COMMONWEALTH vs. CHRISTOPHER J. DAVIS. [Note 1]

MASSING, J. The defendant, Christopher J. Davis, voluntarily arrived at the office of the State Police without his attorney to provide information in connection with a murder investigation. When the defendant refused to submit to a polygraph test, the voluntary interview turned into a custodial interrogation. When he exercised his right to cut off questioning and requested his attorney, he was detained, handcuffed, and placed under arrest for perjury. In face of the mounting police pressure, the defendant seemingly initiated further discussions, waived the presence of an attorney, and submitted to a two-hour interview.

After a grand jury indicted the defendant for perjury, G. L. c. 268, § 1, and misleading a police officer, G. L. c. 268, § 13B (1) (c) (iii), as appearing in St. 2006, c. 48, § 3, he filed a motion to suppress the statements he gave after what he argued was an invalid waiver of his right to the presence of counsel. A Superior Court judge in a well-reasoned decision found that the Commonwealth failed to prove beyond a reasonable doubt that the defendant's decision to proceed without counsel amounted to a voluntarily waiver. A single justice of the Supreme Judicial Court granted the Commonwealth's application for leave to take an interlocutory appeal and reported the appeal to this court. See Mass. R. Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017). We affirm.

Background. The four officers involved in obtaining the defendant's statement -- State Police Detective Lieutenant Edward Culver, State Police Trooper Steven Hean, Pittsfield Police Detective John Soules, and the supervising officer of the State Police unit attached to the Berkshire County district attorney's office, State Police Detective Lieutenant Brian Foley -- testified at the suppression hearing. The motion judge's findings, supplemented by the officers' testimony, which the judge expressly accepted and credited, were as follows.

In July 2017 the defendant was arrested for trafficking in cocaine and other charges arising out of a major drug investigation by the Berkshire County drug task force. With the guidance of his

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attorney, the defendant waived indictment and began cooperating with the Commonwealth in numerous criminal investigations. One of these investigations concerned the murder of James Dominguez. The defendant testified before a grand jury, which indicted James Cromartie for murder based in large part on information that the defendant had provided. However, the police began to doubt the veracity of the information the defendant provided and asked him to come to the State Police office for further questioning.

The defendant appeared for the interview, but when told that the police wanted to revisit some of his prior statements and conduct a polygraph test, the defendant demurred, stating he wanted his attorney to be present and that he had child-care issues. The meeting was rescheduled for the next day. The defendant appeared at 9 a.m., but his attorney was not present. Nevertheless, the defendant voluntarily went to a small conference room for questioning. Much of what occurred in the room thereafter -- with the notable exception of a crucial forty-five minute period -- was video recorded.

Detective Lieutenant Culver, with whom the defendant was not familiar, informed the defendant that the investigators wanted to administer a polygraph test. Culver told the defendant that the police had concerns about his veracity and that if the information he had provided was not truthful, "it's going to be a significant problem." Nonetheless, Culver "repeatedly assured [the defendant] that the test was voluntary and he was free to leave at any time." After discussing the voluntary polygraph for about ten minutes, Culver gave the defendant a few minutes alone to think it over, warning him, "It's your testimony. It's your future."

As Culver left, the defendant asked to speak to Detective Soules, an officer with whom the defendant was more comfortable. Soules came in and, upon the defendant's request, turned off the video recorder. The defendant asked Soules, "What's going on, what's the problem?" Soules explained "that there [were] some minor inconsistencies in his prior statement involving the murder that need[] to be cleared up." The defendant expressed his dissatisfaction with Culver.

The recording resumed about ten minutes later with Culver and Soules both present. Culver told the defendant that he was not going to administer the polygraph test. Culver then gave the defendant his Miranda rights and proceeded to question him for about thirty minutes. When Culver's questioning became more

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"focused and aggressive," the defendant stood up, said to Soules, "I am done talking with this dude," and began to leave the room. As he was leaving he said, "[Y]ou can call the lawyer, we'll have [inaudible] a lawyer here." The defendant attempted to leave, but officers stationed in the hallway quickly ushered the defendant back into the interview room. The defendant remarked, "[Y]ou told me this shit was voluntary but you're telling me I can't leave?" From the hallway Trooper Hean stated, "[R]ight now you are not free to leave."

