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SJC-11749

                   COMMONWEALTH   vs.   JEREMY LIBBY.



            Suffolk.    February 4, 2015. - June 26, 2015.

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


Constitutional Law, Admissions and confessions, Waiver of
     constitutional rights. Practice, Criminal, Motion to
     suppress, Admissions and confessions, Voluntariness of
     statement, Waiver. Waiver. Evidence, Admissions and
     confessions, Voluntariness of statement.



     Indictments found and returned in the Superior Court
Department on July 31, 2012.

     A pretrial motion to suppress evidence was heard by Mary-
Lou Rup, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Lenk, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by her.


     Jane Davidson Montori, Assistant District Attorney, for the
Commonwealth.
     Marissa Elkins for the defendant.


    CORDY, J.      The Commonwealth appeals from the ruling of a

Superior Court judge suppressing statements made to police
                                                                    2


officers by the defendant during the course of two interviews:

the first being prearrest and the second following his arrest.

The defendant was advised of the Miranda rights at the

commencement of both interviews, but, in various ways, those

rights were not accurately explained.    Among other things, we

are required to consider the effect of the inaccurate

explanation of those rights in a noncustodial setting on the

voluntariness of statements made thereafter, and on the knowing,

voluntary, and intelligent waiver of those rights in a

subsequent custodial interrogation.     We reverse the judge's

ruling suppressing the prearrest statement, and affirm her

ruling suppressing the postarrest statement.

     Background.   On June 27, 2012, members of the Palmer police

department received a complaint regarding the sexual abuse of

K.C., a six year old girl who resided in the home where the

defendant was living.   Shortly after police arrived at the home,

the defendant voluntarily1 accompanied them to the Palmer police

station to discuss an allegation that he had inappropriately

touched K.C.   Sergeant Scott Haley was the only officer present

during this conversation, and he began the interview by reading

the defendant the Miranda rights.   Haley then asked the

     1
       The record does not state whether the defendant was driven
to the police station or if he drove himself there. Sergeant
Scott Haley's investigative report only notes that the defendant
"willingly" went to the station.
                                                                     3


defendant whether, with those rights in mind, the defendant was

willing to talk "about these matters of concern."     After a

somewhat lengthy colloquy regarding the appointment of counsel

and whether the defendant was under arrest, discussed infra, the

defendant signed a Miranda waiver form and the interview

proceeded.    The defendant denied any inappropriate conduct with

K.C.    The interview concluded just after 10 P.M., and the

defendant left the police station.

       On June 28, 2012, Haley attended a forensic interview of

K.C., during which she alleged that the defendant had sexually

abused her.    The defendant was subsequently arrested and brought

to the police station.    He was booked, fingerprinted, and

brought back to the same interview room in which he had met with

Haley the day before.    Haley again read the defendant the

Miranda rights, which the defendant waived in writing.      After

being told that additional evidence had been uncovered, the

defendant again raised the issue of counsel.     Ultimately, after

another colloquy with Haley, the defendant said he did not want

a lawyer at that time and the interview continued.    The

defendant proceeded to make inculpatory statements and admitted

that the previous day, while he was tickling K.C., she had moved

his hand to her inner thigh near her private parts.

       Procedural history.   In July, 2012, the defendant was

indicted by a Hampden County grand jury on four counts of
                                                                     4


forcible rape of a child in violation of G. L. c. 265, § 22A, as

well as four counts of indecent assault and battery on a child

under the age of fourteen in violation of G. L. c. 265, § 13B.

    In April, 2013, the defendant filed a motion to suppress

the statements he made to Sergeant Haley during both of his

interviews.    The Commonwealth filed a written opposition in

response.    At a hearing on the motion, the parties submitted

digital video discs of the defendant's interviews; a stipulation

as to the timeline of events; two signed Miranda waiver forms; a

medical record of the examination of K.C., the complaining

witness; and a police report authored by Haley.    No testimony

was taken.    After a second, nonevidentiary hearing, the motion

judge granted the defendant's motion to suppress in its

entirety.

    In her decision, the judge concluded that the June 27

interview was noncustodial, but expressed some uncertainty

whether Miranda warnings given in a noncustodial interview had

to be scrupulously honored under Massachusetts law.    She further

concluded that the Commonwealth failed to prove beyond a

reasonable doubt that the defendant understood the full import

of his right to counsel and that he had voluntarily, knowingly,

and intelligently waived that right.    The judge also concluded

that reasonable doubt remained as to the voluntariness of the

defendant's statements on June 27, given interruptions and
                                                                    5


misstatements made by Haley.    With respect to the defendant's

June 28 interview, the judge held that misstatements by Haley

created a fundamental misunderstanding as to the defendant's

right to appointed counsel.    This, coupled with repeated

"clarifying" questions that may have dissuaded the defendant

from exercising his right to counsel, hampered the Commonwealth

from establishing, beyond a reasonable doubt, the validity of

the defendant's waiver.   Additionally, the motion judge found

that the Commonwealth did not meet its burden of showing that

the defendant's June 28 statements were voluntarily made in

light of Haley's implicit offers of leniency in conjunction with

misstatements about the defendant's right to counsel.

