Commonwealth v. Smith ( 2016 )


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    SJC-11723
    COMMONWEALTH   vs.   DONOVAN K. SMITH.
    Worcester.      November 6, 2015. - March 11, 2016.
    Present:   Gants, C.J., Cordy, Botsford, Lenk, & Hines, JJ.
    Homicide. Robbery. Attempt. Felony-Murder Rule.
    Constitutional Law, Admissions and confessions, Assistance
    of counsel. Evidence, Admissions and confessions,
    Videotape. Practice, Criminal, Admissions and confessions,
    Assistance of counsel, Capital case.
    Indictments found and returned in the Superior Court
    Department on December 7, 2010.
    A pretrial motion to suppress evidence was heard by Janet
    Kenton-Walker, J., and the cases were tried before John S.
    McCann, J.
    Aziz Safar for the defendant.
    Susan M. Oftring, Assistant District Attorney, for the
    Commonwealth.
    BOTSFORD, J.    A Superior Court jury found the defendant
    guilty of the attempted armed robbery and murder in the first
    degree of Michelle Diaz on theories of extreme atrocity or
    cruelty and felony-murder.   In this direct appeal from his
    2
    convictions, the defendant challenges the admission in evidence
    of his videotaped statement to the police, and the admission of
    an enhanced recording of a statement made by the defendant while
    he was left alone during the police interrogation.    He requests
    relief pursuant to G. L. c. 278, § 33E.    We conclude that the
    failure of the police to honor the defendant's right to
    terminate questioning, a claim the defendant did not raise
    below, created a substantial likelihood of a miscarriage of
    justice and requires the reversal of the defendant's
    convictions; the defendant is entitled to a new trial.
    1.   Background.   From the evidence presented at trial, the
    jury could have found the following.   On August 24, 2010, at
    approximately 12:45 P.M., Sara Ventura parked her automobile on
    Fairfax Road in Worcester.   As she was getting out of the
    vehicle, she heard a loud scream and looked in the direction of
    the scream.   She saw nothing, but a few seconds later, she heard
    what sounded like a gunshot.    She then saw a young African-
    American man running very quickly down the street.1    Around the
    same time, Carlos Tumer, who was in his apartment on Fairfax
    Road, heard a "pop" and looked outside the window, where he saw
    a woman, later identified as the victim, sitting in the driver's
    1
    The man had short hair, was approximately five feet, six
    inches tall, and was wearing dark clothes. Sara Ventura was
    unable to identify the man she had seen from a subsequent
    photographic array provided by police; the defendant's
    photograph was included in that array.
    3
    seat of a Lexus automobile with the front passenger's door open.
    Tumer also noticed a dark-skinned man wearing a black shirt and
    light blue jeans near the front of the vehicle, running away
    while appearing to adjust the back of his shirt.   Tumer
    telephoned the police soon thereafter when he noticed that the
    victim had slumped forward and had blood on her neck.
    At approximately 12:47 P.M., Officer Kevin Krusas of the
    Worcester police department was dispatched to Fairfax Road,
    where he observed the victim seated in the driver's seat of her
    blue Lexus, but leaning across the front passenger seat.     The
    victim had been shot in the neck but still had a pulse, and fire
    fighters who arrived at the scene administered cardiopulmonary
    resuscitation.   The victim was transported to the hospital,
    where she remained in critical condition for six days until life
    support measures were withdrawn and she died.
    During their investigation, the police learned that Kenneth
    Cashman, a homeowner on Fairfax Road, had attached to his house
    a surveillance system consisting of several cameras that
    generated audio-video recordings of the surrounding areas.     The
    police viewed the recordings, and although none of the cameras
    recorded the shooting itself, the recordings showed the victim's
    blue Lexus as it arrived on Fairfax Road.   They also showed a
    male entering the front passenger seat of the Lexus; the Lexus
    being driven out of the video range of the cameras, but not out
    4
    of the system's audio range; and Ventura parking her vehicle on
    Fairfax Road.
    The police retrieved the victim's cellular telephone and
    discovered that the last incoming call the victim received came
    from a telephone registered to William Madison.    Using global
    positioning information received from Madison's cellular
    telephone carrier, the police were able to locate Madison at his
    apartment on Vernon Street Place in Worcester, where he lived
    with his mother; his girl friend, Kassie Ago; and her young son.
    On August 25, 2010, Detective Sergeant Gary Quitadamo and other
    Worcester police detectives went to Madison's home to speak with
    him regarding the shooting incident.    Madison agreed to go with
    them to the police station, where he was interviewed.2    While
    Madison was at the police station, police sought, received, and
    executed a search warrant for Madison's residence and seized
    marijuana, a cellular telephone registered to Madison, and a
    black, long-sleeved T-shirt near a washing machine.    The police
    had been informed by Madison's cellular telephone carrier that,
    within hours of the incident, Ago had contacted the carrier to
    change the existing telephone number and register the new number
    under a fictitious name.
