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13-P-1821                                              Appeals Court

              COMMONWEALTH    vs.   MICHAEL PACHECO.


                           No. 13-P-1821.

        Bristol.       December 4, 2014. - April 17, 2015.

            Present:   Cohen, Fecteau, & Massing, JJ.


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



     Complaint received and sworn to in the Bristol County
Division of the Juvenile Court Department on September 28, 2012.

     Indictments found and returned in the Superior Court
Department on November 1, 2012.

     A pretrial motion to suppress evidence was heard by
Lawrence Moniz, J., in the Bristol County Division of the
Juvenile Court Department.

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


     Tara L. Blackman, Assistant District Attorney, for the
Commonwealth.
     Joseph Maggiacomo, III, for the juvenile.
                                                                    2


     MASSING, J.   Following the execution of a search warrant,

resulting in the discovery of a handgun and several bags of

heroin in the defendant youthful offender's bedroom, the Taunton

police arrested the juvenile and took him to the police station

to question him about his suspected involvement in a shooting

that took place on the railroad tracks near his home.     Because

he was sixteen years old, the police arranged for the juvenile's

guardian to be present during questioning.   A Juvenile Court

judge found that the juvenile validly waived his Miranda rights

at the outset of questioning, but that the police failed to

honor his mid-interview request to consult with his guardian.

Accordingly, the judge denied the juvenile's motion to suppress

statements made during the first part of the interview, but

allowed the motion with respect to statements made after his

request to consult.   We affirm.

     Background.   The facts found by the judge at the hearing on

the motion to suppress, as amplified by uncontested evidence

presented at the hearing and by the contents of the videotaped

interview,1 are as follows.   On September 22, 2012, at


     1
       "Where the judge's factual findings are based on a
videotape of the defendant's interview, 'we . . . take an
independent view of [statements made at the interview] and make
judgments with respect to their contents without deference to
the fact finder, who is in no better position to evaluate
the[ir] content and significance.'" Commonwealth v. Bermudez,
83 Mass. App. Ct. 46, 50 (2012), quoting from Commonwealth v.
Novo, 442 Mass. 262, 266 (2004).
                                                                   3


approximately 8:30 P.M., two Taunton police officers went to the

apartment where the juvenile lived with his guardian, Crystal

Courtney,2 to execute a search warrant for a firearm as part of

an investigation into a shooting.    After discovering a handgun

and several glassine bags containing a substance that appeared

to be heroin in the juvenile's bedroom, the officers arrested

the juvenile and transported him to the police headquarters for

questioning.   The police advised Ms. Courtney that she could

accompany the juvenile, who was sixteen years, ten months old at

the time, to the station to act as an interested adult and

brought her to the police station shortly after the juvenile's

arrival.

     At approximately 11:06 P.M., Detective Lynne Pina commenced

a videorecorded interrogation of the juvenile in a small

interview room at the station, assisted by Brian Dunham, another

officer from the department.    Pina gave the juvenile and Ms.

Courtney a notification of rights form, read them the Miranda

rights from the form, and gave them an opportunity to read it

themselves.    Neither Pina nor Dunham left the room.   Without

requesting an opportunity to speak to each other in private, the

juvenile and his guardian signed the rights form.

     2
       The record does not disclose Ms. Courtney's age or
relationship with the juvenile, other than that they lived
together and that she was his guardian. The juvenile does not
assert that she was unqualified or incompetent to act as an
interested adult on his behalf.
                                                                    4


    Pina began the interview by questioning the juvenile about

the night of the shooting.   He initially denied any involvement.

At approximately 11:31 P.M., another officer interrupted the

interrogation to say that the video equipment was not recording.

Pina and Dunham left the interview room to address the problem.

When they returned approximately four minutes later, Pina told

the juvenile, "We will pick up where we left off; you have been

given rights and signed forms," and resumed the interrogation.