    Subsequently, the Commonwealth filed a motion to stay

proceedings in the trial court, with a notice of interlocutory

appeal.   The case is now before us pursuant to an order of a

single justice allowing the Commonwealth's application for leave

to pursue an interlocutory appeal.

    Discussion.    Typically, when "reviewing a ruling on a

motion to suppress, we accept the judge's subsidiary findings of

fact absent clear error, 'but conduct an independent review of

[her] ultimate findings and conclusions of law.'"    Commonwealth

v. Clarke, 461 Mass. 336, 340 (2012), quoting Commonwealth v.

Scott, 440 Mass. 642, 646 (2004).    "A judge who has seen and

heard the witnesses is in a better position to determine their
                                                                     6


credibility than is a court which is confined to the printed

record."   Commonwealth v. Novo, 442 Mass. 262, 266 (2004).

However, "whenever the evidence before the trial court is

reduced to a tangible form, and is therefore available to the

appellate court in the same form as it was reviewed by the trial

court," id., "the case for deference to the [motion] judge's

findings of fact is weakened."    Clarke, supra at 340.   In such

circumstances, "this court stands in the same position as did

the [motion] judge, and reaches its own conclusion unaffected by

the findings made by the [motion] judge" (citation omitted).

Novo, supra at 266.    Accordingly, we take "an independent view

of the evidence and analyze[] its significance without

deference" (citation and quotation omitted).     Clarke, supra at

341.

       We have previously held that "[t]he requirements of Miranda

v. Arizona, 384 U.S. 436, 444 (1966), are not triggered unless

the interrogation is custodial, and a defendant's failure to

receive or understand Miranda warnings, or police failure to

honor Miranda rights, does not result in suppression of a

voluntary statement made in a noncustodial setting."

Commonwealth v. Hilton, 443 Mass. 597, 608-609 (2005), S.C., 450

Mass. 173 (2007).     "[T]he premise of Miranda [is] that the

danger of coercion results from the interaction of custody and

official interrogation."    Illinois v. Perkins, 496 U.S. 292, 297
                                                                      7


(1990).   Accordingly, "[t]he safeguards prescribed by Miranda

become applicable as soon as a suspect's freedom of action is

curtailed to a degree associated with formal arrest" (citation

and quotation omitted).     Commonwealth v. Kirwan, 448 Mass. 304,

309 (2007).

    "Custodial interrogation is 'questioning initiated by law

enforcement officers after a person has been taken into custody

or otherwise deprived of his freedom of action in any

significant way.'"     Id., quoting Commonwealth v. Jung, 420 Mass.

675, 688 (1995).     "The determination of custody depends

primarily on the objective circumstances of the interrogation,

and not on the subjective views of either the interrogating

officers or the person being questioned."     Commonwealth v.

Sneed, 440 Mass. 216, 220 (2003).     Accordingly, "'[t]he crucial

question' . . . is whether 'a reasonable person in the

defendant's position would have believed that he was in

custody.'"    Commonwealth v. Molina, 467 Mass. 65, 73 (2014),

quoting Commonwealth v. Baye, 462 Mass. 246, 253 (2012).

Therefore, "if the defendant reasonably believed that he was not

free to leave, the interrogation occurred while the defendant

was in custody, and Miranda warnings were required" (citation

omitted).    Commonwealth v. Groome, 435 Mass. 201, 211 (2001).

    Whether made in a custodial or noncustodial setting, and

even where there has been a valid waiver of Miranda rights, we
                                                                       8


must consider the voluntariness of a defendant's statement, as

"a confession or an admission is admissible in evidence only if

it is made voluntarily."    Commonwealth v. Tremblay, 460 Mass

199, 206 (2011).    "[T]he Commonwealth must prove beyond a

reasonable doubt that 'in light of the totality of the

circumstances surrounding the making of the statement, the will

of the defendant was [not] overborne,' but rather that the

statement was 'the result of a free and voluntary act.'"       Baye,

462 Mass. at 256, quoting Commonwealth v. Durand, 457 Mass. 574,

595-596 (2010).    "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."    Molina, 467 Mass. at

75, quoting Tremblay, supra at 207.

    The issue of voluntariness necessarily "turns on 'all the

surrounding circumstances -- both the characteristics of the

accused and the details of the interrogation.'"    Baye, 462 Mass.

at 256, quoting Dickerson v. United States, 530 U.S. 428, 434

(2000).   "This is not an area of the law that is governed by

bright-line rules, but is one that requires a fact-intensive

analysis."   Tremblay, 460 Mass. at 210.   "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
                                                                    9


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.'"