    The following day, Madison and Ago were each interviewed by
    the police concerning the August 24 shooting incident, but
    2
    William Madison was not under arrest at that time.
    5
    neither of them provided any substantive information.     One month
    later, and after further investigation, the police arrested
    Madison and Ago in connection with the August 24 shooting
    incident.   On September 29, 2010, Madison and Ago, represented
    by separate counsel, entered into cooperation agreements with
    the Commonwealth pursuant to which each agreed to provide
    information about the shooting incident and to testify against
    the defendant in exchange for lesser sentences.   On October 7,
    the police also arrested Kenny Roman, a friend of Ago's; on
    January 7, 2012, represented by counsel, Roman entered into a
    cooperation agreement that called for him to provide information
    and testify against the defendant regarding the shooting
    incident in exchange for a lesser sentence.3
    Madison, Roman, and Ago (collectively, cooperating
    witnesses) each testified at the defendant's trial that he or
    she participated in a plan with the defendant and his older
    brother, Marcus Young, to rob someone of money and drugs and
    then split the proceeds.   Roman, who was a friend of the victim
    and knew her to be a marijuana dealer, suggested the victim as
    3
    Madison, Kassie Ago, and Kenny Roman had each been charged
    as an accessory to murder, a crime that carries a mandatory
    sentence of life imprisonment. See G. L. c. 265, § 2; G. L.
    c. 274, § 2. Pursuant to the cooperation agreements, all three
    of the witnesses were permitted to plead guilty to lesser
    offenses. Madison and Ago received sentences in a house of
    correction; Roman received a sentence of from five to six years
    in State prison.
    6
    the target.   The plan was for the defendant to actually carry
    out the robbery.   Because the group believed -- based on
    information supplied by Roman -- that the victim might be armed,
    they agreed that the defendant should carry with him a gun;
    Madison supplied the gun.
    The plan was executed on August 24, 2010.    Ago contacted
    the victim, arranged for a purchase of marijuana, and told the
    victim that her friend would be picking it up.   The pickup was
    to be on Fairfax Road in Worcester.   The defendant, Madison, and
    Young left Madison's apartment to walk to Fairfax Road, the
    defendant walking a few feet ahead of Madison and Young.     When
    they were approximately 500 feet away from the destination,
    Madison and Young stopped and the defendant continued walking
    toward Fairfax Road to meet the victim.   Madison lost sight of
    the defendant before the defendant reached and entered the
    victim's blue Lexus.   The next time Madison saw the defendant,
    he was running past Madison toward Madison's apartment.     Madison
    and Young followed, running behind the defendant.   According to
    Madison and Ago, once back in the apartment, the defendant
    stated several times that he had shot the victim.   The defendant
    returned the gun to Madison, who placed it in Ago's purse.     Ago
    and Madison then drove the defendant and Young back to Young's
    apartment, where Madison gave the gun to Young, who placed it in
    7
    a drawer in his bedroom.     According to Ago, Young later disposed
    of the gun by burying it.4
    At the crime scene, the police recovered the following:      a
    can of tire sealant containing a hidden compartment filled with
    four plastic bags of marijuana from underneath the victim's
    Lexus near a rear tire; an envelope containing $250 in the
    driver's side door of the Lexus; a .380 caliber bullet casing in
    the driver's seat; and a spent projectile on the floor inside
    the vehicle that the Commonwealth's ballistician identified as
    being a hollow-point .380 bullet used in a semiautomatic
    firearm.   The black shirt the police had seized from Madison's
    apartment, identified by Ago as belonging to the defendant, was
    tested for blood and gunshot residue and tested negative for the
    presence of either.
    On October 6, 2010, police arrested the defendant, who was
    eighteen years old, at a school program and brought him to the
    Worcester police station for an interrogation in connection with
    the incident.   Worcester police Detective Michael Tarckini led
    the interrogation, which lasted approximately one hour and
    thirty-five minutes and was recorded on audio-video tape.5
    4
    We discuss in further detail, infra, the individual
    statements produced by each of the cooperating witnesses.
    5
    The defendant was informed by Detective Michael Tarckini
    that the interrogation was being recorded, and he did not
    object.
