Commonwealth v. Michael Gonzalez.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

21-P-940

COMMONWEALTH

vs.

MICHAEL GONZALEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of multiple

offenses relating to an armed robbery of his coworker's

apartment. The defendant claims error in (1) the denial of his

motion to suppress and (2) the admission of an unredacted audio

recording at trial. We affirm.

Background. We summarize the evidence presented at trial

and in the record, reserving additional facts for later

discussion. Around 1:40 A.M. on July 22, 2015, the defendant,

with two other men, broke into his coworker's apartment and

stole marijuana plants. Of the intruders, only the defendant

had been to the apartment before and knew where the plants were

located. While taking the plants from an upstairs bedroom, the

defendant shot one of the apartment residents (the roommate) in
the leg.1 The defendant then fled the apartment and disposed of

the gun in the woods.

Later that morning, the defendant went to a hospital

emergency room with abdominal pain from a bowel obstruction

related to his Crohn's disease. He was placed in a room within

the emergency room area and given medication (Dilaudid,

oxycodone, and Benadryl) throughout the day.

Around 12:30 P.M. that same day, two police officers

arrived at the hospital to interview the defendant. They found

him awake and sitting up in his hospital bed. At some point

during the first interview, which was not recorded, the

defendant admitted that he had been involved in the robbery.

At about 2:30 P.M., in the presence of both officers, the

defendant consented to the audio recording of a second

interview. During the recorded interview, the defendant

recounted specific details about the robbery. He denied firing

the gun and admitted to disposing of it. He attempted to

exculpate himself by stating, among other things, that he was

pressured into participating in the robbery and "didn't want to

be involved" and by asking if it would "help [his] case" to give

the officers his clothes, which he said had no blood on them.

At one point, a doctor arrived to tend to the defendant; the

1 The gunshot wound ultimately resulted in the amputation of the
roommate's leg.

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officers paused the interview and left the room. The interview

ended when the defendant said he was "a little. . . high" and

asked to end it.

The defendant remained hospitalized for five days. While

in the hospital, he made several calls to one of the officers,

and on July 27, he consented to another recorded interview.2

Before this interview, the defendant was advised of, and waived,

his Miranda rights. Police interviewed him for about two hours,

at which point the defendant asked to stop the recording. After

the recorder was turned off, the defendant confessed that he

shot the victim.

The defendant moved unsuccessfully to suppress all

statements made to officers on July 22, as well as other

evidence, as fruits of the poisonous tree.3 At the suppression

2 Unlike the July 22 interviews, which took place before the
defendant had been admitted to the hospital, the July 27
interview was conducted in the defendant's private hospital
room.
3 The defendant argued that he was not given Miranda warnings

until after the first unrecorded interview had begun, and that,
due to his pain medication, his statements were not voluntarily
made. He further argued that he was unable to freely,
intelligently, and voluntarily waive his Miranda rights in the
recorded interviews because he remained on painkillers. The
admission of those statements, he argued, would violate his
constitutional rights under the Fifth and Fourteenth Amendments
to the United States Constitution and under art. 12 and art. 14
of the Massachusetts Declaration of Rights. The defendant also
argued that the police improperly seized his cell phone without
a warrant in violation of the Fourth and Fourteenth Amendments,
and arts. 12 and 14.

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hearing, the motion judge heard testimony from the officers and

from the defendant's expert witness, a board-certified physician

who had not examined the defendant and testified about the

defendant's medications based on his medical records.

The judge denied the motion to suppress, finding that the

defendant was not in custody when questioned by police on July

22 and that his statements were voluntary beyond a reasonable

doubt. After the subsequent jury trial, the defendant was

convicted of three counts of armed home invasion, G. L. c. 265,

§ 18C; two counts of armed robbery, G. L. c. 265, § 17; use of a

firearm during a felony, G. L. c. 265, § 18B; assault and

battery by means of a dangerous weapon causing serious bodily

injury, G. L. c. 265, § 15A (c) (i); and assault by means of a

dangerous weapon.4 This appeal followed.

Discussion. 1. Denial of motion to suppress. "'In

reviewing a ruling on a motion to suppress evidence, we accept

the judge's subsidiary findings of fact absent clear error,' and

we defer to the judge's determination of the weight and

credibility to be given to oral testimony presented at a motion

hearing." Commonwealth v. Hoose, 467 Mass. 395, 399 (2014),

4 The defendant was convicted of assault by means of a dangerous
weapon as a lesser included offense on an indictment charging
assault and battery by means of a dangerous weapon causing
bodily injury, G. L. c. 265, § 15A (b). A nolle prosequi was
entered prior to trial on an indictment charging unlawful
possession of a shotgun.

4
quoting Commonwealth v. Contos, 435 Mass. 19, 32 (2001).

