NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Clarke, 461 Mass. 336 (2012)

CONTRIBUTING EDITOR: ALAINA ANDERSON I. Procedural History

The defendant brought a motion to suppress statements, and a judge in the Dorchester Division of the Boston Municipal Court Department allowed the motion. Judge Gants of the Supreme Judicial Court (SJC) then allowed the Commonwealths application for leave to appeal (interlocutory appeal) under Mass. R. Crim. P. 15(a)(2) and reported the case to the full court. II. Facts Massachusetts Bay Transportation Authority (MBTA) transit police arrested the defendant for an indecent assault and battery at a subway station that had occurred about a month prior to his arrest. After arresting him, two detectives took him to the interrogation room at the MBTA headquarters and informed him the conversation would be videotaped. A detective handed the defendant a Miranda waiver form, which the defendant immediately began to sign. The detective, however, stopped the defendant from signing the form and informed him that he wanted to review his Miranda rights with him verbally before obtaining the defendants written waiver.1 During this exchange, the detective told the defendant, Nope, you dont have to speak with me at all if you dont want to. Its completely up to you.2 The defendant then responded by stating: What happens if I dont speak with you? to which the detective responded, Nothing.3 The defendant then stated that he just wanted to go home, to which the detective responded: You just want to go home? So you dont want to speak?4 The defendant
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Commonwealth v. Clarke, 461 Mass. 336, 337-338 (2012). Id. at 338. Id. Id.

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in response to this question then shook his head back and forth in a negative fashion and the detective responded okay.5 During the motion testimony the detective stated that he interpreted the defendants head motion to mean that he did not want to speak. The detectives continued to ask the defendant whether or not he wished to speak with them, informing him that was not able to just go home, and that he would have to answer to the charges in the morning if he was bailed, among other things. During this further questioning, the defendant expressed his confusion with the situation and also cried at various points of the interrogation. Finally, the defendant agreed to sign the form and talked to the detectives, admitting to the indecent assault and battery. The defendant brought a motion to suppress the statements, and a judge in the Dorchester District Court allowed the motion. Judge Gants of the Supreme Judicial Court (SJC) then allowed the Commonwealths application for leave to appeal (interlocutory appeal) under Mass. R. Crim. P. 15(a)(2) and reported the case to the full court. III. Issues Presented 1. Whether the defendant, by his conduct of shaking his head in a negative fashion, had invoked his right to remain silent under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights? 2. Whether the police sufficiently honored that right?6 IV. Holdings and Reasoning 1. Under the Fifth Amendment and art. 12 of the Massachusetts Declaration of Rights, the defendant invoked his right to remain silent and the police did not scrupulously honor this right, therefore suppression of the statements was warranted.7 In the pre-waiver context under Article 12 of the Massachusetts Declaration of Rights, a suspect does not have to invoke his right to remain silent with utmost clarity, as is required under Federal law.8 2. Under the Massachusetts Constitution, a suspects nonverbal expressive conducthere an explicit headshake in response to a direct questioncan suffice to invoke the right to remain silent.9 In holding that nonverbal expressive conduct was sufficient, the court looked to the wording required by Miranda which stated that the individual may invoke his right to remain silent [i]f the individual [so]

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Id. Id. at 337. Commonwealth v. Clarke, supra at 337. Id., citing Berghuis v. Thompkins, 130 S. Ct. 2250, 2263 (2010). Id. at 344.

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indicates in any manner . . . .10 In addition the court looked to traditional hearsay rules and the long recognized communicative value of conduct.11 The test is whether a reasonable police officer in the circumstances would understand that the gesture was an invocation of the suspects Miranda rights.12 In holding that the detective did not scrupulously honor his invocation, the court pointed to the continued questioning by the detective after the defendant had already unambiguously shook his head in the negative. The failure to stop questioning required that the defendants statements be surpressed.13 Finally, in holding that the Massachusetts standard is higher than the federal standard, the court pointed to several factors that support this holding. First, that the very right itselfthe right against selfincriminationshould not require someone to speak, therefore a heightened standard of clarity for pre-waiver invocation under Federal law strike[s] at the core of the privilege against self-incrimination.14 In addition, in rejecting the Thomas standard of utmost clarity, Massachusetts law protects the Miranda rights of defendants that speak imprecisely or with hesitance, such as those who do not understand the English language as well, or those that are overwhelmed at the uncertainty of their predicament.15 As to ambiguity, the court stated that where ambiguity exists as to whether the suspect has invoked his right to remain silent or not, the police must cease questioning on any other subject and ask the defendant to make his clear choice.16 However, the court explicitly noted that where the invocation is clear to a reasonable police officer the police may not create ambiguity in a defendants desire by continuing to question him or her about it.17

Id. at 343, quoting Miranda v. Arizona, 384 U.S. 436, 473-474 (1966) (emphasis added). Id., citing Commonwealth v. Gonzalez, 443 Mass. 799, 803 (2005). 12 See id. at 344. 13 Commonwealth v. Clarke, supra at 345. 14 Id. at 349. 15 Id. at 350, quoting Davis v. United States, 512 U.S. 452, 469 (1994) (Souter, J., concurring in judgment). 16 Id at 351-352. 17 Id. at 352, quoting Connecticut v. Barrett, 479 U.S. 523, 534-535 n. 5. (1987) (Brennan, J., concurring in judgment).
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