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SJC-11723

              COMMONWEALTH   vs.   DONOVAN K. SMITH.



       Worcester.      November 6, 2015. - March 11, 2016.

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


Homicide. Robbery. Attempt. Felony-Murder Rule.
     Constitutional Law, Admissions and confessions, Assistance
     of counsel. Evidence, Admissions and confessions,
     Videotape. Practice, Criminal, Admissions and confessions,
     Assistance of counsel, Capital case.



     Indictments found and returned in the Superior Court
Department on December 7, 2010.

     A pretrial motion to suppress evidence was heard by Janet
Kenton-Walker, J., and the cases were tried before John S.
McCann, J.


     Aziz Safar for the defendant.
     Susan M. Oftring, Assistant District Attorney, for the
Commonwealth.


    BOTSFORD, J.    A Superior Court jury found the defendant

guilty of the attempted armed robbery and murder in the first

degree of Michelle Diaz on theories of extreme atrocity or

cruelty and felony-murder.   In this direct appeal from his
                                                                    2


convictions, the defendant challenges the admission in evidence

of his videotaped statement to the police, and the admission of

an enhanced recording of a statement made by the defendant while

he was left alone during the police interrogation.    He requests

relief pursuant to G. L. c. 278, § 33E.    We conclude that the

failure of the police to honor the defendant's right to

terminate questioning, a claim the defendant did not raise

below, created a substantial likelihood of a miscarriage of

justice and requires the reversal of the defendant's

convictions; the defendant is entitled to a new trial.

     1.   Background.   From the evidence presented at trial, the

jury could have found the following.   On August 24, 2010, at

approximately 12:45 P.M., Sara Ventura parked her automobile on

Fairfax Road in Worcester.   As she was getting out of the

vehicle, she heard a loud scream and looked in the direction of

the scream.   She saw nothing, but a few seconds later, she heard

what sounded like a gunshot.    She then saw a young African-

American man running very quickly down the street.1    Around the

same time, Carlos Tumer, who was in his apartment on Fairfax

Road, heard a "pop" and looked outside the window, where he saw

a woman, later identified as the victim, sitting in the driver's

     1
       The man had short hair, was approximately five feet, six
inches tall, and was wearing dark clothes. Sara Ventura was
unable to identify the man she had seen from a subsequent
photographic array provided by police; the defendant's
photograph was included in that array.
                                                                     3


seat of a Lexus automobile with the front passenger's door open.

Tumer also noticed a dark-skinned man wearing a black shirt and

light blue jeans near the front of the vehicle, running away

while appearing to adjust the back of his shirt.   Tumer

telephoned the police soon thereafter when he noticed that the

victim had slumped forward and had blood on her neck.

    At approximately 12:47 P.M., Officer Kevin Krusas of the

Worcester police department was dispatched to Fairfax Road,

where he observed the victim seated in the driver's seat of her

blue Lexus, but leaning across the front passenger seat.     The

victim had been shot in the neck but still had a pulse, and fire

fighters who arrived at the scene administered cardiopulmonary

resuscitation.   The victim was transported to the hospital,

where she remained in critical condition for six days until life

support measures were withdrawn and she died.

    During their investigation, the police learned that Kenneth

Cashman, a homeowner on Fairfax Road, had attached to his house

a surveillance system consisting of several cameras that

generated audio-video recordings of the surrounding areas.     The

police viewed the recordings, and although none of the cameras

recorded the shooting itself, the recordings showed the victim's

blue Lexus as it arrived on Fairfax Road.   They also showed a

male entering the front passenger seat of the Lexus; the Lexus

being driven out of the video range of the cameras, but not out
                                                                    4


of the system's audio range; and Ventura parking her vehicle on

Fairfax Road.

     The police retrieved the victim's cellular telephone and

discovered that the last incoming call the victim received came

from a telephone registered to William Madison.    Using global

positioning information received from Madison's cellular

telephone carrier, the police were able to locate Madison at his

apartment on Vernon Street Place in Worcester, where he lived

with his mother; his girl friend, Kassie Ago; and her young son.

On August 25, 2010, Detective Sergeant Gary Quitadamo and other

Worcester police detectives went to Madison's home to speak with

him regarding the shooting incident.    Madison agreed to go with

them to the police station, where he was interviewed.2    While

Madison was at the police station, police sought, received, and

executed a search warrant for Madison's residence and seized

marijuana, a cellular telephone registered to Madison, and a

black, long-sleeved T-shirt near a washing machine.    The police

had been informed by Madison's cellular telephone carrier that,

within hours of the incident, Ago had contacted the carrier to

change the existing telephone number and register the new number

under a fictitious name.