Molina, 467 Mass. at 76, quoting Commonwealth v. Selby, 420

Mass. 656, 663 (1995).    While the "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," Novo, 442 Mass. at 267, quoting Selby,

420 Mass. at 664, "[m]isinformation by the police does not

necessarily render a confession involuntary."    Commonwealth v.

Raymond, 424 Mass. 382, 395 (1997).    "The presence of one or

more factors suggesting a statement may have been made

involuntarily is not always sufficient to render the statements

involuntary."   Tremblay, 460 Mass. at 207, quoting Selby, supra.

    With these standards delineated, we turn to assessing the

statements at issue and the judge's ruling.

    1.   June 27 statements.    As noted, the defendant

voluntarily accompanied the police to the police station on June

27, 2012, to discuss an allegation that he had inappropriately

touched K.C.    The defendant, who was not under arrest, sat with

Haley in an office furnished with two chairs and a desk with a

computer.   The interview was videotaped with the defendant's

knowledge and assent.
                                                                  10


    Haley began the defendant's interview by reading him the

Miranda rights.    Haley then asked the defendant whether, with

these rights in mind, he wanted to discuss the "matters of

concern."    The following exchange ensued:

    Defendant:    "I'm thinking with the circumstances I might
                  need to get a lawyer."

    Haley:        "Well, we can stop this right now if you want a
                  lawyer."

    Defendant:    "But where does that put me today?   Am I
                  arrested? Am I under arrest?"

    Haley:        "Well, right now you're not under arrest."

    Defendant:    "I understand that, but if -- I'm not refusing
                  to answer, but I'm thinking. I'm just thinking
                  to myself underneath the circumstances, with
                  what's being alleged right now."

    Haley:        "Well, we haven't alleged anything with you
                  right now."

    Defendant:    "Well, the officer said that there was
                  allegations against me for inappropriately
                  touching my six year old daughter.[2] That's
                  what he said."

    . . .

    Haley:        "That's why you're in here. That's what I'm
                  here to interview you about, okay?"

    Defendant:    "Okay."

    Haley:        "So if you want a lawyer, we will stop the
                  process right now and the interview ends, okay?
                  If you don't want a lawyer and you want to tell
                  me your side of the story, then we'll continue

    2
       Although the defendant and K.C. are not biologically
related, the defendant considered K.C. to be his daughter given
his past relationship with K.C.'s mother.
                                                               11


                 with the interview. So that's the decision you
                 have to make. Whether or not you want to --"

    Defendant:   "But if I stop, am I under arrest?"

    Haley:       "You're not under arrest right now. I'm going
                 to talk to the sergeant as to the status of the
                 investigation, and then we'll make a decision on
                 that, okay? But as of right now you're not
                 under arrest, okay?"

    Defendant:   "Okay. Now, if I need the court to appoint me a
                 lawyer because I do not have the funds?"

    Haley:       "If we get to that point, okay, then the court
                 will appoint you a lawyer at arraignment,
                 okay?[3] If we get to that point, but we're not
                 to that point yet."

    Defendant:   "Okay."

    Haley:       "Okay?"

    Defendant:   "I just --"

    Haley:       "We're at the point of we're investigating these
                 allegations, and you willingly came in here to
                 talk to us about what happened --"

    Defendant:   "Yes."

    Haley:       "-- on your side, okay?"



    3
       This was not a completely accurate statement of law under
Miranda v. Arizona, 384 U.S. 436 (1966). "[W]hile arraignment
is one procedural step in criminal proceedings that will trigger
the . . . right to counsel [under the Sixth Amendment to the
United States Constitution], other steps occurring prior to
arraignment may operate to initiate criminal proceedings and
trigger those rights at an earlier stage," Commonwealth v.
Torres, 442 Mass. 554, 570-571 (2004), including, of course, a
custodial interrogation. Nevertheless, as discussed infra, this
statement was not directly material, as the defendant did not
have a right to appointed counsel during his June 27, 2012,
noncustodial interview.
                                                               12


Defendant:   "I'll waive the right, and if I need a lawyer
             afterwards then I'll just have to somehow -- I
             just don't want to -- I have a tendency, if
             something comes out the wrong way, I don't need
             that getting used."

Haley:       "Well, what we're going to do here now is we're
             going to put a written statement. . . . It's
             going to be your statement, okay? And in that
             we're going to take the facts down, your side of
             the story about what happened here, alright?"

Defendant:   "Okay."

Haley:       "And then before we're done here, we read that
             statement back, and we correct anything that is
             not correct. . . . It's your side, your
             statement, your side of the story. I'm just
             recording the facts as you give them to me,
             okay? So there isn't going to be stuff on here
             that you don't want to be on there, you know
             what I'm saying? This is your statement of
             facts that you have to sign at the end.
             Alright? . . . So this is your chance to tell
             me, okay, what happened here. So you're okay
             with that?"