    8
    Detective William Escobar and, briefly, Detective Lieutenant
    John Towns, both Worcester police officers, also participated in
    the interrogation.     At the outset, Tarckini administered Miranda
    warnings to the defendant; the defendant signed a written waiver
    form and agreed to speak to the police.     The defendant insisted
    to the detectives for some time that he had had no involvement
    in the August 24 shooting incident.    However, he later admitted
    that he participated in a plan devised by Ago and Madison to rob
    the victim, but that the robbery failed after the victim became
    aware that he was attempting to rob her.    He repeatedly denied
    shooting the victim.    He told the police that he got out of the
    victim's automobile and ran away after he realized he could not
    obtain the drugs, that he did not have a gun, and that he heard
    gunshots as he was running away.6
    On December 7, 2010, the defendant was indicted for murder
    in the first degree, G. L. c. 265, § 1, and attempt to commit
    armed robbery, G. L. c. 274, § 6.     On January 4, 2012, the
    defendant filed a motion to suppress his statement to the police
    on the ground that the statement made was involuntary as a
    result of improper interrogation tactics used by the police in
    6
    At a point soon thereafter in the interrogation, the
    defendant asked to speak to an attorney, and the questioning
    ended. The redacted version of the defendant's interview shown
    to the jury included his invocation. We discuss the defendant's
    interrogation in some detail, infra.
    9
    eliciting a confession.7      An evidentiary hearing was held before
    a Superior Court judge at which Tarckini and Quitadamo
    testified.     That judge denied the motion on June 12, 2012.     The
    defendant's trial commenced before a jury and a different judge
    on September 24, 2012,8 and on October 2, the jury found the
    defendant guilty of murder in the first degree on theories of
    extreme atrocity or cruelty and felony-murder, as well as of
    attempt to commit armed robbery.      He was sentenced to life in
    prison without the possibility of parole on the murder charge
    and a concurrent term of from four to five years on the charge
    of attempt.     The defendant filed a timely notice of appeal to
    this court.
    2.    Discussion.   a.   Admission of the defendant's
    statement.     In this appeal, the defendant challenges the
    admission of his statement to the police on two separate
    grounds:     (1) during the custodial interrogation9 the police
    7
    The defendant's motion to suppress did not challenge the
    admissibility of his statement on the ground that the police had
    failed to honor his request to terminate questioning.
    8
    The defendant was tried alone on the charges of murder in
    the first degree and attempt to commit robbery. Madison, Ago,
    and Roman each testified against the defendant at trial,
    pursuant to separate cooperation agreements. Young, the
    defendant's brother, did not testify at the defendant's trial.
    9
    When the police interviewed the defendant, he already had
    been placed under arrest; as the judge who heard the motion to
    suppress (motion judge) concluded, there was no question that
    the interrogation by the police was custodial.
    10
    conducted, the defendant exercised his right to cut off
    questioning but the police improperly did not honor that
    exercise; and (2) the statement was induced by falsehoods,
    trickery, and promises of leniency improperly put forth by the
    defendant's police interrogators, and therefore was not
    voluntary.10   Before we consider the defendant's claims, we set
    forth additional facts about the interrogation.
    i.   Facts.   After administering Miranda warnings to the
    defendant and obtaining his agreement that he understood the
    warnings and was willing to talk to the police, Tarckini, with
    periodic questions or statements inserted by Escobar, told the
    defendant the following:    the police had video footage of him
    sitting in the victim's Lexus and running from that vehicle
    after the gunshot was heard; there was deoxyribonucleic acid
    (DNA) and fingerprint evidence belonging to him in the Lexus;11
    10
    The defendant argues in his brief that both grounds on
    which he challenges the admission of his statement are to be
    reviewed under the harmless beyond a reasonable doubt standard.
    That is not correct. As indicated previously, the defendant's
    pretrial motion to suppress raised only the second ground; the
    first was not presented in the motion or raised at trial, and
    therefore it is not preserved. We review this first ground to
    determine whether admission of the statement created a
    substantial likelihood of a miscarriage of justice. See
    Commonwealth v. Wright, 
    411 Mass. 678
    , 682 (1992), S.C., 
    469 Mass. 447
     (2014).
    11
    Neither at the time of the interrogation nor at any later
    time did the police have deoxyribonucleic acid (DNA) or
    fingerprint evidence that connected the defendant to the
    victim's Lexus. The audio-video footage from the cameras on
    11
    people had identified him as the shooter; and the police had
    recovered his eyeglasses from Madison's apartment with the
    defendant's DNA on them.12    For approximately thirty minutes, the
    defendant's repeated responses to these assertions by the police
    were to the effect that he did not know what they were talking
    about, and he denied knowing the victim or the fact that she had
    been shot and killed.     Then, the following exchange occurred:
    Defendant:    "I'm done."
    Tarckini:    "You're done with what?"
    Defendant:    "I'm done talking.     I don't wanna talk no
    more."
    Tarckini:    "You don't wanna talk anymore?"
    Defendant:    "No.   'Cause y'all really don't believe me."
    Tarckini: "It's -- We already tried to explain that to
    you, Donovan. I don't think you get it."
    Defendant:    "Yeah, I understand."
    Tarckini:    "It's not believing."
    Defendant:    "I understand, sir."
    Tarckini:    "It's not believing.     It's what we know."
    Defendant:    "Okay."
    Kenneth Cashman's house showed a person enter the Lexus, and
    thereafter showed a male running away from the area where the
    Lexus was parked, but the video depiction itself was not clear
    enough to permit an actual identification of the person or
    persons shown.