     The following day, Madison and Ago were each interviewed by

the police concerning the August 24 shooting incident, but

     2
         William Madison was not under arrest at that time.
                                                                   5


neither of them provided any substantive information.     One month

later, and after further investigation, the police arrested

Madison and Ago in connection with the August 24 shooting

incident.   On September 29, 2010, Madison and Ago, represented

by separate counsel, entered into cooperation agreements with

the Commonwealth pursuant to which each agreed to provide

information about the shooting incident and to testify against

the defendant in exchange for lesser sentences.   On October 7,

the police also arrested Kenny Roman, a friend of Ago's; on

January 7, 2012, represented by counsel, Roman entered into a

cooperation agreement that called for him to provide information

and testify against the defendant regarding the shooting

incident in exchange for a lesser sentence.3

     Madison, Roman, and Ago (collectively, cooperating

witnesses) each testified at the defendant's trial that he or

she participated in a plan with the defendant and his older

brother, Marcus Young, to rob someone of money and drugs and

then split the proceeds.   Roman, who was a friend of the victim

and knew her to be a marijuana dealer, suggested the victim as


     3
       Madison, Kassie Ago, and Kenny Roman had each been charged
as an accessory to murder, a crime that carries a mandatory
sentence of life imprisonment. See G. L. c. 265, § 2; G. L.
c. 274, § 2. Pursuant to the cooperation agreements, all three
of the witnesses were permitted to plead guilty to lesser
offenses. Madison and Ago received sentences in a house of
correction; Roman received a sentence of from five to six years
in State prison.
                                                                     6


the target.   The plan was for the defendant to actually carry

out the robbery.   Because the group believed -- based on

information supplied by Roman -- that the victim might be armed,

they agreed that the defendant should carry with him a gun;

Madison supplied the gun.

    The plan was executed on August 24, 2010.    Ago contacted

the victim, arranged for a purchase of marijuana, and told the

victim that her friend would be picking it up.   The pickup was

to be on Fairfax Road in Worcester.   The defendant, Madison, and

Young left Madison's apartment to walk to Fairfax Road, the

defendant walking a few feet ahead of Madison and Young.     When

they were approximately 500 feet away from the destination,

Madison and Young stopped and the defendant continued walking

toward Fairfax Road to meet the victim.   Madison lost sight of

the defendant before the defendant reached and entered the

victim's blue Lexus.   The next time Madison saw the defendant,

he was running past Madison toward Madison's apartment.     Madison

and Young followed, running behind the defendant.   According to

Madison and Ago, once back in the apartment, the defendant

stated several times that he had shot the victim.   The defendant

returned the gun to Madison, who placed it in Ago's purse.     Ago

and Madison then drove the defendant and Young back to Young's

apartment, where Madison gave the gun to Young, who placed it in
                                                                      7


a drawer in his bedroom.     According to Ago, Young later disposed

of the gun by burying it.4

     At the crime scene, the police recovered the following:      a

can of tire sealant containing a hidden compartment filled with

four plastic bags of marijuana from underneath the victim's

Lexus near a rear tire; an envelope containing $250 in the

driver's side door of the Lexus; a .380 caliber bullet casing in

the driver's seat; and a spent projectile on the floor inside

the vehicle that the Commonwealth's ballistician identified as

being a hollow-point .380 bullet used in a semiautomatic

firearm.   The black shirt the police had seized from Madison's

apartment, identified by Ago as belonging to the defendant, was

tested for blood and gunshot residue and tested negative for the

presence of either.

     On October 6, 2010, police arrested the defendant, who was

eighteen years old, at a school program and brought him to the

Worcester police station for an interrogation in connection with

the incident.   Worcester police Detective Michael Tarckini led

the interrogation, which lasted approximately one hour and

thirty-five minutes and was recorded on audio-video tape.5


     4
       We discuss in further detail, infra, the individual
statements produced by each of the cooperating witnesses.
     5
       The defendant was informed by Detective Michael Tarckini
that the interrogation was being recorded, and he did not
object.
                                                                      8


