COMMONWEALTH vs. ALEXANDER MOLINA.

BOTSFORD, J. Following a jury trial in the Superior Court, the defendant, Alexander Molina, was convicted of murder in the second degree, unlawful possession of a firearm while not at

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work or at home, and discharge of a firearm within five hundred feet of a building. The defendant appealed, and the Appeals Court affirmed the convictions. See Commonwealth v. Molina, 81 Mass. App. Ct. 855 (2012). We granted the defendant's application for further appellate review, limited to issues concerning the admissibility of statements that the defendant made to the police during an interview conducted at the New Bedford police station on March 30, 2005. For the reasons set forth below, we affirm.

1. Background. The facts of the case are summarized in the Appeals Court's decision, see Molina, 81 Mass. App. Ct. at 856-857; we describe them briefly here. The victim, James Gauoette, was shot to death at around 5 P.M. on March 30, 2005, near the intersection of Ruth and Salisbury Streets in New Bedford. Three eyewitnesses, who were present near that intersection, testified at trial and provided details about their observations of the shooter. Two of the three testified that the shooter wore a mustard-colored or yellow shirt, and two of the three also stated that soon after the shooting, they observed the shooter in a brown jogging suit or brown sweatshirt. At trial, two of the three witnesses identified the defendant as the shooter.

At approximately 10 P.M. on the same day, the police prepared to tow a bluish-green Mazda Protegé automobile that was within the environs of the crime scene. The defendant and an acquaintance crossed the crime scene tape, and the defendant told State Trooper Ann Marie Robertson that the police were towing his car. In response to Robertson's inquiry, the defendant stated that his name was Orlando Figueroa. [Note 1] Robertson then informed the defendant that the vehicle was not his as it was registered to Alex Molina. The defendant responded that Orlando Figueroa was his father's name and that his name was Alex Molina. After this exchange, one of the police officers present asked the defendant if he would go to the police station to answer some questions, and the defendant agreed to do so. Officer David

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Brown of the New Bedford police department, with whom the defendant was familiar, drove the defendant to the police station. The defendant was not under arrest or handcuffed. Once they arrived at the police station, Officer Brown remained with the defendant for between thirty and forty-five minutes, but the record contains no evidence relating to any conversation between them.

At around 11:45 P.M., State Trooper Carmelo Serrano, Jr., and Detective Christopher J. Dumont of the New Bedford police department began to interview the defendant at the police station. The interview concluded approximately three and one-half hours later, at 3:15 A.M. on March 31, 2005, after which the two officers drove the defendant back to the area of Ruth Street and dropped him off. Later that same day, after speaking with at least one of the eyewitnesses to the shooting, the police arrested the defendant and he was charged with the victim's murder.

2. The police interview and the defendant's statements. The defendant's interview by Trooper Serrano and Detective Dumont took place in the police station in an apparently windowless room measuring twelve feet by eight feet. The interview was videotaped. [Note 2] Serrano was the principal interrogator during the entire interview, and for the most part, the interview was conducted in Spanish; Serrano's first language is Spanish, as is the defendant's. The defendant sat to the side of the desk, with Serrano and Detective Dumont sitting across from the defendant closer to the door. At the beginning of the interview, Serrano presented the defendant a written copy of the Miranda warnings in Spanish, and the defendant read them out loud. When he finished reading, the following interchange took place:

TROOPER SERRANO: "OK. Do you understand your rights?"

DEFENDANT: "Uh-huh, but I just said if I could call my attorney and I was told that it wasn't necessary; that I was coming just to be asked some questions."

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TROOPER SERRANO: "Uh huh."

DEFENDANT: "And that I just went to . . . I was sleeping and I get a call that my car was being taken and when I go there and I am told that I have to come here, that someone wants to ask me some questions . . . I don't know what happened because I truly don't know . . . my car was there because it was getting me [sic] music equipment."

TROOPER SERRANO: "OK, before . . . do you, do you want to speak with me now . . . I want to ask you some questions; do you want to speak with me now during this time? You understand your rights no?"

DEFENDANT: "Uh-huh, yes I understand."

TROOPER SERRANO: "Having understood your rights, you want to speak with me now?"

DEFENDANT: "Whatever you say."

TROOPER SERRANO: "OK, then if you please sign here; this is just that you were advised of your rights and that . . . you wish to speak with me now."

