write an account consistent with the evidence


effectively threatened to generate a report that buried exculpatory forensic

eviidence, 43 as
g. An Overborne Will.

the Court held that "[tjhe warning of accompanied court." 3 the explanation that anything said can and 469 (emphasis added). Chief lusticeWarren

right to remain be used against went on to

must be individual the "this
a phase of the

warning may serve to make the individual more acutely aware that he is faced


- that he is not in the presence of persons acting solely in

interest. "





tactics used by interrogators managed to convince Mr. Baye presence of persons acting solely in his interest. In fact, moments before



acknowledged direct responsibility for the fires for the first time, the following exchange occurred: Mazza: .... I've offered you ideas, I've tried to convince you

somebody's on your side.

on your side.

Do you really, do you believe that? You gotta believe Baye: (Emphasis SJC determined defendant's I do believe it. Yes I really do believe it.


what they were." 457 Mass. at 597-98.

a footnote, the court demonstrated

defendant told the officers, "That's your job. That's what you try to not stupid; okay? Don't play me like an idiot. I know what's going on." The .... ',_vuuU->u also stated, "You don't see that because you're " a detective, you're paid to make people do ... get nervous and lie and fuck your fucking job." He later continued, "[Y]our little job like I'm the baddest person, that I hurt this kid, and your is going to make me confobble [sic] my fucking story, so I say that I It's not going to work, because I didn't hurt that kid." Jd at 598 case, Mazza and Zipper succeeding in creating the illusion a



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