At this point the supervising officer, Detective Lieutenant Foley, entered the room, accompanied by Hean, who stood in the doorway. Notwithstanding the defendant's effort to cut off questioning and his references to calling a lawyer, [Note 3] Foley -- hovering over the defendant, pointing his finger, and telling the defendant to "zip it" when he attempted to speak -- sternly lectured the defendant for three full minutes, emphasizing that the defendant would not be able to leave a court room just because he did not like the tenor of the questioning. Foley then left, saying, "[L]et's get back and calm down as we have more questions."

Culver readministered the Miranda warnings, but this time the defendant refused to waive his rights and said, "I would prefer my lawyer to be here." The interview was stopped, the video recorder was turned off, and the defendant was told he was "in custody" and handcuffed.

What occurred during the next forty-five minutes was not recorded. Both the defendant and the police attempted to contact the defendant's lawyer, but the lawyer was unavailable. Foley, who now took charge of the matter, testified that the defendant was supposed to be a cooperating witness but that he was making things difficult: "Why are we having this problem? Why is he being so obstinate? Why does he want to talk to his attorney when we've already gone through all of that?" Accordingly, Foley went to talk to the district attorney, David Capeless. Foley explained that there were discrepancies between the defendant's grand jury testimony and what he had later told the officers and that the

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defendant's "attitude was very poor, about as poor as you could get for anybody that was cooperating with the Commonwealth." Seeking the district attorney's permission to arrest the defendant for perjury, Foley explained, "But his whole attitude, plus those . . . inconsistencies in the grand jury, there was enough probable cause at that point." The district attorney agreed and ordered the defendant's arrest on charges of perjury.

Foley then returned to talk to the defendant. This crucial conversation was not recorded. Foley candidly testified that when he returned to inform the defendant that he was being arrested for perjury, Foley told the defendant:

"that he was obstinate, that it was not adding up. Told him that he lied and that I believe that he lied in grand jury. Because [the defendant] wanted an attorney that I knew that he invoked, he said he wanted to explain and I told him no. I didn't even want to talk to him again, but he persisted. Said he wanted to explain and I said no. He said he wanted to explain, and I said, "What are you going to go back on tape?"

Back in the interview room, the video recorder was turned on, and Foley "summarize[d] the events of this encounter" for the record. The judge's findings reproduced Foley's soliloquy, addressed to the defendant, verbatim:

"Let's go over what happened. You came in there for an interview, polygraph. You did not want to take the polygraph. During the interview, Chris, you said affirmatively, that "I want my attorney." We called your attorney, couldn't make it. We then had to make a decision based on our case, which I don't want to get into right now [unclear words]. We believe that there were some instances that you were lying. We arrested you for that. Once we arrested you, Chris, you told me that you wanted to talk with us. I told you no. You said you wanted an attorney. You then said you still wanted to talk with us and you were going to waive your request to have an attorney. Is that correct[?]"

The defendant responded, "That is correct." The defendant requested to speak with Foley before continuing, but Foley refused, stating, "No. I'm done, we're on the record." Foley then left the room, Culver administered the Miranda warnings for a third time, and the defendant "clearly and unequivocally acknowledge[d] his understanding of his rights and waive[d] his right to have counsel

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present and agree[d] to continue discussing the matter." Culver then conducted the lengthy interview that is the subject of the motion to suppress.

In addition to Foley's summary, quoted above, the motion judge found that "[o]ff the camera, [the defendant] indicates that he wants to talk with the police but still requests his attorney's presence. When that is rejected, he then changes his mind and now is willing to proceed without the attorney. Seemingly, this is not inconsistent with Commonwealth v. Santos, 463 Mass. [273,] 285 [2012]. [Note 4] [The defendant] initiates the discussion and voluntarily agrees to proceed without an attorney, without any dialogue from the police."