DEFENDANT: "[T]hat is not that I am a witness for the town hall . . . I have no problem."

TROOPER SERRANO: "[A]nd, Detective Dumont, could you please sign . . . ."

The defendant, Serrano, and Dumont all signed the Miranda waiver form, and the interview began. Serrano initially asked general questions about the defendant, including where he lived, where he worked, the defendant's girl friends, the installation of music equipment in the defendant's car, and why the car had been at the intersection of Ruth and Salisbury Streets. He and the defendant joked some. The questions then began to focus on what the defendant had been doing earlier that day, the sequence of his activities, and especially where he was immediately before and around the time of the shooting -- although Serrano had not yet mentioned the fact that a shooting had taken place. The defendant stated that during the afternoon of March 30, he was

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taking a nap at the home of one of his girl friends, Patricia. The officers then asked the defendant about the yellow shirt he had been wearing earlier. [Note 3] The defendant told the officers that he was wearing a yellow shirt while he was working on his car in order to prevent his regular clothes from getting dirty. He stated that a man named Angelo (whose last name he did not know) had lent him the yellow shirt and that it must still be in his car. When the officers asked the defendant to provide additional information regarding the individuals who were with Angelo at that time, the defendant said:

"[I]s it mandatory that I mention a name? Because if I . . . truly, if I had known that this would be like this, I honestly would have brought an attorney because I truly don't even know what has happened; I haven't been informed of what has happened and I am being questioned about, really, I mean, it's like my rights are being violated because I am being questioned on something that I truly don't know . . . I mean because . . . ."

Serrano then informed the defendant for the first time that the officers were investigating a shooting at the intersection of Ruth and Salisbury Streets. Serrano stated that all of them were "grown up men" and that the officers already knew the answers to some of the questions that they were asking. Serrano informed the defendant that if he started lying to the officers, it was the defendant who was going to look suspicious. After that exchange, the officers continued to question the defendant about his clothing, and focused on what he was wearing at various times throughout the day. [Note 4]

Serrano asked the defendant about his conversation with

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police officers at a friend's apartment earlier that evening. He pressed the defendant for the reason he had given the name "Orlando Figueroa" to the police officers at that time. The defendant gave conflicting answers. Throughout this portion of the interview, Serrano and Dumont remained seated, with Serrano leaning back in his chair. The defendant appeared relaxed, and the parties' voices were calm.

There was a fifteen-minute break in questioning at around 1:40 A.M. Following the break, Serrano no longer sat while he was questioning the defendant but instead stood close to the seated defendant, talking down at him. His voice was raised, and he interrupted the defendant, not letting him finish his answers to questions. The interview ended at approximately 3:15 A.M. on March 31, 2005; it had lasted approximately three and one-half hours.

The defendant filed a motion to suppress evidence of the statements he made during the police interview, and it was the subject of an evidentiary hearing before a Superior Court judge (motion judge). The defendant argued that his Miranda waiver was invalid and that he had invoked the right to counsel. The motion judge denied the defendant's motion. [Note 5] At trial, Serrano testified relatively briefly about the police interview of the defendant, and in particular about some of the defendant's statements,

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but neither the videotapes nor the bilingual translation of the interview were introduced or proffered. [Note 6]

3. Discussion. In challenging the admission of his statements made during the police interview, the defendant accepts the premise that the right provided by Miranda v. Arizona, 384 U.S. 436, 444-445 (1966) (Miranda), to have counsel present during a police interview or interrogation only attaches when the interrogation is custodial. His argument in substance is that contrary to the motion judge's conclusion, [Note 7] the interview became custodial at a relatively early stage; and that contrary to the Appeals Court's conclusion, by or at the time the interview did become custodial, [Note 8] the defendant effectively had invoked his right to have counsel present, with the result that all statements thereafter made by him in the interview were inadmissible. [Note 9]

