Commonwealth v. Gonzalez ( 2021 )

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SJC-12936
COMMONWEALTH vs. EDWARD GONZALEZ.
Hampden. December 2, 2020. - June 16, 2021.
Present: Budd, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
Constitutional Law, Assistance of counsel, Waiver of
constitutional rights, Admissions and confessions,
Voluntariness of statement. Practice, Criminal, Motion to
suppress, Assistance of counsel, Admissions and
confessions, Voluntariness of statement. Evidence,
Voluntariness of statement.
Indictments found and returned in the Superior Court
Department on July 22, 2016.
A pretrial motion to suppress evidence was heard by John S.
Ferrara, J.
An application for leave to prosecute an interlocutory
appeal was allowed by Gaziano, J., in the Supreme Judicial Court
for the county of Suffolk, and the appeal was reported by him to
the Appeals Court. After review by the Appeals Court, the
Supreme Judicial Court granted leave to obtain further appellate
review.
Katherine E. McMahon, Assistant District Attorney, for the
Commonwealth.
Marissa Elkins for the defendant.
2
GAZIANO, J. The defendant was arrested on charges of
murder in the first degree, G. L. c. 269, § 1; and possession of
a firearm without a license, G. L. c. 269, § 10 (a). Police
interviewed him in an interrogation room at the Springfield
police department shortly after he was arrested. Although the
defendant initially agreed to waive his Miranda rights and speak
with police, approximately twenty minutes after the interview
began, he requested to speak with an attorney and the interview
was terminated. Following a period of forty-five minutes during
which the defendant remained in the interrogation room with one
of the officers who had been conducting the interview, the
defendant again waived his Miranda rights and agreed to speak
with police; he was interviewed again for approximately one
hour. The defendant subsequently sought to suppress all of the
statements he made after having invoked his right to counsel. A
Superior Court judge allowed the motion to suppress after
concluding that the Commonwealth had not established beyond a
reasonable doubt that the defendant reinitiated the interview
and knowingly, voluntarily, and intelligently waived his right
to counsel. Deferring to the judge's findings of fact and
credibility determinations, we affirm the decision allowing the
motion to suppress.
1. Factual background. We summarize the relevant facts
from the judge's findings following a three-day evidentiary
3
hearing on the motion to suppress, supplemented by other
undisputed evidence introduced at the hearing that is not
contrary to the judge's findings. See Commonwealth v. Alexis,
481 Mass. 91, 93 (2018), citing Commonwealth v. Jones-Pannell,
472 Mass. 429, 431 (2015).
The defendant was arrested on May 26, 2016, in connection
with a backyard shooting that had taken place in Springfield in
January of that year. The victim was the father of a State
police trooper, and the case became "high profile." The day
before the defendant's arrest, a codefendant, who had been
identified through deoxyribonucleic acid testing of evidence
found at the scene, had been arrested in Holyoke; when
interviewed over a period of four to five hours, he pointed to
the defendant as also having been involved in the shooting.
Several officers of the Springfield police department, including
the captain of the major crimes unit and two of the detectives
who later interviewed the defendant, were present in Holyoke and
watched the interrogation of the codefendant. On the basis of
that interview, Springfield police Captain Trent Duda obtained a
warrant for the defendant's arrest. The defendant was arrested
at 12:30 A.M. on May 26, and brought to the Holyoke police
station, where he underwent a "courtesy" booking and was given
Miranda warnings; about forty-five minutes later, he was
transported to Springfield police headquarters.