The judge continued, however, that even if the police did not verbally initiate further discussions, they "did not need to engage in any dialog with [the defendant], they spoke very loudly by arresting him after he requested that counsel be present." The judge noted that when the defendant "initially balked at the polygraph test, he was told ominously, 'It's your testimony. It's your future.'" In addition, the judge observed that although the defendant was first told he was free to leave anytime, once he exercised his right to counsel he was arrested for perjury. The judge concluded, "[P]resenting the defendant with the choice of either proceeding with the hearing [sic] without counsel or facing a perjury charge is inconsistent with the Fifth Amendment" to the United States Constitution. The judge found "that the Commonwealth has not proven beyond a reasonable doubt that the defendant voluntarily waived his right to counsel" and allowed the motion to suppress. The Commonwealth appeals.

Discussion. 1. Appellate jurisdiction. We reject the defendant's threshold argument that we should dismiss this appeal because the single justice of the Supreme Judicial Court erroneously allowed the Commonwealth's application for leave to appeal under Mass. R. Crim. P. 15 (a) (2). Seizing on dicta in Commonwealth v. Ruiz, 480 Mass. 683, 694 (2018) ("G. L. c. 278, § 28E, limits [Commonwealth] appeals to circumstances in which the trial judge's decision forecloses the Commonwealth's opportunity to go forward with the prosecution altogether"), the defendant argues that the Commonwealth may not proceed with this interlocutory appeal from the order allowing the motion to suppress

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because the Commonwealth's case is viable even without the suppressed statements.

The defendant's contention falters on several grounds. As an initial matter, the action of a single justice on an application for leave to appeal under Mass. R. Crim. P. 15 (a) (2) is final and is not subject to appellate review. See Commonwealth v. Dunigan, 384 Mass. 1, 4-5 (1981). Moreover, it is a dubious proposition that a panel of this court has the authority to review a decision of a justice of the Supreme Judicial Court.

In any event, the defendant's reliance on Ruiz is misplaced. In Ruiz, 480 Mass. at 690-695, the court overruled Commonwealth v. Pelletier, 449 Mass. 392, 395-396 (2007), and held that the Commonwealth may appeal, as of right -- that is, without the need to obtain leave from a single justice -- from the dismissal of a subsequent offender portion of an indictment under Mass. R. Crim. 15 (a) (1). The Commonwealth's appeal in this case is governed by rule 15 (a) (2) and G. L. c. 278, § 28E, which specifically authorize appeals from orders on motions to suppress, by the Commonwealth or the defendant, provided that a single justice of the Supreme Judicial Court grants an application for leave to appeal. See Ruiz, supra at 691 n.14. We are not persuaded by the defendant's contention that Ruiz silently narrowed the scope of rule 15 (a) (2) and of the Legislature's authorization in G. L. c. 278, § 28E, of appeals from suppression orders approved by a single justice of the Supreme Judicial Court. [Note 5]

2. Motion to suppress. The motion judge allowed the defendant's motion to suppress, finding that the defendant's seemingly voluntary initiation of further communications with the police and subsequent waiver of his Miranda rights after having invoked them were the product of his will being overborne by police pressure and not, beyond a reasonable doubt, the defendant's voluntary acts. We agree.

Edwards v. Arizona, 451 U.S. 477, 484 (1981), established that once a suspect undergoing police questioning has invoked his

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right to have counsel during custodial interrogation, "a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." "Edwards is 'designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.'" Minnick v. Mississippi, 498 U.S. 146, 150 (1990), quoting Michigan v. Harvey, 494 U.S. 344, 350 (1990). "The rule ensures that any statement made in subsequent interrogation is not the result of coercive pressures." Minnick, supra at 151.

"When a defendant invokes his right to counsel, all subsequent statements are inadmissible unless counsel is provided or the Commonwealth can prove beyond a reasonable doubt that the defendant 'initiate[d] further communication, exchanges, or conversations with the police . . . and thereby waived his right to counsel.'" Commonwealth v. Thomas, 469 Mass. 531, 543 (2014), quoting Commonwealth v. Hoyt, 461 Mass. 143, 151 (2011). See Minnick, 498 U.S. at 156 ("Edwards does not foreclose finding a waiver of Fifth Amendment protections after counsel has been requested, provided the accused has initiated the conversation or discussions with the authorities").