Detective William Escobar and, briefly, Detective Lieutenant

John Towns, both Worcester police officers, also participated in

the interrogation.     At the outset, Tarckini administered Miranda

warnings to the defendant; the defendant signed a written waiver

form and agreed to speak to the police.     The defendant insisted

to the detectives for some time that he had had no involvement

in the August 24 shooting incident.    However, he later admitted

that he participated in a plan devised by Ago and Madison to rob

the victim, but that the robbery failed after the victim became

aware that he was attempting to rob her.    He repeatedly denied

shooting the victim.    He told the police that he got out of the

victim's automobile and ran away after he realized he could not

obtain the drugs, that he did not have a gun, and that he heard

gunshots as he was running away.6

     On December 7, 2010, the defendant was indicted for murder

in the first degree, G. L. c. 265, § 1, and attempt to commit

armed robbery, G. L. c. 274, § 6.     On January 4, 2012, the

defendant filed a motion to suppress his statement to the police

on the ground that the statement made was involuntary as a

result of improper interrogation tactics used by the police in



     6
       At a point soon thereafter in the interrogation, the
defendant asked to speak to an attorney, and the questioning
ended. The redacted version of the defendant's interview shown
to the jury included his invocation. We discuss the defendant's
interrogation in some detail, infra.
                                                                        9


eliciting a confession.7      An evidentiary hearing was held before

a Superior Court judge at which Tarckini and Quitadamo

testified.     That judge denied the motion on June 12, 2012.     The

defendant's trial commenced before a jury and a different judge

on September 24, 2012,8 and on October 2, the jury found the

defendant guilty of murder in the first degree on theories of

extreme atrocity or cruelty and felony-murder, as well as of

attempt to commit armed robbery.      He was sentenced to life in

prison without the possibility of parole on the murder charge

and a concurrent term of from four to five years on the charge

of attempt.     The defendant filed a timely notice of appeal to

this court.

     2.    Discussion.   a.   Admission of the defendant's

statement.     In this appeal, the defendant challenges the

admission of his statement to the police on two separate

grounds:     (1) during the custodial interrogation9 the police


     7
       The defendant's motion to suppress did not challenge the
admissibility of his statement on the ground that the police had
failed to honor his request to terminate questioning.
     8
       The defendant was tried alone on the charges of murder in
the first degree and attempt to commit robbery. Madison, Ago,
and Roman each testified against the defendant at trial,
pursuant to separate cooperation agreements. Young, the
defendant's brother, did not testify at the defendant's trial.
     9
       When the police interviewed the defendant, he already had
been placed under arrest; as the judge who heard the motion to
suppress (motion judge) concluded, there was no question that
the interrogation by the police was custodial.
                                                                   10


conducted, the defendant exercised his right to cut off

questioning but the police improperly did not honor that

exercise; and (2) the statement was induced by falsehoods,

trickery, and promises of leniency improperly put forth by the

defendant's police interrogators, and therefore was not

voluntary.10   Before we consider the defendant's claims, we set

forth additional facts about the interrogation.

     i.   Facts.   After administering Miranda warnings to the

defendant and obtaining his agreement that he understood the

warnings and was willing to talk to the police, Tarckini, with

periodic questions or statements inserted by Escobar, told the

defendant the following:    the police had video footage of him

sitting in the victim's Lexus and running from that vehicle

after the gunshot was heard; there was deoxyribonucleic acid

(DNA) and fingerprint evidence belonging to him in the Lexus;11


     10
       The defendant argues in his brief that both grounds on
which he challenges the admission of his statement are to be
reviewed under the harmless beyond a reasonable doubt standard.
That is not correct. As indicated previously, the defendant's
pretrial motion to suppress raised only the second ground; the
first was not presented in the motion or raised at trial, and
therefore it is not preserved. We review this first ground to
determine whether admission of the statement created a
substantial likelihood of a miscarriage of justice. See
Commonwealth v. Wright, 411 Mass. 678, 682 (1992), S.C., 469
Mass. 447 (2014).
     11
       Neither at the time of the interrogation nor at any later
time did the police have deoxyribonucleic acid (DNA) or
fingerprint evidence that connected the defendant to the
victim's Lexus. The audio-video footage from the cameras on
                                                                   11


people had identified him as the shooter; and the police had

recovered his eyeglasses from Madison's apartment with the

defendant's DNA on them.12    For approximately thirty minutes, the

defendant's repeated responses to these assertions by the police

were to the effect that he did not know what they were talking

about, and he denied knowing the victim or the fact that she had

been shot and killed.     Then, the following exchange occurred:

     Defendant:    "I'm done."

     Tarckini:    "You're done with what?"

     Defendant:    "I'm done talking.     I don't wanna talk no
     more."

     Tarckini:    "You don't wanna talk anymore?"

     Defendant:    "No.   'Cause y'all really don't believe me."

     Tarckini: "It's -- We already tried to explain that to
     you, Donovan. I don't think you get it."

     Defendant:    "Yeah, I understand."

     Tarckini:    "It's not believing."

     Defendant:    "I understand, sir."

     Tarckini:    "It's not believing.     It's what we know."

     Defendant:    "Okay."