    12
    This statement about the eyeglasses was false. Although
    the defendant wore eyeglasses, the police never recovered
    eyeglasses in connection with their investigation of this case.
    12
    Tarckini:    "What the facts are."
    Defendant:    "What the facts show."
    Tarckini:    "Right."
    Defendant:    "Right."
    Tarckini:    "Right?"
    Defendant:    "Yes."
    Tarckini: "We don't make stuff up. We don't make people
    talk to us. We don't make people pick people out. We
    don't put people's fingerprints inside of a car. We don't
    make up videos. The facts are the facts."
    When the defendant did not respond, Tarckini continued:
    Tarckini: "When we talk to people, we ask certain
    questions to gauge your truthfulness, things that I know
    you're not gonna lie about like name, address, who you live
    with, mom, dad, date of birth, stuff like that. Then when
    we ask you questions about other things, your body reacts a
    certain way. It's just a natural thing. You can't help
    it. Everyone does it. So that's what I -- when you answer
    my questions and I say you're lying to me, your body's
    telling me that. Not only your words but your body. You
    understand?"
    The defendant, who had remained completely silent during
    Tarckini's speech, spoke only to answer "yes" to the question
    whether he understood.      Tarckini again continued:
    Tarckini: "You have the opportunity now to give your side
    of the story, to maybe lighten the load, get a little bit
    off yourself. And you're being a tough guy, in the sense
    that you're just gonna -- you're gonna dig in and sit in a
    hole and wait out the storm. And I don't think you realize
    all the things that are gonna happen going forward. We're
    trying to give you information so you can process all that.
    What are you thinking about?"
    Defendant:    "Life."
    13
    Tarckini:   "Think life's been tough to you?"
    (The defendant nods, indicating yes.)
    Tarckini: "Yeah? Sometimes life isn't fair, man.
    Sometimes we're in the wrong place at the wrong time.
    Sometimes circumstances just put you in a bad way. I kinda
    think that's what happened here."
    Approximately fifty seconds of silence passed, after which the
    defendant stated:    "I didn't shoot nobody," and then he
    proceeded to make a series of inculpatory responses to questions
    by the officers.    He described a plan among Ago, Madison, and
    himself to rob the victim, and detailed what happened after he
    got into the victim's automobile, including that he was in it on
    the day of the shooting.    He stated that the victim picked him
    up in her automobile, they drove around together before parking
    on the street, and the victim asked him for the money multiple
    times, saying that the defendant better not be robbing her; that
    when he reached for the can containing the marijuana, the victim
    pulled it away and held it outside the window, out of his reach;
    that the victim then called out for help; and that when he
    realized he could not obtain the drugs, he fled and heard
    gunshots as he ran away.    He consistently denied having a gun,
    seeing the victim with a gun, and shooting her.
    Approximately twenty minutes after the defendant made these
    statements, the two detectives left the defendant alone in the
    interrogation room for approximately six minutes; the video and
    14
    audio recording system were still operating.     The defendant sat
    in the same chair he had been in for the entire interview, and
    muttered something to himself to the effect of, "Why'd you shoot
    her?    You didn't even shoot the bitch.   You didn't shoot her.
    You didn't fucking shoot her."13   When the detectives returned,
    the defendant admitted that after the attempted robbery, he went
    back to Madison's house to change his clothes, and the
    interrogation ended soon thereafter, following the defendant's
    request for an attorney.14
    13
    There is much dispute regarding the exact statement made
    by the defendant while he was alone in the interrogation room.
    Apparently after listening to a version of the audio-video
    recording that had been enhanced in some fashion to clarify the
    audio feature (enhanced version), the motion judge found that
    the defendant stated, "Why'd you shoot her? Why'd you shoot the
    bitch?" At trial, both Tarckini and Detective Sergeant Gary
    Quitadamo were permitted to testify to their own understanding
    of what the defendant said, based on their listening to the
    enhanced version -- which was the version admitted in evidence
    as a trial exhibit. In his closing argument, the prosecutor
    argued that the defendant said, "Why did you shoot her? I
    didn't even shoot the bitch. I didn't shoot her. . . . You
    can't fucking shoot her." Our own review of the enhanced
    recording has led us to conclude that the defendant's statement
    was the one we have quoted in the text.
    14
    The audio-video equipment in the interrogation room
    continued to record after the defendant requested an attorney.