But proving that the defendant initiated further communications does not automatically prove that the defendant's waiver of his right to have counsel present was voluntary, knowing, and intelligent. "[I]f the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked" (emphasis added). Smith v. Illinois, 469 U.S. 91, 95 (1984), citing Edwards, 451 U.S. at 485, 486 n.9. "The Commonwealth has the burden of proving beyond a reasonable doubt that subsequent events indicated a voluntary, knowing, and intelligent waiver of the right to have counsel present and of the right to remain silent." Commonwealth v. Rankins, 429 Mass. 470, 473 (1999).

In determining whether the Commonwealth carried its burden of proving beyond a reasonable doubt that the defendant's waiver was voluntary, the judge considers the totality of the circumstances. See Commonwealth v. Sanchez, 476 Mass. 725, 734-735 (2017). "Voluntariness turns on the 'totality of the circumstances,' including promises or other inducements, conduct of the defendant, the defendant's age, education, intelligence and emotional stability, experience with and in the criminal justice system,

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physical and mental condition, the initiator of the discussion of a deal or leniency (whether the defendant or the police), and the details of the interrogation, including the recitation of Miranda warnings." Commonwealth v. Mandile, 397 Mass. 410, 413 (1986). While "the relevant focus is on whether the defendant's will was overborne," Commonwealth v. Durand, 457 Mass. 574, 596 (2010), the burden rests on the Commonwealth to prove beyond a reasonable doubt that the will of the defendant was not overborne. See Commonwealth v. Amaral, 482 Mass. 496, 502 (2019); Commonwealth v. Baye, 462 Mass. 246, 256 (2012). See also Commonwealth v. Ortiz, 84 Mass. App. Ct. 258, 267 (2013), quoting Baye, supra at 256-257 ("the use of improper interrogation techniques by the police does not always mandate suppression; '[h]owever, the more problematic the details of the interrogation, the more difficult it will be for the Commonwealth to prove beyond a reasonable doubt that the defendant's will was nevertheless not overborne'").

"In general, in reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law." Commonwealth v. Tremblay, 480 Mass. 645, 652 (2018), quoting Commonwealth v. Clarke, 461 Mass. 336, 340 (2012). We review de novo any findings that were based entirely on the video of the communications with the defendant. See Tremblay, supra at 654-655; Thomas, 469 Mass. at 539. Where, as here, the judge's findings are based on both live testimony and documentary evidence, "[t]he case 'is to be decided upon the entire evidence,' . . . giving 'due weight' to the judge's findings that are entitled to deference." Tremblay, supra at 655, quoting Edwards v. Cockburn, 264 Mass. 112, 120-121 (1928). [Note 6]

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The totality of the circumstances showed, and the judge found, a concerted effort by the police to coerce the defendant to waive his rights. The defendant, without the assistance of his lawyer, was outnumbered by four police officers. The officers first tried to persuade him to undergo a voluntary polygraph test, warning him, "It's your testimony. It's your future." When he declined, the officers administered Miranda warnings and questioned the defendant for thirty minutes. When the questioning became adversarial, and the defendant attempted to cut off questioning, to request a lawyer, and to leave the State Police office, the officers' response was not to scrupulously honor those requests. See Thomas, 469 Mass. at 541, quoting Michigan v. Mosley, 423 U.S. 96, 103-104 (1975) ("The invocation of the right to counsel, like the invocation of the right to silence, is part of the 'right to cut off questioning' that must be 'scrupulously honored' by law enforcement"). Instead, the supervising officer lectured the defendant on why he should continue speaking with the other officers.

The defendant did not yet succumb; he still insisted on having an attorney present. After learning that counsel was not readily available, however, rather than let the defendant leave, the police arrested him for committing perjury about the subject matter of the interview that he had just attempted to pretermit. Foley then engaged in an unrecorded conversation with the defendant. He told the defendant he was being arrested because he was "obstinate," that "it was not adding up," that "he lied," and that "he lied in grand jury." [Note 7] And when the defendant tried to respond, Foley used the defendant's invocation of his right to counsel against him: after accusing him of lying, he told the defendant that he could not explain himself because he had asked for counsel. "The police may not fail to honor the right of a person in custody to cut off questioning 'by persisting in repeated efforts to wear down his resistance and make him change his mind.'" Thomas, 469 Mass. at 541, quoting Mosley, 423 U.S. at 102, 105-106. The motion judge determined that the police did precisely that. See Commonwealth

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v. Libby, 472 Mass. 37, 54 (2015) (motion judge correctly determined that police communications to defendant about his ability to exercise his right to counsel for custodial interrogation "raised serious doubt that the defendant's waiver of his right to counsel was done knowingly, voluntarily, and intelligently").

