Commonwealth v. Giambattista
by
In the Forefront Again: Commonwealth v. DiGiambattista and the Admissibility of Unrecorded Confessions
By Jack Baccari, Esq. and William Barabino, Esq.
On August 16, 2004, the Massachusetts family eventually moved out of the apartment,
4 and into premises in Chelsea.
A few days after DiGiambattista and his fami- ly vacated the Newton apartment, a neighbor detected smoke coming from the house. When firefighters arrived at the scene, the front door was locked, two other doors were boarded up and the windows were closed. There was evidence that a rear window at ground level may have been open, however, one of the officers later testified that there was plastic covering that window. At that time, only DiGiambattista and his mother had keys to the apartment, as DiGiambattista had changed the locks on the front door only days before he vacated the Newton premises.5
Examination of the scene and testing of sam- ples found on the premises revealed that the fire had been intentionally set in or near a closet beneath a stair landing and that gasoline had been used as an accelerant. A second, but insignificant, fire had also been set in the kitchen sink. Experts on the scene concluded the fire had been started sometime between 11:25 p.m. and 11:55 p.m.6
The day after the fire, officers questioned DiGiambattista and his girlfriend. There were inconsistencies in their versions as to DiGiambattista's whereabouts on the night of the fire as well as who still had a key to the apartment. When first questioned, DiGiambattista suggested the possibility that Paolini, the owner, had set the fire and speculated that Paolini may have used gasoline as an accelerant. At that time, the officers did not tell DiGiambattista that an accelerant had
Supreme Judicial Court decided Commonwealth v. Valerio DiGiambattista,1 which is certain to become as oft-cited an SJC opinion as Commonwealth v. Upton,2 or Commonwealth v. Blood.3 In yet another controversial ruling, the SJC held that a defendant is entitled to a jury instruc- tion when a prosecutor introduces evidence of the defendant's confession or statement that is the product of a custodial interrogation conducted at a place of detention (e.g., a police station), and there is not, at a minimum, an audiotape recording of the complete interrogation. The Court in DiGiam- battista became only one of a very few state courts to hold that, upon request by the defendant, the jury shall be instructed that the Commonwealth's highest court has expressed a preference that such interrogations be recorded whenever practicable. The jury shall further be cautioned that, because of the absence of any recording of the interrogation, they should weigh evidence of the defendant's alleged statement with great caution and care.
Facts of the Case
Valerio DiGiambattista, along with his then girl- friend and her children, rented an apartment from Angelo Paolini in Newton, Massachusetts. During the final year of his tenancy, DiGiambattista was dissatisfied with the conditions of the apartment and, in fact, withheld some rent from the landlord based on the landlord's failure to make necessary repairs to the premises. DiGiambattista and his been used. In fact, the officers did not yet have the results from the expert analysis identifying gasoline as an accelerant.7
His girlfriend told the officers that DiGiambattista never left their new apartment at all on the night of the fire. Yet, DiGiambattista admitted that he had left on a brief errand at approximately 10:30 p.m. A guest at DiGiambattista's apartment reported that the defendant left on his errand much earlier in the evening. Inspection of videotape from an auto- mated teller machine later confirmed that DiGiambattista made a withdrawal from that machine at 7:50 p.m. on the night of the fire. Still further investigation uncovered a witness who claimed to have seen a man resembling DiGiambattista enter the 109 Adams Street prop- erty between 6:00 p.m. and 6:30 p.m. on the night of the fire, although DiGiambattista denied being at the apartment at all on that night.8
One month after the fire, DiGiambattista vol- untarily accompanied two officers to a nearby fire station for further questioning. A trooper told DiGiambattista that he was free to leave, gave him Miranda warnings, and obtained his written waiver of rights. After an initial period of relaxed, "mild-mannered" questioning, the officers told DiGiambattista that he was their prime suspect. They advised him that his statements were incon- sistent with those of other witnesses, and that they had a witness who placed him at the scene of the fire that night.9
After DiGiambattista denied that he had been at the house that night and denied setting the fire, the officers asked if he would submit to a lie detec- tor test. After what the officers described as "some hesitation and seeming reluctance," DiGiam- battista agreed. No polygraph test was ever administered, causing the SJC to conclude that the officers had no intention of administering the test; they offered one only to gauge DiGiambattista's response.10
After the lie detector ploy, a different trooper entered the room carrying a thick folder and two
videotapes. The videotapes were marked "109 Adams Street," the site of the fire, and "Paolini Construction Worker's Comp Case." The folder and videotapes were conspicuously placed on the table next to the interrogating trooper who then began to question DiGiambattista again. The fold- er was filled with blank paper and unrelated newspaper clippings that had been prepared as part of the officers' strategy aimed toward extract- ing a confession from DiGiambattista.