Defendant:   "I'm fine with that. But like I said, I
             honestly don't know what."

Haley:       "Well, you can stop talking at any time you
             want, okay?"

Defendant:   "Yes."

Haley:       "We can end the interview.   It says right here
             in your Miranda, right?"

Defendant:   "Yeah."

Haley:       "Alright.   So do you understand this Miranda?"

Defendant:   "Yes, I do."

Haley:       "Okay. Do you want to talk to me now and waive
             your Fifth Amendment right?"
                                                                    13


    Defendant:   "Yes."

    Haley:       "Yes, okay. And you may -- and when you want to
                 stop talking and you want to have a lawyer, then
                 you can do that. Is that what you're telling
                 me?"

    Defendant:   "Yes, yeah.    I just, like I said, I don't know."

The defendant then signed a waiver of the Miranda rights, and

the interview proceeded.

    After discussing some background information, Haley again

mentioned, and the defendant acknowledged, that the defendant

had received and understood the Miranda rights and that he was

not under arrest.   When Haley asked the defendant, again, if he

had waived the right to an attorney, the defendant responded, "I

just don't exactly know.     Like I said, I don't know exactly

what's being alleged here.     I don't know how to go about it.

I'm not -- I don't want to put myself in any -- get myself in

any trouble because of the way that I word something."     Haley

responded, "Well, it's in a written statement form that we're

going to read back, so there's like no trickery here.    You know

what I'm saying?"   The defendant said he understood, and Haley

repeated that if the defendant wanted an attorney present he

could stop answering questions at any point.     The defendant

acknowledged that he was not requesting a lawyer at that time.

Haley asked the defendant if he was voluntarily giving his

statement, to which the defendant replied in the affirmative.
                                                                      14


    The interview continued, and Haley and the defendant

discussed the substance of the allegations.       Throughout the

conversation, after typing a sentence or phrase, Haley would

confirm with the defendant that he had accurately typed what the

defendant said.       The defendant admitted he had spent brief

periods of time alone with K.C., but denied any inappropriate

conduct.   The defendant was given bottled water and took two

unaccompanied bathroom breaks.      Throughout the interview, the

defendant was articulate and responded appropriately to all

questions.    Haley used a conversational tone and never raised

his voice.    The interview lasted approximately one and one-half

hours, and after it concluded the defendant left the police

station.

    a.     Custody.     The defendant argues that he was in custody

during his June 27 interview and accordingly the statements he

made were obtained in violation of the Fifth Amendment to the

United States Constitution, art. 12 of the Massachusetts

Declaration of Rights, and Miranda, 384 U.S. at 476.       He also

argues that his statements on this date were, as the judge

concluded, not voluntary.       In response, the Commonwealth

contends that the defendant's June 27 statements should not be

suppressed because Miranda does not apply to noncustodial

interviews, the defendant only made an equivocal request for

counsel, and his statements were made voluntarily.
                                                                    15


       We begin our analysis by agreeing with the motion judge

that the defendant was not in custody on June 27.     While some

factors in the custody analysis weigh against the Commonwealth,

they are not conclusive.    For example, "the fact that the focus

of the investigation was on the defendant," Commonwealth v.

Barnes, 20 Mass. App. Ct. 748, 752 (1985), and "[t]he fact that

the defendant's interview occurred at the police station [are]

not, by [themselves], dispositive."     Hilton, 443 Mass. at 609-

610.   While a police station is not an entirely neutral setting,

the defendant went there voluntarily and was expressly told

several times that he was not under arrest.      Moreover, while

Haley explained to the defendant the focus of his questioning

and revealed some degree of suspicion, on that date his general

demeanor indicated that the "exchange was explanatory rather

than accusatory."     Molina, 467 Mass. at 74.   See Hilton, 443

Mass. at 608-611 (noncustodial interrogation where officers

"stopped short of an outright accusation").      Whether an

investigation has begun to focus on a suspect is "material to

the custody inquiry only to the extent that an officer's

suspicions influence the objective conditions of an

interrogation, such that a reasonable person in the position of

the person being questioned would not feel free to leave the

place of questioning."     Commonwealth v. Morse, 427 Mass. 117,

124-125 (1998).     To whatever extent the interview may have led a
                                                                   16


reasonable person to think he or she was not free to leave, "any

such mistaken impression was dispelled by [Haley's] correct

explanation of the defendant's actual status."    Groome, 435

Mass. at 215.

    Of chief significance here is that the defendant went to

the police station voluntarily, see Molina, 467 Mass. at 73,

and, once there, was told numerous times that he was not in

custody.   Both Haley and the defendant sat in a relaxed fashion.

