COMMONWEALTH vs. CLAIRE MILLER.

BERRY, J. The principal issue on appeal in this case involves the obligation of a trial judge to conduct an evidentiary hearing and to enter a preliminary ruling concerning the admissibility of a defendant's confession, precedent to placement of that confession before the jury, where there is squarely framed a substantial question concerning the voluntariness of that confession. See Commonwealth v. Tavares, 385 Mass. 140 , 150-151, cert. denied, 457 U.S. 1137 (1982). Before a confession is spread on the trial record before the jury, such an evidentiary hearing, followed by a preliminary determination by the trial judge that the confession was voluntary, is constitutionally required. [Note 1] The

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requirement that there be an evidentiary hearing outside the presence of the jury, followed by a judicial decision on voluntariness, applies even when, as here, the confession was obtained, not by government law enforcement, but rather by private investigators.

In this case, tried to a jury in the District Court, it was very much a live issue whether the defendant's confession was of free will and rational intellect, or instead was elicited by oppressive interrogation techniques of the in-house investigators of the defendant's employer, Home Depot. "Once a defendant has presented evidence that the statements at issue were made involuntarily, the burden is on the Commonwealth to prove beyond a reasonable doubt that the statements were made voluntarily." Commonwealth v. Selby, 420 Mass. 656 , 663 (1995). Notwithstanding troubling evidence concerning isolation

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and coercive questioning -- enhanced in effect by the defendant's mental condition and distraught reactions -- the trial judge did not conduct an evidentiary voir dire hearing, and did not independently assess the voluntariness of the confession. Instead, the judge reasoned, such issues were to be left for the jury's deliberation.

In the absence of the defendant's confession, the Commonwealth's proof of the defendant's guilt was far from strong, and from all that appears in the record, the defendant's confession was integral to conviction. Because the confession was critical evidence, perhaps outcome determinative, we reverse.

1. The inchoate trial evidence and the impact of the confession. We briefly reference the trial evidence to provide the backdrop against which to measure the impact of the defendant's confession. We then turn to the evidence concerning the manner in which the interrogation of the defendant was conducted by the in-house investigators.

The Commonwealth's theory of proof on the larceny over $250 charge was that some $1,000 was missing from the defendant's cash register after she finished working her shift at Home Depot on February 20, 2003, and that missing paperwork reconciling cash in, general receipts, and transfers out of the defendant's cash register drawer pointed to the defendant as the most likely pilferer of the money. The defendant's confession was pivotal in locking in the prosecution's theory of proof. However, there was counterpointal evidence suggesting that another person or persons may also have had the opportunity and means to take the money. Specifically, the evidence showed that there were a number of other employees who might have been involved in the process of transferring cash from the registers and that these other employees may also have had access to the vault to which the cash was transferred. The wider universe of persons with potential access to cash taken in through the defendant's register also encompassed persons with access to the accounting paperwork, including so-called "slips" generated in connection with transfers of cash from a particular register to the vault, and this access could again potentially lead to paperwork being diverted from the main accounting stream and disappearing before being reconciled in the final day's accounting for a register.

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The system for the transfer of cash from a register to the vault, the attendant paperwork, and the accounting therefor may be briefly described as follows. Cashiers wrapped large amounts of cash (over $500) in their registers into "strips." The cash so stripped and packaged was forwarded with a two-part slip to the vault via a pneumatic tube system. A bookkeeper in the vault then separated one copy of the slip and returned the second copy to the originating cashier to be placed in the register to account for the cash taken out and transferred.

At day's end, the cashier was to turn over her remaining cash in the register; prepare a till sheet, recording the day's cash receipts and other transactions; and compile all financial records, including all slips for strips of cash sent through the pneumatic tube system. In connection with the case against the defendant, Home Depot's bookkeeper testified that on February 21, 2003, she discovered a shortfall of $1,000 for the defendant's cash register for the prior day, February 20, 2003, and that bookkeeping did not have a slip for a $1,000 strip of cash transferred from the defendant's register to the vault.

The pneumatic tube system, however, had points of vulnerability. John Skafidas, a former department manager at the Home Depot store, testified that the pneumatic tube system sometimes caused the cash to get stuck. When that happened, another Home Depot employee, acting alone, would have to fix it. In such instances, there was an opportunity for conversion. Skafidas also testified about how the bookkeepers in the vault sometimes left the safe open, with cash readily accessible. He noted that at least six people in the store could access the vault with their keys, and that the access keys were from time to time passed around to others in the store. There was also testimony by the defendant that strips of cash sent by the pneumatic tube system sometimes ended up at other cash registers instead of the vault.