4
Because the defendant's primary language was Spanish, Duda
assigned a Spanish-speaking detective, Jose Canini, who had
watched the interview of the codefendant, and Sergeant Jeffrey
Martucci, the most senior officer on duty apart from Duda, to
interview the defendant. The interview began at 1:52 A.M. on
May 26, 2016, and was audio-video recorded. Martucci advised
the defendant that he was under arrest for murder and had the
defendant read the Miranda1 warnings in English; Martucci
testified that he did so after the defendant had told the
officers that he could understand, read, and speak English. The
defendant waived his rights, signed the waiver form, and agreed
to speak with the officers. While most of this interview was
conducted in English, the defendant's speech and his responses
to certain questions indicated some difficulty comprehending
English, and more comfort speaking in Spanish. Certain
questions were posed by Canini in Spanish, and the defendant
sometimes answered in the same language.2
1 See Miranda v. Arizona, 384 U.S. 436, 444-445 (1966).
2 At the beginning of the interview, the officers engaged in
the following exchange with the defendant, with Canini and the
defendant conversing in Spanish, concerning his ability to make
a telephone call:
Canini: "Do you want to call anybody when we're done?"
The defendant: "I'm going to call my -- my wife."
5
During this interview, the defendant denied any involvement
in the shooting. In response to Martucci's and Canini's
repeated assertions that someone had placed the defendant at the
scene, the defendant asked the officers who had done so and
requested to see any photographs, video recordings, or other
incriminating evidence showing that he had been there.
Approximately fifteen minutes into the interview, Duda, who had
been monitoring the interrogation through a live audio-video
feed, became frustrated and felt that the interview was "going
Canini: "He's gonna give a call to his wife. When we're
done."
The defendant: "Yes."
Canini: "When we're done, he's gonna call his wife."
Martucci: "OK. So, all right. We'll let you use the
phone when we're done talking, if that's -- if that's fine
with you."
The defendant: "Huh?"
Canini: "So, when we're done."
The defendant: "Oh, and he -- he, again, like he said --"
Canini: "No, he said, 'When we're done, I'm going to --
we'll let you talk to your wife.' Is that all right with
you? Yes or no?"
The defendant: "Right now, or what?"
Canini: "Whatever you want."
The defendant (in English): "Yeah, when we're done."
Martucci: "OK. Great."
6
off the rails" because the defendant was asking more questions
than he was answering. Duda entered the interrogation room and
began yelling and swearing at the defendant. Among other
things, Duda said that the defendant might be a "big tough guy"
in Holyoke but he "ain't shit" in Springfield, and there were
many "enemies" in jail. Duda told the defendant, "I'm done with
you. . . . Either you come clean, or you get booked and you go
to fucking jail for murder. That's all it comes down to.
That's all it comes down to, dude. I don't give a fuck about
you. I don't care. You're in here, sitting here, to tell a
story. Either you tell it, or you don't."3 According to the
transcript, the defendant responded, "No, I ain't speaking."
Duda then left the room and the interrogation continued, with
Canini and Martucci placing increased pressure on the defendant
to explain his involvement in the shooting, using profanity and
telling him it was over and he was going to jail, while the
defendant asked, "Why -- why are you yelling at me?"
A few moments after Duda walked out, the defendant asked,
in Spanish, "Can I call my lawyer?" Canini initially responded,
At the hearing on the motion to suppress, Duda agreed that
3
the transcript of the first interview did not indicate that he
had participated in it, and that certain statements, including
instances of profanity and yelling, were incorrectly attributed
in the transcript to Martucci, when in fact it was Duda who had
made the statements. The other officers who testified at the
hearing also were asked about, and recognized, this discrepancy
in the transcript.
7
in Spanish, "OK? Someone put you there. Someone put you there,
OK?" The defendant again asked in Spanish, "Can I call my
lawyer?" The following exchange then took place:
Canini (in English): "So -- he's asking for the lawyer."
Martucci: "You want what?"
The defendant: "My lawyer."
Martucci: "You want your lawyer?"
The defendant: "Yeah."
Martucci: "OK. Alright. It's 2:11 A.M. We're gonna
conclude this investigation, and --"
Canini: "Call them, and turn it off."
Martucci: "Yep. Give me a sec. I'm gonna call down, turn
off the video, and you're gonna be booked for murder, OK?"
