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SJC-11813

                COMMONWEALTH   vs.   CHARLES MONROE.



        Worcester.      March 5, 2015. - August 19, 2015.

  Present:   Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk,
                           & Hines, JJ.


Constitutional Law, Admissions and confessions, Voluntariness of
     statement, Harmless error. Practice, Criminal, Admissions
     and confessions, Voluntariness of statement, Motion to
     suppress, Harmless error. Evidence, Admissions and
     confessions, Voluntariness of statement. Error, Harmless.



     Indictments found and returned in the Superior Court
Department on November 2, 2010.

     A pretrial motion to suppress evidence was heard by James
R. Lemire, J., and the cases were tried before David
Ricciardone, J.

     The Supreme Judicial Court on its own initiative
transferred the case from the Appeals Court.


     Nancy A. Dolberg, Committee for Public Counsel Services,
for the defendant.
     Donna-Marie Haran, Assistant District Attorney, for the
Commonwealth.
                                                                     2


     HINES, J.   After a jury trial in the Superior Court, the

defendant, Charles Monroe, was convicted of four counts of

assault and battery by means of a dangerous weapon (knife); two

counts of armed robbery; two counts of indecent assault and

battery on a person fourteen years of age or older; two counts

of armed kidnapping with serious bodily injury; and one count

each of kidnapping and assault and battery. 1   The convictions

were based on three incidents that occurred in October, 2010,

during which the defendant, then eighteen years old, accosted

three different teenage victims as they walked to school.      The

defendant appealed, arguing that (1) admission of statements he

made to police during a videotaped interview violated his right

to due process, and (2) the trial judge erred in discharging two

deliberating jurors.   We transferred the case to this court on

our own motion and now conclude that the motion judge erred in

denying the defendant's motion to suppress statements and that

the statements were admitted at trial erroneously.    On the

record before us, we agree that the police engaged in

impermissibly coercive tactics that rendered the defendant's

statements involuntary under the circumstances of the

     1
       The defendant was acquitted of three counts of aggravated
rape and one count of assault and battery by means of a
dangerous weapon (knife). A nolle prosequi was entered prior to
trial on the charges of armed robbery and breaking and entering
with intent to commit a felony.
                                                                        3


interrogation.       Because the erroneous admission of those

statements at trial was not harmless beyond a reasonable doubt,

we reverse the convictions on that ground 2 and remand for a new

trial.

       1.    Background.   We summarize the facts the jury could have

found, reserving for later discussion the details of the

postarrest interview.

       The morning of October 19, 2010, the first victim, E.C., a

seventeen year old female, was walking to her bus stop when she

noticed a man, later identified as the defendant, walking behind

her.       The defendant attempted to get her attention, but she did

not turn around.       The victim crossed the street, evading the

defendant.       The following morning, E.C. encountered the

defendant again on her walk to the bus stop.       This time, the

defendant got close to her and began asking questions.         The

defendant attempted to "hug" the victim, but she pushed him

away.       When the defendant attempted to put his arm around the

victim again, she noticed that he was holding a short silver

knife, which he placed against her neck, telling her, "Don't

scream.       Come with me."   The defendant led the victim to a tree

on the other side of the street.       As the victim struggled to get

       2
       Given our view of the defendant's argument that his
statements were admitted at trial erroneously, we do not address
his alternative claim that the judge improperly dismissed two
deliberating jurors.
                                                                   4


away, her backpack fell off her arm; the defendant grabbed the

bag and ran away.

     On October 25, 2010, the second victim, L.B., a fifteen

year old female, was walking to school when the defendant

approached her and began walking beside her.    L.B. tried to

ignore the defendant, but he grabbed her by the neck and pressed

down on her throat.    He put a knife to her throat, lifted her

off the ground, and attempted to move her to a nearby driveway.

The victim was able to get her feet back on the ground, remove

the defendant's hand from her neck, and move away from the

defendant.   The victim then ran from the scene.   On arriving

home, she realized she had minor cuts to her neck and a deep cut

on her thumb.