Kenneth Cashman's house showed a person enter the Lexus, and
thereafter showed a male running away from the area where the
Lexus was parked, but the video depiction itself was not clear
enough to permit an actual identification of the person or
persons shown.
     12
       This statement about the eyeglasses was false. Although
the defendant wore eyeglasses, the police never recovered
eyeglasses in connection with their investigation of this case.
                                                                12



    Tarckini:    "What the facts are."

    Defendant:    "What the facts show."

    Tarckini:    "Right."

    Defendant:    "Right."

    Tarckini:    "Right?"

    Defendant:    "Yes."

    Tarckini: "We don't make stuff up. We don't make people
    talk to us. We don't make people pick people out. We
    don't put people's fingerprints inside of a car. We don't
    make up videos. The facts are the facts."

When the defendant did not respond, Tarckini continued:

    Tarckini: "When we talk to people, we ask certain
    questions to gauge your truthfulness, things that I know
    you're not gonna lie about like name, address, who you live
    with, mom, dad, date of birth, stuff like that. Then when
    we ask you questions about other things, your body reacts a
    certain way. It's just a natural thing. You can't help
    it. Everyone does it. So that's what I -- when you answer
    my questions and I say you're lying to me, your body's
    telling me that. Not only your words but your body. You
    understand?"

The defendant, who had remained completely silent during

Tarckini's speech, spoke only to answer "yes" to the question

whether he understood.      Tarckini again continued:

    Tarckini: "You have the opportunity now to give your side
    of the story, to maybe lighten the load, get a little bit
    off yourself. And you're being a tough guy, in the sense
    that you're just gonna -- you're gonna dig in and sit in a
    hole and wait out the storm. And I don't think you realize
    all the things that are gonna happen going forward. We're
    trying to give you information so you can process all that.
    What are you thinking about?"

    Defendant:    "Life."
                                                                   13



    Tarckini:   "Think life's been tough to you?"

    (The defendant nods, indicating yes.)

    Tarckini: "Yeah? Sometimes life isn't fair, man.
    Sometimes we're in the wrong place at the wrong time.
    Sometimes circumstances just put you in a bad way. I kinda
    think that's what happened here."

Approximately fifty seconds of silence passed, after which the

defendant stated:    "I didn't shoot nobody," and then he

proceeded to make a series of inculpatory responses to questions

by the officers.    He described a plan among Ago, Madison, and

himself to rob the victim, and detailed what happened after he

got into the victim's automobile, including that he was in it on

the day of the shooting.    He stated that the victim picked him

up in her automobile, they drove around together before parking

on the street, and the victim asked him for the money multiple

times, saying that the defendant better not be robbing her; that

when he reached for the can containing the marijuana, the victim

pulled it away and held it outside the window, out of his reach;

that the victim then called out for help; and that when he

realized he could not obtain the drugs, he fled and heard

gunshots as he ran away.    He consistently denied having a gun,

seeing the victim with a gun, and shooting her.

    Approximately twenty minutes after the defendant made these

statements, the two detectives left the defendant alone in the

interrogation room for approximately six minutes; the video and
                                                                     14


audio recording system were still operating.     The defendant sat

in the same chair he had been in for the entire interview, and

muttered something to himself to the effect of, "Why'd you shoot

her?    You didn't even shoot the bitch.   You didn't shoot her.

You didn't fucking shoot her."13   When the detectives returned,

the defendant admitted that after the attempted robbery, he went

back to Madison's house to change his clothes, and the

interrogation ended soon thereafter, following the defendant's

request for an attorney.14




       13
       There is much dispute regarding the exact statement made
by the defendant while he was alone in the interrogation room.
Apparently after listening to a version of the audio-video
recording that had been enhanced in some fashion to clarify the
audio feature (enhanced version), the motion judge found that
the defendant stated, "Why'd you shoot her? Why'd you shoot the
bitch?" At trial, both Tarckini and Detective Sergeant Gary
Quitadamo were permitted to testify to their own understanding
of what the defendant said, based on their listening to the
enhanced version -- which was the version admitted in evidence
as a trial exhibit. In his closing argument, the prosecutor
argued that the defendant said, "Why did you shoot her? I
didn't even shoot the bitch. I didn't shoot her. . . . You
can't fucking shoot her." Our own review of the enhanced
recording has led us to conclude that the defendant's statement
was the one we have quoted in the text.
       14
       The audio-video equipment in the interrogation room
continued to record after the defendant requested an attorney.
Our review of that portion of the unredacted recording indicates
that the officers, including Detective Lieutenant John Towns,
continued to engage the defendant regarding the investigation of
the case. The following exchange occurred between the officers
and the defendant outside the interrogation room and after the
defendant had requested an attorney:
                                                                   15


    ii.   The defendant's claims.    The defendant contends that

although he initially waived his Miranda rights, he later

invoked his constitutional right to remain silent when he said

that he was "done talking," an invocation that the police did

not "scrupulously honor."    Miranda v. Arizona, 384 U.S. 436,

444-445, 473-474, 478-479 (1966).    See Michigan v. Mosley, 423

U.S. 96, 102-104 (1975).    The argument is framed as one of

ineffective assistance of trial counsel for failure to move to

suppress the admission of the defendant's inculpatory responses

to the police based on this invocation.   See Commonwealth v.