    The juvenile continued to deny his involvement in the

shooting.   Pina and Dunham then told the juvenile that they had

evidence he possessed the gun even before the shooting took

place, and that a dog had traced a scent from the railroad

tracks where the shooting occurred to his back door.    Moreover,

they had spoken with the victim, who gave them "very good

descriptions" and said "he'd probably be able to identify the

people who shot him."   The police urged the juvenile to tell

them the truth, saying he had an opportunity to "help

[him]self."   Pina continued, "There was somebody with you.   Who

was with you?," adding that "this is going to go a long way to

help you in the court system, the [district attorney] will look

at you favorably, if you start cooperating with the case and the

investigation."   Referring to Ms. Courtney, Pina asked, "Do you

want to talk to her about it?   Do you want to ask her what you

should do?"
                                                                     5


    The officers continued to try to convince the juvenile to

cooperate, saying, "You should be helping yourself right now."

When the juvenile repeated, "I didn't shoot the guy," Pina

asked, "So who did?    Tell us what happened."   The juvenile then

asked, "Can I have a few minutes first?"    Dunham said, "Sure,

absolutely.   You want to talk to Crystal?"   The juvenile

replied, "I just want to make sure, you know what I'm saying?"

    Before the officers left the room, Ms. Courtney asked

whether the video recording machinery would continue to record;

she was told that it would.    The officers left the room, but

watched the juvenile and his guardian on a screen in the

detectives' room.     Speaking in low tones, the juvenile and Ms.

Courtney began to exchange Ms. Courtney's cellular telephone

(phone).   The juvenile first took the phone, entered some text,

and showed it to her.    She entered some text and returned the

phone to him.   After about thirty seconds, while the juvenile

was entering text on the phone, Pina returned to the interview

room and told the juvenile to stop.    He complied and returned

the phone to Ms. Courtney.    When Pina left them alone this time,

they did not speak any more.    Ms. Courtney broke into tears and

hugged the juvenile until Pina and Dunham returned and resumed

the interrogation at 11:50 P.M.

    The interview continued for another twenty minutes.      The

juvenile first told the officers that a friend of his did the
                                                                    6


shooting, but when pressed further, he ultimately admitted that

he shot the gun.   During the rest of the interview, Ms. Courtney

used her phone without any objection from the officers.   The

interrogation ended shortly after the juvenile's confession.

     The juvenile was charged, and later indicted, as a youthful

offender for armed assault with intent to murder, G. L. c. 269,

§ 18(b); assault and battery by means of a dangerous weapon,

G. L. c. 265, § 15A(b); and unlawful carrying of a firearm,

G. L. c. 265, § 10(a).   After the motion judge decided the

juvenile's motion to suppress statements, the Commonwealth

appealed from the partial suppression order, the juvenile cross-

appealed from the partial denial of his motion, and a single

justice of the Supreme Judicial Court allowed the Commonwealth's

application for interlocutory appellate review.3

     1.   Opportunity to consult with interested adult.   "Special

caution . . . must be exercised in examining the validity of

inculpatory statements made by juveniles."   Commonwealth v.


     3
       The juvenile argues that a different Juvenile Court judge
abused his discretion in allowing the Commonwealth to file its
notice of appeal and application for leave to appeal late. See
Commonwealth v. Jordan, 469 Mass. 134, 147-148 (2014);
Mass.R.Crim.P. 15(b)(1), as appearing in 422 Mass. 1501 (1996).
Mindful of the fact that the single justice has already
determined that the appeal warrants interlocutory review, we
find no reason to disturb the Juvenile Court judge's
determination that the Commonwealth's failure to timely file its
notice and application was the result of excusable neglect;
therefore, we focus our discussion on the merits. See id. at
149 & n.26.
                                                                      7


MacNeill, 399 Mass. 71, 74 (1987), quoting from Commonwealth v.

King, 17 Mass. App. Ct. 602, 609 (1984).   In general, when

police interrogation involves a juvenile over the age of

fourteen,4 as is the case here, the juvenile "may properly waive

his constitutional rights if, after having been advised of those

rights, he was afforded an opportunity to consult with an

interested adult who was informed of and understood those

rights."   Commonwealth v. McCra, 427 Mass. 564, 567 (1998).5

     Whether the juvenile had a "realistic opportunity" to

consult is the critical question, not whether he actually

availed himself of the opportunity.   Commonwealth v. MacNeill,

supra at 78.   See Commonwealth v. McCra, supra at 567-568.     The

Commonwealth is not required to establish that the adult and

juvenile actually had a private consultation.6   Commonwealth v.