     On October 27, 2010, the third victim, A.G., a sixteen year

old female, was walking to school when the defendant approached

her and told her she looked familiar.    A.G. engaged the

defendant in conversation, and he said that he would walk her to

school.   The victim, who was not that familiar with the area,

eventually realized that the two were not walking in the

direction of her school, and when she stated this, the defendant

became angry and aggressive.    He told her to walk towards "the

green building," and at some point she noticed he had something

in his hand.    The victim followed the defendant into the

building, where he put a knife to her neck.
                                                                        5


       Inside the building, the victim performed oral sex on the

defendant; he also touched her breasts and inserted his penis

into her rectum. 3     After about fifteen minutes, the defendant

told the victim to give him another "blow job."       The victim

complied, and the defendant eventually ejaculated into her

mouth.       The defendant made the victim empty her tote bag in

front of him and took a yellow highlighter that had been in her

bag.       The defendant then allowed the victim to leave, and she

resumed walking towards school.        After disclosing the attack to

school officials, the victim was brought to the hospital where a

sexual assault exam was performed.       The defendant's

deoxyribonucleic acid (DNA) was found on A.G.'s genitals and

face.       A.G. identified the defendant as her attacker in a

photographic array.        Police recovered a yellow highlighter from

the defendant's pocket later that day.

       2.    Discussion.   The defendant filed a motion to suppress

the statements he made to police officers during a postarrest

interview, claiming that even if the waiver of his Miranda

rights is deemed valid, his statements were nonetheless

involuntary.       The judge denied the motion based on his review of

the videotaped interview, the transcript of the interview, and

       3
       The victim testified that the defendant forced her to
perform these acts at knifepoint. The defendant maintained that
the sexual contact was consensual. The defendant was acquitted
of the rape charges stemming from this incident.
                                                                    6


the police report prepared after the interview.   The defendant's

inculpatory statements and some of his exculpatory statements,

made during the interview, were admitted through the testimony

of the two interviewing detectives and a redacted version of the

videotaped interview that was played for the jury. 4

     On appeal, the defendant argues that the motion judge erred

in denying his motion to suppress, claiming that psychological

coercion, together with other factors, 5 rendered his statement

involuntary and that the admission of his involuntary statement

at trial violated his right to due process under the Fourteenth

Amendment to the United States Constitution and art. 12 of the

Massachusetts Declaration of Rights.   More specifically, he

     4
       Although the defendant objected to the portions of the
videotape that showed denials made by the defendant, he did not
object to playing a redacted version of the videotape showing
the defendant's inculpatory statements. The Commonwealth agreed
to certain redactions, but the videotape contained other denials
that were admitted as relevant to credibility or to show
consciousness of guilt. Defense counsel renewed his objection
to having those portions admitted.
     5
       The Commonwealth points out that the defendant's motion to
suppress did not reference specifically his youth, emotional
instability, lack of food and shelter, lack of access to his
family, and lack of notice of the charges as factors probative
of the involuntariness of the statements and, citing
Commonwealth v. Pina, 406 Mass. 540, 542, cert. denied, 498 U.S.
832 (1990), urges no consideration of these belatedly asserted
factors in our review. We decline to view the issue so narrowly
as the additional factors are properly considered within the
totality of the circumstances test applicable to the defendant's
claim, made in his motion to suppress and on appeal, that his
statements were involuntary.
                                                                     7


contends that the coercive nature of the detectives' statements

regarding the fate of his infant child compels a finding that

his statement was involuntary.

     a.   Standard of review.    In reviewing the grant or denial

of a motion to suppress, we "review de novo any findings of the

motion judge that were based entirely on the documentary

evidence."   Commonwealth v. Thomas, 469 Mass. 531, 539 (2014).

Because the defendant's interview was video recorded, "we are in

the same position as the motion judge to determine what occurred

during the interview."     Id. at 535 n.4.

     b.   The interview.   The following summary is based on our

review of the unredacted videotape of the defendant's postarrest

interview and the police report prepared on that same date. 6   The

defendant was arrested at approximately 4 P.M. on Wednesday,

October 27, 2010, in connection with the crimes against the

three victims.   Following his arrest, he was transported to the

Worcester police detective bureau.     By 4:15 P.M., the defendant

was seated alone in an interview room with his hands cuffed

behind his back.

