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18-P-49                                                 Appeals Court

                 COMMONWEALTH   vs.   WILLIAM LAJOIE.


                            No. 18-P-49.

          Bristol.     September 10, 2018. - March 5, 2019.

           Present:   Wolohojian, Lemire, & Englander, JJ.


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



     Indictments found and returned in the Superior Court
Department on March 14, 2013.

     A pretrial motion to suppress evidence was heard by Gregg
J. Pasquale, J.

     An application for leave to prosecute an interlocutory
appeal was allowed by Francis X. Spina, J., in the Supreme
Judicial Court for the county of Suffolk, and the appeal was
reported by him to the Appeals Court.


     Tara L. Johnston, Assistant District Attorney, for the
Commonwealth.
     Matthew Spurlock, Committee for Public Counsel Services,
for the defendant.
                                                                     2


     ENGLANDER, J.    Prior to a custodial interrogation, the

defendant was read Miranda warnings1 from a written form that did

not comport in all particulars with the language employed by the

United States Supreme Court.    As a result the motion judge ruled

that although the defendant was advised of his "right to an

attorney," he was not explicitly advised of his right to have an

attorney present "during questioning."    The defendant's

videotaped statements were accordingly suppressed.    We reverse,

because rote adherence to the exact language of Miranda is not

required, and because in this case the warnings "in their

totality, satisfied Miranda."    Duckworth v. Eagan, 492 U.S. 195,

205 (1989).

     Background.2    On November 7, 2012, the defendant was taken

into custody at the Fall River police station, where he was

interviewed by Detective Brian Cordiero about an incident that

had occurred fifteen years earlier, involving sexual intercourse

with a girl under the age of sixteen.    The interview was audio

and video recorded.    The defendant admitted to having sexual

intercourse with the girl but stated that she told him that she

was nineteen, and that the sexual intercourse was consensual.




     1   See Miranda v. Arizona, 384 U.S. 436, 479 (1966).

     2 The facts are taken from the findings of the Superior
Court judge. They are not contested.
                                                                   3


When asked if he was the father of the woman's now fifteen year

old son, the defendant stated that his name was on the birth

certificate but that he was not certain he was the father.

    Prior to conducting the interview, Cordiero advised the

defendant of his rights, which he read to the defendant from a

form that the defendant later signed.   Cordiero advised the

defendant:

         "[1] You have the right to remain silent.

         "[2] Anything you say can be used against you at
    trial.

         "[3] You have the right to an attorney.

         "[4] If you cannot afford an attorney, one will be
    appointed to you by the Commonwealth at no expense and
    prior to any questioning.

         "[5] If you decide to waive your Fifth Amendment
    rights pursuant to Miranda, you may stop answering
    questions at any time if you so desire."

    After reading each right, Cordiero asked the defendant if

he understood the right, and the defendant answered that he did.

Cordiero thereafter read a series of "presentment warnings,"

which informed the defendant of various additional rights

including, for example, prompt presentment in court and the

right to a bail hearing.   The motion judge found that "[t]he

defendant stated that he understood all of the rights that were

provided to him by Cordiero.   The defendant further stated that

he wished to waive his Fifth Amendment rights and speak with
                                                                      4


Cordiero."   Thereafter the defendant signed the written form

containing the rights that had been read to him.   His signature

appears under the heading "WAIVER OF MIRANDA WARNINGS."

     The interview lasted thirty-one minutes.   The motion judge

found that Cordiero was pleasant and courteous "at all times."

The judge also found that Cordiero engaged in no conduct such as

intimidation, trickery, or promises of leniency.   At one point

Cordiero asked whether the defendant would consent to a buccal

swab; the defendant stated that he would need to speak to his

lawyer about whether to submit to the swab, but after Cordiero

left the room the defendant almost immediately called Cordiero

back in and consented.3

     The defendant was indicted in March of 2013 on charges of,

among other things, rape of a child with force, aggravated

assault and battery by means of a dangerous weapon, assault with

intent to rape, and violation of an abuse prevention order.     The

defendant moved to suppress the statements made during the

videotaped interview, arguing in particular that the Miranda

warnings he was given were defective.   The motion judge held an

evidentiary hearing and thereafter allowed the motion.    Relevant




     3 Cordiero also testified that he had previously encountered
the defendant in connection with an unrelated matter, and that
on that prior occasion the defendant declined to speak with the
police, "instead choosing to speak to his attorney."
                                                                      5


here, the judge canvassed the Federal case law, and concluded

that Miranda required that a suspect be "explicitly warned" that

he had the right to counsel "during questioning," and that the

warning at issue did not provide such an explicit warning.      The

judge also opined that such a result was consistent with the

case law under the Massachusetts Declaration of Rights.

    Discussion.     The question is whether the warnings given to

the defendant orally and in writing were fatally defective under

Miranda.   The Miranda opinion summarizes the warnings to be

given as follows:

    "He must be warned prior to any questioning that he has the
    right to remain silent, that anything he says can be used
    against him in a court of law, that he has the right to the
    presence of an attorney, and that if he cannot afford an
    attorney one will be appointed for him prior to any
    questioning if he so desires."