Williams, 453 Mass. 203, 207 (2009), citing Commonwealth v.

Wright, 411 Mass. 678, 682 (1992), S.C., 469 Mass. 447 (2014).



    Towns: "What we wanted to have an opportunity for you to
    do was tell us if something happened. Alright. You gotta
    know that these guys are telling the truth."

    Defendant:    [inaudible]

    Tarckini:    "We're not trying to trick you."

    Towns:   "Listen.   Hey, listen."

    Tarckini:    "Listen to us."

    Towns: "Hey, if you change your mind, wanna talk to these
    guys, alright, tell us downstairs. A bad decision . . .
    [inaudible]. If something happened inside the car that
    wasn't like you just pull out the gun and start shooting,
    you know what I mean, if it's not what happened, then you
    need to have an opportunity to say that. And today gives
    you a good form of credibility to say that. Mitigates for
    sure."

    Tarckini:    "We're not trying to trick you."
                                                                     16


The Commonwealth argues that the defendant's claim must fail

because, even if trial counsel had brought a motion to suppress

raising a claim of invocation of the right to remain silent, the

motion would not have succeeded.   See Williams, supra.     In the

Commonwealth's view, the defendant's statement that he was done

talking was an ambiguous remark rather than a clear, unequivocal

invocation of his right to remain silent, and the fact that the

defendant thereafter continued speaking supports the conclusion

that he did not intend to invoke the right when he made the

remark about being "done."   We take the same view as the

defendant.

    "It is clear that a defendant has not only the right to

remain silent from the beginning but also a continuing right to

cut off, at any time, any questioning that does take place."

Commonwealth v. Bradshaw, 385 Mass. 244, 265 (1982).   However,

if a defendant has waived his or her Miranda warnings and later

wishes to remain silent, the invocation of that right "must be

clear and unambiguous[], such that 'a reasonable police officer

in the circumstances would understand the statement to be an

invocation of the Miranda right.' . . .   Whether the defendant

has met this burden is a fact-specific determination to be made

based on the totality of the circumstances" (citation omitted).

Commonwealth v. Howard, 469 Mass. 721, 731 (2014), citing
                                                                   17


Commonwealth v. Almonte, 444 Mass. 511, 519, cert. denied, 546

U.S. 1040 (2005).

     In these circumstances, the defendant's statement, "I'm

done," by itself, was ambiguous, coming as it did as a

nonresponse to a long series of statements by Tarckini and

Escobar about what the police already knew.    In this context,

Tarckini's question to the defendant, "You're done with what?"

was an appropriate effort to clarify.    See Commonwealth v.

Santos, 463 Mass. 273, 286 (2012).    See also Commonwealth v.

Hearns, 467 Mass. 707, 718 (2014).    But the defendant's

immediate and direct answer, "I'm done talking.    I don't wanna

talk no more," was certainly a clarifying response to Tarckini's

inquiry, one that resolved completely the previous ambiguity,

and asserted in no uncertain terms the defendant's desire and

intention to end the interrogation.     See Howard, 469 Mass. at

733 n.13.15   However, instead of accepting the defendant's



     15
       In Commonwealth v. Howard, 469 Mass. 721, 733 n.13
(2014), this court stated:

     "[W]e take the word 'stop' to mean what it says. A
     suspect's or defendant's use of the word 'stop,' or the
     phrase, 'I would like to stop at that point,' in this
     context should raise a red flag for an interrogating police
     officer -- a signal that it is necessary at the very least
     for the officer immediately to pause in order to reflect on
     what the defendant has just said, and to consider whether
     the defendant is seeking to invoke his right to remain
     silent" (emphasis in original).
                                                                   18


invocation and terminating the interview, Tarckini, after

repeating the defendant's answer,16 launched into a lengthy

monologue in an apparent effort to convince the defendant to

keep talking -- an effort that succeeded.   This was not proper.