The defendant: "Call my -- call my lawyer."
Canini: "OK. He's gonna turn this off."
Martucci: "We're gonna stop interviewing you, and you'll
be booked for murder."
Canini: "You're gonna be booked for murder."
The defendant: "Alright. Call my lawyer."
Canini: "You can call your murder -- your lawyer -- later
on."
Martucci: "Can you have them turn off Room A, please?
Yep. Have them turn it off."
The defendant: "Because, right now . . . ."
Canini: "Stop talking. You just said you want a lawyer,
and we can't talk to you."
8
The judge found that the defendant said that he wanted his
attorney four times before the interview was terminated. The
judge noted that it was clear from Canini's words and tone that
he was frustrated and angry that the defendant had asked for
counsel.
Martucci left the room, and Canini remained alone with the
defendant in the interview room, waiting to be told to bring the
defendant to booking. All four of the officers involved in the
interviews testified that the process for booking a defendant
who had been arrested for murder differed from other bookings,
and that a supervisor -- that night, either Duda or Martucci --
would call the booking sergeant to arrange a time to bring such
a defendant down to the first floor for booking, something
detectives could do only with a supervisor's authorization.
Although defendants arrested for murder sometimes would be
brought a telephone in the interview room, ordinarily they would
be given the opportunity to make a telephone call when they
reached the booking area. While waiting to go to booking, a
defendant who had been arrested for murder would not be left
alone.
None of the interrogating officers testified as to the
identity of the officer who had been in charge of the booking
area at the time, or which officer ultimately called to have the
defendant brought down to the first floor for booking, nor could
9
they explain the reasons for the delay in bringing the defendant
to be booked. Duda testified that he "assumed" that Martucci
had called the booking supervisor,4 and did not know the reason
for the delay in bringing the defendant down to be booked.
Martucci testified that he did not remember if he had called the
booking supervisor.
At the evidentiary hearing, Canini said that, while waiting
to be brought to booking, the defendant asked to use the
bathroom and Canini escorted him, handcuffed, to the bathroom,
which was down the hall on the second floor. Canini and the
defendant encountered Duda in the hallway; Duda testified that
they did not speak. Canini then brought the defendant back to
the interrogation room and engaged in conversation. Canini
could not recall any of the topics they discussed, although he
stated that the conversation involved "some general talk, but
not about what was going on," and that the defendant "did not
say anything of evidentiary significance." Canini did remember,
"[W]e weren't silent in there. I'll tell you that much, we
weren't silent." Canini also testified that the defendant asked
what would happen next and Canini explained the booking process,
stating that "at some point he was going to go downstairs. He
was going to be in front of a sergeant, they were going to ask
4 In his decision, the judge employed quotation marks around
this word.
10
him questions, he would get a phone call, he'd get fingerprinted
and photographed." The defendant later told Canini that he
would "talk to him but, did not want to get yelled at." Canini
did not prepare a report memorializing this conversation, nor
was the conversation recorded.
Canini recounted that, after the defendant had indicated
that he was willing to resume the interview without having
counsel present, Duda entered the interview room and told Canini
to bring the defendant down for booking. According to Canini,
it was then that Canini told Duda that the defendant was willing
to speak once again with police. Duda testified that he had
been sitting in his office when someone advised him that the
defendant wanted to resume speaking with the officers; Duda
could not remember who had told him of this development. The
judge noted that Duda had watched the first interview of the
defendant on the monitor from the detective's room, but could
not remember what he did after the defendant invoked his right
to counsel. The judge also commented that Detective Edward
Podgurski had watched "bits and pieces" of the interview on the
remote monitors, but did not remember doing so after the
defendant invoked his right to counsel. The judge observed that
Duda had remained at the police station after the invocation,
notwithstanding the large number of hours he already had worked
11
by that point, and that he was not then scheduled to be on duty,
but could not recall the work he had done.