Miranda v. Arizona, 384 U.S. 436, 479 (1966).

    The motion judge's decision concludes that the warnings

here "did not convey the right to the presence of an attorney

during questioning."    It is not entirely clear, however, what

portion of the warnings the judge considered defective.     At one

point the decision seems to focus on the statement:    "[i]f you

cannot afford an attorney, one will be appointed to you by the

Commonwealth at no expense and prior to any questioning."      The

implication is that the judge considered this warning defective

because the right to a lawyer "prior to" any questioning does
                                                                   6


not explicitly include "during."4   In this court, however, the

defendant emphasizes a different portion of the warnings.     He

argues that the defect arises because he was not given what is

known as Miranda's third warning; that warning is "that he has

the right to the presence of an attorney."   The third warning

given to the defendant here was "you have the right to an

attorney."   The difference the defendant focuses on is the

omission of the three words -- "the presence of."   The

contention is that being told "you have the right to an

attorney," and that if you cannot afford an attorney, one will

be appointed "prior to any questioning," is not sufficient to

advise of the right to an attorney during questioning.

     Contrary to defendant's argument, however, the United

States Supreme Court has made clear that Miranda does not

require that its warnings be given in "precise formulation."

California v. Prysock, 453 U.S. 355, 359 (1981).    Indeed, the

Supreme Court has three times addressed contentions that a

particular set of Miranda warnings was inadequate, and each time

it has held that warnings that varied in some way from Miranda's

formulation were nevertheless adequate.   In Prysock, for

example, the California Court of Appeals had held that the




     4 Note that this portion of the defendant's warning was
nearly identical to the language in the Miranda opinion.
                                                                   7


warning "you have the right to have a lawyer appointed to

represent you at no cost to yourself" was defective because it

failed to advise of the right to appointed counsel "before

further questioning."   The Court reversed.   It rejected the

notion that a "talismanic incantation" was required, emphasizing

that Miranda itself contemplated that "equivalent" warnings

would suffice.5   Id. at 359-360.

     The Court next addressed the adequacy of particular

warnings in Duckworth, 492 U.S. at 198.     Once again, the

contention was that the warnings given in Duckworth about the

right to appointed counsel did not convey that the suspect had

that right prior to being questioned, because although the

warnings stated "[y]ou have a right to talk to a lawyer for

advice before we ask you any questions," the warnings later

stated that "[w]e have no way of giving you a lawyer, but one

will be appointed for you, if you wish, if and when you go to

court" (emphasis omitted).   Id.    The argument was that these

warnings, taken together, implied that "only those accused who

can afford an attorney have a right to have one present before




     5 In Prysock, the Court relied on other portions of the
warnings given in that case. Those other portions were more
detailed than the language of Miranda, and advised of "the right
to talk to a lawyer before you are questioned, have him present
with you while you are questioned, and all during the
questioning." 453 U.S. at 358.
                                                                        8


answering any questions."     Id. at 203.   The Court again found

the warnings sufficient.    It emphasized that courts "need not

examine Miranda warnings as if construing a will or defining the

terms of easement."   Id.   Viewed "in their totality," the

warnings in Duckworth satisfied Miranda, where one of the

warnings described the right to counsel before being questioned,

and another stated the suspect's right to stop answering "until

[he] talk[ed] to a lawyer."     Id. at 205, quoting Eagan v.

Duckworth, 843 F.2d 1554, 1555-1556 (1988).

    Finally, in Florida v. Powell, 559 U.S. 50 (2010), the

Court addressed the warning "[y]ou have the right to talk to a

lawyer before answering any of our questions," coupled with the

statement "[y]ou have the right to use any of these rights any

time you want during this interview."       Id. at 54.   As in this

case, the warnings in Powell were challenged because they did

not explicitly state that the suspect's right to consult with

counsel continued during questioning.       See id.   Once again, the

Court rejected the contention that the warnings were fatally

defective:   "Although the warnings were not the clearest

possible formulation of Miranda's right-to-counsel advisement,

they were sufficiently comprehensive and comprehensible when

given a commonsense reading."    Id. at 63.

    Prysock, Duckworth, and Powell support the conclusion that

the warnings given here were adequate to satisfy Miranda.        Most
                                                                   9


critically, those cases warn against the kind of overly

technical review that the defendant employs here.    Many

different formulations of the warnings have been found adequate,

as long as they convey the "equivalent" of Miranda's warnings.

    No doubt, one could parse the warnings given in Prysock,

Duckworth, and Powell and argue that the warnings in those cases

contained more specific language regarding the right to counsel

than the warning given in this case.    But to do so would miss

the most important teaching of those cases, which is that courts

should focus on the totality of the warnings conveyed, rather

than their precise form.    That teaching can be derived from

Miranda itself.   It is true that the Miranda opinion emphasizes

the importance of the ability to have a lawyer present "during

any questioning."   Miranda, 384 U.S. at 470.   But when it came

time to summarize what a suspect needed to be told, the Miranda

opinion did not formulate the warning in terms of a right to

counsel "during questioning"; rather, Miranda used the language,

the "right to the presence of an attorney," without any temporal

component.   Id. at 479.   No doubt, the Court saw the two

formulations as equivalent.    Thus, Miranda itself evidences no

talismanic adherence to the "during questioning" formulation.

