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16-P-981                                           Appeals Court

              COMMONWEALTH   vs.   RANDALL TREMBLAY.


                          No. 16-P-981.

       Suffolk.     April 14, 2017. - September 25, 2017.

            Present:   Trainor, Agnes, & Neyman, JJ.


Constitutional Law, Admissions and confessions, Voluntariness of
     statement, Waiver of constitutional rights, Search and
     seizure. Evidence, Admissions and confessions,
     Voluntariness of statement, Videotape, Intoxication.
     Practice, Criminal, Motion to suppress, Admissions and
     confessions, Voluntariness of statement, Waiver, Findings
     by judge. Waiver. Intoxication. Search and Seizure,
     Clothing.



     Indictments found and returned in the Superior Court
Department on March 10, 2015.

     A pretrial motion to suppress evidence was heard by Kenneth
W. Salinger, J.

     Applications for leave to prosecute interlocutory appeals
were allowed by Geraldine S. Hines, J., and Robert J. Cordy, J.,
in the Supreme Judicial Court for the county of Suffolk, and the
appeals were reported by them to the Appeals Court.


     Zachary Hillman, Assistant District Attorney (Amy J.
Galatis, Assistant District Attorney, also present) for the
Commonwealth.
                                                                   2


     Patrick Levin, Committee for Public Counsel Services, for
the defendant.


     AGNES, J.   The defendant, Randall Tremblay, was arrested

and subsequently indicted for the murder of Stephanie McMahon,

based on statements he made to the police both at the scene and

in two subsequent custodial interrogations, and blood discovered

on his clothing, which the police seized when they arrested him.

The defendant moved to suppress all statements he made to the

police and all evidence seized from him.   The judge conducted an

evidentiary hearing, during which he heard testimony from three

police officers and viewed a videotape recording of the second

custodial interrogation of the defendant following his arrest on

a warrant for an unrelated offense.1   Based on the contents of

that videotape recording, the judge concluded that the defendant

was so intoxicated when he was questioned at the police station

that he was incapable of making a knowing and intelligent waiver

of his Miranda rights.   As a result, the judge ruled that all of

the statements made by the defendant at the police station must

be suppressed.   The judge also ruled that while the police


     1
       The exhibits admitted in evidence at the motion to
suppress hearing include the following: the defendant's signed
Miranda rights form, the restraining order obtained by the
victim against the defendant, the inadvertent videotape
recording of the wrong interview room, the videotape recording
of the defendant's second interview, photographs of items
recovered from the dumpster behind the victim's apartment, and a
videotape recording of a train platform depicting the defendant.
                                                                     3


lawfully seized the defendant's clothing in order to preserve

evidence of an apparent homicide, they acted unlawfully in

subjecting the clothing to forensic testing without first

obtaining a search warrant.    Therefore, the judge made a further

ruling that all forensic testing results from the defendant's

clothing must be suppressed.

     For the reasons more fully explained in the discussion that

follows, our independent review of the judge's ultimate finding

that the defendant was too intoxicated to waive his rights leads

us to conclude that it is erroneous.    See Commonwealth v. Jones-

Pannell, 472 Mass. 429, 431 (2015).2   In addition, our

independent review of the judge's ruling of law that the

Commonwealth failed to meet its burden to prove a valid waiver

of the defendant's Miranda rights leads us to conclude that it

too is erroneous.   Finally, mindful of the limits on appellate

fact finding, see id. at 438, we conclude that the unusual

circumstances of this case brings it within the rule applied in

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

Hoyt, 461 Mass. 143, 148-151 (2011), and Commonwealth v. Newson,

471 Mass. 222, 231-232 (2015).   In those cases, the Supreme

     2
       "In reviewing a decision on a motion to suppress, we
accept the judge's subsidiary findings absent clear error but
conduct an independent review of the ultimate findings and
conclusions of law." Commonwealth v. Jones-Pannell, supra
(quotations omitted). See Commonwealth v. Haas, 373 Mass. 545,
550 (1977); Commonwealth v. Alvarado, 420 Mass. 542, 544 (1995);
Commonwealth v. Thomas, 429 Mass. 403, 405 (1999).
                                                                    4


Judicial Court declined to defer to the factual findings made by

the motion judge, conducted an independent review of a

videotaped interrogation session, and determined whether there

was compliance with the Miranda rights doctrine (Hoyt) and

whether the statements were voluntary (Newson and Novo), without

the need for a remand.   In the present case, the judge relied on

the videotaped interrogation session to find the facts that led

him to conclude that the defendant was too intoxicated to waive

his Miranda rights.3   However, based on our independent review of

the same documentary evidence, we conclude that there is ample

evidence to support the conclusion that the Commonwealth met its

"heavy burden," Commonwealth v. Hoyt, supra at 152, to establish

that the defendant made a valid waiver of his Miranda rights,

and that his statements were voluntary.

     Background.   The following facts are drawn from the

findings made by the judge, and testimonial evidence presented

at the motion to suppress hearing that is consistent with those

     3
       The judge heard the testimony of three police officers in
addition to viewing the videotape of the defendant's
interrogation. The judge was entitled to make credibility
assessments and weigh that evidence, which we are not permitted
to do. Commonwealth v. Jones-Pannell, supra at 432. However,
as we explain, infra, the judge's subsidiary findings relating
to his conclusion that the defendant was incapable of waiving
his Miranda rights are not supported by the testimonial
evidence. In fact, the testimonial evidence is consistent with
and supportive of the view we take of the videotape evidence.
Instead, the judge's conclusion that the defendant was too
intoxicated to waive his Miranda rights is derived from the
inferences he draws from the videotape evidence.
                                                                       5


findings.     See Commonwealth v. Isaiah I., 448 Mass. 334, 337

(2007).     We reserve certain details for our analysis of the

issues raised on appeal.