There is no evidence to suggest that the defendant's freedom to

leave the interview was restricted at any time, and he took two

unaccompanied bathroom breaks.   Haley asked all questions in a

conversational tone and never raised his voice.    Moreover, the

flow of the exchange was predominantly influenced by the

defendant's own remarks.    When the interview was over, the

defendant left the police station without hindrance.    While a

reasonable person in the defendant's position may have believed

that he was a suspect in the investigation, these circumstances

do not demonstrate an environment "so dominated by the police

that a reasonable person would perceive that his liberty was

restrained to a degree associated with a formal arrest."

Kirwan, 448 Mass. at 312.

    Given our conclusion that the defendant was not in custody

on June 27, his interview on this date was simply not governed

by Miranda.   Therefore, because his "inquiry about an attorney
                                                                      17


occurred at a point well prior to the commencement of any

custodial interrogation," Groome, 435 Mass. at 216, he did not

effectively invoke a "right" to counsel.       "The fact that the

defendant was read his Miranda rights when he arrived at the

station may be understood to be only a step taken in an

abundance of caution."       Barnes, 20 Mass. App. Ct. at 752.   While

"[w]e have 'encouraged police to give Miranda warnings prior to

the point at which an encounter becomes custodial,'" Baye, 462

Mass. at 263, quoting Hilton, 443 Mass. at 610 n.7, "[t]he

requirements of [Miranda] are not triggered unless the

interrogation is custodial."       Baye, supra at 253, quoting

Hilton, supra at 608.       See generally Groome, 435 Mass. at 215-

216.       Therefore, the interview not being custodial, the

defendant's musings about perhaps needing a lawyer, and his

inquiry about how to get the court to appoint him a lawyer if he

could not afford one, did not require the officer to cease all

questioning, and did not render his June 27 statements

inadmissible under Miranda.       See Barnes, supra.4


       4
       Many other States have similarly held that a suspect's
expressed desire to consult with an attorney, when voiced in a
noncustodial setting, does not entitle the suspect to the
protections of Miranda or require that police officers cease
questioning, even when the suspect has been given Miranda
warnings. See, e.g., State v. Middleton, 220 W. Va. 89, 98-99
(2006), overruled on other grounds by State v. Eilola, 226 W.
Va. 698 (2010) (request for counsel during noncustodial
interview did not invoke protections of Miranda so as to
preclude further questioning even though Miranda rights given).
                                                                   18


    b.   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.'"

Molina, 467 Mass. at 75, quoting Durand, 457 Mass. at 595.     The

defendant argues that his statements on June 27 were not made

freely or voluntarily and should therefore be suppressed.    The

Commonwealth counters that, given the totality of the

interview's circumstances, the defendant's statements were

voluntary and we should reverse the motion judge's order of

suppression.   We conclude that the Commonwealth has met its

burden of establishing that the defendant's June 27 statements

were voluntary beyond a reasonable doubt.

    "[W]here the police provide precustodial warnings but then

ignore the defendant's attempts to avail himself of those

rights, the 'coercive effect of continued interrogation [is]

greatly increased because the suspect [could] believe that the

police "promises" to provide the suspect's constitutional rights

were untrustworthy, and that the police would continue to'


See also State v. Stanley, 167 Ariz. 519, 525, cert. denied, 502
U.S. 1014 (1991) (same); Zook v. State, 513 N.E.2d 1217, 1218-
1221 (Ind. 1987) (same); Hunt v. State, 687 So. 2d 1154, 1158-
1160 (Miss. 1996) (same); State v. Carpentier, 132 N.H. 123,
127-128 (1989) (same). Accord State v. Haddock, 257 Kan. 964,
976-977 (1995), abrogated on other grounds by State v. James,
276 Kan. 737, 750-751 (2003). Quite simply, the constitutional
rights that Miranda safeguards do not exist outside the context
of custodial interrogation, and providing a suspect with Miranda
warnings "does not transform a noncustodial interrogation into a
custodial interrogation." Haddock, 257 Kan. at 976-977.
                                                                  19


ignore subsequent invocations, rendering such invocations

futile."   Baye, 462 Mass. at 263, quoting Tukes v. Dugger, 911

F.2d 508, 516 n.11 (11th Cir. 1990), cert. denied sub nom.

Singletary v. Tukes, 502 U.S. 898 (1991).   However, the totality

of the circumstances of the defendant's June 27 statement was

not sufficiently coercive to render his statements involuntary.

Put another way, based on the record before us we cannot say

that the will of the defendant was overborne.