At trial, the defendant flatly denied that she stole the $1,000, and said that she only signed the written confession and a restitution form because she was fearful and distraught. [Note 2] The defendant stated that the paperwork relating to strips did not

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always come back from bookkeeping the same day, and that sometimes, she could not "balance [her] paperwork at the end of [her] shift." According to the defense, that there was not immediate reconciliation of the defendant's cash drawer on the day of the loss was important because had the paperwork from bookkeeping been reconciled with the cash transfers from the defendant's register at the end of her shift, there would have been a better chance of tracing the loss and demonstrating that it was not the defendant who took the money. On that point, Skafidas stated that when a cashier's register is short, the matter is addressed immediately with the cashier. That was not done here. Indeed, the defense notes that, consistent with her profession of noninvolvement in the missing $1,000, the defendant was allowed to run her register for five days after it was discovered that cash was missing. Given the absence of an immediate accounting of the defendant's cash drawer, there was only what the defense characterizes as a "delayed" investigation, which improperly and exclusively targeted the defendant, while leaving other potential suspects afoot.

As the foregoing makes clear, there was conflicting evidence, such that a rational jury could have found that a reasonable doubt existed whether the defendant was the person responsible for the theft since she was not the only person with access to the cash and the opportunity to take the money. The introduction of the defendant's confession dramatically moved the fault line for this divided evidence to the Commonwealth's side. In effect, the confession was a turning point.

2. The conduct of the interrogation of the defendant. The trial evidence concerning the manner in which the defendant's confession was obtained (again, evidence directly introduced before the jury without an evidentiary voir dire) [Note 3] presented exceptionally divergent images of what transpired in the interview room during the interrogation of the defendant.

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On February 26, 2003, two investigators from Home Depot's loss prevention group, Jerry Serra and Tammy Esquivel, conducted the questioning of the defendant. There was evidence that this form of isolated interrogation of an employee by the loss prevention investigators did not conform with general company practices. Rather, according to testimony by Skafidas, during questioning of an employee concerning any such loss, it was company policy to have a manager present with the investigators.

The two investigators drew a picture before the jury of a low-key inquiry of the defendant. The investigators told the jury that there was no reason for the defendant to feel, nor did she appear to be, threatened or intimidated. According to the Home Depot investigators, the defendant "vented," but then ultimately broke down and made a full confession. There was, according to this version of the interview, absolutely no duress. Rather, it was made to appear by the investigators' testimony that the defendant confessed merely because the loss prevention investigators had focused on the defendant as the culprit responsible for the $1,000 in missing funds.

The defendant's description of the interview -- which, as shall be seen, had corroborative support -- was far different. The defendant described being ordered to leave her register at around 9:45 A.M. with no indication of the reason. She was led to a remote office and was confronted by two persons unknown to her. She was already feeling fearful. The room was small, and the defendant felt claustrophobic. One investigator, Serra, loomed over the defendant and, from time to time, seemed to make threatening gestures. The other investigator, Esquivel, blocked the door. The defendant asked, but was not allowed, to make a telephone call to her husband or to seek advice from a lawyer. It was suggested to the defendant by the investigators that if she were convicted of this theft, proceedings might be instituted by the Department of Social Services that could, in

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turn, lead to the defendant's separation from her special needs child. In a recurring theme, the investigators told the defendant that she would be permitted to leave the room when and if she signed papers acknowledging her complicity in the theft.

At one point, Serra stormed out of the interrogation room, leaving Esquivel, who continued to pressure the defendant to sign the confession and restitution form admitting she had taken the money. According to the defendant, throughout the course of writing and editing the confession, as well as the execution of the restitution form, she continued to profess her innocence, which Esquivel brushed aside. The message conveyed was that the defendant would not be allowed to leave the room until the papers were signed.

Once the defendant had signed the confession and the restitution form, a human resources representative came in and terminated her employment. The defendant was hyperventilating, felt as if she could not breathe, and begged to be let out. Her interrogation had lasted nearly two hours.

That the defendant had been agitated and distressed during the interview and had "confessed" while under duress was corroborated by testimony from her husband. The husband described receiving a telephone call around 11:30 A.M. from his wife asking that he come get her. The defendant was upset and crying, and her husband rushed to the store. When he arrived at the store some twenty-five minutes later, the defendant was still upset, crying, hyperventilating, mumbling, and incoherent. Two hours passed before his wife calmed down.

Salvatore DiPasquale, a coworker of the defendant's husband, testified to the husband's receipt of the call from the defendant. DiPasquale stated that, based on what he overheard the defendant's husband saying, and from the tenor of the husband's side of the conversation, he concluded that the defendant was incoherent and her husband was trying to calm her down.