     6
       The unredacted videotape was marked as an exhibit at trial
and is the only version of the videotape in the record. We have
not been provided with the list of statements redacted from the
videotape. Because it is clear from the record that the
defendant's inculpatory statements, made after the defendant's
will was overborne, were contained on the redacted version of
the videotape that was played for the jury, we are able to
resolve this appeal without reviewing these materials.
                                                                   8


     At approximately 4:30 P.M., Detectives James O'Rourke and

Donna Brissette entered the room.   Detective O'Rourke asked the

defendant to stand and moved the defendant's cuffed hands from

behind his back to in front of him.   Detective O'Rourke advised

the defendant that the interview was being videotaped, informed

him of his right to use a telephone, read him his Miranda

rights, and informed him that he was at the detective bureau

concerning a warrant.   When the defendant asked about the

substance of the warrant, Detective O'Rourke informed the

defendant that he could not tell the defendant about the

substance of the warrant unless the defendant waived his Miranda

rights and agreed to speak with the officers.   The defendant

then signed a waiver of his Miranda rights.

     Detective O'Rourke then asked the defendant several

background questions, on topics including his education and

whether he had any children.   The defendant said that he was

working toward his general education degree (GED) and that he

has both a son and a daughter.   At 4:43 P.M., the detectives

informed the defendant for the first time that he had been

positively identified by three victims of assaults that occurred

on October 20, October 25, and earlier that morning, October 27.

In connection with the assaults, Detective O'Rourke asked the

defendant questions regarding his whereabouts and activities

earlier that morning and on October 25.   The detective went on
                                                                   9


to tell the defendant that he "should be trying to help

[himself] out," and after that point the interview grew

increasingly aggressive.   Detective O'Rourke informed the

defendant that he would only have "one opportunity to talk . . .

and tell [the detectives] why this happened."

     At this point in the interrogation, Detective Brissette

turned the conversation toward the defendant's daughter, asking

him her age and about the family's involvement with the

Department of Children and Families (DCF). 7   The defendant

responded by stating, "Don't tell me they're going to take my

daughter 'cause -- don't even tell me 'cause I don't want to

hear it.   'Cause my daughter is the most important thing in my

life."   The detective continued on the subject of the

defendant's child, suggesting that the defendant was aware of a

scheme by the child's mother to get "money from [w]elfare and

stuff," but that the defendant was "playing dumb" during the DCF

investigation just as he was doing with the questions about his

whereabouts when the victims were attacked.

     During the next few minutes of the interrogation, the

defendant told the police that he had emigrated from Africa with


     7
       The detective referred to the agency by its former name,
the Department of Social Services. The detectives specifically
asked about a case opened about one month before the defendant's
arrest where the defendant's girl friend reported that their
daughter had fallen.
                                                                  10


his family, that he had emotional problems, that he had not

eaten or showered recently, and that he had slept on the stairs

inside the house where he once had lived with his family.    He

also revealed that he was aware the police were looking for him

but that he did not know why, only to be interrupted by the

detective stating, "You damn well know why the cops were looking

for you."    It was at this point that the interrogation turned

from questions about the defendant's background back to the

subject of his child.    At 4:45 P.M., the detective stated the

following:

     "[T]his is the time to talk to us about what happened,
     okay? You know what happened. This is your opportunity.
     You're probably going to end up going away for a long time.
     You're not going to see that two month old baby for a long,
     long time, okay? This is the time, maybe this morning you
     met this girl, maybe it was consensual or whatever but this
     is the time to talk to us about it and what was going on
     the last couple of -- last week, with those two other
     girls. This is the time to talk to us about it and tell
     us about it, okay? Look at me, don't keep looking away
     from us."

The defendant then dropped his head into his hands and began to

cry, eliciting from the detective a command to stop "looking

away."   The defendant explained that "the only reason why I'm

crying 'cause I don't want to live a day without seeing my

daughter."