Approximately forty-five minutes after the conclusion of
the first interview, Podgurski and Canini commenced a second
recorded interview of the defendant, at 2:56 A.M. On
instruction by Duda, Podgurski showed the defendant the Miranda
waiver form that the defendant had executed at the beginning of
the first interview. Podgurski told the defendant, "And you
signed off on this Miranda form earlier this evening.
Approximately not even about a half hour-hour ago, and I just
wanna –- We gave you an opportunity to go the bathroom and as we
were bringing you to get booked you said you wanted to talk to
us again." The defendant responded, "Um-huh." Podgurski
confirmed, "Is this correct?" and the defendant again said, "Um-
huh."
Podgurski then repeated the Miranda warnings and asked,
"Having these rights in mind . . . , do you want to talk
to . . . Canini and myself right now about what you are being
charged with?" The defendant responded, "Um-huh." The
defendant then went on to speak to the officers for slightly
more than one hour. The defendant was interviewed by State
police in a subsequent interview, concerning a different
investigation, at around 4 A.M.
12
2. Procedural background. The defendant filed a motion in
the Superior Court to suppress the statements he made to police
after he initially invoked his right to counsel. Following a
three-day evidentiary hearing, the judge allowed the motion to
suppress; the judge reasoned that the Commonwealth had failed to
establish beyond a reasonable doubt that the defendant had
reinitiated communication with the police after he invoked his
right to counsel. The Commonwealth sought leave to pursue an
interlocutory appeal in the county court pursuant to Mass. R.
Crim. P. 15 (a) (2), as amended, 476 Mass. 1501 (2017), and a
single justice of this court allowed the appeal to proceed in
the Appeals Court. The Appeals Court reversed the allowance of
the motion to suppress, on the ground that the judge's
inferences and conclusions were not supported by the record, see
Commonwealth v. Gonzalez, 96 Mass. App. Ct. 1107 (2019), and we
allowed the defendant's petition for further appellate review.
3. Standard of review. In reviewing a ruling on a motion
to suppress, "we accept the judge's subsidiary findings of fact
absent clear error but conduct an independent review of [the
judge's] ultimate findings and conclusion of law." Commonwealth
v. Tremblay, 480 Mass. 645, 652 (2018), quoting Commonwealth v.
Clarke, 461 Mass. 336, 340 (2012). "The determination of the
weight and credibility of the testimony is the function and
responsibility of the judge who saw and heard the witnesses, and
13
not of this court." Commonwealth v. Neves, 474 Mass. 355, 360
(2016), quoting Commonwealth v. Moon, 380 Mass. 751, 756 (1980).
At the same time, we "make an independent determination of the
correctness of the judge's application of constitutional
principles to the facts as found." Commonwealth v. Howard, 469
Mass. 721, 726 (2014), S.C., 479 Mass. 52 (2018), quoting
Commonwealth v. Scott, 440 Mass. 642, 646 (2004). See
Commonwealth v. Miller, 486 Mass. 78, 81-82 (2020), citing
Clarke, supra.
Our deference to the judge's assessment of the weight and
credibility of testimonial evidence includes inferences "derived
reasonably from the testimony." Commonwealth v. Kennedy, 426
Mass. 703, 708 (1998). "[T]he drawing of permissible inferences
in an action at law is a question of fact; it is a function of
the fact finding tribunal and not of this court on review of
questions of law." Commercial Credit Corp. v. Commonwealth
Mtge. & Loan Co., 276 Mass. 335, 340 (1931). Nonetheless, the
deference accorded to the factual findings of a motion judge who
saw and heard the witnesses does not extend to documentary
evidence, such as recorded statements. Although "an appellate
court may independently review documentary evidence, and . . .
lower court findings drawn from such evidence are not entitled
to deference . . . [,] findings drawn partly or wholly from
testimonial evidence are accorded deference, and are not set
14
aside unless clearly erroneous. . . . The case 'is to be
decided upon the entire evidence,' however, giving 'due weight'
to the judge's findings that are entitled to deference"
(citation omitted). Tremblay, 480 Mass. at 654-655.