Furthermore, the decision to arrest the defendant and then tell him that he could not speak because he had invoked the right to counsel smacks of the "now-or-never" strategy deemed "unfair and misleading" in Thomas, 469 Mass. at 542, suggesting to the defendant that by "lawyering up" he was forfeiting his opportunity to explain his conduct. Culver's earlier comment, emphasized by the motion judge -- "It's your testimony. It's your future." -- served to convey the same message. Thomas stands for the proposition that the police may not employ coercive tactics to goad a defendant into initiating communications. As the motion judge concluded, the police "did not need to engage in any dialog with [the defendant], they spoke very loudly by arresting him after he requested that counsel be present."

The fact that the Commonwealth recorded almost everything that transpired, but not the conversation between Foley and the defendant when the defendant purportedly initiated further communications and asked to proceed without his lawyer, is also relevant to the issues of voluntariness and waiver. "Put simply, a judge may reasonably conclude that when the party with the burden of proof beyond a reasonable doubt on the issues of voluntariness and waiver deliberately fails to utilize readily available means to preserve the best evidence of what transpired during the interrogation, it has not met that very high standard of proof." Commonwealth v. DiGiambattista, 442 Mass. 423, 441 (2004). Indeed, "failure to preserve evidence of the interrogation in a thorough and reliable form can comprise a basis for concluding that voluntariness and a valid waiver have not been established beyond a reasonable doubt." Id.

We indulge every reasonable presumption against waiver of constitutional rights. Johnson v. Zerbst, 304 U.S. 458, 464 (1938). "[W]hen inculpatory statements are made by a defendant in a situation like that presented in the instant case, 'a heavy burden rests on the [prosecution] to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.'" Commonwealth v. White, 374 Mass. 132, 137 (1977), quoting Miranda v. Arizona, 384 U.S. 436, 475 (1966). Considering the

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totality of the circumstances, the motion judge entertained reasonable doubt that the defendant's apparent initiation of further communications (followed by his mechanical execution of a Miranda waiver) amounted to a voluntary relinquishment of his constitutional rights. Upon independent review, we conclude that the judge's ultimate findings and conclusions of law were correct.

The order allowing the defendant's motion to suppress is affirmed.

So ordered.

SHIN, J. (dissenting in part, with whom Ditkoff, J., joins). Over the course of an approximately one-hour police interview, the defendant, no stranger to the criminal justice system, was given Miranda warnings twice. After the second warning, he invoked his right to counsel, and the police promptly terminated the questioning. As the motion judge found, the defendant then initiated further conversation and "voluntarily agree[d] to proceed without an attorney, without any dialogue from the police." Once he was given Miranda warnings for a third time, the defendant signed a written waiver. The video shows that the defendant was calm and lucid throughout, showing no emotion, distress, or other sign that would suggest he was coerced or manipulated into waiving his right to counsel. The majority concludes nonetheless that the conduct of the police rendered the defendant's waiver involuntary. As I believe that that conclusion cannot be squared with the totality of the circumstances test -- which requires that we consider all relevant circumstances, including the demeanor and characteristics of the defendant -- I respectfully dissent from this part of the majority opinion. [Note Shin-1]

To begin, certain points regarding our standard of review bear emphasis. The motion judge's subsidiary findings were drawn almost entirely from the video of the defendant's interview, with the notable exception of what the judge found occurred during the approximately forty-five unrecorded minutes after the defendant invoked his right to counsel. Those latter findings, which were based in part on the officers' testimony, "are accorded deference and are not set aside unless clearly erroneous." Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018) (Tremblay I). The remaining findings, however, are subject to de novo review because "we