    Applying these principles, we conclude that the warnings

given here, in their totality, adequately conveyed the Miranda

warnings, including the ability to have a lawyer present during
                                                                   10


questioning.    First, the warning stated "you have the right to

an attorney."   That warning is unequivocal, and unqualified.

Read literally, it states a right to a lawyer, and therefore a

right to legal advice, at any time -- before, during, and after

any questioning.    True, it does not include the three words from

Miranda -- "the presence of."    But one might reasonably question

how much those words add to the unequivocal, "you have the right

to an attorney."6   And this is particularly so, where other

portions of the warnings contain additional advice regarding the

right to counsel.

     In this case, we need not rest our conclusion solely on the

warning, "you have the right to an attorney."    Here the

defendant was also told of the right to have appointed counsel

"prior to any questioning."     That statement reasonably confirmed

to the defendant that his right to an attorney, previously

stated, included both the right to the presence of counsel, and

the right to consult with counsel about any questioning in

advance.   Such is the import of the warnings themselves:    the

suspect has a right to a lawyer; that right obtains prior to any




     6 Indeed, were those three words not specifically included in
the Miranda opinion one could envision a defendant arguing that a
warning containing "the presence of" was itself defective, and
claiming that advising of the right to the "presence" of an
attorney did not adequately convey the right to consult with the
attorney.
                                                                  11


questioning.   The warnings did not also need to say:    "your

right to a lawyer includes the right to consult with a lawyer

before, during, and after questioning and to have the lawyer

physically present at all times."   Miranda did not require a

parsing out of all subspecies of the right to counsel.

Moreover, the Supreme Court in Powell has already rejected the

argument that advice of a right to counsel "prior to"

questioning is defective for not stating "during."

    In sum, viewed in their totality we believe the warnings

adequately advised the defendant of his right to an attorney,

including his right to consult with counsel and to have him or

her present before, during and after questioning.    In so holding

we note, as the Supreme Court did in Powell, that we are not

sanctioning a retreat from Miranda; rather we find the warning

adequate "because it communicated just what Miranda prescribed."

Powell, 559 U.S. at 62 n.5.   While not the "clearest possible"
                                                                    12


formulation, it conveyed the equivalent of the warnings

required.7,8   Id. at 63.

     We acknowledge that, in Commonwealth v. Miranda, 37 Mass.

App. Ct. 939 (1994), we concluded that a Miranda warning was

inadequate where the defendant was never "informed that he had

the right to the presence of an attorney, either retained or

appointed, during any interrogation."   Id. at 940.   The warning

recited in Commonwealth v. Miranda differed materially from the

warning at issue here, because although there the defendant was

advised of his "right to an attorney," he was not also advised

(as the defendant was here) of his right to appointed counsel

"prior to any questioning."   Moreover, we reached our conclusion

in Commonwealth v. Miranda without examining whether, despite

the missing language, the warnings as a whole reasonably

conveyed to the defendant the protections to which he was


     7 There are several United States Courts of Appeals
decisions that address warnings similar but not identical to
those at issue here, and that arguably reach conflicting
results. See United States v. Frankston, 83 F.3d 79 (4th Cir.
1996) (no Miranda violation); United States v. Caldwell, 954
F.2d 496 (8th Cir. 1992) (no Miranda violation); United States
v. Noti, 731 F.2d 610 (9th Cir. 1984) (finding Miranda
violation); Windsor v. United States, 389 F.2d 530 (5th Cir.
1968) (finding violation). These cases do not point to a
particular result in this case. They are not directly on point,
and predate at least the Powell decision.

     8 We note, approvingly, that we were advised at oral
argument that since the events at issue the Fall River police
department has revised the form at issue, so that it now
conforms to the language of the warnings in Miranda.
                                                                    13


entitled.     Subsequent to our decision in Miranda, the Supreme

Court decided Powell, which made clear that a deficiency in the

language of the warnings is not necessarily dispositive, but

that the reasonable meaning of the warnings as a whole must be

considered.    See 559 U.S. at 63.    We have taken that approach

here.

    The Supreme Judicial Court has not held that more precision

is required under the Massachusetts Declaration of Rights than

is required by the Federal Constitution, and we decline the

defendant's invitation to extend beyond the Federal requirements

here.   See Commonwealth v. The Ngoc Tran, 471 Mass. 179, 185

(2015) (citing and following standards from Powell, Duckworth

and Prysock, and confirming that Miranda warnings need not be

given word for word).    The Miranda warnings are directed to

preserving the right of an accused against compelled self-

incrimination.    In terms of the formulations of those warnings,

the Federal case law has established the parameters, and has

shown how to enforce their use.      Certainly the facts of this

case evidence none of the concerns of overbearing custodial

interrogation that led to Miranda's requirements.      The

statements at issue should not have been suppressed.

                                       Order allowing motion to
                                         suppress reversed.