The trooper conducting the interrogation asked,11 "If I told you that somebody at Paolini Construction was under surveillance by an insur- ance company for a workers' comp fraud case, is there any reason you would show up on that videotape?" While confronting DiGiambattista with this concocted evidence against him, the trooper sought to gain a confession by simultane- ously challenging the accused with evidence of his involvement, while downplaying the crime itself. He told DiGiambattista that he could "relate to" and "understand" his anger at the landlord and the desire to "do something like that." Despite that officer's varied attempts to gain a confession, DiGiambattista continued to deny his presence at the incident. Although at the hearing on the Motion to Suppress, the officers denied that dur- ing this interplay they promised to get him coun- seling, one admitted that he told DiGiambattista that he "probably needed counseling."12
The trooper who brought in the files and tapes then apparently returned to the interroga- tion room, and commenced his own interrogation of the defendant. He repeated to DiGiambattista that a witness placed him at the scene, and that his own prior statement and the statements of wit- nesses contained inconsistencies as to the time he had left his new apartment that night. The troop- er expressed the view that DiGiambattista had not meant to hurt anyone, and that his lighting the fire was the product of stress, alcohol consumption, and understandable frustration with his living sit- uation at 109 Adams Street. During the trooper's speculation as to DiGiambattista's "excuse" for
Spring 2005
The Reformer
starting the fire, DiGiambattista began nodding, and acknowledged that he "was stressed" and had been drinking on the night in question. The troop- er then asked him if he had used matches or a lighter. DiGiambattista replied that he had used both. The trooper asked him how he had started the fire. DiGiambattista said that he used gasoline. The two troopers who had originally conducted the interrogation were called back into the room to take DiGiambattista's statement.13
The Admission
Ultimately, DiGiambattista provided a detailed statement to the officers. He admitted to police that he was the arsonist and gave a detailed account of how the fire was started and of his activities both before and after the fire. At the offi- cers' request, DiGiambattista drew a diagram of where he had spread the gasoline and lit the fires. However, while expert analysis of the scene dis- covered an accelarant in only a few specific loca- tions, DiGiambattista stated that he had poured gasoline "almost everywhere" throughout both floors of the house. Additionally, experts conclud- ed the fires had been set in only two locations—the closet and the kitchen sink. DiGiambattista did not include either as a spot where he had set fire despite the officers' direct efforts to induce him to admit he had poured gasoline at the sink.14
DiGiambattista also gave several accounts of how he had disposed of the gasoline can. First, he claimed to have thrown it in the back room of the apartment, but when officers informed him they had found no can on the premises, he stated he had taken the can with him on the bus to Harvard Square, where he had thrown it in a dumpster. When the officers expressed incredulity about this latter account, DiGiambattista again changed his story, saying he threw it away near a picnic area along the Charles River. Additionally, DiGiam- battista offered conflicting stories of what he did
with the key, which he ultimately produced from his home.15
One of the troopers memorialized the confes- sion in writing, which DiGiambattista reviewed, corrected, and signed. DiGiambattista also signed the two-page diagram of both floors of the house he had drawn as described above. Finally, at the officers' suggestion, DiGiambattista also com- posed a letter of apology. The interrogation lasted approximately two and one-half hours. There was no electronic recording or taping of any portion of the interrogation or of the ultimate confession.16
Trial and Appeal
At trial, the defendant argued that he had been tricked by the troopers into making the statement that was now being offered as a confession. He moved for a required finding of not guilty, con- tending that the Commonwealth's evidence failed to include sufficient corroboration of his confes- sion, and that the Forde corroboration rule had therefore not been satisfied. However, the corrob- oration rule, as articulated in Commonwealth v. Forde, only requires corroboration that the under- lying crime was in fact committed, thus prevent- ing convictions against persons who have con- fessed to fictitious crimes.17 Here, there was ample evidence that arson had been committed, and, whatever the concerns about DiGiambattista's confession, there was no suggestion that he was confessing to a crime that had not occurred. The trial judge thus denied the motion for a required finding of not guilty and DiGiambattista was ulti- mately convicted of arson.18
The case went first to the Appeals Court.19 That court rejected each of the defendant's con- tentions relating to the voluntariness of the confes- sion, as well as the argument that the admission was not adequately corroborated.20 Although the Appeals Court, in a footnote, acknowledged the dangers of relying on unrecorded confessions to
26
secure a conviction, particularly where trickery had occurred, it found there was sufficient corrob- oration to rule the confession reliable.21
DiGiambattista applied for and was granted further appellate review by the SJC. There, DiGiambattista argued that the Forde rule should be expanded and asked the Court to consider "whether [it] should require electronic recording of custodial interrogations."22 He claimed that without an electronic recording of the defendant's statement and the circumstances surrounding it, the jury could not accurately determine whether the defendant gave a voluntary and reliable con- fession.23 The Supreme Judicial Court was asked to determine:
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Whether the "corroboration rule" as adopt- ed in Commonwealth v. Forde should be mod- ified to require corroborative evidence that the accused was the perpetrator of the crime, or independent evidence of the trust- worthiness of the confession, or be modified in some other fashion;24
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Whether such corroborative evidence should be required not only to sustain a conviction, but also as part of the founda- tion for admitting a defendant's confession or admission into evidence;25 and
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Whether the Court should require that a custodial interrogation of an accused, at least at a place of detention, be electronical- ly recorded before a statement made by the accused may admitted in evidence; and if so, how this should be accomplished.26
The SJC's Ruling
By the time it considered the DiGiambattista case, the SJC had been suggesting, for more than a decade, that police should videotape or audiotape interviews with suspects to prove that confessions were voluntary. As early as 1993, the Court said the criminal justice system spends "an enormous amount of time and effort" trying to reconstruct what happens during interrogations, which could be avoided if they were taped.27
In DiGiambattista, the SJC reaffirmed its even longer-standing disfavor of confessions obtained by ruse or trickery, because those "tactics cast doubt" on the validity of a suspect's waiver of rights and the subsequent voluntariness of a con- fession.28 However, it again refused to make trick- ery the sine qua non of voluntariness, affirming that it is still a relevant factor to be determined on both issues.29 In this case, the Commonwealth argued the ruse relating to the fabricated files and tapes was the only indicium of involuntariness. In response, the Court cited numerous scholarly arti- cles reflecting research that has "identified [the] use of false statements as a significant factor that pressures suspects into waiving their rights and making a confession."30 The Court continued: "This is particularly true where, as here, the false statement suggests a form of incriminating evi- dence that would be viewed as incontrovertible. If a suspect is told that he appears on a surveillance tape, or that his fingerprints or DNA have been found, even an innocent person would perceive that he or she is in grave danger of wrongful pros- ecution and erroneous conviction."31
Additionally, the SJC remarked that a confession's voluntariness obtained in the face of "irrefutable" false statements is "particularly trou- blesome" when combined with promises of lenien- cy. The Court was constrained to accept the trial judge's findings that reference to DiGiambattista's "need for counseling" was not an express promise, but it refused to find the police statements could not constitute an implied offer. The Court said the accused could well have concluded that counsel- ing would be an appropriate avenue to pursue after a confession. The opinion then cited addi- tional scholarly literature suggesting that police "minimization" of the crime, as occurred here, implies the accused will be treated more leniently if he adopts that minimized version of the crime, and that leniency can thereby be implicitly offered even if it is not expressly stated as a quid pro quo for the confession.32 The SJC reversed the trial court's finding that DiGiambattista's confession was vol- untary.33
The Court next addressed the highly contro- versial issue of whether a confession must be audio or video recorded. Having invited amici as well as the parties to address the issue, it resolved the question, even though resolution was not nec- essary in light of its holding that the confession was involuntary.34 The Court entered into a lengthy discussion of the state of the law, in the Commonwealth and elsewhere, concerning recording confessions made by an accused, as well as the voluminous number of articles written on the subject. The SJC remarked that since 1996, it has taken the position that while unrecorded con- fessions are not per se subject to suppression, fail- ure to record was a factor to be taken into account in determining voluntariness.35 And, while it had not required recordation "as a constitutional or common law requirement to the admissibility" of
confessions, the Court "has repeatedly recognized the many benefits that flow from recording of interrogations."36 In fact, in DiGiambattista, it noted many jurisdictions have acknowledged that recording acts as a deterrent to police misconduct and could actually reduce the number and length of hearings on contested motions to suppress. And, it continued, numerous commentators have urged that courts adopt a requirement that confes- sions be subject to some sort of recording,37 although at that time only two states required that interrogations be recorded and three plus the District of Columbia required it as to certain types of cases and interrogations.38
The Court next rejected the Commonwealth's argument that imposition of a recording require- ment is beyond its power, noting that such a rule would regulate police conduct only insofar as it would control the standards for admissibility of evidence in the courts of the Commonwealth, a matter over which the SJC clearly has superinten- dence power. Concluding that salutary recom- mendations have not accomplished the desired end, the Court ruled:
Thus, when the prosecution introduces evi- dence of a defendant's confession or statement that is the product of a custodial interrogation or an interrogation conducted at a place of detention (e.g., a police station), and there is not at least an audiotape recording of the com- plete interrogation, the defendant is entitled (on request) to a jury instruction advising that the State's highest court has expressed a prefer- ence that such interrogations be recorded whenever practicable, and cautioning the jury that, because of the absence of any recording of the interrogation in the case before them, they should weigh evidence of the defendant's alleged statement with great caution and care.