     4
       Effective September 18, 2013, the Legislature amended the
definitions of "delinquent child" and "youthful offender" to
include seventeen year olds. St. 2013, c. 84, § 7. See Watts
v. Commonwealth, 468 Mass. 49, 50-51 (2014). Accordingly, the
"interested adult" rule now applies to youths under the age of
eighteen. Id. at 59.
     5
       A waiver may still be valid without an opportunity for
consultation so long as the circumstances "demonstrate a high
degree of intelligence, experience, knowledge, or sophistication
on the part of the juvenile." Commonwealth v. Alfonso A., 438
Mass. 372, 380 (2003), quoting from Commonwealth v. A Juvenile,
389 Mass. 128, 134 (1983).
     6
       By contrast, juveniles under the age of fourteen must have
an "actual opportunity" to consult with an interested adult for
their waivers to be valid. Commonwealth v. Mark M., 65 Mass.
                                                                   8


Philip S., 414 Mass. 804, 811-812 (1993).   See Commonwealth v.

McCra, supra at 568;   Commonwealth v. Guthrie G., 66 Mass. App.

Ct. 414, 416 (2006), S.C., 449 Mass. 1028 (2007).    "The choice

of a sixteen year old juvenile not to consult with an available

friendly advisor concerning those matters suggests that the

juvenile's understanding was such that consultation was

unnecessary."   Commonwealth v. Alfonso A., 438 Mass. 372, 381

(2003), quoting from Commonwealth v. MacNeill, supra at 79.7

     In Commonwealth v. Guthrie G., supra, the juvenile faced

custodial interrogation at the police station after the police

discovered a gun in his bedroom.   The juvenile's father met him

at the police station to act as an interested adult, and the

officer read the Miranda warnings to the juvenile and his

father.   The father signed the Miranda form.8   Although the

officer did not specifically give the juvenile time to consult

with his father about the meaning and consequences of waiving

his rights, "either the father or the juvenile could have

immediately asked to discuss the warnings privately or sought to


App. Ct. 703, 706 (2006).   See Commonwealth v. A Juvenile, 389
Mass. at 134.
     7
       On the other hand, a juvenile under the age of fourteen is
unlikely to fully comprehend his rights without an actual
consultation with an interested adult. Commonwealth v. A
Juvenile, supra at 134.
     8
       The juvenile testified at the motion to suppress that he
understood his rights. Commonwealth v. Guthrie G., supra at
416, 420 n.10.
                                                                    9


exercise the Miranda rights after they were read."    Id. at 420.

We concluded that "[t]he presence of the parent and child

together" was sufficient to establish that the juvenile had an

opportunity to consult with his father.   Ibid.

    Applying these standards, we agree with the motion judge

that the juvenile had an opportunity to consult with his

guardian and validly waived his rights before talking to Pina.

Pina advised the juvenile of his Miranda rights in Ms.

Courtney's presence, and both the juvenile and she signed the

waiver form.   "Nothing more need be shown to demonstrate that

the presence of [his guardian] gave the juvenile a realistic

opportunity to get helpful advice if he needed it."

Commonwealth v. MacNeill, 399 Mass. at 78.

    The Supreme Judicial Court has observed that the "better

practice . . . with any juvenile is for the investigating

officials explicitly to inform the juvenile's parent, or other

interested adult, that an opportunity is being furnished for the

two to confer about the juvenile's rights."   Commonwealth v.

Philip S., 414 Mass. at 811 n.5.   The juvenile urges us to

require the police affirmatively to provide juveniles an

opportunity to confer with an interested adult in private.

However, the Supreme Judicial Court has specifically declined to

impose such a requirement, see Commonwealth v. Ward, 412 Mass.

395, 397 (1992); Commonwealth v. Philip S., supra, at 812, and
                                                                   10


this court has rejected even the notion that "at a minimum . . .

the parent must be physically present with the juvenile for a

sufficiently long period of time prior to a waiver of Miranda

rights, as would permit consultation should they wish to engage

in it."   Commonwealth v. Guthrie G., 66 Mass. App. Ct. at 430-

431 (Duffly, J., dissenting).

    Therefore, the fact that the officers commenced the

interrogation immediately after reading the juvenile and his

guardian the Miranda rights, without leaving the room or

offering the juvenile the opportunity to confer, is without

legal significance.   The mere presence of the juvenile and his

guardian together facilitated "a request by one or both of them

for consultation" if they had any "uncertainty in their minds."