     This exchange preceded a barrage of references to the

defendant's child and girl friend, with the detectives

repeatedly telling the defendant to "think of [his] daughter,"
                                                                   11


"think of [his] girl friend," that he would be the reason his

girl friend lost custody of their child, and that he would be

the reason his child would be raised by strangers.   At 4:56

P.M., the detectives, alternating between each of them without

any responses from the defendant, stated, "[Y]ou're going to be

the reason your girl loses that baby"; "'Cause you know what,

there's a 51A[8] just like there was the last time, [DCF] is

already involved with you and with your daughter"; and "At least

have that baby grow up with someone they know.   The baby might

not see you but at least it will be with the mom."

Additionally, the detectives provided potential reasons as to

why the defendant may have committed the assaults and robberies

during this period, stating for example that "things are a

little tough right now.   You got a three month old that means

the world to you and don't know how you're even going to provide

for her."   The defendant continued to cry, held his head in his

hands, was generally unresponsive to the detectives' questions,

and stared blankly in front of him. 9


     8
       A report of suspected child abuse filed with the
Department of Children and Families in accordance with G. L.
c. 119, § 51A, is frequently referred to as a 51A report.
     9
       The defendant did, however, answer a few questions and
made limited exculpatory statements during this period, stating
"I didn't attack no girl this morning"; "I'm not raping, I
didn't sleep with none of them"; and "I didn't have sex with
none of them."
                                                                  12


     Within minutes of these repeated references to the

possibility that the defendant's girl friend could lose custody

of the child, the defendant made incriminating statements

regarding the three incidents.   He first acknowledged that there

was one dollar in E.C.'s backpack the prior week.   The defendant

then conceded that he had walked with A.G. earlier that morning

but maintained that they did not have any sexual contact and

that he did not assault her.   Detective Brissette later told the

defendant that they had evidence of the defendant's DNA on A.G.

from the assault that morning.   After more prodding by the

detectives, the defendant remarked, "I'm going to tell on behalf

of my daughter, because I love my daughter . . . I'm going to

talk -- I'm going to tell you the truth because I love my

daughter."   The defendant then admitted that A.G. performed oral

sex on him and that he ejaculated on her exposed buttocks, but

stated that she initiated this contact.   He also admitted that

he robbed E.C. and L.B. and that he had a knife when he robbed

L.B., but that he only pulled out the knife once she tried to

fight him.

     The detectives asked whether he had committed any other

robberies, and the defendant responded that maybe he committed
                                                                      13


robberies "a long time ago." 10   The defendant further stated, "I

get emotional problems, 'cause I do have emotional problems.      I

need help, that's all I need."

     c.   Voluntariness.   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."

Commonwealth v. Tremblay, 460 Mass. 199, 207 (2011), quoting

Commonwealth v. LeBlanc, 433 Mass. 549, 554 (2001).    In applying

this principle, "we examine 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. Selby, 420 Mass. 656, 663 (1995), S.C., 426 Mass

168 (1997).   "[B]oth the characteristics of the accused and the

details of the interrogation" are encompassed in the analysis of

the totality of circumstances (citation omitted).    Commonwealth

v. Tavares, 385 Mass. 140, 146, cert. denied, 457 U.S. 1137

(1982), quoting Commonwealth v. Daniels, 366 Mass. 601, 606

(1975).   More specifically, we may consider "promises or other

inducements, conduct of the defendant, the defendant's age,


     10
       The record reflects that the Commonwealth and the
defendant agreed to redact the portion of the videotaped
interview relating to prior robberies that were not the subject
of this trial, but that this information was not redacted from
the version shown to the jury because of a technical error.
                                                                   14


education, intelligence and emotional stability, experience with

and in the criminal justice system, physical and mental

condition, . . . and the details of the interrogation, including

the recitation of the Miranda warnings."   Commonwealth v.

Mandile, 397 Mass. 410, 413 (1986), S.C., 403 Mass. 93 (1988),

and cases cited.   The Commonwealth bears the burden to establish

beyond a reasonable doubt that the defendant's confession was

voluntary in accordance with these principles.   Commonwealth v.