    The defendant's June 27 statements appear to be the result

of free and voluntary acts, as the interview techniques employed

by Haley were not so unfair or oppressive as to deprive the

defendant of his rational intellect.   The interview was

reasonable in length, lasting approximately one and one-half

hours.   See Commonwealth v. O'Brian, 445 Mass. 720, 728, cert.

denied, 549 U.S. 898 (2006).   Haley neither minimized the

seriousness of the allegations the defendant faced nor made the

defendant any promises.   See, e.g., Baye, 462 Mass. at 257;

Tremblay, 460 Mass. at 208-210; Sneed, 440 Mass. at 222.     Haley

did not engage in any trickery and this was not a case in which

the police obtained a confession by materially misrepresenting

the defendant's fundamental constitutional rights.   Contrast

Baye, 462 Mass. at 246, 256-260 (statement involuntary where

officers engaged in "multiple improprieties" and employed

deceptive tactics during ten-hour interrogation).    Nor did he
                                                                  20


tell the defendant that this conversation was his sole

opportunity to tell his story, that the strength of the evidence

against the defendant was stronger than it was, or that he would

charge the defendant with more serious crimes if the defendant

did not confess.   Contrast Novo, 442 Mass. at 264-270 (statement

involuntary where police officers repeatedly said interview was

only chance for defendant to tell story).

    The defendant was twenty-eight years of age, and while he

appeared upset and nervous at points, there was no reason to

question his mental capacity.    Throughout the interview, the

defendant appeared sober, alert, and lucid.   He was coherent and

articulate, and he consistently demonstrated his understanding

of the nature of the interview.    See Molina, 467 Mass. at 77.

Given the defendant's reference to a prior charge of operating

while under the influence of alcohol, it was reasonable to infer

that he had some prior experience with law enforcement officers

and the court system.    Significantly, the defendant's statements

appeared to be the product of his own free will.    He directly

answered all questions and provided "exculpatory explanation[s]

of events . . . indicating an awareness of the consequences of

. . . speaking to the police."    Commonwealth v. Beland, 436

Mass. 273, 281 (2002).   See Durand, 457 Mass. at 597

(defendant's statement voluntary where "able to decide what to

tell the officers").
                                                                    21


       It is true that Haley provided the defendant with seemingly

conflicting information with regard to obtaining appointed

counsel.    First, in the Miranda warnings, Haley advised the

defendant that he had the right to an attorney (inferably at the

interview), and that if he could not afford an attorney, one

would be appointed for him.    And, later, when the defendant

asked whether if he needed a lawyer the court would appoint him

one because he did not have the funds, Haley told him, "the

court will appoint you a lawyer at arraignment" "if we get to

that point."    However, it does not appear that this conflicting

advice coerced the defendant into making a statement.    The

defendant was consistently told that he did not have to say

anything and could stop speaking at any time.    Haley never

suggested that he did not need a lawyer, and the defendant never

unequivocally declared that he wanted one, only to be told that

he could not have one.

       Where the defendant had no right to appointed counsel

because his interview was noncustodial and no legal proceedings

had been initiated against him, Haley's statements cannot be

construed to be "so manipulative . . . that they deprived [the

defendant] of his ability to make an unconstrained, autonomous

decision to [speak]" (citation omitted).    Baye, 462 Mass. at

256.    As "there is simply nothing about the interview . . . that

suggests the defendant's will was overborne in any way," Molina,
                                                                    22


467 Mass. at 76, the totality of the circumstances supports the

conclusion that the defendant's June 27 statements were

voluntary.

    2.   June 28 statements.   On June 28, 2012, at approximately

12 P.M., Haley attended the forensic interview of K.C. at the

Family Advocacy Center in Springfield, in which she alleged that

the defendant had sexually abused her.   Thereafter, at

approximately 1:30 P.M., the defendant was arrested at the

Palmer Division of the District Court Department where he was

attending a restraining order hearing.

    At the police station, the defendant was booked and

fingerprinted.   He met with Haley in the same room as the day

prior.   At the start of the interview, Haley read the defendant

the Miranda rights, which the defendant waived in writing.

Appearing disheveled and tired, the defendant said he had spent

the prior night "in [his] truck" and later said he had not

slept.

    Haley then told the defendant that the police had uncovered

additional evidence since the prior day and now knew that

information the defendant had recounted was not true.     He told

the defendant that the police were positive "some stuff" had

been going on with K.C., and that the defendant was the one

doing "these things."   Haley asked the defendant to describe a

"tickle game" that he played with his daughter.   Regarding the
                                                                 23


defendant's previous denials, Haley said, "[w]e're way beyond

that now," and explained that he wanted to know what the

defendant was "going to take ownership of."

    At this point, the following exchange took place:

    Defendant: "I think with these questions I might need a
               lawyer. I don't know exactly what to say."

    Haley:      "Well, I'll stop any minute for a lawyer for
                you, okay? If that's what you want me to do.
                This is your opportunity to say what's going on
                here, okay? This is your opportunity to say
                what you want. I'll stop. If you want a
                lawyer, I will shut this thing off right now and
                leave. Okay. You tell me what you want to do.
                You tell me."

    Defendant: "Nothing's happened with the tickle thing.
               Nothing's progressed. Nothing -- I haven't done
               anything to her."

    Haley:      "My question is do you want a lawyer or do you
                want to stop right now?"

    Defendant: "How long would it take to get a lawyer here or
               an attorney?"