     1.     At the crime scene.     Shortly after 2:00 A.M. on

November 18, 2014, Boston police Sergeant Scott Yanovitch

arrived at an apartment in the Hyde Park area of Boston shortly

after the victim, Stephanie McMahon, had been pronounced dead.

Another officer and two emergency medical personnel were already

on scene, after responding to a 911 call reporting that a woman

had died in the apartment.        Sergeant Yanovitch requested that

the police dispatcher issue a "full notification" for a crime

scene team and homicide detective to come to the scene.          He then

interviewed two witnesses who were present at the apartment when

the police arrived, Michael Doucette and Gay Finley.4       At one

point, Sergeant Yanovitch stepped outside for some fresh air.

He observed a man, later identified as the defendant, walk past

the apartment while talking and mumbling to himself.        Sergeant

Yanovitch had no interaction with the defendant at that time.

Later, Doucette asked to go outside and smoke a cigarette.

Sergeant Yanovitch accompanied him.        While outside, Sergeant

Yanovitch again observed the defendant walk by the apartment

while talking to himself.     The defendant stopped and asked



     4
         We adopt the judge's spelling of Finley.
                                                                     6


Doucette for a cigarette.    Sergeant Yanovitch told the defendant

to move along, but otherwise had no interaction with him.

    At the time of dispatch to the victim's apartment, Boston

police Officer Shawn Roberts was on patrol with his partner in a

marked police cruiser.    Officer Roberts recognized the address

as one that he had previously responded to some months earlier

for a report of a broken window.    He was also aware of a number

of incident reports related to that address, most of which were

for domestic violence incidents between the victim and a man

named Randall Tremblay.    When Officer Roberts received the full

notification from Sergeant Yanovitch, he looked up Tremblay and

discovered that there was an active restraining order against

Tremblay requiring him to stay away from the victim's apartment,

as well as an active arrest warrant against Tremblay for failing

to register as a sex offender.    He also obtained a photograph of

Tremblay.   Officer Roberts contacted Sergeant Yanovitch and

informed him of the previous domestic violence incidents between

the victim and Tremblay and the active restraining order.

Shortly thereafter, Sergeant Yanovitch radioed Officer Roberts

and asked him to come to the scene to determine if Doucette, who

did not have identification, was the person whom Officer Roberts

had radioed him about.    Officer Roberts arrived on scene and

told Sergeant Yanovitch that Doucette was not Tremblay; Officer

Roberts then left.
                                                                   7


     Later, around 3:40 A.M., Sergeant Yanovitch was inside the

apartment when he heard loud yelling coming from the street

outside.   He went outside and discovered the defendant, who was

yelling things like, "What's going on in there?     I know what

happened," and "She was my friend."    The defendant approached

Sergeant Yanovitch and asked him what was happening in the

apartment and repeated that "she was [his] friend."     Sergeant

Yanovitch asked for the defendant's name, who replied, "What,

are you going to run me?"   Because the defendant had just

suggested that he knew the victim and may have information about

her death, Sergeant Yanovitch radioed Officer Roberts to return

to the scene.   Officer Roberts returned and informed Sergeant

Yanovitch that the defendant was Randall Tremblay, and that he

had an active arrest warrant.   Officer Roberts placed the

defendant under arrest and advised him of his Miranda rights.5

     2.    Unrecorded custodial interrogation.   Officer Roberts

and his partner brought the defendant to police headquarters to

be interviewed.   Beginning at around 4:00 A.M., Sergeant

Detective Michael Stratton interviewed the defendant in an

interview room.   Sergeant Detective Stratton believed that the

interview was being recorded, but the recording equipment was


     5
       The judge found that the defendant did not acknowledge
whether he understood his rights, but as the defendant was not
questioned until later at the police station, nothing turns on
this finding.
                                                                    8


inadvertently turned on for a different interview room.    As a

result, the interview was not recorded.6   However, Officer

Roberts was able to observe and listen to the interview on the

recording system's monitor outside the interview room.

     Sergeant Detective Stratton began the interview by

explaining that the interview would be recorded and advising the

defendant of his Miranda rights.   The defendant was shown a form

with each right listed, and the detective went over each right

with the defendant.   The defendant signed his initials next to

each right, and indicated that he understood it.   He also signed

and printed his name at the bottom of the form.

     During the course of the interview, the defendant made

statements implicating himself in the victim's death.     He stated

that two days previously he had been with the victim at her

apartment when they got into an argument around 9:00 P.M.     The

defendant stated that he struck the victim in the head twelve to

fifteen times, that "she got it good," and that "I think I

killed her."   After he struck the victim, she lay on the couch,

not moving, with blood on her face.   The defendant fell asleep,

and woke up early the next morning to find the victim had not

moved.   He believed he had killed her.