We disagree. In summary, our reasons are the following. As

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our cases indicate, the defendant is correct that Miranda and its protective right to counsel under the Fifth Amendment to the United States Constitution only apply to a custodial interrogation. See Commonwealth v. Baye, 462 Mass. 246, 253 (2012), quoting Commonwealth v. Hilton, 443 Mass. 597, 608 (2005), S.C., 450 Mass. 173 (2007) ("the requirements of [Miranda] are not triggered unless the interrogation is custodial"). See generally Commonwealth v. Groome, 435 Mass. 201, 215-216 (2001). Here, we conclude that the defendant's interview or interrogation at the New Bedford police department was not custodial at least until the point identified by the motion judge. That conclusion necessarily leads to two further questions: (1) whether, as is required, all the defendant's statements that were admitted in evidence at trial, including the statements made during the noncustodial portion of the interrogation, were voluntary; and (2) whether, in relation to any statements made during the custodial portion, the defendant had validly waived his Miranda rights and had not invoked his right to counsel. We answer the first question yes, and conclude there is no need to resolve the second because even if we accept for argument that the defendant's Miranda waiver was not valid, the resulting error was harmless beyond a reasonable doubt.

a. Standard of review. "When reviewing the denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error," but we independently determine "the correctness of the judge's application of constitutional principles to the facts as found." Commonwealth v. Tremblay, 460 Mass. 199, 205 (2011). Questions of credibility rest solely with the motion judge, who had the opportunity to observe the witnesses, see, e.g., Commonwealth v. Martin, 447 Mass. 274, 280 (2006), quoting Commonwealth v. Thinh Van Cao, 419 Mass. 383, 384, cert. denied, 515 U.S. 1146 (1995), but "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 the[ir] content and significance.' " Commonwealth v.

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Hoyt, 461 Mass. 143, 148-149 (2011), quoting Commonwealth v. Novo, 442 Mass. 262, 266 (2004).

b. Custody. The defendant argues that the police interrogation became custodial at approximately the same time that he made his second reference to an attorney -- around 12:30 A.M. " 'The crucial question' in determining whether an interrogation is custodial is whether 'a reasonable person in the defendant's position would have believed that he was in custody.' " Baye, 462 Mass. at 253, quoting Commonwealth v. Damiano, 422 Mass. 10, 13 (1996). There are four factors that the court considers to determine whether an interrogation is custodial: "(1) the place of the interrogation; (2) whether the officers have conveyed to the person being questioned any belief or opinion that that person is a suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the person being interviewed; and (4) whether, at the time the incriminating statement was made, the person was free to end the interview by leaving the locus of the interrogation or by asking the interrogator to leave, as evidenced by whether the interview terminated with an arrest." Groome, 435 Mass. at 211- 212. See Commonwealth v. Sneed, 440 Mass. 216, 220 (2003) (same). "There is no specific formula for weighing the relevant factors"; however, "[r]arely is any single factor conclusive." Id., quoting Commonwealth v. Bryant, 390 Mass. 729, 737 (1984). Moreover, an interrogation that begins as noncustodial can become custodial. See, e.g., Baye, 462 Mass. at 253, quoting Hilton, supra at 611-612.

The defendant voluntarily accompanied the police to the station for questioning. See Hilton, 443 Mass. at 610. The interrogation did take place at the police station, but this is not dispositive of the custody inquiry. See id. at 609-610. Additionally, even though the defendant was interviewed in a relatively small room -- twelve feet by eight feet -- the interviewing officer's relaxed and informal tone in the beginning of the interview mitigated the room's small size. At the start of the interview there was small talk, including joking among the defendant and the two officers. See Groome, 435 Mass. at 214-215.

The defendant insists that Trooper Serrano's statements

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approximately forty-five minutes into the interview that the defendant was lying were "hectoring" and "accusatory" and demonstrated to the defendant that he was a suspect. An officer's belief that the defendant was a suspect does not control; rather, what matters for purposes of a custody inquiry is whether that belief was conveyed to the defendant. [Note 10] See, e.g., Groome, 435 Mass. at 214; Bryant, 390 Mass. at 738. See also Sneed, 440 Mass. at 221 (fact that defendant was target of investigation did not inform custody determination because officers did not inform defendant of target status). Despite the defendant's contention, we do not understand this exchange about lying to express such a belief: Trooper Serrano merely informed the defendant what had happened at Ruth and Salisbury Streets and that this was the focus of their questioning. See Commonwealth v. Kirwan, 448 Mass. 304, 312-313 (2007) (preliminary questioning designed to dispel or confirm suspicion does not make interrogation custodial). Moreover, Serrano's tone of voice indicated that this exchange was explanatory rather than accusatory. See Hilton, 443 Mass. at 610 (style and tone of questioning was neither aggressive nor confrontational). Likewise, Serrano did not raise his voice at this point, keeping the questioning and interaction nonaggressive. See, e.g., Sneed, supra at 221 ("no evidence of shouting or raised voices on the part of the investigators"); Bryant, supra at 738 (questioning not aggressive).