4. Discussion. At the hearing on the motion to suppress,
as before this court, the parties agreed that the evidence at
the hearing established that the defendant was in custody when
he made the statements, he was given proper Miranda warnings,
and he voluntarily, knowingly, and intelligently waived his
Miranda rights. After speaking to the officers for some
minutes, he then undoubtedly invoked his right to counsel. The
parties also agree that the conduct of the officers, evident on
the audio-video recording of the first interview, clearly
supports the judge's finding that the tenor of the interview was
aggressive, and that Canini was angry and frustrated by the
defendant's decision to invoke his right to speak with an
attorney. The judge did not specifically discuss Martucci's
feelings, but the portion of the last minutes of the interview
that the judge quoted in his decision also supports a similar
conclusion.
Thus, given the absence of dispute on these points, the two
narrow questions before us, as at the hearing, concern, first,
the events between the first interview and the second interview,
during the forty-five minute period in which no recording took
15
place, where the judge found that the Commonwealth had not
established beyond a reasonable doubt that the defendant had
reinitiated a conversation with police; and, second, whether the
defendant's right to a telephone call under G. L. c. 276, § 33A,
was violated by the officers' far less than adequate
explanations of the right, their apparent disregard for ensuring
that he could exercise that right, or their failure to allow him
to use a telephone once the interview was over, after having
said that he would be able do so at that time.5 While all of the
witnesses were cross-examined on these issues, after having
allowed suppression as a result of the first issue, the judge
did not make any findings or rulings as to whether the statute
was violated and the defendant was deprived of his rights under
it; we, too, discern no need to reach the issue, given our
conclusion on the question of reinitiation.
a. Reinitiation after invocation of right to counsel. The
defendant asserts that there was no error in the judge's
decision that the Commonwealth failed to meet its burden to show
beyond a reasonable doubt that the defendant reinitiated the
5 There also is some indication, based on the officers'
explanations at the beginning of the first interview, that the
defendant did not fully understand his right to use a telephone
or their explanations, and the structure of the questions posed
appeared designed to obtain an affirmative response to waiting
until after the interview before making any calls. Ultimately,
however, the defendant acceded to the proposal that he would
call his wife after the interview ended ("when we're done").
16
conversation with police; he maintains that this court should
defer to the judge's explicit inference that Canini's presence
in the interrogation room, and his "general" conversation, were
designed to, and indeed did, "effect[]" the defendant's decision
to speak to police without an attorney present. The defendant
argues that the judge's finding that Canini's and Podgurski's
"self-serving" statements about what occurred during the
unrecorded period "shed[] no light" on what actually happened
was fully supported by the record.
The Commonwealth argues that the judge's finding that the
Commonwealth did not meet its burden to prove that the defendant
initiated the "further communications, exchanges, or
conversations" with police is not supported by the record, where
the judge made no explicit finding that Canini was not credible,
and where Canini testified that no conversation about the
offense took place during the period in which he was alone with
the defendant in the interrogation room. The Commonwealth
maintains that this court is in as good a position as was the
judge to review the audio-video recordings and the defendant's
one-word responses at the beginning of the second interview
"corroborate" Canini's testimony that, sometime after his
invocation of his right to counsel, the defendant requested to
speak with police so long as they did not "yell" at him. The
Commonwealth argues as well that the judge did not appropriately
17
consider the Commonwealth's corroborating evidence, specifically
the audio-video recording of the beginning of the second
interview, which, both Podgurski and Canini testified, showed
the defendant's reinitiation and corroborated Canini's testimony
that the defendant voluntarily reinitiated the interview and
waived his right to counsel. The Commonwealth contends that
this evidence demonstrates beyond a reasonable doubt that the
defendant voluntarily, knowingly, and intelligently waived his
right to silence and right to counsel, see Edwards v. Arizona,
451 U.S. 477, 484-486 (1981), and that the judge engaged in
"impermissible speculation" in reaching his conclusion that the
Commonwealth failed to meet its burden.