     6
       The judge found that the first interview of the defendant
was not recorded due to an error in turning on the recording
equipment for the wrong interview room, and did not find that it
was the result of any police misconduct.
                                                                     9


    The defendant told Sergeant Detective Stratton that he then

left the apartment and took a train to meet his friend,

Doucette.    He told Doucette, "I think I killed [the victim],"

and asked Doucette to return with him to the victim's apartment

to check.    Before they did so, they purchased beer, drank some

together, and met with Finley.     The three returned to the

victim's apartment, where Doucette confirmed that the victim was

deceased.    They remained in the apartment and drank another beer

while the defendant cleaned up.     The defendant stated that he

"mopped up some big puddles of blood in the apartment and took

out some trash."     Finley then called 911 to report that the

victim was deceased.     Doucette told the defendant that he should

leave the apartment because the victim had an active restraining

order against him, so he left the apartment and waited around

the corner.

    After he concluded the interview and left the room,

Sergeant Detective Stratton learned of the error with the

recording equipment.     He returned to the interview room and

explained to the defendant that the interview had accidently not

been recorded, and asked the defendant if he was willing to do

another interview.     The defendant agreed, asking if he could

have a cigarette first.

    3.      Recorded custodial interrogation.   After being taken

outside to smoke a cigarette, the defendant was brought back to
                                                                    10


the interview room to be re-interviewed by Sergeant Detective

Stratton with the proper recording system running.    The

videotape begins with an empty interrogation room.    The

videotape then shows Sergeant Detective Stratton and the

defendant entering the room.    Before commencing the second

interview, Sergeant Detective Stratton showed the defendant the

Miranda rights form that the defendant had initialed and signed

prior to the first interview.    Sergeant Detective Stratton read

each right to the defendant and asked him if he understood it.

The defendant indicated that he did.    Sergeant Detective

Stratton asked the defendant the same questions he had asked in

the first interview, with the defendant giving similar answers.

The second videotaped interview did not differ in any material

respect from the unrecorded first interview.    The defendant

explained in detail the events surrounding the victim's death

and what he did the next day after finding her apparently

lifeless.   The defendant repeated his admission to Sergeant

Detective Stratton that he hit the victim in the head numerous

times, and stated that he believed he had killed her.       He stated

that "she's dead because of me."    Throughout the interview, the

defendant asked Sergeant Detective Stratton when he was going to

be released.   After the conclusion of the second interview, the

defendant was taken for photographs and booking.     Because some

of the defendant's clothing had apparent blood stains, his
                                                                     11


clothing was held and submitted for forensic testing.     The

defendant was later indicted for the murder of the victim.

    Discussion.    1.   Standard of review.   Ordinarily, when we

review 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 his ultimate findings and conclusions of

law.'"   Commonwealth v. Scott, 440 Mass. 642, 646 (2004),

quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002).

However, we apply a different standard when the judge's findings

of fact are drawn from documentary evidence and there is no

independent testimonial evidence to support those findings.     As

the Supreme Judicial Court has stated, "[w]e have consistently

held that lower court findings based on documentary evidence

available to an appellate court are not entitled to deference."

Commonwealth v. Novo, 442 Mass. at 266.    This is because we are

in as good a position as the judge to view and assess such

evidence.   See Commonwealth v. DiGiambattista, 83 Mass. App. Ct.

180, 181 (2013).

    The critical question in a case like this, in which the

judge heard the testimony of three police officers in addition

to the videotape evidence, is whether the controlling facts are

attributable to the testimonial evidence or to the videotape, or

a combination of the two.   If the controlling facts (here the

facts about the degree of the defendant's intoxication) are
                                                                   12


based on testimonial evidence, we must defer to the judge's

findings unless they are clearly erroneous.    Commonwealth v.

Hoose, 467 Mass. 395, 399-400 (2014).   On the other hand, if the

controlling facts were derived from documentary evidence, we are

authorized to review those findings de novo.   Commonwealth v.

Clarke, 461 Mass. 336, 341 (2012) ("Here, to the extent that the

judge based his legal conclusions on facts found by virtue of a

video recording, we are in the same position as the [motion]

judge in viewing the videotape" [quotation omitted]).    In this

case, the judge's several findings that the defendant was

intoxicated during the first and second interviews were based on

a combination of documentary and testimonial evidence.   However,

the controlling facts that support the judge's ultimate finding

that the degree of the defendant's intoxication rendered him

incapable of waiving his Miranda rights are based exclusively on

documentary evidence.7


     7
       In one respect, we conclude that a subsidiary finding that
may have been important to the result reached by the judge is
clearly erroneous. "A finding is 'clearly erroneous' when
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed." J.A. Sullivan
Corp. v. Commonwealth, 397 Mass. 789, 792 (1986), quoting from
United States v. United States Gypsum Co., 333 U.S. 364, 395
(1948). The judge found that prior to the first unrecorded
interview, "[Sergeant Detective Stratton] then read [the
defendant] his Miranda rights from a preprinted form. [The
defendant] put his initials next in [sic] each spot that
Stratton told him to initial, and signed his name where Stratton
told him to sign." Insofar as this finding means that Sergeant
                                                                   13


    2.   The finding that the defendant was intoxicated, without

more, does not support the judge's ultimate finding and ruling

that there was no valid waiver of Miranda rights.    At several

different points in his decision, the judge refers to the

defendant as "intoxicated" or "quite intoxicated."    The source

of the evidence for these findings is both the testimony of the

police officers and the videotaped interview of the defendant.

    The testimonial evidence relating to the defendant's

consumption of alcohol consists of the following.    Sergeant

Detective Stratton testified at the motion to suppress hearing

that the defendant stated during his interview that on the

evening of Sunday, November 16, 2014, prior to the homicide, the

defendant and the victim drank beer and took some pills.