Baye, 462 Mass. 246, 256 (2012).   After considering all of the

factors essential to our review of the totality of the

circumstances surrounding the interrogation, especially the use

of psychologically coercive tactics related to the defendant's

child, we conclude that the Commonwealth has failed to meet that

burden.

     i.   Coercion relating to the defendant's child.   The police

interrogation of the defendant, rife with threats to the

defendant's ability to maintain contact with his infant

daughter, properly may be characterized as psychologically

coercive.   See Commonwealth v. DiGiambattista, 442 Mass. 423,

435-436 (2004) ("Coercion may be readily applied by way of

implied threats and promises, just as it is by express threats

and promises").    Here, as evidenced by the videotaped interview,

the detectives threatened the defendant with the loss of contact

with his child by repeatedly and falsely claiming that if he did
                                                                   15


not tell them what happened, the child could be taken away and

raised by strangers.   Although we have stated that a particular

tactic generally will not render a confession involuntary, see

Selby, 420 Mass. at 664, the particular conduct at issue here,

threats concerning a person's loved one, may impinge on the

voluntariness of a defendant's confession.   Lynumn v. Illinois,

372 U.S. 528, 534 (1963) (defendant's statement involuntary when

induced by threats that financial aid to infant children would

be discontinued and children taken from her if she failed to

confess).   See Commonwealth v. Scott, 430 Mass. 351, 355 (1999),

citing Commonwealth v. Berg, 37 Mass. App. Ct. 200, 206 (1994)

("Concern for a loved one may, in certain circumstances, render

a confession involuntary").   See also Commonwealth v. Hunt, 12

Mass. App. Ct. 841, 844-845 (1981) ("concern for one's family

may be as significant in inducing an involuntary confession as a

concern for oneself").   The issue boils down to whether the

Commonwealth has met its burden to prove beyond a reasonable

doubt that the police tactics were not "so manipulative . . .

that they deprived [the defendant] of his ability to make an

unconstrained, autonomous decision to confess."   Baye, 462 Mass.

at 256, quoting United States v. Walton, 10 F.3d 1024, 1030 (3d

Cir. 1993).

     The temporal relationship between the defendant's

inculpatory statements and the detectives' psychologically
                                                                     16


coercive tactics is clear and close and it supports our

conclusion that the defendant's will was overborne and that his

statements were involuntary.   Contrast Commonwealth v. Durand,

457 Mass. 574, 596-597 (2010).   The chronology is telling.    The

defendant made his first incriminatory statement at 5:05 P.M. 11

after the litany of threats described above, and more

specifically three minutes after the detectives repeated their

suggestion that the defendant's child would be protected from an

adverse custody determination if he confessed.    Before he

implicated himself in response to the threats regarding his

child, the defendant was not told that the police lacked the

power to remove the child from his girl friend's custody or that

his confession would have no bearing on whether the child's

custody status could be changed. 12   The convergence of the

defendant's apparent devotion to his child as reflected in his

statements and conduct during the videotaped interview, the

defendant's ignorance of the authority of the police to effect a

change in his child's custody, and the prominence of the

psychologically coercive tactics during the interrogation


     11
       The defendant acknowledged that there was one dollar in
E.C.'s backpack, indicating for the first time that he was with
E.C. and knowledgeable of the contents of her backpack.
     12
       See generally G. L. c. 119, § 24 (procedures for removal
of child from parents' custody).
                                                                  17


persuades us that the defendant lost the ability to "make an

unconstrained, autonomous decision to confess," Baye, 462 Mass.

at 256, quoting Walton, 10 F.3d at 1030, and thus, his will was

overborne.   That breaking point occurred at approximately 4:57

P.M., when the defendant reacted to Detective O'Rourke's

statement, "At least have that baby grow up with someone they

know" by stating, "Please don't take my daughter"; hanging his

head; and crying. 13   His inculpatory statements followed.