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are 'in the same position as the motion judge in viewing the video[].'" Commonwealth v. Melo, 472 Mass. 278, 286 n.15 (2015), quoting Commonwealth v. Hoyt, 461 Mass. 143, 148-149 (2011). Moreover, because the judge's findings, other than with respect to the forty-five unrecorded minutes, were "based almost exclusively on the . . . video[]," [Note Shin-2] we "need not accord [substantial] deference" to the judge's ultimate finding that the defendant's waiver was involuntary. Commonwealth v. Durand, 457 Mass. 574, 596 (2010). See Tremblay I, supra at 654-655 ("We now affirm the principle that an appellate court may independently review documentary evidence, and that lower court findings drawn from such evidence are not entitled to deference"); Commonwealth v. Novo, 442 Mass. 262, 266 (2004), quoting Commonwealth v. Bean, 435 Mass. 708, 714 n.15 (2002) ("we will 'take an independent view' of recorded confessions and make judgments with respect to their contents without deference to the fact finder, who 'is in no better position to evaluate their content and significance'"). [Note Shin-3]

Applying these standards to the facts, I conclude -- based on my review of the video and accepting the judge's findings as to what occurred during the forty-five unrecorded minutes -- that the Commonwealth met its burden of proving beyond a reasonable doubt that the defendant's waiver of his right to counsel was voluntary. In assessing voluntariness, we must examine the totality of the circumstances, which means "all the surrounding

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circumstances." Commonwealth v. Baye, 462 Mass. 246, 256 (2012), quoting Dickerson v. United States, 530 U.S. 428, 434 (2000). The conduct of the police is just "one factor to be considered" in the analysis. Commonwealth v. Tremblay, 460 Mass. 199, 208 (2011) (Tremblay II). Other factors include any "promises or other inducements, conduct of the defendant, the defendant's age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, the initiator of the discussion of a deal or leniency (whether the defendant or the police), and the details of the interrogation, including the recitation of Miranda warnings." Commonwealth v. Mandile, 397 Mass. 410, 413 (1986).

Because of the myriad factual situations in which a voluntariness issue can arise, the Supreme Judicial Court has "declined to adopt a 'bright-line rule[]' that the use of improper interrogation techniques . . . will always result in suppression." Commonwealth v. Santana, 477 Mass. 610, 617 (2017), quoting Baye, 462 Mass. at 256. "Rather, the relevant focus is on whether the defendant's will was overborne." Durand, 457 Mass. at 596. Thus, in Durand, the court concluded that, "[a]lthough the officers used a variety of [improper] interrogation techniques" (minimizing the defendant's crimes and suggesting leniency, stating that the interview was his only opportunity to explain, and psychological coercion), "the use of such tactics alone [did] not render statements made by the defendant involuntary." Id. Instead, looking at the totality of the circumstances, including the defendant's demeanor, his "control over both his actions and mental faculties," and signs that he could "identify the officers' tactics for what they were," the court determined that the defendant's will was not overborne and upheld the denial of his motion to suppress. Id. at 597, 598. See Santana, supra at 617-620 (similar); Tremblay II, 460 Mass. at 210-212 (similar).

Likewise, here, the totality of the circumstances demonstrates that the defendant's will was not overborne by the conduct of the officers. The defendant was not subjected to prolonged interrogation. The interview began at 9:10 a.m., was paused for ten minutes while the defendant talked to Pittsfield Police Detective John Soules, and was terminated at 10:12 a.m. Throughout the questioning the defendant was "sober, alert, oriented, and lucid." Durand, 457 Mass. at 597. While expressing dissatisfaction with State Police Detective Lieutenant Edward Culver, the defendant was in control of his emotions and displayed no distress. There is

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no contention that he was under the influence of alcohol or drugs or of insufficient age or intelligence to be able to comprehend his actions. Furthermore, the defendant has a lengthy criminal record and thus can be presumed to be familiar with the criminal justice system.

The majority concludes nevertheless that the Commonwealth failed to meet its burden of proving voluntariness because the totality of the circumstances "showed . . . a concerted effort by the police to coerce the defendant to waive his rights." Ante at 613. Even if true, this would be only one factor in the analysis, but the record does not support the characterization in any event. The police gave the defendant Miranda warnings three times: first, at 9:36 a.m., when Culver declared that there were inconsistencies in the defendant's prior statements that he wanted to discuss; second, at 10:11 a.m., after the defendant tried to cut off questioning and was told he was not free to leave; and third, at 11:03 a.m., after the defendant stated that he wanted to waive his right to counsel. And as the judge found, "to its credit, the police made numerous attempt[s] to secure counsel for [the defendant]."