Sergeant Detective Stratton also testified that the defendant

stated that he left the victim's apartment during the day of


Detective Stratton told the defendant to sign the waiver form,
there is no evidence in the testimony or in the videotape to
support this finding. The testimony at the hearing before the
judge was that, prior to the first interview, Sergeant Detective
Stratton advised the defendant of his Miranda rights and went
over each right on a printed form. The defendant wrote his
initials next to each right and signed and printed his full name
at the bottom of the form. The videotape shows that Sergeant
Detective Stratton reviewed with the defendant each of the
Miranda rights on the form before he conducted the second
interview, and the defendant responded by stating that he
understood his Miranda rights. Thus, insofar as the judge's
finding that Sergeant Detective Stratton told the defendant to
initial and sign the written Miranda rights form was intended to
indicate that the defendant did not make a knowing, voluntary,
and intelligent waiver of his Miranda rights before the first,
unrecorded interview, we disregard it.
                                                                  14


November 17 and met Doucette.   They purchased some beer.   There

is videotape evidence of the defendant and Doucette standing on

the platform at the Back Bay train station minutes before

midnight on November 17 drinking from a can or bottle inside a

paper bag.   The defendant also stated that when he, Doucette,

and Finley returned to the victim's apartment during the early

morning of November 18, he drank a beer before the victim's

death was reported to the police at approximately 2:00 A.M.

Finally, there is testimony from Officer Roberts, who detected a

"slight odor of alcohol" on the defendant at the crime scene

shortly before his arrest.8

     The judge did not further explain what he meant by

"intoxication."   Although the law recognizes that "the effects

of liquor upon the mind and actions of men are well known to

     8
       The bulk of the testimonial evidence regarding the
defendant's intoxication, which the judge disregarded, as he was
entitled to do, indicates that the defendant was not
intoxicated. For example, while Officer Roberts testified that
the defendant had a "slight odor of alcohol" about him at the
scene, he also testified that the defendant exhibited no other
signs of intoxication, such as slurred speech or difficulty
walking. He also observed the defendant at the police station,
and testified that the defendant did not appear to have
difficulty understanding him and did not appear to be confused.
Sergeant Yanovitch, who interacted with the defendant at the
scene, testified that the defendant did not smell of alcohol and
did not appear intoxicated. Significantly, Sergeant Yanovitch
also testified that Doucette did smell of alcohol and did appear
intoxicated. In addition, Sergeant Detective Stratton, who
spent nearly three hours with the defendant, testified that the
defendant did not smell of alcohol, did not slur his speech, was
lucid, cooperative, and articulate, and did not appear
intoxicated at any point that night.
                                                                  15


everybody," Commonwealth v. Taylor, 263 Mass. 356, 362 (1928),

the term intoxication does not have a single, uniform meaning.

"Liquor affects individuals in various ways and it is sometimes

difficult to determine degrees of intoxication."   Holton v.

Boston Elevated Ry. Co., 303 Mass. 242, 246 (1939).9   It is

precisely because the term intoxication refers to a range of

conditions and competencies that the law recognizes that a

person's intoxication does not preclude a determination that the

person made a valid waiver of his Miranda rights.10


     9
       See Commonwealth v. Canty, 466 Mass. 535, 542 (2013) (lay
opinion testimony regarding person's intoxication probative
"because such an opinion, especially as to the level of
intoxication, may be shaped by observations too numerous or
subtle to mention" [emphasis original]). The fact that
intoxication describes a range of conditions is reflected in our
decisional law. See, e.g., Commonwealth v. Henson, 394 Mass.
584, 592-593 (1985) (defendant's voluntary intoxication does not
negate specific intent as matter of law, but is factor which
jury may consider in determining whether he had capacity to form
specific intent); Commonwealth v. Urban, 450 Mass. 608, 613
(2008) (before jury may find that adult is incapable of
consenting to sexual activity with another, they must find "an
extreme degree of intoxication").
     10
       The following cases illustrate that a person may be
intoxicated and nonetheless make a valid waiver of Miranda
rights. See, e.g., Commonwealth v. Simmons, 417 Mass. 60, 65
(1994) (noting that there was basis for judge’s finding that
"although the defendant may have been somewhat intoxicated when
he spoke to the police, his mind was rational and his faculties
were under control"); Commonwealth v. Mello, 420 Mass. 375, 383
(1995) ("intoxication alone is insufficient to negate an
otherwise voluntary act"); Commonwealth v. Griffin, 19 Mass.
App. Ct. 174, 182-183 (1985) (upholding judge's decision that
defendant was under influence of alcohol, but nonetheless alert
and capable of waiving his Miranda rights). See also
Commonwealth v. Wolinski, 431 Mass. 228, 231 (2000) ("[T]he
                                                                  16


     "An otherwise voluntary act is not necessarily rendered

involuntary simply because an individual has been drinking or

using drugs."   Commonwealth v. Shipps, 399 Mass. 820, 826

(1987).11   For these reasons, we conclude that the judge's

determination that the defendant was intoxicated at the time he

was advised of his Miranda rights does not answer the question

whether he was capable of validly waiving his Miranda rights.