See Hearns, supra at 719.17



The same is true of the phrases, "I'm done talking" and "I don't
wanna talk no more."
     16
       We have stated that, when a defendant makes an ambiguous
statement concerning an intent to stop questioning, the police,
in seeking to clarify the defendant's meaning, may appropriately
ask a clarifying question, but ordinarily the effort to clarify
should be limited to one question. See Commonwealth v. Santos,
463 Mass. 273, 286-287 (2012). Here, Tarckini followed the
defendant's clarifying answer with another question that
repeated the defendant's last answer, "You don't wanna talk no
more?" -- to which the defendant responded, "No," and then added
a reason: "'Cause y'all really don't believe me." We do not
share the Commonwealth's view that Tarckini's follow-up question
was simply an exercise of "good police practice." Rather, the
question appears to have been an unnecessary repeat of a
question that already had been answered very clearly. Moreover,
the defendant's response was consistent with his prior statement
of intent to stop the questioning, and not, as the Commonwealth
suggests, one that merely reflected the defendant's ongoing
frustration with the refusal of the police to believe what he
was saying. Postinvocation responses "to further interrogation
may not be used to cast retrospective doubt on the clarity of
the initial [invocation] itself" (citation omitted). Id. at
287.
     17
       Although the defendant clearly was willing to speak
before stating to the police that he was done talking, he said
very few words in response to Tarckini's soliloquy extending for
several minutes after that statement, which further indicates
the defendant's intention to remain silent. Contrast
Commonwealth v. Senior, 433 Mass. 453, 463 (2001), quoting
Commonwealth v. Pennellatore, 392 Mass. 382, 387 (1984)
(defendant's request to stop questioning "must be interpreted in
the context of his willingness to talk both immediately prior to
and subsequent to" that point).
                                                                    19


    We conclude that the defendant has met his burden to

establish that he clearly stated his intent to cut off further

questioning by the police; "his choice of words fell well within

the range of cases where we have found a clear and unequivocal

invocation."   Hearns, 467 Mass. at 718.   See, e.g., id. at 717

(defendant's postwaiver statement, "Well then, I don't want to

talk.   I haven't got nothing to say," was clear invocation).

See also Howard, 469 Mass. at 732-733 (stating, "I would like to

stop at that point" sufficient to invoke right to silence);

Commonwealth v. Santana, 465 Mass. 270, 277, 282 (2013)

(postwaiver statement that defendant could not "say any more"

was clear invocation of right to silence); Santos, 463 Mass. at

285 (postwaiver statement that "I'm not going on with this

conversation" in itself constituted clear invocation).    The

police, however, continued to interrogate the defendant, and the

defendant responded to their questions for the next fifty-three

minutes, making a number of inculpatory responses.

    "[T]he admissibility of statements obtained after the

person in custody has decided to remain silent depends under

Miranda on whether his 'right to cut off questioning' was

'scrupulously honored.'"   Mosley, 423 U.S. at 104.   The factors

identified in Mosley to evaluate this issue all point to the

conclusion that scrupulous honoring of the defendant's right did
                                                                  20


not occur here.18   That is, the police did not immediately cease

questioning the defendant; the questioning continued almost

without a pause, and without a fresh set of Miranda warnings;

and the scope and subject matter of the interrogation remained

the same as before the invocation -- the defendant's involvement

in the victim's death.   See id. at 106-107.   See also

Commonwealth v. Taylor, 374 Mass. 426, 433-434 (1978).     In these

circumstances, a motion to suppress the defendant's statement to

the police on the ground of invocation of the right to remain

silent would have been successful, see, e.g., id. at 433-436,

and trial counsel's failure to raise this ground constituted

error.    See Wright, 411 Mass. at 682.

     The defendant advances a separate but related claim that

what he stated while he was alone in the interrogation room

(volunteered statement) should not have been admitted in

evidence.   The defendant argues that the volunteered statement

was wholly ambiguous and that, in the circumstances, its

admission was more prejudicial than probative, and the trial




     18
       We have described the Mosley factors as follows: whether
"the police (1) had immediately ceased questioning; (2) resumed
questioning 'only after the passage of a significant period of
time and the provision of a fresh set of warnings'; and (3)
limited the scope of the later interrogation 'to a crime that
had not been a subject of the earlier interrogation'" (citation
omitted). Commonwealth v. Clarke, 461 Mass. 336, 344 (2012).
See Michigan v. Mosley, 423 U.S. 96, 106-107 (1975).
                                                                    21


judge abused his discretion in admitting it.19       Our plenary

review of this case pursuant to G. L. c. 278, § 33E, persuades

us that the volunteered statement was not admissible for a

reason different from the one or ones advanced by the defendant.

See Commonwealth v. Bell, 460 Mass. 294, 295, 306 (2011), S.C.,

473 Mass. 131 (2015); Commonwealth v. Silva-Santiago, 453 Mass.

782, 805-810 (2009).