Id. at 420.   The Commonwealth is not required to show more.      The

judge's partial denial of the motion to suppress was proper.

    2.    Mid-interrogation request to consult.   For about ten

minutes after remedying the malfunction in the videorecording

machinery, the officers tried to persuade the juvenile to

cooperate, even suggesting that he should speak with his

guardian about what to do.   The juvenile eventually did ask to

for an opportunity to speak with Ms. Courtney.    The officers

left the room, but closely monitored the juvenile and his

guardian from the detective's room.   When the juvenile and his

guardian attempted to communicate privately using the guardian's
                                                                    11


phone, Detective Pina quickly interrupted them and told the

juvenile not to use the phone.9   The motion judge found that the

police's actions interfered with the juvenile's opportunity to

consult with an interested adult and suppressed any statements

following this interference.   We affirm this aspect of the

judge's order as well.

     When a juvenile has waived his or her Miranda rights after

an opportunity to confer with an interested adult, subsequent

statements are presumptively admissible at trial.    See

Commonwealth v. Torres, 424 Mass. 792, 799 (1997).   However, if

the juvenile is not afforded this "genuine opportunity," and the

Commonwealth does not make an alternative showing of a "high

degree of intelligence, experience, knowledge, or sophistication

on the part of the juvenile," the statements must be suppressed.

Commonwealth v. Alfonso A., 438 Mass. at 384, quoting from

Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983).     While,

as discussed in part 1 supra, the police need not expressly

inform the juvenile and the interested adult that they may


     9
       Having found that the police "advise[d] the guardian not
to use the phone, indicating that no phone use is allowed," the
motion judge considered it telling that the police did not
object to Ms. Courtney's use of her phone once the juvenile
started to confess. Upon review of the videotape, it was
clearly the juvenile's use of the phone that prompted the
interruption; the police never placed any limitations on Ms.
Courtney's use of the phone. Nonetheless, the police-imposed
prohibition on the juvenile's use of the guardian's phone
effectively ended any consultation between them.
                                                                   12


confer in private, "the police may not properly deny them that

right."   Commonwealth v. Ward, 412 Mass. at 397 (affirming

denial of motion to suppress where mother and juvenile son

declined opportunity to consult, but noting, "[w]e would have a

different case, of course, if the mother or the son had stated a

desire to discuss the matter and the police had not allowed them

to do so in private").   "If such a request has been made, it

cannot be refused."   Commonwealth v. Guthrie G., 66 Mass. App.

Ct. at 420.

    After a person under custodial interrogation knowingly and

voluntarily waives his or her Miranda rights, questioning may

continue unless and until the subject makes an "unambiguous

invocation" of the right to remain silent.   Commonwealth v.

Clarke, 461 Mass. 336, 342 (2012), quoting from Berghuis v.

Thompkins, [560 U.S. 370, 381] (2010).   See Commonwealth v.

Hearns, 467 Mass. 707, 716-717 (2014).   So, too, if a juvenile

requests to consult with an adult to determine whether to invoke

his or her Miranda rights after questioning has begun, the

police cannot deny that opportunity.   The interested adult rule

is based on our recognition that most juveniles do not fully

understand the significance of Miranda warnings when they hear

them, and further, that juveniles often lack the capacity to

fully appreciate the consequences of their actions.   See

Commonwealth v. A Juvenile, supra at 131-132; Commonwealth v.
                                                                    13


Alfonso A., supra at 382.    To effectively evaluate and exercise

these rights, a juvenile often requires the guidance of an adult

"to ensure that his rights do not become forfeit through fear,

confusion[,] or intimidation."     Taylor v. Commonwealth, 369

Mass. 183, 192 (1975).    See Commonwealth v. Cain, 361 Mass. 224,

229, n.3 (1972) ("The Miranda warning that the [fifteen year

old] boy had a right to consult a lawyer was hollow indeed when

he was denied access to his father who, practically speaking,

was the only avenue through which he could effectively evaluate

and, if he wished, exercise the right to counsel").