The answer to that question depends on whether there was

physical or psychological coercion on the part of the police and

whether, based on the totality of the circumstances, the

defendant had the capacity to make a rational choice about



defendant was not intoxicated to the point his ability to think
freely and rationally was impaired").
     11
       The principle that intoxication alone does not preclude a
person from making a valid waiver of Miranda rights and does not
make an otherwise voluntary statement involuntary has been
stated repeatedly by the Supreme Judicial Court and this court.
See Commonwealth v. Doucette, 391 Mass. 443, 447-448 (1984);
Commonwealth v. Shipps, supra at 826-827 (defendant appeared
glassy-eyed and smelled of alcohol); Commonwealth v. Ward, 426
Mass. 290, 294 (1997) (defendant had been drinking for several
hours, smelled of alcohol, and had .39 blood alcohol content);
Commonwealth v. Wolinski, supra (defendant had drug and alcohol
addiction and had used heroin earlier that day); Commonwealth v.
Silanskas, 433 Mass. 678, 686 (2001) (officer testified that
defendant smelled of alcohol and was under influence of
alcohol); Commonwealth v. Duffy, 36 Mass. App. Ct. 937, 938-939
(1994) (defendant had been drinking before he walked into police
station and confessed); Commonwealth v. Liptak, 80 Mass. App.
Ct. 76, 79 (2011) (defendant had .19 blood alcohol content, had
strong odor of alcohol on breath, and had been given morphine
and oxycodone at hospital); Commonwealth v. Bigley, 85 Mass.
App. Ct. 507, 509 (2014) (defendant had strong odor of alcohol,
glassy eyes, and was unsteady on his feet).
                                                                  17


whether to speak or to remain silent or to request an attorney.

See Commonwealth v. Silanskas, 433 Mass. 678, 685-688 (2001).

In the present case, the judge's answers to those questions were

based entirely on the videotape evidence.

    3.   Waiver of Miranda rights.   The judge connected his

subsidiary finding that the defendant was intoxicated to his

ultimate finding that the defendant was incapable of waiving his

Miranda rights, and to his ruling that the Commonwealth did not

meet its burden of proving a valid waiver of Miranda rights, by

drawing inferences from the appearance and conduct of the

defendant during the second, recorded, interrogation.     Our

independent review of the same evidence leads us to reach a

different conclusion, namely, that based on the conduct of

Sergeant Detective Stratton and the defendant's statements and

behavior throughout the course of the videotape, the

Commonwealth satisfied its heavy burden to prove that the

defendant made a valid waiver of his Miranda rights.    See

Commonwealth v. Hilton, 443 Mass. 597, 607-608 (2005), S.C., 450

Mass. 173 (2007).

    In deciding whether a defendant's waiver of his Miranda

rights is valid, "[we] must examine the totality of the

circumstances surrounding the making of the waiver."

Commonwealth v. Edwards, 420 Mass. 666, 670 (1995), quoting from

Commonwealth v. Medeiros, 395 Mass. 336, 345 (1985).    This
                                                                    18


requires us to consider such factors as the "conduct of the

defendant, the defendant's age, education, intelligence and

emotional stability, experience with and in the criminal justice

system, [and] physical and mental condition."     Commonwealth v.

Martinez, 458 Mass. 684, 692 (2011) (quotation omitted).     An

officer is entitled to rely on the suspect's outward appearance,

words, and other behaviors in assessing whether he is capable of

waiving his Miranda rights and whether he, in fact, did waive

them.   Commonwealth v. Lanoue, 392 Mass. 583, 588-589 (1984).

     "[S]pecial care is taken to review the issue of

voluntariness where the defendant claims to have been under the

influence of drugs or alcohol."     Commonwealth v. Mello, 420

Mass. 375, 383 (1995).     When a suspect is under the influence of

alcohol or drugs, "police should not assume they can immediately

receive a knowing and intelligent waiver of Miranda rights and

commence interrogation."    Commonwealth v. Hosey, 368 Mass. 571,

579 (1975).   Here, based on his viewing of the videotaped

interview, the judge noted a number of factors that led him to

conclude that the defendant was too intoxicated to waive his

Miranda rights.

     The judge found that the defendant was not paying attention

when Sergeant Detective Stratton went over his Miranda rights

again prior to the second interview.     When asked if he

understood each right, the defendant responded, "Yes" or
                                                                   19


"Obviously."   While the defendant does appear to be more

interested in explaining why the arrest warrant was incorrect,

we do not regard that as evidence that he did not understand

what the warnings meant.    The defendant was not a stranger to

police.    He had had numerous interactions with the police in the

past, had been arrested on at least one prior occasion, and

demonstrated knowledge of police procedures and the criminal

justice system.12   See Commonwealth v. St. Peter, 48 Mass. App.

Ct. 517, 519-520 (2000) ("experience in the criminal justice

system" is "relevant factor" with respect to Miranda rights

waiver).

     The judge also found that the defendant had "great

difficulty walking" to his seat, and that he stumbled several

times before sitting down.    While the defendant does appear to

stumble when he first enters the room with handcuffs on, at

several points during the interview, the defendant stands up,

and each time he appears quite steady on his feet.    At one

point, he stands to demonstrate how he hit the victim, and

raises his knee while standing steady on one foot.    When the


     12
       For example, the defendant was hesitant to provide his
name to Sergeant Yanovitch at the scene out of fear that the
sergeant would "run" him. He knew the difference between a
straight warrant and a default warrant. He had paperwork
pertaining to an arrest warrant on his person. From his warrant
for failing to register as a sex offender, it can be inferred
that he had a prior conviction requiring him to register. See
G. L. c. 6, § 178E(f).
                                                                  20


defendant is led out of the room at the end of the interview, he

shows no signs of unsteadiness or difficulty walking.13

     The judge also found that the defendant "sounds drunk and

seems to have trouble speaking clearly."   To the contrary, the

videotape demonstrates that the defendant is alert and his

answers to questions are responsive, coherent, and often "quite

self-serving."14   Commonwealth v. Silanskas, 433 Mass. at 686.