    Haley:      "Well, they don't just come running out and sit
                in an interview, okay? If you want a lawyer,
                then I'll stop the interview and you'll have a
                right to call an attorney all you want. I'll go
                on my merry way and do other things."

    Defendant: "What happens to me at that point?   Am I locked
               up?"

    Haley:      "I'm going to be up front with you. You're
                locked up right now, okay? When you're
                fingerprinted and booked and told you're under
                arrest, you're locked up, okay?"

    Defendant: "I understand that."
                                                            24


Haley:     "I'm up in the air right now as to what criminal
           charges I'm going to be bringing against you,
           okay? Those are some of the reasons why I
           wanted to talk to you and get your side of the
           story, okay? As to what actual criminal charges
           I'm going to be bringing against you, you know.
           There's things here that you can do for
           yourself. But the first issue we have to get by
           here right now is whether you want to continue
           to talk to me or whether you want a lawyer. If
           you want a lawyer, I'll stop, okay? But you've
           got to make your mind up for me."

Defendant: "I want to get this straightened up and I want
           to do it the right way, but I don't -- I don't
           know exactly."

Haley:     "Well, I've been fair with you. . . . But my
           protocol is I'm right up front with you. I'm
           not here to talk you out of a lawyer. I'm here
           to advise you to have a lawyer, you have the
           right to a lawyer, and if you want if you want
           to stop the interview and have a lawyer, I will
           do that right now. But you've got [to] make
           your mind up for me . . . , okay?"

Defendant: "I need -- can you tell me what's going to
           happen to me after this? Do I get bailed? Do I
           go -- I mean, what measures do I need to take
           to, you know, find out, to make arrangements to
           figure out, you know, how I'm?"

Haley:     "Well, I think I just mentioned to you that
           you're already under arrest."

Defendant: "Yes."

Haley:     "And I'm still -- it's still pending with me on
           what criminal charges I'm going to bring against
           you. That's like one of the main reasons why
           you're here today for me to interview you, okay?
           . . . You are already under arrest, okay?
           Already under arrest. You know, we have a
           protocol which is when you clearly, distinctly
           say, 'I want a lawyer, and don't want to go any
           further,' that we stop. But see, you don't
           really say that. You say, well, is this the
                                                                  25


                point where I might want a lawyer if this is
                happening. If that's what you want, then I will
                just shut it down and leave, okay? That's not a
                problem either . . . ."

    Defendant: "This is not what -- I'm not trying to be an
               ass."

    Haley:      "I know that. I know you're not trying to be an
                ass. . . . Very simply and equitably, right
                now, okay, we're on an interview here with the
                thing showing. Do you want to stop the
                interview and have a lawyer or do you want to
                talk to me for a while longer?"

    Defendant: "I'll try to talk to you for a little while
               longer."

    Haley:      "So right now you do not want a lawyer?"

    Defendant: "No."

    During the ensuing interview that lasted less than one

hour, Haley told the defendant, "we have clear-cut evidence that

certain things happened here with this six year old, with you."

Haley also told the defendant a few times that the police either

knew K.C. had "been penetrated" or that they had "some

indication that she's been getting penetrated."   The defendant

made several incriminating statements, and admitted that while

tickling K.C. on the previous day, she moved his hands to her

inner thigh near her private parts.

    In contrast to his June 27 interview, the defendant's June

28 interview was clearly custodial.   He had been arrested,

booked, and fingerprinted.   Additionally, Haley explained to the
                                                                    26


defendant several times that he was under arrest and "locked

up."

       The defendant argues that his June 28 statements should be

suppressed because his Miranda waiver was invalid and Haley

failed to cease questioning after the defendant invoked his

right to counsel.    The Commonwealth contends that the defendant

validly waived the Miranda rights on June 28 and that Haley was

entitled to continue questioning where the defendant did not

unequivocally invoke his right to counsel.

       "[A]fter a knowing and voluntary waiver of the Miranda

rights, law enforcement officers may continue questioning until

and unless the suspect clearly requests an attorney."

Commonwealth v. Santos, 463 Mass. 273, 285 (2012), quoting Davis

v. United States, 512 U.S. 452, 461 (1994).    "To invoke the

right to counsel, 'the suspect must unambiguously request

counsel.'"    Commonwealth v. Morganti, 455 Mass. 388, 396-397

(2009), S.C., 467 Mass. 96 (2014), quoting Davis, 512 U.S. at

459.    If a suspect makes reference to counsel in an ambiguous or

equivocal manner such that "'a reasonable officer in light of

the circumstances would have understood only that the suspect

might be invoking the right to counsel,' the police questioning

need not cease" (emphasis in original).    Id. at 397, quoting

Davis, supra.    Our precedent requires police to "'honor a

decision of a person in custody to cut off questioning,' and
                                                                    27


prohibits such practices as 'refusing to discontinue the

interrogation upon request' or 'persisting in repeated efforts

to wear down [the defendant's] resistance and make him change

his mind.'"   Commonwealth v. Brum, 438 Mass. 103, 111 (2002),

quoting Michigan v. Mosley, 423 U.S. 96, 105-106 (1975).