     The defendant's personal characteristics, considered as

part of the totality of the circumstances of the videotaped

interview, also are relevant to our conclusion that his will was

overborne by the police tactics involving his child.    During the

interrogation, the defendant alerted the police to and

demonstrated a disturbed emotional or physical state, a factor

relevant to voluntariness.    LeBlanc, 433 Mass. at 555;

Commonwealth v. Magee, 423 Mass. 381, 388 (1996).    In Magee,

supra at 383, the defendant was "exhausted, emotionally

distraught, and disheveled, and her responses to questions were

     13
       Although the defendant made limited exculpatory
statements during the period between 4:54 and 4:57 P.M., he was
generally nonresponsive until he made his first incriminating
statement. The exculpatory statements made by the defendant do
not render his statements voluntary where the defendant's will
was overborne by the detectives' repeated threat to have his
child removed from her mother's care unless the defendant
confessed to the charges. Cf. Commonwealth v. Vazquez, 387
Mass. 96, 100 (1982) (exculpatory statements tend to show
defendant capable of rational thought).
                                                                   18


interrupted by periods of sobbing and shaking."    In that case,

we held that the defendant's debilitated physical and emotional

state, together with psychological coercion in the form of a

promise by police that she would receive the medical treatment

she requested in return for her statement to police, rendered

her statement involuntary.   Id. at 388.   Like the defendant in

Magee, the defendant in this case was in an emotionally

disturbed state at the time of his interview.    He informed the

police of his condition but nonetheless was subjected to the

psychological coercion described above.    Here, the defendant was

generally unresponsive to police questioning until the police

made threats regarding the custody of his child.    After that

occurred, the defendant cried and invoked his love for his child

before providing inculpatory statements to the police.    As in

Magee, although the defendant's emotional and physical condition

is not determinative, his condition is a substantial factor in

our consideration of whether his will was overborne by the

police tactics.   Id. at 388.

     We consider as well the defendant's age and educational

background in our analysis of the voluntariness of the

defendant's statements.   See Commonwealth v. Meehan, 377 Mass.

552, 567 (1979) (defendant's youth and poor educational

background may support finding of involuntariness).    Here, the

defendant had recently turned eighteen years of age and was in
                                                                     19


the process of obtaining his GED at the time of his arrest.     He

had emigrated from Africa to the United States just six years

prior.     While these factors alone are insufficient to warrant

suppression of the defendant's statements, the defendant's young

age and poor educational background support the conclusion that

his statements were involuntary.     See id.

     Last, the hostile tone of the interview also supports our

conclusion that the defendant's will was overborne during the

course of the interview.     See Commonwealth v. Johnson, 463 Mass.

95, 103 (2012).     In Johnson, supra, we recognized that the

environment of an interview may be considered oppressive if the

defendant is handcuffed.     Here, the defendant's handcuffs were

not removed.     Moreover, the tone of the interview was hostile

where the two detectives volleyed statements between them, often

times leaving no opportunity for the defendant to respond.

     Taken together, these factors persuasively demonstrate that

the defendant's will was overborne and that, as a consequence,

statements made thereafter were involuntary.     The use of those

statements against the defendant at trial was constitutional

error.

     ii.    Other tactics.   We comment briefly on the detectives'

use of other interrogation techniques which, although not

dispositive, contributed to the defendant's loss of his "ability

to make an unconstrained, autonomous decision to confess."
                                                                    20


Baye, 462 Mass. at 256, quoting Walton, 10 F.3d at 1030.    First,

"minimization" during interrogation of a crime of which a

defendant is accused, combined with other factors, can render a

confession involuntary because minimization carries with it an

implied promise that the requested confession will result in

lenient treatment.   DiGiambattista, 442 Mass. at 439.   Prior to

the defendant making any inculpatory statements, the detectives

offered the defendant reasons for why he may have committed the

alleged robberies, such as needing money to buy food for himself

and his infant daughter, and minimized the rape allegation by

pointing out that both the defendant and the alleged victim were

old enough to engage in consensual sexual activity.

     Second, "[t]he use of false information by police during an

interrogation is deceptive and is a relevant factor indicating a

possibility that the defendant's statements were made

involuntarily."   Selby, 420 Mass. at 664.   Here, Detective

Brissette informed the defendant that they had evidence of his

DNA on the victim who had allegedly been assaulted that morning.

It is evident from the record that the detectives could not have

yet known to whom any DNA recovered from that victim belonged.