     As discussed, when the defendant invoked his right to

terminate questioning, the police were required immediately to

end the interview.     At that point, all questioning should have

ceased, and it follows that the recording of the interview also

should have ceased.     That is not what happened.    Rather, the two

detectives continued to interrogate the defendant and the

recording equipment continued to operate, including during the

time, postinvocation, that the detectives left the defendant

sitting for approximately six minutes by himself in the

interrogation room, during which time he made the volunteered

statement.   The critical question is "whether . . . the evidence


     19
       The defendant contends that this issue was preserved.
That is not clear. The Commonwealth points out that, although
the defendant's trial counsel mentioned the lack of clarity
about the meaning of the defendant's volunteered statement, the
principal reason he objected to its admission at trial was the
same issue he had raised in his motion to suppress: lack of
voluntariness. As next explained in the text, we decide that
the volunteered statement was not admissible on grounds
different from any suggested by the defendant, and therefore, we
need not decide the preservation question.
                                                                    22


to which instant objection is made has been come at by

exploitation of [the primary] illegality or instead by means

sufficiently distinguishable to be purged of the primary taint"

(citation omitted).    Wong Sun v. United States, 371 U.S. 471,

488 (1963).    See Bradshaw, 385 Mass. at 258.   It is clear that

without the audio-video recording, there would be no evidence of

the defendant's statement -- indeed, as one of the police

officers, Quitadamo, testified, the only way the police were

able to make out the defendant's words in the volunteered

statement at all was through enhancement of the sound quality of

the audio recording by using some technological means to reduce

the ambient noise.    The Commonwealth should not be permitted to

take advantage of a recording that should not have been made by

introducing the recording in evidence.   Cf. G. L. c. 272,

§ 99 P.   Adherence to the principle that the defendant's

constitutional right to cut off questioning must be

"scrupulously honored" leads us to conclude that, in the

particular circumstances presented here, all portions of the

defendant's statement procured after he invoked his right to

remain silent were inadmissible, including the volunteered

statement.20


     20
       The defendant's second challenge to the admissibility of
his statement rests on the ground that the police undermined the
voluntariness of his statement by using lies, tricks, and
implied promises of leniency to obtain the statement. The
                                                                      23


     The remaining question is whether the erroneous admission

of the defendant's statement, including the volunteered

statement, gave rise to a substantial likelihood of a

miscarriage of justice because the statement was likely to have

affected the jury's verdict.   See Wright, 411 Mass. at 682.     We

conclude that it did.   The defendant admitted to participating

directly in the group plan to rob the victim, and more

particularly to being the one who was charged with carrying it

out, and although he denied shooting the victim, the jury were

certainly free to disbelieve him on that point.   "[A]

defendant's own confession is probably the most probative and

damaging evidence that can be admitted against him."21    Arizona

v. Fulminante, 499 U.S. 279, 296 (1991), quoting Bruton v.

United States, 391 U.S. 123, 139-140 (1968) (White, J.,

dissenting).   It is true that the three cooperating witnesses

each described the defendant's involvement in the plan to rob



motion judge concluded that the police tactics were permissible
and did not affect the voluntariness of the defendant's
statement. Given our conclusion that the defendant's statement
was inadmissible because of his invocation of the right to
silence, we need not resolve the defendant's involuntariness
claim.
     21
       It certainly may be inferred that the prosecutor
considered the defendant's statement to be important, weaving it
into his closing argument at several different points. See
Howard, 469 Mass. at 749. And during their deliberations, the
jury asked to view the audio-video recording of the
interrogation and the enhanced audio recording of the
defendant's volunteered statement.
                                                                   24


the victim, and two of them quoted the defendant as saying that

he shot the victim, but each of the three was also a direct

participant in the robbery plan and had been charged as an

accessory to the victim's murder, and the three witnesses'

testimony was conflicting with respect to the defendant's role

in the scheme:   according to Roman, the idea to rob the victim

came entirely from Ago and Madison; Madison testified that the

idea was Roman's; and only Ago testified that the defendant and

his brother were the source of the idea.    Moreover, it was

undisputed that the gun used in the shooting was Madison's; that

Roman was the direct contact to the victim and the source of the

information that she might be armed; and that the idea to carry

a gun was not the defendant's.    The ability of defense counsel

to take advantage of these points, however, was impaired because

the defendant's own statement directly corroborated much of the

witnesses' version of events.    Finally, this is not a case in

which other types of evidence, independent of the cooperating

witnesses' testimony, pointed convincingly to the defendant's

guilt.   No forensic evidence -- for example, DNA or fingerprints

-- connected the defendant to being inside the victim's vehicle

or being involved in the incident more generally; the murder

weapon was never recovered; Ventura and Tumer, the two witnesses

who saw a male fleeing the scene, could not identify the

defendant as the assailant; and the audio-video recordings taken
                                                                   25


from Cashman's home did not enable a viewer to discern the

assailant's identity.    In view of all the circumstances, we

conclude that the admission of the defendant's statement likely

influenced the jury's verdicts, and therefore created a

substantial likelihood of a miscarriage of justice.   The

defendant's convictions must be reversed and the case remanded

for a new trial.22

     b.   Review under G. L. c. 278, § 33E.   We address an

additional issue raised by our review of this case under G. L.