It is true, as the motion judge determined, that the character of the police interrogation shifted at approximately 1:55 A.M., following the fifteen-minute break. At that time, both Serrano and Dumont no longer were sitting in relaxed fashion, but remained standing close to -- one might characterize the position as standing almost over -- the defendant. For the rest of the interview, Serrano either questioned the defendant from this stance or did so sitting on the edge of a desk in very close proximity to the defendant. Moreover, Serrano's interrogation style was dramatically different at this point: rather than asking questions, many of which were open-ended, at a relatively

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leisurely pace, he peppered the defendant with questions and statements in rapid fashion; he repeatedly asserted that the defendant was lying to the officers; his voice was raised; and his tone was far more argumentative and aggressive than the one he had previously used. We accept the motion judge's conclusion that the interrogation became custodial at this time. Accordingly, because the defendant's claimed invocations of the right to counsel were all made before the point at which the interrogation became custodial, the defendant did not effectively invoke that right. [Note 11] See Groome, 435 Mass. at 215-216.

c. Voluntariness of the statements. Where a defendant makes statements to the police while "not in custody, we focus solely on the question whether his statements were voluntary." Commonwealth v. Durand, 457 Mass. 574, 595 (2010). [Note 12] "A voluntary statement is one that is the product of a rational intellect and a free will, and not induced by physical or psychological coercion." Tremblay, 460 Mass. at 207, quoting Commonwealth v. LeBlanc, 433 Mass. 549, 554 (2001) (quotations omitted). The

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ultimate inquiry is "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." Durand, supra at 595-596, quoting Commonwealth v. Souza, 428 Mass. 478, 483-484 (1998). "Relevant factors [to this inquiry] include, but are not limited to, '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. Selby, 420 Mass. 656, 663 (1995), quoting Commonwealth v. Mandile, 397 Mass. 410, 413 (1986).

Our review of the videotapes and translation of the defendant's police interview persuades us that all of his statements were voluntary. Neither officer offered misleading comments or engaged in any trickery or deception, contrast Baye, 462 Mass. at 257-261, and there is simply nothing about the interview, including the more aggressive tone and manner adopted by Serrano in the interview's last hour, that suggests the defendant's will was overborne in any way. See Durand, 457 Mass. at 597-598. The most problematic aspect of the interview is the possibility, suggested by the defendant's statement at the interview's beginning, that he had been told by a police officer or representative that he did not need an attorney. See Groome, 435 Mass. at 205- 206, 215-216 nn.20, 21 (police officer's response to defendant participating in noncustodial interview that he did not "need an attorney" constituted improper advice, but did not render defendant's statements involuntary or require suppression in circumstances of case). However, the record here does not contain any other information concerning the nature or extent of the alleged conversation between the defendant and a police officer, or the identity of that officer. Although law enforcement officers should avoid such comments, their presence does not necessarily compel suppression of a defendant's statements. [Note 13] See Commonwealth

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v. Gaboriault, 439 Mass. 84, 88 (2003); Groome, supra.

"The presence of one or more factors suggesting a statement may have been made involuntarily is not always sufficient to render the statements involuntary." Selby, 420 Mass. at 664. Here, the defendant came to the police station voluntarily and was not restrained in any way while he was there. Commonwealth v. Cruz, 373 Mass. 676, 689 (1977). The defendant's incriminating statements were made some time after an officer commented that an attorney was not necessary. See Durand, 457 Mass. at 596-597 (incriminating statements not made in response to police tactics). Cf. Novo, 442 Mass. at 271 (misstatement of "fifth" Miranda warning came at beginning of interview and did not render subsequent statements involuntary). Additionally, the defendant appeared to be sober, alert, oriented, and lucid, see Commonwealth v. Edwards, 420 Mass. 666, 674 (1995), and appeared to understand the officers. [Note 14] See Commonwealth v. Cryer, 426 Mass. 562, 566 (1998). The interrogation lasted for approximately three and one-half hours, with a fifteen-minute break. See Commonwealth v. Tolan, 453 Mass. 634, 643-644 (2009) (defendant's statements over eleven-hour interview voluntary where he was permitted to take several breaks). In sum, the totality of the circumstances here supports the conclusion that the defendant's statements were voluntary.

d. Validity of Miranda waiver. Our conclusion on the issue of voluntariness does not resolve all issues raised in this case concerning the admissibility of the defendant's statements.