    Our review of that portion of the unredacted recording indicates
    that the officers, including Detective Lieutenant John Towns,
    continued to engage the defendant regarding the investigation of
    the case. The following exchange occurred between the officers
    and the defendant outside the interrogation room and after the
    defendant had requested an attorney:
    15
    ii.   The defendant's claims.    The defendant contends that
    although he initially waived his Miranda rights, he later
    invoked his constitutional right to remain silent when he said
    that he was "done talking," an invocation that the police did
    not "scrupulously honor."    Miranda v. Arizona, 
    384 U.S. 436
    ,
    444-445, 473-474, 478-479 (1966).    See Michigan v. Mosley, 
    423 U.S. 96
    , 102-104 (1975).    The argument is framed as one of
    ineffective assistance of trial counsel for failure to move to
    suppress the admission of the defendant's inculpatory responses
    to the police based on this invocation.   See Commonwealth v.
    Williams, 
    453 Mass. 203
    , 207 (2009), citing Commonwealth v.
    Wright, 
    411 Mass. 678
    , 682 (1992), S.C., 
    469 Mass. 447
     (2014).
    Towns: "What we wanted to have an opportunity for you to
    do was tell us if something happened. Alright. You gotta
    know that these guys are telling the truth."
    Defendant:    [inaudible]
    Tarckini:    "We're not trying to trick you."
    Towns:   "Listen.   Hey, listen."
    Tarckini:    "Listen to us."
    Towns: "Hey, if you change your mind, wanna talk to these
    guys, alright, tell us downstairs. A bad decision . . .
    [inaudible]. If something happened inside the car that
    wasn't like you just pull out the gun and start shooting,
    you know what I mean, if it's not what happened, then you
    need to have an opportunity to say that. And today gives
    you a good form of credibility to say that. Mitigates for
    sure."
    Tarckini:    "We're not trying to trick you."
    16
    The Commonwealth argues that the defendant's claim must fail
    because, even if trial counsel had brought a motion to suppress
    raising a claim of invocation of the right to remain silent, the
    motion would not have succeeded.   See Williams, supra.     In the
    Commonwealth's view, the defendant's statement that he was done
    talking was an ambiguous remark rather than a clear, unequivocal
    invocation of his right to remain silent, and the fact that the
    defendant thereafter continued speaking supports the conclusion
    that he did not intend to invoke the right when he made the
    remark about being "done."   We take the same view as the
    defendant.
    "It is clear that a defendant has not only the right to
    remain silent from the beginning but also a continuing right to
    cut off, at any time, any questioning that does take place."
    Commonwealth v. Bradshaw, 
    385 Mass. 244
    , 265 (1982).   However,
    if a defendant has waived his or her Miranda warnings and later
    wishes to remain silent, the invocation of that right "must be
    clear and unambiguous[], such that 'a reasonable police officer
    in the circumstances would understand the statement to be an
    invocation of the Miranda right.' . . .   Whether the defendant
    has met this burden is a fact-specific determination to be made
    based on the totality of the circumstances" (citation omitted).
    Commonwealth v. Howard, 
    469 Mass. 721
    , 731 (2014), citing
    17
    Commonwealth v. Almonte, 
    444 Mass. 511
    , 519, cert. denied, 
    546 U.S. 1040
     (2005).
    In these circumstances, the defendant's statement, "I'm
    done," by itself, was ambiguous, coming as it did as a
    nonresponse to a long series of statements by Tarckini and
    Escobar about what the police already knew.    In this context,
    Tarckini's question to the defendant, "You're done with what?"
    was an appropriate effort to clarify.    See Commonwealth v.
    Santos, 
    463 Mass. 273
    , 286 (2012).    See also Commonwealth v.
    Hearns, 
    467 Mass. 707
    , 718 (2014).    But the defendant's
    immediate and direct answer, "I'm done talking.    I don't wanna
    talk no more," was certainly a clarifying response to Tarckini's
    inquiry, one that resolved completely the previous ambiguity,
    and asserted in no uncertain terms the defendant's desire and
    intention to end the interrogation.     See Howard, 469 Mass. at
    733 n.13.15   However, instead of accepting the defendant's
    15
    In Commonwealth v. Howard, 
    469 Mass. 721
    , 733 n.13
    (2014), this court stated:
    "[W]e take the word 'stop' to mean what it says. A
    suspect's or defendant's use of the word 'stop,' or the
    phrase, 'I would like to stop at that point,' in this
    context should raise a red flag for an interrogating police
    officer -- a signal that it is necessary at the very least
    for the officer immediately to pause in order to reflect on
    what the defendant has just said, and to consider whether
    the defendant is seeking to invoke his right to remain
    silent" (emphasis in original).
    18
    invocation and terminating the interview, Tarckini, after
    repeating the defendant's answer,16 launched into a lengthy
    monologue in an apparent effort to convince the defendant to
    keep talking -- an effort that succeeded.   This was not proper.
    See Hearns, supra at 719.17
    The same is true of the phrases, "I'm done talking" and "I don't
    wanna talk no more."