    The defendant's reference to counsel during his

noncustodial June 27 interview did not preclude the resumption

of questioning on June 28.   Contrast Maryland v. Shatzer, 559

U.S. 98, 110 (2010) (custodial invocation of right to counsel

followed by break in custody requires period of fourteen days

before police may resume questioning); Commonwealth v. Thomas,

469 Mass. 531, 545-548 (2014).     Moreover, the defendant's two

direct references to counsel during the June 28 interview, after

signing the Miranda waiver form, were equivocal.    First, he

said, "I think with these questions I might need a lawyer.      I

don't know exactly what to say."    Then, after being told by

Haley, "This is your opportunity to say what's going on here

. . . .   If you want a lawyer I will shut this thing off right

now and leave," the defendant subsequently asked, "How long

would it take to get a lawyer here or an attorney?"    These

remarks, as well as the defendant's ambiguous responses to

Haley's direct lawyer-related questions, were not unequivocal

refusals to speak until the defendant had an opportunity to

confer with counsel.   See, e.g., Commonwealth v. Vincent, 469
                                                                  28


Mass. 786, 793, 796-797 (2014) (statement not suppressed where

defendant asked officers whether he "should get a lawyer" and

said, "I think I might need [a lawyer]," and continued

volunteering information about incident); Morganti, 455 Mass. at

397-398 (defendant's statement, "thinking I might need a lawyer

and want to talk with him before talking to you," ruled too

ambiguous to constitute unequivocal invocation of right to

counsel).5

     The motion judge concluded, however, that when coupled with

Haley's suggestion the day before that the defendant could only

have a lawyer appointed for him by the court "at arraignment,"

Haley's response to the defendant's question about "[h]ow long"

it would take to "get a lawyer here," specifically that the

defendant had "a right to call an attorney all you want," and

"they don't just come running out and sit in an interview,"

"effectively precluded [the defendant] from understanding his

     5
       See also Commonwealth v. Dubois, 451 Mass. 20, 25-26
(2008) ("[m]aybe I better get a lawyer" not unequivocal
request); Commonwealth v. Jones, 439 Mass. 249, 258 (2003)
("going to need a lawyer sometime" not affirmative request for
counsel); Commonwealth v. Peixoto, 430 Mass. 654, 657-658 (2000)
(statements not suppressed where defendant only expressed
uncertainty whether he wanted to speak to police without
attorney); Commonwealth v. Todd, 408 Mass. 724, 726 (1990) (not
affirmative request for counsel where defendant "wondered aloud
about the advisability of having a lawyer"); Commonwealth v.
Corriveau, 396 Mass. 319, 331 (1985) ("[i]t's beginning to sound
like I need a lawyer" not affirmative request for counsel);
Commonwealth v. Pennellatore, 392 Mass. 382, 387 (1984) ("I
guess I'll have to have a lawyer for this" not affirmative
request for counsel).
                                                                     29


ability to exercise his right to counsel" at the custodial

interview and, further, raised serious doubt that the

defendant's waiver of his right to counsel was done knowingly,

voluntarily, and intelligently.

    We agree.   "In order for a waiver to be 'knowing' and

'intelligent,' the defendant must understand 'the [Miranda]

warnings themselves.'"   Hilton, 443 Mass. at 606, quoting

Raymond, 424 Mass. at 393.   Where "the defendant manifestly did

not understand the meaning of one or more of the rights

described in the Miranda warnings, the Commonwealth cannot meet

its burden of proving a valid waiver beyond a reasonable doubt."

Commonwealth v. Hoyt, 461 Mass. 143, 153 (2011).    Haley's

statements that the right to appointed counsel does not attach

until arraignment, that lawyers "don't just come running out and

sit in an interview," and that the defendant would have to

"call" a lawyer puts into question whether, having no funds to

hire counsel, the defendant believed speaking with an attorney

before speaking to the police was an actual possibility.      That

this fundamental misunderstanding went uncorrected hampers the

Commonwealth in establishing, beyond a reasonable doubt, the

validity of the defendant's waiver of his right to consult with

counsel.   See Clarke, 461 Mass. at 351 n.12.   Therefore, the
                                                                 30


motion judge properly suppressed the defendant's June 28

statements.6

     Conclusion.   The suppression of the defendant's June 27

statements is reversed, and the suppression of the defendant's

June 28 statements is affirmed.   The case is remanded to the

Superior Court for further proceedings consistent with this

opinion.

                                    So ordered.




     6
       Having concluded that the judge properly suppressed the
defendant's statements because the Commonwealth had not
established a valid waiver, we need not consider whether the
statements made were also involuntary.