The defendant's speech is clear and he appears alert and awake,

not groggy or drowsy.   He recounts a relatively complex series

of facts replete with specific details, such as bus numbers, the

name and location of a liquor store, the victim's home telephone

number, and the location of specific items in the victim's

apartment.   The defendant corrects Sergeant Detective Stratton

at one point when he asked, "so what happened tonight?"   The

defendant replies, "actually, wait a minute, it didn't happen

tonight."

     The judge's conclusion was also based on his finding that

the defendant did not appear to understand that he had

     13
       The defendant also noted that he had previously sustained
injuries requiring a hospital stay after jumping out of a fifth-
floor window.
     14
       There are numerous examples of the defendant's self-
serving statements during the interview. He is careful to tell
the police that he only hit the victim with an open hand, not
with closed-fist punches, and that he only hit her in the face.
He says repeatedly that he only went to the victim's apartment
when she invited him, knowing that there was a restraining
order. He also withholds Doucette's last name.
                                                                     21


incriminated himself with his statements during the interview.

The judge reasoned that, because the defendant continuously

asked when he was going to be released, he did not understand

the consequences of waiving his Miranda rights and speaking with

the police.   However, the videotape shows that the defendant is

aware that his statements were incriminating.     Throughout the

interview, he is very animated and forceful when talking about

why he believes he should not have been arrested on a warrant

that should have been recalled, but when asked about what

happened to the victim, he becomes very quiet and subdued.     He

pauses, drums his fingers on the table, breaks eye contact with

Sergeant Detective Stratton, and mumbles.     The defendant also

demonstrates that he is conscious of the consequence of his

actions when he states many times during the interview, "I

fucked up."   In addition, several times during the interview, he

makes statements indicating that he knows criminal charges could

come from his statements.   For example, at one point, the

defendant opines that the victim "died in her own blood," then

raises his hands and says, "charge me with something."     Later,

he states, "Yeah I did whack her, and I'm sorry I did that.        It

sucks.   But whatever you guys want to do."    When asked if there

was anything else he wanted to talk about, the defendant states,

"I had a restraining order.   I wasn't supposed to be there in

the first place.   So I'm, it's jail-bound regardless, right?"
                                                                  22


The defendant also stated, "I've never done that to her before,

either."15   Finally, toward the end of the interview, the

defendant asks if he can see the victim.   When Sergeant

Detective Stratton says no, the defendant says, "I'm going to

jail aren't I?"   These statements demonstrate that the defendant

was aware of the consequences of waiving his right to remain

silent and speaking with the police.16   The Commonwealth's burden

of proof with respect to the waiver of Miranda rights does not

require it to establish that the defendant understood and

appreciated the tactical or strategic consequences of waiving

his Miranda rights.17


     15
       This statement can be viewed as an attempt by the
defendant to minimize the seriousness of his conduct by avoiding
an admission that he is a repeat abuser.
     16
       The judge viewed the defendant's admission of guilt and
his questions about being released as so incompatible with one
another that they were indicative of a person not thinking
rationally. However, those two aspects of the defendant's
statements are not incompatible. The videotape shows that the
defendant strongly believed that the warrant was defective, and
while he understood that there would be a penalty for being
involved in the victim's death, he believed that the
investigation was ongoing and that when it was time for charges
to be filed, the police could easily find him because he was
local.
     17
       The police are not required to provide a suspect with a
"flow of information to help him calibrate his self-interest in
deciding whether to speak." Commonwealth v. Raymond, 424 Mass.
382, 393 (1997) (quotation omitted). The duty to advise
suspects of their Miranda rights prior to questioning does not
include the "requirement that a defendant be advised of all the
ramifications of any waiver of his rights." Commonwealth v.
Lee, 10 Mass. App. Ct. 518, 529 (1980). The police have no
                                                                   23


    The judge relied on Commonwealth v. Hosey, 368 Mass. 571

to support his conclusion that the defendant was incapable of

making a rational choice.    However, the facts of that case are

markedly different from those in the case before us.     In Hosey,

the defendant was arrested for drunkenness while at the

hospital, where his girl friend's young daughter was being

treated for injuries.    Id. at 573-574.   After being taken to the

police station and being advised of his Miranda rights, the

defendant was questioned regarding the circumstances surrounding

the injuries to the child.   Id. at 576.   The questioning officer

testified that the defendant appeared "extremely high,"

"extremely emotional," and "detached from reality" while he was

being questioned.   Id. at 579.   The court held that based on the

observations by the police, the defendant could not have made a

valid Miranda rights waiver and that officers should have ceased

questioning the defendant until he was capable of responding

intelligently.   Ibid.