    16
    We have stated that, when a defendant makes an ambiguous
    statement concerning an intent to stop questioning, the police,
    in seeking to clarify the defendant's meaning, may appropriately
    ask a clarifying question, but ordinarily the effort to clarify
    should be limited to one question. See Commonwealth v. Santos,
    
    463 Mass. 273
    , 286-287 (2012). Here, Tarckini followed the
    defendant's clarifying answer with another question that
    repeated the defendant's last answer, "You don't wanna talk no
    more?" -- to which the defendant responded, "No," and then added
    a reason: "'Cause y'all really don't believe me." We do not
    share the Commonwealth's view that Tarckini's follow-up question
    was simply an exercise of "good police practice." Rather, the
    question appears to have been an unnecessary repeat of a
    question that already had been answered very clearly. Moreover,
    the defendant's response was consistent with his prior statement
    of intent to stop the questioning, and not, as the Commonwealth
    suggests, one that merely reflected the defendant's ongoing
    frustration with the refusal of the police to believe what he
    was saying. Postinvocation responses "to further interrogation
    may not be used to cast retrospective doubt on the clarity of
    the initial [invocation] itself" (citation omitted). Id. at
    287.
    17
    Although the defendant clearly was willing to speak
    before stating to the police that he was done talking, he said
    very few words in response to Tarckini's soliloquy extending for
    several minutes after that statement, which further indicates
    the defendant's intention to remain silent. Contrast
    Commonwealth v. Senior, 
    433 Mass. 453
    , 463 (2001), quoting
    Commonwealth v. Pennellatore, 
    392 Mass. 382
    , 387 (1984)
    (defendant's request to stop questioning "must be interpreted in
    the context of his willingness to talk both immediately prior to
    and subsequent to" that point).
    19
    We conclude that the defendant has met his burden to
    establish that he clearly stated his intent to cut off further
    questioning by the police; "his choice of words fell well within
    the range of cases where we have found a clear and unequivocal
    invocation."   Hearns, 467 Mass. at 718.   See, e.g., id. at 717
    (defendant's postwaiver statement, "Well then, I don't want to
    talk.   I haven't got nothing to say," was clear invocation).
    See also Howard, 469 Mass. at 732-733 (stating, "I would like to
    stop at that point" sufficient to invoke right to silence);
    Commonwealth v. Santana, 
    465 Mass. 270
    , 277, 282 (2013)
    (postwaiver statement that defendant could not "say any more"
    was clear invocation of right to silence); Santos, 463 Mass. at
    285 (postwaiver statement that "I'm not going on with this
    conversation" in itself constituted clear invocation).    The
    police, however, continued to interrogate the defendant, and the
    defendant responded to their questions for the next fifty-three
    minutes, making a number of inculpatory responses.
    "[T]he admissibility of statements obtained after the
    person in custody has decided to remain silent depends under
    Miranda on whether his 'right to cut off questioning' was
    'scrupulously honored.'"   Mosley, 
    423 U.S. at 104
    .   The factors
    identified in Mosley to evaluate this issue all point to the
    conclusion that scrupulous honoring of the defendant's right did
    20
    not occur here.18   That is, the police did not immediately cease
    questioning the defendant; the questioning continued almost
    without a pause, and without a fresh set of Miranda warnings;
    and the scope and subject matter of the interrogation remained
    the same as before the invocation -- the defendant's involvement
    in the victim's death.   See 
    id. at 106-107
    .   See also
    Commonwealth v. Taylor, 
    374 Mass. 426
    , 433-434 (1978).     In these
    circumstances, a motion to suppress the defendant's statement to
    the police on the ground of invocation of the right to remain
    silent would have been successful, see, e.g., 
    id. at 433-436
    ,
    and trial counsel's failure to raise this ground constituted
    error.    See Wright, 
    411 Mass. at 682
    .
    The defendant advances a separate but related claim that
    what he stated while he was alone in the interrogation room
    (volunteered statement) should not have been admitted in
    evidence.   The defendant argues that the volunteered statement
    was wholly ambiguous and that, in the circumstances, its
    admission was more prejudicial than probative, and the trial
    18
    We have described the Mosley factors as follows: whether
    "the police (1) had immediately ceased questioning; (2) resumed
    questioning 'only after the passage of a significant period of
    time and the provision of a fresh set of warnings'; and (3)
    limited the scope of the later interrogation 'to a crime that
    had not been a subject of the earlier interrogation'" (citation
    omitted). Commonwealth v. Clarke, 
    461 Mass. 336
    , 344 (2012).
    See Michigan v. Mosley, 
    423 U.S. 96
    , 106-107 (1975).
    21
    judge abused his discretion in admitting it.19       Our plenary
    review of this case pursuant to G. L. c. 278, § 33E, persuades
    us that the volunteered statement was not admissible for a
    reason different from the one or ones advanced by the defendant.
    See Commonwealth v. Bell, 
    460 Mass. 294
    , 295, 306 (2011), S.C.,
    
    473 Mass. 131
     (2015); Commonwealth v. Silva-Santiago, 
    453 Mass. 782
    , 805-810 (2009).