c. 278, § 33E.   The jury found the defendant guilty of murder in

the first degree under theories of felony-murder and extreme

atrocity or cruelty.23   In our view, the trial evidence did not

adequately support a guilty finding under the second theory.

The victim was killed by a single gunshot that entered her neck

as she sat in her automobile.   Considering the evidence in the

     22
       A final point about the defendant's statement is in
order. After waiving his Miranda rights, the defendant spoke to
the police for approximately thirty-five minutes before invoking
his right to silence. During that portion of the interrogation,
the defendant repeatedly and consistently responded to the
interrogating officers' statements about their self-described
knowledge of the defendant's involvement in the victim's killing
with denials. Although this portion of the statement preceded
the defendant's invocation, it should not be admitted at any
retrial of this case. Accusations by the police, met with
denials by a defendant, are not admissible by themselves. See
Commonwealth v. Spencer, 465 Mass. 32, 48 (2013); Commonwealth
v. Womack, 457 Mass. 268, 274 (2010).
     23
       The Commonwealth also proceeded on a theory of deliberate
premeditation, but the jury did not find the defendant guilty
under that theory. See note 26, infra.
                                                                   26


light most favorable to the Commonwealth, there was evidence,

supplied by the defendant in his statement, that he had been in

the victim's automobile right before she was shot.   In addition,

Madison and Ago testified that when the defendant returned to

Madison's apartment from Fairfax Road, he stated that he had

shot the victim, and there was evidence that a few seconds

before the shot was fired, a yell or scream by a female voice

could be heard.   These witnesses also testified that the

defendant knew the gun was loaded.   Other than what has just

been summarized, however, there was no evidence presented about

the actual circumstances of the shooting.24   Moreover, although

Madison testified that the bullets in the gun were hollow-point

bullets, there was no evidence that the defendant knew that the

gun contained hollow-point bullets.25   Furthermore, the evidence

indicated, without dispute, that the gun in question was

Madison's, that Madison himself had loaded it, and that it was

the defendant's brother's idea for the defendant to bring a gun

in response to information supplied by Roman that the victim

might be armed.   In terms of the Cunneen factors, see


     24
       In addition, as discussed supra, the defendant's
statement to the police about being in the vehicle with the
victim should not have been admitted at trial.
     25
       There also was no evidence about whether the particular
injuries sustained by the victim were likely to have been caused
by the use of a hollow-point bullet, as opposed to some other
kind of bullet.
                                                                  27


Commonwealth v. Cunneen, 389 Mass. 216, 227 (1983), we conclude

that the record contains no evidence from which the jury

properly could find that the defendant was indifferent to or

took pleasure in the victim's death, that the victim was

conscious after being shot, that she sustained extensive

physical injuries apart from the gunshot, that there were

multiple blows, that excessive force was used, that the

instrument used to kill her was unusual, or that the means that

brought about her death were disproportional to the means needed

to cause death.   In any retrial, therefore, the Commonwealth may

proceed only under the theory of felony-murder.26

     3.    Conclusion.   The defendant's convictions are reversed,

the verdicts are set aside, and the case is remanded to the

Superior Court for further proceedings consistent with this

opinion.

                                     So ordered.

     26
       The Commonwealth may not proceed on the theory of extreme
atrocity or cruelty for the reasons discussed in the text. With
respect to the theory of deliberate premeditation, this theory
was presented to the jury and listed on the verdict slip, but
the jury left the line associated with the theory blank. After
the foreperson stated the jury's verdicts on the two charges
(murder and attempted armed robbery), the defendant requested
that the jurors be polled individually. When polled, each
deliberating juror stated that he or she found the defendant not
guilty of murder in the first degree on a theory of deliberate
premeditation. Accordingly, double jeopardy principles preclude
the Commonwealth from proceeding against the defendant on this
theory in any retrial. Contrast Commonwealth v. Carlino, 449
Mass. 71, 76-80 (2007). Contrast also Commonwealth v. Brown,
470 Mass. 595, 603-604 (2015).