In combination with the psychological coercion, the minimization

and false statement support our conclusion that the defendant's

inculpatory statements were involuntary.
                                                                   21


     d.   Effect of the constitutional error.   Having concluded

that it was constitutional error for the defendant's involuntary

statements to be used against him at trial, we must now

determine whether to set aside his convictions.    See Durand, 457

Mass. at 592, quoting Mincey v. Arizona, 437 U.S. 385, 398

(1978) ("any criminal trial use against a defendant of his

involuntary statement is a denial of due process of law"

[emphases in original]).   The defendant argues that his

convictions must be vacated because the admission of his

statements was a structural error.   We have not yet determined

whether the structural error standard should apply or whether,

with the defendant having filed a motion to suppress on

constitutional grounds, the harmless error standard should

apply, and we do not do so here.   See Durand, supra (reserving

for another day whether structural error applies).    See also

Commonwealth v. Hoyt, 461 Mass. 143, 154 (2011), quoting

Commonwealth v. Whelton, 428 Mass. 24, 25-26 (1998) ("The denial

of a motion to suppress evidence on constitutional grounds . . .

is reviewable without further objection at trial").    Under the

harmless error standard, "we consider 'the importance of the

evidence in the prosecution's case; the relationship between the

evidence and the premise of the defense; who introduced the

issue at trial; the frequency of the reference; whether the

erroneously admitted evidence was merely cumulative of properly
                                                                  22


admitted evidence; the availability or effect of curative

instructions; and the weight or quantum of evidence of guilt.'"

Thomas, 469 Mass. at 552a, quoting Commonwealth v. Santos, 463

Mass. 273, 287 (2012).   Because we conclude that the

introduction of the defendant's involuntary statements was not

harmless beyond a reasonable doubt, we need not resolve the

question.

     The defendant's incriminating statements contained on the

videotape were pivotal to the Commonwealth's case.   Although the

Commonwealth presented the testimony of the three victims and

other evidence tying the defendant to the incidents, such as DNA

evidence and his clothing, the extent of criminal liability from

the incidents depended on credibility.   Because the defendant

did not testify, the video recording provided the jury with his

description of the encounters.   During the involuntary portion

of the interview, the defendant admitted that he robbed E.C. and

L.B., that he pulled out a knife on L.B., and that he had sexual

contact with A.G.   Therefore, the prosecution was able to use

the nontestifying defendant's involuntary statements to support

the victims' credibility.   The prosecutor also referenced the

defendant's videotaped statements in his closing argument,
                                                                  23


telling the jury that the defendant admitted to having a knife

on him during all three incidents. 14

     Moreover, the defense strategy was limited by the

introduction of the involuntary statements.   Defense counsel

conceded to the acts that the defendant admitted performing

during his videotaped interview, specifically robbing the first

victim, using a knife while intending to rob the second victim,

and having consensual sex with the third victim.   Defense

counsel argued that the Commonwealth failed to prove the

remaining charges. 15

     The error in admitting the defendant's involuntary

statements was further compounded by the erroneous introduction

of a statement in the videotape that the defendant had

previously committed robberies not related to the charged

offenses.   Thus, the jury heard evidence of bad acts that were

not properly admitted.   Although the judge provided instructions

     14
       In the interview, Detective Brissette asked, "where's the
knife that you`ve been carrying for a few days?"; the defendant
responded, "I lost it," and described a silver and brown pocket
knife.
     15
       Specifically, defense counsel argued that the
Commonwealth failed to prove assault and battery with a
dangerous weapon and kidnapping against the first victim;
kidnapping of the second victim; and rape, indecent assault and
battery, and kidnapping against the third victim. Of these
charges, the defendant was convicted of assault and battery with
a dangerous weapon and kidnapping against the first victim,
kidnapping of the second victim, and indecent assault and
battery against the third victim.
                                                                       24


on this point, the prejudice caused by introduction of the

videotaped statements was further compounded by this error and

we conclude that the admission of the videotaped statement was

not harmless beyond a reasonable doubt.      Santos, 463 Mass. at

289.

       3.   Conclusion.   The judgments are reversed and the

verdicts set aside.       The case is remanded to the Superior Court

where the defendant is to receive a new trial in accordance with

this opinion.

                                        So ordered.