The majority relies heavily on the fact that, when the defendant arguably asked for a lawyer at 10:06 a.m., State Police Detective Lieutenant Brian Foley's response was not to terminate questioning, but to continue talking to the defendant for three minutes as to why he should continue the interview. I agree that the proper response would have been either to "cease the interrogation" or to "ask a question to clarify the defendant's intent." Commonwealth v. Santos, 463 Mass. 273, 286 (2012). But again, the relevant inquiry is whether the defendant's will was overborne, and during that three-minute discussion the defendant said nothing of consequence, as the majority acknowledges. And Foley, for his part, said nothing to persuade the defendant to waive his right to have his attorney present. The topic of the conversation was the defendant's dissatisfaction with Culver. Moreover, once Foley left and Culver and Soules returned, the defendant was given Miranda warnings, whereupon he unequivocally invoked his right to counsel, demonstrating that his will was not, in fact, overborne.

It is at this point that the video recorder was turned off. [Note Shin-4] As noted, the motion judge's subsidiary findings as to what happened

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next were based partly on testimonial evidence and cannot be overturned absent clear error. See Tremblay I, 480 Mass. at 655. In my view the majority departs from this principle when it suggests, relying on testimony that was not cited by the judge, that it was Foley who initiated conversation with the defendant by accusing him of lying, calling him "obstinate," and telling him "that he could not explain himself because he had asked for counsel." Ante at 613. This is contrary to the judge's findings, which reproduce verbatim the following summary that Foley provided on the video:

"FOLEY: 'Let's go over what happened. . . . During the interview, . . . you [the defendant] said affirmatively, that "I want my attorney." We called your attorney, couldn't make it. We then had to make a decision based on our case . . . . We believe that there were some instances that you were lying. We arrested you for that. Once we arrested you, . . . you told me that you wanted to talk with us. I told you no. You said you wanted an attorney. You then said you still wanted to talk with us and you were going to waive your request to have an attorney. Is that correct[?]"

"[THE DEFENDANT]: 'That is correct.'"

"FOLEY: 'One hundred percent, as you like to say.'"

"[THE DEFENDANT]: 'One hundred percent.'"

It is clear that the judge credited this version of events, as he found later in his decision that the defendant "initiate[d] the discussion and voluntarily agree[d] to proceed without an attorney, without any dialogue from the police." Notably, the defendant raises no claim that the judge's finding in this regard was clear error. [Note Shin-5]

But even assuming that the judge credited Foley's testimony in its entirety, the inferences to be drawn from that testimony were

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for the judge, and not us, to decide. Although the majority infers that Foley said something to persuade the defendant to waive his rights, the judge did not draw that inference, finding to the contrary that the defendant "voluntarily agree[d] to proceed without an attorney, without any dialogue from the police." Indeed, had the judge determined that Foley initiated the communication, that would be a per se violation of Edwards v. Arizona, 451 U.S. 477, 484-485 (1981), and there would have been no need for the judge to decide whether the defendant's waiver was voluntary. See Commonwealth v. Thomas, 469 Mass. 531, 543 (2014) ("continuation of the questioning . . . violated the Edwards rule," requiring suppression). Nor did the judge infer, as the majority does, that Foley's statements were akin to the "now-or-never" strategy deemed unfair and misleading in Thomas. Foley's testimony -- "I knew that [the defendant] invoked, he said he wanted to explain and I told him no" -- does not on its face evidence impropriety and is arguably consistent with the version of events that the judge credited. The testimony simply does not establish, and the judge drew no inference, that Foley engaged in coercive behavior of the type at issue in Thomas. [Note Shin-6] Furthermore, Culver's earlier comment -- "It's your testimony. It's your future." -- adds little to the analysis, as it was tied to the defendant's reluctance to take the polygraph test, not to his invocation of his right to counsel. Cf. Commonwealth v. Raymond, 424 Mass. 382, 395-396 (1997) (permissible for officer to suggest that defendant should tell "his side of the story").