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Insofar as the trial evidence included statements made by the defendant during the custodial portion of the interview, [Note 15] a separate question arises whether the defendant had validly waived his Miranda rights before making them. See Edwards, 420 Mass. at 670, 673 (voluntariness of statement requires related but separate inquiry from validity of Miranda waiver). For any statements that are the product of a custodial interrogation to be admissible, there must be a knowing, intelligent, and voluntary waiver, id. at 670, citing Miranda, 384 U.S. 436 (1966), and the Commonwealth must prove "the validity of a Miranda waiver beyond a reasonable doubt." Commonwealth v. Jones, 439 Mass. 249, 256 (2003), quoting Commonwealth v. Day, 387 Mass. 915, 921 (1983). The defendant argues in part that his Miranda waiver was invalid as he did not fully understand his Miranda rights.

The defendant received Miranda warnings only once, at the beginning of his interview with the police, and we must assess the validity of the waiver at that time. [Note 16] The circumstances surrounding the defendant's waiver were less than ideal. It was immediately after reading the sheet with the Miranda warnings printed in Spanish that the defendant stated he had just been told by someone at the police station that it was "not necessary" for him to have an attorney present; the defendant was also under the belief that he was being questioned about his car rather than the shooting at the intersection of Ruth and Salisbury Streets. See note 13, supra. Moreover, when asked if he was willing to talk with police despite these rights, the defendant responded with, "[w]hatever you say," before signing the Miranda waiver form. Nonetheless, we do not need to resolve the question whether these considerations render the defendant's Miranda waiver invalid because, even assuming that they

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did, the resulting error in admitting the defendant's statement about his sister picking up his clothes (see notes 6 and 15, supra) was harmless beyond a reasonable doubt. [Note 17]

When analyzing whether an error was harmless beyond a reasonable doubt, "we ask whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury's verdicts." Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). Factors the court considers in determining whether the erroneous admission of particular evidence is harmless include the importance of the evidence to the prosecution's case as well as to the premise of the defense; the frequency of reference to that evidence; and the weight of evidence of the defendant's guilt. See Hoyt, 461 Mass. at 155, quoting Commonwealth v. Dagraca, 447 Mass. 546, 553 (2006). A conviction is most susceptible to being overturned when the "strength of the Commonwealth's case radiates from a core of tainted evidence." Tyree, supra at 701-702.

As stated previously, at trial, Trooper Serrano was the sole source of evidence concerning the defendant's statements. The defendant had made most of the statements that Serrano recounted before the interview became custodial. These included statements that the defendant was with someone named Patricia at the time of the shooting, but did not know her last name; that he was not specifically in the area of the shooting at the time it occurred; and that, earlier in the day of the shooting, the defendant had been wearing a yellow shirt that was given to him by someone named Angelo, but the defendant did not know Angelo's last name. [Note 18]

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The main issue at trial was the identity of the shooter. In light of the evidence supplied by two eyewitnesses that the shooter had on a yellow or mustard-colored shirt, the defendant's precustodial admission that he had been wearing a yellow shirt was obviously significant; the defendant's vague, alibi- attempting statement (also precustodial) about being with his girl friend Patricia was arguably important as well. But the fact that the defendant's sister had picked up his clothes from his friend Johan's house was neither central to the Commonwealth's theory of the case -- that the defendant was the shooter -- nor the defendant's theory of the case -- that someone else was the shooter. Additionally, the statement did not go to an element of the crime, see Commonwealth v. Vasquez, 456 Mass. 350, 362 (2010), and was never mentioned again by any other witness or the prosecutor following Serrano's testimony. Contrast Hoyt, 461 Mass. at 155. We therefore conclude that even if the defendant's Miranda waiver was invalid, the admission of the defendant's postcustodial statement about his sister picking up his clothes was harmless beyond a reasonable doubt, and does not require reversal of his convictions.

Judgments affirmed.