    Of course, the juvenile's right to request a mid-interview

consultation with an interested adult must pertain to the

Miranda rights.   The interested adult rule is intended "to

ensure that the waiver is knowing and intelligent."

Commonwealth v. MacNeill, 399 Mass. at 77.      "Furthermore, the

ultimate question is whether the juvenile has understood his

rights and the potential consequences of waiving them before

talking to the police."     Id. at 79.   The consultation is not

intended to substitute for legal advice.     See Commonwealth v.

Philip S., 414 Mass. at 812 n.6.

    Here, the juvenile unambiguously requested to speak with

his guardian to "make sure" whether he should "help" himself and

"start cooperating with the case and the investigation," as the

officers were urging him or, instead, to end the interview.
                                                                     14


Once the juvenile made a request to consult with his guardian

about the exercise of his Miranda rights, the police were

obliged to afford them the ability to confer in private.    See

Hall v. State, 264 Ind. 448, 452 (1976) ("a meaningful

consultation can occur only in the absence of the neutralizing

pressures which result from police presence").

    The Commonwealth contends that once a juvenile has waived

his or her Miranda rights, having had one opportunity for

consultation with an interested adult, the juvenile no longer

may request a private consultation to discuss whether to invoke

the right to remain silent and cut off further questioning.     We

disagree.   The purpose of the interested adult rule is to put a

juvenile on a roughly even footing with an adult defendant in

terms of understanding and making a meaningful decision to waive

or invoke the Miranda rights.   Accordingly, a sufficiently clear

request to consult with an interested adult about those rights,

which is essential to the juvenile's understanding and effective

exercise of them, must be honored as scrupulously as an adult

defendant's request to cut off questioning or to speak with an

attorney.   See Commonwealth v. Clarke, 461 Mass. at 343;

Michigan v. Mosley, 423 U.S. 96, 104 (1975).

    The motion judge determined that the officers' actions

"essentially truncated the communication between guardian and

defendant."   The Commonwealth concedes that "the police imposed
                                                                   15


ground rules that may have had the effect of constraining

conversation between the two," but argues that the break in the

interrogation alone was sufficient to "allo[w] the juvenile and

his guardian to consider whether to continue with the interview

or end it, or to continue only with the assistance of an

attorney."   We agree with the motion judge that in the

circumstances of this case, the constraining ground rules

imposed by the police deprived the juvenile of a "genuine

opportunity" to confer with his guardian about the exercise of

his Miranda rights.   The motion judge properly suppressed the

statements the juvenile made after the police failed to honor

his request to consult with an interested adult.

    Conclusion.   The Commonwealth met its burden of proving

that the juvenile initially waived his Miranda rights after an

opportunity to consult with an interested adult, but the police

deprived the juvenile of an opportunity for meaningful

consultation about his Miranda rights when he later asked to

speak to his guardian.   The order denying the juvenile's motion

to suppress in part and allowing the motion in part is affirmed.

                                    So ordered.
    COHEN, J. (concurring).   I write separately to comment on

our disposition of the juvenile's cross-appeal from the judge's

partial denial of the motion to suppress.   I agree that under

current law the police are not required to give a juvenile over

the age of fourteen an unsolicited opportunity to confer in

private with an interested adult before obtaining a waiver of

the juvenile's Miranda rights.    However, I believe that the time

has come to revisit this issue.

    In Commonwealth v. Philip S., 414 Mass. 804, 811 n.5

(1993), the Supreme Judicial Court observed that "the better

practice . . . with any juvenile is for the investigating

officials explicitly to inform the juvenile's parent, or other

interested adult, that an opportunity is being furnished for the

two to confer about the juvenile's rights" (emphasis added).

The court further observed that "[a] private consultation . . .

clearly is the most conducive means to [an] unconstrained and

thorough discussion between the adult and child."    Id. at 812.

In light of what we have learned and continue to learn about the

developmental immaturity that persists throughout the teenage

years, cf. Roper v. Simmons, 543 U.S. 551, 569-574 (2005),

quoting from Johnson v. Texas, 509 U.S. 350, 367 (1993)

(recognizing that juveniles older than sixteen remain prone to

"ill-considered actions and decisions"), fresh consideration

should be given to requiring that the "better practice" and
                                                            2


"most conducive means" identified in Philip S., supra, be

followed in all juvenile cases.