We conclude that there was no error in the judge's
findings, including his reasonable inferences drawn from
testimony at the hearing on the motion to suppress, that the
Commonwealth failed to meet its burden to show, beyond a
reasonable doubt, that the defendant had reinitiated
conversation with police. Accordingly, the order allowing
suppression of the defendant's statements after he invoked his
right to counsel must be affirmed.
i. Invocation of right to counsel. The Fifth Amendment to
the United States Constitution provides that "[n]o
person . . . shall be compelled in any criminal case to be a
witness against himself." In Miranda v. Arizona, 384 U.S. 436,
18
444 (1966), the United States Supreme Court extended this
protection against self-incrimination to custodial
interrogations and required that law enforcement officers
provide warnings to a suspect "that any statement he does make
may be used as evidence against him, and that he has a right to
the presence of an attorney, either retained or appointed." See
Commonwealth v. Hoyt, 461 Mass. 143, 149 (2011).
A defendant's invocation of his or her right to counsel
must be "scrupulously honored." Commonwealth v. Thomas, 469
Mass. 531, 541 (2014), quoting Michigan v. Mosley, 423 U.S. 96,
103–104 (1975). See Edwards, 451 U.S. at 484-485. Once a
defendant invokes his or her right to counsel, all questioning
must cease. See id. at 484; Thomas, supra at 539. Questioning
may not resume until an attorney is obtained for the suspect and
is present, or the suspect initiates "further communication,
exchanges, or conversations with the police. See Thomas, supra,
quoting Edwards, supra at 484-485. If a defendant does
reinitiate further communication, "[t]he Commonwealth has the
burden of proving beyond a reasonable doubt that subsequent
events indicated a voluntary, knowing, and intelligent waiver of
the right to have counsel present and of the right to remain
silent." Commonwealth v. Rankins, 429 Mass. 470, 473 (1999),
citing Oregon v. Bradshaw, 462 U.S. 1039, 1044 (1983). See
Commonwealth v. Monroe, 472 Mass. 461, 468 (2015).
19
To determine whether the Commonwealth has met this burden,
a reviewing court must "examine whether, in light of the
totality of the circumstances surrounding the making of the
statement, the will of the defendant was overborne to the extent
that the statement was not the result of a free and voluntary
act." Commonwealth v. Selby, 420 Mass. 656, 663 (1995), S.C.,
426 Mass. 168 (1997). See Miller, 486 Mass. at 87–88. It is
not enough to show that a defendant agreed to speak to police
after a repetition of the Miranda warnings. See Edwards, 451
U.S. at 484-485; Thomas, 469 Mass. at 539. Otherwise put, the
Commonwealth must establish beyond a reasonable doubt that
police did not initiate the discussion that led to the defendant
rescinding the invocation of the right to counsel. See Hoyt,
461 Mass. at 151. Once invoked, a reviewing court indulges "in
every reasonable presumption against" a defendant's waiver of
his or her constitutional rights. Commonwealth v. Anderson, 448
Mass. 548, 554 (2007), quoting Commonwealth v. Torres, 442 Mass.
554, 571 (2004).
ii. Analysis. While the judge stopped short of explicitly
stating that any of the officers were "credible" or "not
credible," he substantively and repeatedly indicated his
expressed view that the "self-serving" testimony by Canini and
Podgurski "sheds no light on what transpired" after the first
recording ended. Indeed, the judge's reference to the "second"
20
interview, twice, in quotation marks, plainly suggests some
skepticism about the defendant's reinitiation. In particular,
the judge pointed to Podgurski's recorded statement at the
beginning of the second interview, "We gave you an opportunity
to go to the bathroom and as we were bringing you to get booked
you said you wanted to talk to us again," to which the defendant
responded, "Um-huh." This statement was contrary to testimony
by all of the other officers, as well as the summary of the
reinitiation by Canini, depicted within minutes on the same
audio-video recording, that the defendant was never brought to
booking.