    As discussed, when the defendant invoked his right to
    terminate questioning, the police were required immediately to
    end the interview.     At that point, all questioning should have
    ceased, and it follows that the recording of the interview also
    should have ceased.     That is not what happened.    Rather, the two
    detectives continued to interrogate the defendant and the
    recording equipment continued to operate, including during the
    time, postinvocation, that the detectives left the defendant
    sitting for approximately six minutes by himself in the
    interrogation room, during which time he made the volunteered
    statement.   The critical question is "whether . . . the evidence
    19
    The defendant contends that this issue was preserved.
    That is not clear. The Commonwealth points out that, although
    the defendant's trial counsel mentioned the lack of clarity
    about the meaning of the defendant's volunteered statement, the
    principal reason he objected to its admission at trial was the
    same issue he had raised in his motion to suppress: lack of
    voluntariness. As next explained in the text, we decide that
    the volunteered statement was not admissible on grounds
    different from any suggested by the defendant, and therefore, we
    need not decide the preservation question.
    22
    to which instant objection is made has been come at by
    exploitation of [the primary] illegality or instead by means
    sufficiently distinguishable to be purged of the primary taint"
    (citation omitted).    Wong Sun v. United States, 
    371 U.S. 471
    ,
    488 (1963).    See Bradshaw, 
    385 Mass. at 258
    .   It is clear that
    without the audio-video recording, there would be no evidence of
    the defendant's statement -- indeed, as one of the police
    officers, Quitadamo, testified, the only way the police were
    able to make out the defendant's words in the volunteered
    statement at all was through enhancement of the sound quality of
    the audio recording by using some technological means to reduce
    the ambient noise.    The Commonwealth should not be permitted to
    take advantage of a recording that should not have been made by
    introducing the recording in evidence.   Cf. G. L. c. 272,
    § 99 P.   Adherence to the principle that the defendant's
    constitutional right to cut off questioning must be
    "scrupulously honored" leads us to conclude that, in the
    particular circumstances presented here, all portions of the
    defendant's statement procured after he invoked his right to
    remain silent were inadmissible, including the volunteered
    statement.20
    20
    The defendant's second challenge to the admissibility of
    his statement rests on the ground that the police undermined the
    voluntariness of his statement by using lies, tricks, and
    implied promises of leniency to obtain the statement. The
    23
    The remaining question is whether the erroneous admission
    of the defendant's statement, including the volunteered
    statement, gave rise to a substantial likelihood of a
    miscarriage of justice because the statement was likely to have
    affected the jury's verdict.   See Wright, 
    411 Mass. at 682
    .     We
    conclude that it did.   The defendant admitted to participating
    directly in the group plan to rob the victim, and more
    particularly to being the one who was charged with carrying it
    out, and although he denied shooting the victim, the jury were
    certainly free to disbelieve him on that point.   "[A]
    defendant's own confession is probably the most probative and
    damaging evidence that can be admitted against him."21    Arizona
    v. Fulminante, 
    499 U.S. 279
    , 296 (1991), quoting Bruton v.
    United States, 
    391 U.S. 123
    , 139-140 (1968) (White, J.,
    dissenting).   It is true that the three cooperating witnesses
    each described the defendant's involvement in the plan to rob
    motion judge concluded that the police tactics were permissible
    and did not affect the voluntariness of the defendant's
    statement. Given our conclusion that the defendant's statement
    was inadmissible because of his invocation of the right to
    silence, we need not resolve the defendant's involuntariness
    claim.
    21
    It certainly may be inferred that the prosecutor
    considered the defendant's statement to be important, weaving it
    into his closing argument at several different points. See
    Howard, 469 Mass. at 749. And during their deliberations, the
    jury asked to view the audio-video recording of the
    interrogation and the enhanced audio recording of the
    defendant's volunteered statement.
    24
    the victim, and two of them quoted the defendant as saying that
    he shot the victim, but each of the three was also a direct
    participant in the robbery plan and had been charged as an
    accessory to the victim's murder, and the three witnesses'
    testimony was conflicting with respect to the defendant's role
    in the scheme:   according to Roman, the idea to rob the victim
    came entirely from Ago and Madison; Madison testified that the
    idea was Roman's; and only Ago testified that the defendant and
    his brother were the source of the idea.    Moreover, it was
    undisputed that the gun used in the shooting was Madison's; that
    Roman was the direct contact to the victim and the source of the
    information that she might be armed; and that the idea to carry
    a gun was not the defendant's.    The ability of defense counsel
    to take advantage of these points, however, was impaired because
    the defendant's own statement directly corroborated much of the
    witnesses' version of events.    Finally, this is not a case in
    which other types of evidence, independent of the cooperating
    witnesses' testimony, pointed convincingly to the defendant's
    guilt.   No forensic evidence -- for example, DNA or fingerprints
    -- connected the defendant to being inside the victim's vehicle
    or being involved in the incident more generally; the murder
    weapon was never recovered; Ventura and Tumer, the two witnesses
    who saw a male fleeing the scene, could not identify the
    defendant as the assailant; and the audio-video recordings taken
    25
    from Cashman's home did not enable a viewer to discern the
    assailant's identity.    In view of all the circumstances, we
    conclude that the admission of the defendant's statement likely
    influenced the jury's verdicts, and therefore created a
    substantial likelihood of a miscarriage of justice.   The
    defendant's convictions must be reversed and the case remanded
    for a new trial.22
    b.   Review under G. L. c. 278, § 33E.   We address an
    additional issue raised by our review of this case under G. L.