    In addition, the circumstances surrounding the defendant's

waiver in Hosey were concerning even without considering his



"duty to give legal advice to suspects." Commonwealth v.
Cunningham, 405 Mass. 646, 657 (1989). The constitutional
measure of whether a person's decision to waive his Miranda
rights and speak with police without counsel present is not
whether the decision is in his best interests, but rather
whether it was a voluntary choice by a person who was aware of
his rights and had the capacity to make a rational choice. See
Commonwealth v. Magee, 423 Mass. 381, 386-387 (1996).
                                                                    24


intoxication.   In Hosey, when reviewing the defendant's Miranda

rights during the questioning, one of the officers interjected

that it would be difficult for the defendant to obtain counsel

at 5:00 A.M., but that he could do so if he "insisted."       Id. at

576.    The court concluded that this statement, coupled with the

defendant's mental condition and the officers' knowledge that

the defendant wanted to finish quickly so that he could get to

work at 6:00 A.M., was an improper attempt to induce a waiver.

Id. at 578.   As we said in Commonwealth v. Bigley, 85 Mass. App.

Ct. 507, 513-514 (2014), "[t]he result in Hosey turned on a

combination of three factors:    severe intoxication, the

officers' description of the defendant as 'detached from

reality,' and the defective administration of Miranda rights."

Hosey, thus, is not an appropriate guidepost for the present

case.

       For these reasons, on the basis of the same documentary

evidence relied on by the judge below, our independent review

leads us to conclude that the evidence was sufficient to meet

the Commonwealth's burden to demonstrate that the defendant's

waiver of his Miranda rights was knowing, intelligent, and

voluntary.    Contrary to the judge's conclusion, the video

recording of the defendant's interview with the police does not

reveal a person who is "far too intoxicated to be able to make a

knowing and intelligent waiver of his right to remain silent."
                                                                  25


See Commonwealth v. Simmons, 417 Mass. 60, 65-66 (1994).

Instead, we have a settled conviction that notwithstanding the

defendant's intoxication, he made a knowing, intelligent, and

voluntary waiver of his Miranda rights.

    4.    Voluntariness.   The defendant also contends, as with

his Miranda rights waiver, that his intoxication at the time of

his questioning by the police rendered his statements

involuntary.   Whether the defendant made a valid waiver of

Miranda rights and whether any statements he made were voluntary

are separate and distinct questions.    See Commonwealth v. Magee,

423 Mass. 381, 387 (1996).    When, as here, both issues are

raised by the defendant, the judge must make findings and

rulings on each question.    See Commonwealth v. Melkebeke, 48

Mass. App. Ct. 364, 366 (1999).    However, we have generally

applied the voluntariness test only after concluding that the

police complied with their obligations under Miranda v. Arizona,

384 U.S. 436, 469 (1966).    Commonwealth v. Baye, 462 Mass. 246,

252 n.8 (2012).   Here, the judge did not determine whether the

defendant's statements were voluntary, as he concluded that the

defendant did not knowingly and intelligently waive his Miranda

rights.   In the circumstances of this case, a remand to enable

the judge to make findings of fact as to the issue of

voluntariness is unnecessary because we are in as good a

position to evaluate the recorded interview.
                                                                    26


    As with our analysis of the voluntariness of a Miranda

rights waiver, we apply the "totality of the circumstances"

test.   Commonwealth v. Hensley, 454 Mass. 721, 730 (2009).

"There is no bright line test for voluntariness . . . .     [W]e

[must] consider all of the relevant circumstances surrounding

the statement[s] and the individual characteristics and conduct

of the defendant."     Commonwealth v. Burbine, 74 Mass. App. Ct.

148, 153 (2009).     "A judicial determination of voluntariness

involves an assessment of the totality of relevant circumstances

to ensure that the defendant's [statements were] a free and

voluntary act and [were] not the product of inquisitorial

activity which had overborne his will."     Commonwealth v. Allen,

395 Mass. 448, 454-455 (1985) (quotation omitted).     Among the

relevant factors we consider under the totality of the

circumstances test are "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 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."     Commonwealth v. Selby, 420

Mass. 656, 663 (1995).     The focus of our inquiry into

voluntariness is whether the incriminating statements were "the
                                                                    27


result of coercion or intimidation."     Commonwealth v. Durand,

457 Mass. 574, 595 (2010).

    Here, the police did not engage in any coercion or use

discredited tactics such as minimization of the crime, false

promises, or assurances of leniency.    See Commonwealth v. Baye,

supra at 257-260.   They did not mischaracterize the law so as to

make the defendant think he was not confessing to a crime, or

tell him that his statements would not be used against him.       See

Commonwealth v. DiGiambattista, 442 Mass. 423, 435 (2004);

Commonwealth v. Tremblay, 460 Mass. 199, 211-212 (2011).

    The determination of voluntariness also requires us to

consider the defendant's physical and mental condition at the

time he made the statements.     See Commonwealth v. Lopes, 455

Mass. 147, 167 (2009).   Statements that are the product of "a

defendant's debilitated condition, such as insanity, drug abuse

or withdrawal symptoms, [or] intoxication, are not the product

of a rational intellect or free will and are involuntary."

Commonwealth v. Allen, supra at 455 (citations omitted).

"Although alcohol intoxication is an important factor bearing on

the issue of voluntariness, intoxication alone is not sufficient

to negate an otherwise voluntary act."     Commonwealth v. Parker,

402 Mass. 333, 341 (1988).     A defendant's personal

characteristics and demeanor during an interrogation are
                                                                    28


appropriate considerations when deciding the issue of

voluntariness.   See Commonwealth v. Durand, supra at 597-598.