Where voluntariness is a live issue and the humane practice instruction is given, the jury should also be advised that the absence of a recording permits (but does not compel) them to conclude that the Commonwealth has failed to prove voluntariness beyond a reasonable doubt.39
In mandating an instruction, rather than a rule of exclusion, the Court emphasized that nothing in the opinion was intended to alter the "overarch- ing requirement that the voluntariness of a defen- dant's statement be determined by the totality of the circumstances."40
Justices Greaney, Spina, and Cowin, concur- ring and dissenting in part, disagreed that a trial court ought be required to give an instruction con- cerning the Commonwealth's failure to record a confession, at least not before a specially designat- ed committee hears evidence from all interested parties on the advisability of such recordation. Despite the desirability of recording a confession, the newly adopted instruction, Justice Greaney stated, will "dynamite" a jury into rejecting a defendant's statement where the evidence shows that most statements are not procured by over- bearing the will of the accused.41
All three also concluded that suppression of DiGiambattista's confession was unwarranted. In a separate opinion, Justice Spina noted that the "research" cited by the majority had come under question by courts, and even by one of the psy- chologists conducting the experiments.42 And in this case, DiGiambattista's lawyer raised the ques- tion of non-recording before the motion judge who nonetheless found the statements were vol- untary. Although the attorney could have, he did not argue the lack of recording to the jury, which also has a right to evaluate the voluntariness of a
defendant's admissions.43 Thus, there was nothing in this case to indicate that the triers of fact on the question of voluntariness were wrong.44
Ruling in the Case
In Commonwealth v. DiGiambattista, the Supreme Judicial Court has again stepped into the forefront of criminal procedural jurisprudence, by declaring that a defendant is entitled to a jury instruction "that, because of the absence of any recording of the interrogation before them, [the jury] should weigh evidence of the defendant's alleged state- ment with great caution."45 It is difficult to argue with the conclusion that a recording would help a jury determine whether the confession was volun- tary or unduly coerced. Yet, prior to DiGiambattista, Massachusetts imposed no proce- dural requirements upon interrogating officials to videotape or audiotape defendants who confessed or made a statement that was a product of a custo- dial interrogation. A defendant in Massachusetts could have availed himself of the Humane Practice Rule when the voluntariness of a confes- sion was at issue. Under the Humane Practice Rule, a judge first determines the voluntariness of a confession, but the issue is again submitted for the jury to decide.46
Like the Humane Practice Rule, the DiGiam- battista decision is a product of judicial evolution. Eight years ago, the SJC proclaimed that, although failure to record an interrogation would not result in automatic suppression of a defendant's state- ment, the lack of a recording was itself a relevant factor to consider on the issues of voluntariness and waiver.47 Under pre-DiGiambattista case law, the trial judge might have been encouraged to give the jury a list of factors to consider in deter-
Effect of DiGiambattista
Commonwealth v. DiGiambattista should have a profound effect on how police obtain confessions from defendants and in how those confessions will be put before a jury in Massachusetts. Although the SJC has ruled that the decision is only prospective, that is, it applies only to trials occurring after the date of the decision,51 all those cases awaiting trial will benefit from the ruling, even if the confession occurred prior to the deci- sion.
Massachusetts is still but among a handful of states in which electronic recording of custodial confessions is mandatory.52 However, many states have become cognizant of the important issue of
recording confessions and have taken steps to make recording mandatory.53 As several commen- tators and the New York Court of Appeals have noted, many police departments have begun elec- tronically recording confessions whether or not state law (statutory or case law) requires or sug- gests it.54 As observers of the criminal justice sys- tem demonstrate that voluntariness and reliability are best proven through the contemporaneous recording of confessions, it is likely that more and more states will require some sort of electronic memorialization, or prosecutors will suffer the kind of sanction as the SJC imposed under this landmark decision.
55 Our special thanks go out to the Middlesex District Attorney's Office, and particularly Assistant District Attorney Beth Dunigan, for assisting us in the preparation of this PS.
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