Opinion
No. 12–P–846.
2013-11-6
COMMONWEALTH v. Brianna GATTA.
By the Court (KAFKER, TRAINOR & MALDONADO, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Brianna Gatta, appeals from her conviction of making misleading statements to the police under G.L. c. 268, § 13B. She makes three arguments on appeal: (1) her motion for a required finding of not guilty should have been allowed; (2) the indictment should have been dismissed because the police interviewed her, without counsel present, at the house of correction; and (3) the motion to suppress her statements at her apartment and at the police station should have been allowed because the statements were not voluntary. We affirm.
Sufficiency of the evidence. The defendant first argues that the evidence at trial was not sufficient to support her conviction of making misleading statements, and thus her motion for a required finding of not guilty was erroneously denied. In reviewing the denial of such a motion, we ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), quoting from Jackson v. Virginia, 443 U.S. 307, 318–319 (1979). Under G.L. c. 268, § 13B, making a misleading statement means, in pertinent part, “knowingly making a false statement.” Commonwealth v. Figueroa, 464 Mass. 365, 372 (2013). In the light most favorable to the Commonwealth, the evidence in this case overwhelmingly indicated that the defendant knowingly made a number of false statements to the police. The defendant's own contradictory statements and the subsequent police investigation revealed that she lied about her cellular telephone (cell phone), which was connected to a man's murder, and about her relationship with Elijah Judge, who was a suspect in that man's murder.
The police originally contacted Gatta because they believed that she owned a cell phone that had been used to make “regular” calls to a murder victim on the night he was killed.
At first, Gatta denied owning the cell phone, even though it was found in her apartment. She then claimed that it was not her primary telephone, and that she rarely used it. Eventually, she conceded that it was her primary telephone, and she later admitted, “All right. I lied to you about the phone.”
The police did not suspect Gatta of the murder. They suspected Judge, thought that he was involved with Gatta, and believed that he had used her cell phone to call the victim.
Regarding her relationship with Judge, the defendant made a number of contradictory statements. She initially claimed, “I don't know nobody [ sic ] by Elijah Judge.” She then said that Judge was an old boyfriend but had never been to her apartment, even though his clothes and traffic citations were found there. She also said that Judge had never used her cell phone. At trial, however, evidence showed that Judge had, in fact, used her cell phone on the night of the murder. A rational trier of fact, therefore, could easily have concluded that Gatta made misleading statements to the investigating police officers. The defendant's motion for a required finding of not guilty was properly denied.
Motion to dismiss the indictment. Gatta next argues that the motion to dismiss the indictment should have been allowed because the police interviewed her without her attorney present while she was in the house of correction awaiting trial. The defendant claims that the Commonwealth intentionally and flagrantly attempted to subvert her right to counsel by interviewing her without counsel when the police and the assistant district attorney knew that she was represented.
According to the defendant, dismissal is the only appropriate remedy for this alleged misconduct. We disagree.
The defendant's appeal questions in passing whether the police obtained a valid postindictment waiver of her right to counsel when they interviewed her at the house of correction. However, no substantive argument is made. The defendant has accordingly waived this issue under Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
“Absent egregious misconduct or at least a serious threat of prejudice, the remedy of dismissal infringes too severely on the public interest in bringing guilty persons to justice.” Commonwealth v. Cinelli, 389 Mass. 197, 210, cert. denied, 464 U.S. 860 (1983). See Commonwealth v. Druce, 453 Mass. 686, 697 (2009) (“[T]his court has never ordered dismissal absent prejudice to the defendant”). Dismissal was not warranted in this case, as Gatta was not prejudiced. The Commonwealth stipulated that it would not use any statements from this interview at trial, and, indeed, no such statements were admitted. Furthermore, there was no egregious misconduct here that would warrant dismissal even in the absence of prejudice. The police reached out to Gatta only after learning from her mother that she wished to speak to them. Additionally, prior to starting the interview, they made clear to Gatta that she had the right to have her attorney present. Gatta stated that she understood and indicated that she still wanted to speak to the police. There was, therefore, no basis to dismiss the indictment, and the motion was properly denied.
Motion to suppress. Finally, Gatta argues that the statements she made at her apartment and at the police station were not voluntary, and thus her motion to suppress these statements was improperly denied. “When reviewing the denial of a motion to suppress, we accept the judge's findings of fact and will not disturb them absent clear error. We make an independent determination as to the correctness of the judge's application of constitutional principles to the facts as found.” Commonwealth v.. Watson, 455 Mass. 246, 250 (2009) (internal citations omitted). Courts must review the totality of the circumstances to determine whether the defendant's statements were “the product of a ‘rational intellect’ and a ‘free will,’ and not induced by physical or psychological coercion.” Commonwealth v. LeBlanc, 433 Mass. 549, 554–555 (2001).
The defendant claims that her statements were not voluntary because she was nineteen years old with only a tenth grade education, had little experience with the criminal justice system, and had smoked marijuana at home earlier in the evening. We are not persuaded by this argument. The motion judge found that Gatta lived on her own, had a job, was sufficiently intelligent to comprehend her situation and make rational decisions, and that even if she had smoked marijuana before the police arrived, it had been earlier enough in the evening so that any lingering odor had dissipated by the time they were in her apartment. The judge also determined that, during the interview, Gatta was “alert, oriented, responsive, and coherent.” We discern no basis to disturb these findings, which support a determination that the defendant's statements were voluntary based on the totality of the circumstances. See, e.g., Commonwealth v. Jones, 439 Mass. 249, 257–258 (2003) (finding statements of ninth-grade dropout with impaired academic skills to be voluntary where defendant was “sober, coherent, and responsive” during police interview); Commonwealth v. Brown, 462 Mass. 620, 625–626 (2012) (finding defendant's statements to be voluntary despite recreational consumption of marijuana and Vicodin two hours before police interview).
We do note, however, that the motion judge was incorrect in determining that Gatta was not subject to custodial interrogation when she was being questioned at the police station. The defendant was clearly in custody when she was subject to extensive questioning at the station. Although the police told her that she could leave, they did not actually let her, and instead simply continued with their questioning.
Despite the custodial interrogation, Gatta was properly advised of her Miranda rights, which she knowingly and intelligently waived. Thus, the judge's erroneous finding that there was no custodial interrogation is of no import.
Finally, although this issue was not raised in the defendant's brief, the parties were asked to submit letters to the court following oral argument, pursuant to Mass.R.A.P. 16(l), as amended, 386 Mass. 1247 (1982), concerning the sufficiency of the Miranda warnings that were given at the police station, particularly the warning regarding the defendant's right to have an attorney present during questioning. The defendant was advised that she had “a right to an attorney,” and that if she could not afford an attorney, one would be appointed by the Commonwealth at no expense “and prior to questioning.” This was sufficient to inform the defendant of her right to have an attorney present during questioning. See Miranda v. Arizona, 384 U.S. 436, 479 (1966). Compare Commonwealth v. Johnston, 60 Mass.App.Ct. 13, 16–17 (2003) (declining to address whether warning in form regarding the right to an attorney was constitutionally defective where the issue was not properly before the court but noting that the warning “could have more clearly conveyed that the defendant had the right to an attorney's presence during questioning”).
Judgment affirmed.