The judge also pointed to Canini's insistence that the
"general" talk in which he and the defendant engaged for forty-
five minutes (the substance of which Canini could not remember)
"did not discuss any aspect of the case." The judge noted that,
had the Commonwealth had the burden to prove this assertion by a
"mere preponderance of the evidence," Canini's testimony, "if
the court credits Canini's assertion," "might suffice," but it
did not meet the Commonwealth's actual burden of proof beyond a
reasonable doubt. The judge then found that Canini, "clearly
displeased with [the defendant's] invocation of his right to
counsel, continued to speak with him," and that that it was
"reasonably inferred that Canini's object in his continued
21
conversation with [the defendant] was to persuade him to change
his mind" regarding the invocation of his right to counsel.
The judge also noted that Canini, as well as the other
experienced officers involved in the investigation, "necessarily
understood that evidence of [the defendant's] conversation with
Canini after his invocation of his right to counsel would be
important," but opted not to record the conversation despite the
ready availability of the means to do so, and not to document it
in a report. Both of these reasonable inferences provide
support for the judge's evident suspicion that, in that forty-
five minute time period, the involved officers convinced the
defendant to waive his constitutional rights.
Relatedly, the judge discredited some of the testimony by
the other interrogating officers. The judge found that "the
conversation [during the interim period] was likely being
monitored by other officers, including [Duda]," notwithstanding
Duda's assertions that, after having observed (and interrupted)
the first interview, he had not watched the monitor after the
invocation, yet he could not explain what he was working on
during that time, nor why he would remain at the police station
for so many hours when he was not scheduled to be present. The
judge also pointed to Podgurski having watched some portions of
the first interview remotely, as well as his presence in the
building long after his shifts ordinarily would have ended, and
22
his lack of any memory of the work he was conducting during the
period when the interrogation room was not being recorded.
Because the judge's ultimate conclusion regarding the
voluntariness of the defendant's second waiver of his right to
counsel "is so dependent on an assessment of witness
credibility," specifically Canini's credibility, "and is based
on what we consider to be a reasonable inference, we defer to
[his] finding." Demoulas v. Demoulas Super Mkts., Inc., 424
Mass. 501, 553 (1997). As discussed, substantial deference is
due to a motion judge's findings of fact and drawing of
reasonable inferences, which "need only be reasonable and
possible," not "necessary or inescapable" (citation omitted).
Kennedy, 426 Mass. at 708. "The drawing of permissible
inferences in an action at law is a question of fact; it is a
function of the fact finding tribunal and not of this court on
review of questions of law." Commercial Credit Corp., 276 Mass.
at 340.
Here, no clear error is apparent in the judge's findings
and rulings, and the record, to the extent it exists, supports
the judge's findings. Consistent with the judge's ultimate
determination are the undisputed facts that Gonzalez was kept in
a small interrogation room for an extended period of time with
an officer who had been openly hostile toward him, but who was
the only Spanish-speaking detective available, and that the
23
"general" conversation, regardless of intent, did have the
effect of reversing the defendant's prior decision to obtain
legal assistance. See Commonwealth v. Sanchez, 476 Mass. 725,
738-739 (2017); Commonwealth v. Brant, 380 Mass. 876, 883, cert.
denied, 449 U.S. 1004 (1980).
In sum, we discern no error in the judge's determination
that the Commonwealth has not proved beyond a reasonable doubt
that the events following the defendant's initial invocation of
his right to counsel indicate a subsequent voluntary, knowing,
and intelligent waiver of his constitutional right to counsel
under the Fifth Amendment.
Order allowing motion
to suppress affirmed.