3. Analysis. We state the governing principles. Once a defendant has presented evidence that indicates that a defendant's confession or statements of admission that are sought to be admitted may not have been voluntarily given, the burden shifts to the Commonwealth to prove beyond a reasonable doubt that the statements were made voluntarily. See Commonwealth v. Tavares,

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385 Mass. at 151-152. In this case, evidence concerning the oppressive nature of the interrogation, the threats, and the defendant's mental state all indicate a very real issue whether the confession to the Home Depot investigators was a voluntary statement.

The issue of voluntariness having thus been lodged, it is constitutionally required that before introduction of a defendant's statements amounting to a confession (or admission), the question whether the statements were voluntarily given is to be decided by the judge following an evidentiary hearing in the absence of the jury. Ibid. See Commonwealth v. Girouard, 436 Mass. 657 , 658- 659 (2002). Contrary to the government's contentions, the failure of a trial judge to conduct such an evidentiary voir dire or pretrial hearing is not cured by submitting the issue of voluntariness to the jury under the Massachusetts "humane practice" doctrine. See note 1, supra, which addresses the interrelation between the first stage (the Federal constitutional requirement that a judge make a preliminary determination of the voluntariness of a confession following a judicial hearing) and the second stage (jury reconsideration of voluntariness under the Massachusetts "humane practice").

At the evidentiary pretrial hearing or at the voir dire conducted during trial, the voluntariness of a confessional statement or admission is measured by "whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act." Commonwealth v. Raymond, 424 Mass. 382 , 395 (1997), quoting from Commonwealth v. Selby, 420 Mass. at 663. A statement is voluntary if it is the expression of a "rational intellect" in its formulation and a "free will" in its expression. Commonwealth v. Davis, 403 Mass. 575 , 581 (1988), quoting from Blackburn v. Alabama, 361 U.S. 199, 208 (1960). The central issue to be assessed is whether the interrogation exceeded permissible limits. "The limits in any case depend upon a weighing of the circumstances of pressure against the power of resistance of the person confessing." Commonwealth v. Makarewicz, 333 Mass. 575 , 587 (1956), quoting from Commonwealth v. Myers, 160 Mass. 530 , 532 (1894). Relevant

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considerations include but are not limited to "(1) the time and conditions under which the questioning took place; (2) the content and form of the questions put to the defendant . . . ; and (3) the physical and mental condition of the defendant during the period during which he was questioned." Ibid.

It is only if the judge determines as a preliminary matter that the statement is voluntary that such statement may come into evidence. Otherwise, the statement is inadmissible and may not be presented to the jury. Further, even if the judge -- following an evidentiary pretrial hearing or voir dire during trial -- decides that a defendant's confession or admission is introducible, under the humane practice, the judge is then obliged to instruct the jury to make an independent determination of the issue and to "instruct the jury not to consider the confession if, upon the whole evidence in the case, they are satisfied that it was not the voluntary act of the defendant." Commonwealth v. Tavares, 385 Mass. at 150, quoting from Commonwealth v. Marshall, 338 Mass. 460 , 461-462 (1959). See Commonwealth v. Chung, 378 Mass. 451 , 456 (1979); Commonwealth v. Benoit, 410 Mass. 506 , 512 (1991). See also note 1, supra.

These rules apply even when the confession is elicited by private individuals. Thus, here, even though the interview of the defendant was conducted by private investigators employed by Home Depot, State action that nonetheless may yield a constitutional violation is implicated by the use of potentially coerced testimony at trial, in violation of due process rights. See generally Commonwealth v. Mahnke, 368 Mass. 662 , 681 (1975), cert. denied, 425 U.S. 959 (1976) (even if private actors exercise duress to force a confession, due process rights and protections are implicated in the State action of the introduction of the privately taken confession at trial). Accord Commonwealth v. Paszko, 391 Mass. 164 , 172-183 (1984); Commonwealth v. Zagrodny, 443 Mass. 93 , 99 (2004).

In this case, a fundamental constitutional principle designed to preserve the integrity of voluntarily made confessions was not followed. The error was not harmless. [Note 4] There was no evidence taken out of the presence of the jury, and the judge listened only

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to arguments of counsel. Thereafter, the judge, on what basis it is not clear since there was no evidence adduced or findings entered, simply stated, "the Commonwealth has proved beyond a reasonable doubt that the statement that was made was voluntary." Further, there was error in the judge's expressed view that contested points -- including the length of the interrogation, the way in which it was conducted, the existence of implicit and explicit threats, and the defendant's state of mind in response to the interrogation -- should be determined by the jury.

The judgment is reversed, the verdict is set aside, and the case is remanded for further proceedings. [Note 5]

So ordered.