    Here, the defendant did not appear to be in the fragile

physical or emotional state displayed by defendants in cases

where the court found their statements involuntary.    See, e.g.,

Commonwealth v. Meehan, 377 Mass. 552, 565-566 (1979) (evidence

that defendant was in withdrawal from drug and alcohol

intoxication).   In contrast, throughout the videotaped

interview, the defendant here appears "alert, oriented, and

lucid."   Commonwealth v. Durand, supra at 597.   As noted in our

discussion of his Miranda rights waiver, the defendant speaks

clearly and effectively when describing a lengthy series of

events taking place over a period of two days.    He appears to

understand Sergeant Detective Stratton's questions and responds

appropriately.   His answers are responsive, detailed, and at

times, self-serving.   On several occasions, he corrects Sergeant

Detective Stratton when the latter incorrectly states something

he recalls the defendant said previously.   The defendant also

waived his Miranda rights.   See Commonwealth v. Selby, 420 Mass.

656, 664 (1995) (whether defendant waived his Miranda rights is

factor in assessment of voluntariness of statement).      In sum,

consideration of the totality of the circumstances surrounding

the defendant's statements, including the details noted earlier
                                                                  29


in our discussion of the Miranda rights waiver issue, leads us

to conclude that he spoke voluntarily.18

     5.   Seizure and forensic testing of clothing.   The judge

also suppressed the results of the forensic testing performed on

the clothing seized from the defendant at the police station.

The judge, finding that the defendant's statements implicating

himself in the victim's death were obtained in violation of

Miranda v. Arizona, 384 U.S. at 469, concluded that the police

did not have probable cause to arrest the defendant for murder

absent those statements, and thus the search of the defendant's

clothing was invalid.   He then reasoned that while the police

could lawfully seize the defendant's clothing pursuant to the

exigency exception to the search warrant requirement,19 they were

obliged to secure a warrant prior to subjecting the clothing to

any forensic examination.   See Commonwealth v. Straw, 422 Mass.


     18
       Because we conclude that the voluntariness of the
defendant's statements "appear[s] from the record with
unmistakable clarity," Commonwealth v. Jackson, 432 Mass. 82, 85
(2000) (quotation omitted), we need not address the defendant's
request to remand this case for findings and rulings on the
voluntariness of the defendant's statements. Our conclusion
that the Commonwealth met its heavy burden to establish that the
defendant's statements at the police station were made
voluntarily should not be understood as a ruling that at a trial
voluntariness will not be a "live issue." Thus, if a trial in
this case takes place, the judge may be obligated to instruct
the jury on our "humane practice." See, e.g., Commonwealth v.
Pavao, 46 Mass. App. Ct. 271, 273-274 (1999).
     19
       See Illinois v. McArthur, 531 U.S. 326, 334 (2001);
Commonwealth v. Gentile, 437 Mass. 569, 577 (2002).
                                                                 30


756, 759 (1996) (warrant required to search briefcase as

exigency expired once briefcase was seized).

     No search warrant was required if the police had probable

cause to arrest the defendant for the murder of the victim.     See

Commonwealth v. Santiago, 410 Mass. 737, 742-743 (1991).    Under

those circumstances, the police could have seized and tested the

defendant's clothing pursuant to a search incident to a valid

arrest.   See Commonwealth v. Robles, 423 Mass. 62, 65-66 (1996).

See also United States v. Edwards, 415 U.S. 800, 806 (1974)

(police may seize clothing worn at time of arrest when it

becomes apparent that clothing may contain evidence).   When

seizing a defendant's clothing incident to an arrest, the police

need only establish that the clothing contained evidence

connected to the crime.   See Commonwealth v. Robles, supra.

Because we determine that the defendant's statements were

obtained in compliance with Miranda v. Arizona, supra, and were

made voluntarily, the police had probable cause to arrest him

for murder.   Thus, the police were authorized to seize and

subsequently test his clothing.   See Commonwealth v. Robles,

supra at 65 n.8 & 67-68, and cases cited.20


     20
       Even if the defendant's custodial statements are not
considered, the police had probable cause to arrest the
defendant for murder. The record shows that the defendant was
first observed outside of the victim's residence in violation of
an active restraining order. See Commonwealth v. Todd, 394
Mass. 791, 794-795 (1985) (lurking near murder scene combined
                                                                    31


    Conclusion.     This is a case in which a conscientious judge

viewed a videotaped interrogation of the defendant that lasts

approximately forty-five minutes and inferred from the

defendant's appearance and conduct that he was intoxicated to

such an extent that he was not capable of waiving his Miranda

rights.    However, our independent review of the same documentary

evidence leaves us with a settled conviction that the defendant

had the capacity to make a knowing and voluntary waiver of his

rights and that he did so.   The same evidence persuades us that

the defendant's statements made during the first and second

interviews were voluntary.   Finally, we conclude that the

seizure and forensic testing of the defendant's clothing was

justified as a search incident to a lawful arrest.    Accordingly,

so much of the judge's order that allowed the defendant's motion

to suppress is reversed, and the case is remanded to the

Superior Court for further proceedings consistent with this

opinion.

                                     So ordered.




with other conduct could be viewed as consciousness of guilt).
The police knew that the victim had a history of domestic
violence incidents with the defendant as the primary aggressor.
The defendant also made statements to the police at the scene,
which the judge did not order suppressed, indicating that the
victim was his friend and that he knew what had happened to her.
Finally, the police observed blood on the defendant's clothing
and shoes, after investigating a murder scene that was "very
bloody."