The motion judge, while finding no Edwards violation, concluded that the defendant's waiver was still involuntary because, after he invoked his right to counsel, the police arrested him for perjury, thus "presenting the defendant with the choice of either proceeding with the [interview] without counsel or facing a perjury charge." I disagree with that analysis. The police made no promise of leniency if the defendant waived his right to counsel and continued the interview, cf. Commonwealth v. McCarthy, 484 Mass. 493, 512 (2020), nor did they suggest (to that point, anyhow)

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that he would lose his only chance to tell his story if he did not waive his right to counsel, cf. Thomas, 469 Mass. at 542-543. The mere fact that the defendant was arrested after invoking his right to counsel does not render involuntary every statement he made thereafter. See Commonwealth v. Vincent, 469 Mass. 786, 791, 799 (2014) (statements admissible where, after defendant invoked right to counsel, police arrested him, and he initiated second interview). Although the proximity in time between the arrest and the waiver could bear on voluntariness, it is only one factor in the overall inquiry. See Mandile, 397 Mass. at 412, 414-415.

We must also consider here that the defendant was given Miranda warnings for a third time immediately after he said he wanted to proceed without counsel, and, when asked whether he understood that he had the right to counsel, the defendant responded without doubt or hesitation, "I understand." He then signed a written waiver. Consistent with his demeanor throughout the interview, the defendant displayed full control over his mental faculties and actions. See Santana, 477 Mass. at 618 (defendant's statements were voluntary despite officer's promise of confidentiality, where "[t]here [was] no suggestion in [the] record that the defendant did not understand the [Miranda] warnings, which plainly informed the defendant that his statements could not be held confidential"). Moreover, considering that his cooperation with the murder investigation was perhaps his best hope of obtaining leniency on his unrelated cocaine trafficking charge, the defendant's decision to proceed was eminently rational. See id. at 619 (that "defendant was motivated by self-interest . . . when he . . . offer[ed] to provide information" supported finding of voluntariness).

I acknowledge that there are cases where police misconduct was deemed so severe that the Commonwealth could not overcome it by showing that the defendant manifested no outward signs of fragility or distress. See, e.g., Baye, 462 Mass. at 261-265. But the tactics at issue in those relatively rare cases were of the kind that "prevent even those defendants otherwise capable of rational decision-making from applying their rational intellect to weigh the pros and cons of confessing" (quotations and citations omitted). Id. at 262. For example, in Baye, the police "employed multiple problematic tactics" throughout a ten-hour interrogation, including dissuading the defendant from consulting with an attorney through false assurances that his statements would not be

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used against him. Id. at 257. False assurances like these, the court observed, "do not rely upon a defendant's compromised or confused mental state" but instead "ma[ke] it impossible for even a calm and relatively sophisticated defendant to make a rational choice as to whether to confess" (quotations and citation omitted). Id. at 262. See Commonwealth v. DiGiambattista, 442 Mass. 423, 434-436 (2004) (false statements about strength of evidence, combined with suggestions of leniency in exchange for confession, rendered defendant's statements involuntary).

Here, we are not concerned with police tactics that are so inherently coercive or manipulative that they alone compel a finding of involuntariness. [Note Shin-7] Thus, as in the typical case, we must "consider all of the relevant circumstances surrounding the interrogation and the individual characteristics and conduct of the defendant." Tremblay II, 460 Mass. at 211 n.9. Police conduct is one factor but cannot be "dispositive, to the exclusion of all else. That is not, and never has been, our jurisprudence with regard to testing" voluntariness. Id. Considering all the relevant circumstances here, I believe that the Commonwealth met its burden of proving beyond a reasonable doubt that the defendant's waiver of his right to counsel was voluntary. Simply put, there is nothing on the video to indicate that the defendant's will was overborne. See Durand, 457 Mass. at 598 ("based on a consideration of the totality of the circumstances and a full review of the record, in particular the videotape of the interrogation, we conclude that while the police used improper interrogation tactics, the defendant's statements to the police . . . were voluntary"). I would therefore vacate the order allowing the motion to suppress and remand the matter for the motion judge to determine the voluntariness of the statements that the defendant made after the waiver. [Note Shin-8] See Commonwealth v. Medeiros, 395 Mass. 336, 343 (1985) (voluntariness of Miranda waiver and voluntariness of

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subsequent statements are distinct inquiries).