    c. 278, § 33E.   The jury found the defendant guilty of murder in
    the first degree under theories of felony-murder and extreme
    atrocity or cruelty.23   In our view, the trial evidence did not
    adequately support a guilty finding under the second theory.
    The victim was killed by a single gunshot that entered her neck
    as she sat in her automobile.   Considering the evidence in the
    22
    A final point about the defendant's statement is in
    order. After waiving his Miranda rights, the defendant spoke to
    the police for approximately thirty-five minutes before invoking
    his right to silence. During that portion of the interrogation,
    the defendant repeatedly and consistently responded to the
    interrogating officers' statements about their self-described
    knowledge of the defendant's involvement in the victim's killing
    with denials. Although this portion of the statement preceded
    the defendant's invocation, it should not be admitted at any
    retrial of this case. Accusations by the police, met with
    denials by a defendant, are not admissible by themselves. See
    Commonwealth v. Spencer, 
    465 Mass. 32
    , 48 (2013); Commonwealth
    v. Womack, 
    457 Mass. 268
    , 274 (2010).
    23
    The Commonwealth also proceeded on a theory of deliberate
    premeditation, but the jury did not find the defendant guilty
    under that theory. See note 26, infra.
    26
    light most favorable to the Commonwealth, there was evidence,
    supplied by the defendant in his statement, that he had been in
    the victim's automobile right before she was shot.   In addition,
    Madison and Ago testified that when the defendant returned to
    Madison's apartment from Fairfax Road, he stated that he had
    shot the victim, and there was evidence that a few seconds
    before the shot was fired, a yell or scream by a female voice
    could be heard.   These witnesses also testified that the
    defendant knew the gun was loaded.   Other than what has just
    been summarized, however, there was no evidence presented about
    the actual circumstances of the shooting.24   Moreover, although
    Madison testified that the bullets in the gun were hollow-point
    bullets, there was no evidence that the defendant knew that the
    gun contained hollow-point bullets.25   Furthermore, the evidence
    indicated, without dispute, that the gun in question was
    Madison's, that Madison himself had loaded it, and that it was
    the defendant's brother's idea for the defendant to bring a gun
    in response to information supplied by Roman that the victim
    might be armed.   In terms of the Cunneen factors, see
    24
    In addition, as discussed supra, the defendant's
    statement to the police about being in the vehicle with the
    victim should not have been admitted at trial.
    25
    There also was no evidence about whether the particular
    injuries sustained by the victim were likely to have been caused
    by the use of a hollow-point bullet, as opposed to some other
    kind of bullet.
    27
    Commonwealth v. Cunneen, 
    389 Mass. 216
    , 227 (1983), we conclude
    that the record contains no evidence from which the jury
    properly could find that the defendant was indifferent to or
    took pleasure in the victim's death, that the victim was
    conscious after being shot, that she sustained extensive
    physical injuries apart from the gunshot, that there were
    multiple blows, that excessive force was used, that the
    instrument used to kill her was unusual, or that the means that
    brought about her death were disproportional to the means needed
    to cause death.   In any retrial, therefore, the Commonwealth may
    proceed only under the theory of felony-murder.26
    3.    Conclusion.   The defendant's convictions are reversed,
    the verdicts are set aside, and the case is remanded to the
    Superior Court for further proceedings consistent with this
    opinion.
    So ordered.
    26
    The Commonwealth may not proceed on the theory of extreme
    atrocity or cruelty for the reasons discussed in the text. With
    respect to the theory of deliberate premeditation, this theory
    was presented to the jury and listed on the verdict slip, but
    the jury left the line associated with the theory blank. After
    the foreperson stated the jury's verdicts on the two charges
    (murder and attempted armed robbery), the defendant requested
    that the jurors be polled individually. When polled, each
    deliberating juror stated that he or she found the defendant not
    guilty of murder in the first degree on a theory of deliberate
    premeditation. Accordingly, double jeopardy principles preclude
    the Commonwealth from proceeding against the defendant on this
    theory in any retrial. Contrast Commonwealth v. Carlino, 
    449 Mass. 71
    , 76-80 (2007). Contrast also Commonwealth v. Brown,
    
    470 Mass. 595
    , 603-604 (2015).