"[F]indings drawn partly or wholly from testimonial evidence are

accorded deference, and not set aside unless clearly erroneous,"

Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018), and "[w]e

conduct an independent review of the judge's application of

constitutional principles to the facts found," Hoose, supra at

399-400.

a. Custody. The motion judge's conclusion that the

defendant was not in custody when questioned by police on July

22 was amply supported by testimony of percipient witnesses and

by the recording. See Commonwealth v. Groome, 435 Mass. 201,

211-212 (2002) (factors relevant to custody include [1] place of

interrogation; [2] whether officers conveyed to defendant any

belief or opinion that defendant is suspect; [3] nature of

interrogation; and [4] whether, at time statement was made,

defendant was free to end interview, as evidenced by whether

interview terminated with arrest). The interview was neither

aggressive nor intimidating. The defendant had full and private

access to medical personnel, and although he was unable to

leave, the restraint on his liberty was caused by his medical

condition rather than by the police. The defendant was

expressly told he could stop the conversation at any time and

was neither arrested nor informed he was a suspect. See

Commonwealth v. Welch, 487 Mass. 425, 435-437 (2021) (defendant

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not in custody where he was held at hospital by medical

personnel for medical purposes rather than by law enforcement

for investigatory purposes, medical staff could come freely in

and out of hospital room, and he could have asked officers to

leave at any time). A reasonable person in the defendant's

position would not have experienced the environment as coercive,

especially where the officers immediately honored his request to

stop the interview. See Commonwealth v. Kirwan, 448 Mass. 304,

312 (2007) (interrogation not custodial where "circumstances did

not demonstrate an environment so dominated by the police that a

reasonable person would perceive that his liberty was restrained

to a degree associated with a formal arrest").5

b. Voluntariness. Our review of the record further

supports that the defendant's Miranda waiver, as well as his

statements made to officers on July 22, were voluntary beyond a

reasonable doubt. "A statement is voluntary if it is the

expression of a 'rational intellect' in its formulation and a

'free will' in its expression." Commonwealth v. Lujan, 93 Mass.

App. Ct. 95, 100 (2018), quoting Commonwealth v. Miller, 68

Mass. App. Ct. 835, 842 (2007). In assessing voluntariness, "we

5 Given our conclusion that the defendant was not in custody
on July 22, we need not address his remaining Miranda claims.
See Commonwealth v. Libby, 472 Mass. 37, 47 (2015), quoting
Commonwealth v. Baye, 462 Mass. 246, 253 (2012) ("[t]he
requirements of [Miranda] are not triggered unless the
interrogation is custodial").

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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).

At the suppression hearing, the officers testified that

they did not perceive the defendant to be under the influence at

any point on July 22. Although the judge heard expert testimony

about the possible effects of the defendant's pain medication,

the recording supports that the defendant was awake and alert

throughout the interview, expressed no signs of intoxication or

extreme pain, and willingly gave detailed narrative responses to

the officers' questions. See Commonwealth v. Richards, 485

Mass. 896, 909-910 (2020) (effects of medication did not render

statements involuntary where statements were rational and

appropriate). Where the evidence supported the officers'

testimony, the judge was free to discredit the expert's

testimony as inconsistent with the evidence, especially given

the expert's admission that he lacked personal knowledge of the

degree to which the medication affected the defendant. See

Commonwealth v. Tolan, 453 Mass. 634, 644 (2009) (motion judge

free to discredit testimony that is unsupported by evidence).

Despite the defendant's being hospitalized and treated with pain

medication, the recording reflects a defendant who was

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articulate, aware of his immediate surroundings, and coherent

enough to offer exculpatory statements during the interview.

See Commonwealth v. Sneed, 440 Mass. 216, 222 (2003)

(exculpatory statements supported finding defendant's statements

voluntary). We see no error in the judge's conclusion, which

was amply supported by the record and consistent with his

decision to credit the officers' testimony.

2. July 27 recorded interview. Before the motion judge,

the defendant conceded the voluntariness of his recorded

statements made on July 27 and challenged the recording only

insofar as it constituted fruit of the poisonous tree.6 At

trial, the defendant expressly allowed the jury to hear the

unredacted recording in its entirety, declining a limiting

instruction and reiterating his lack of objection when the

recordings were introduced in evidence.

We are unpersuaded by the defendant's contention that his

statements on July 27 were the involuntary product of police

coercion. "[T]he issue of voluntariness turns on 'all the

surrounding circumstances -- both the characteristics of the

accused and the details of the interrogation'" (citation

omitted). Commonwealth v. Baye, 462 Mass. 246, 256 (2012).

6 The defendant argues for the first time on appeal that the
interview was coercive and that its unredacted admission at
trial was error because it contained inadmissible evidence that
was highly prejudicial.

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Viewing the July 27 interview in context, the defendant

initiated the contact that led to the interview, received and

waived his Miranda rights, and was awake, alert, and admittedly

"clear-headed" enough for questioning. The officers immediately

honored his request to stop recording. See Commonwealth v.

Morales, 461 Mass. 765, 777 (2012) (defendant's will not

overborne where he willingly responded to questions without

hesitation, answered clearly and intelligently, had opportunity

to rest between questioning, was afforded his Miranda rights,

and there was no evidence of coercive conduct by police). The

tone of the interview was predominantly conversational, and the

questions asked by officers were justified by physical evidence,

victims' accounts, and the inconsistencies in the defendant's

narrative. See Commonwealth v. Molina, 467 Mass. 65, 76-77

(2014) (statements voluntary despite aggressive tone of

interrogation, where officers did not engage in deception and

defendant voluntarily came to station and appeared sober, alert,

oriented, and lucid throughout interview); Commonwealth v.

Johnson, 463 Mass. 95, 105 & n.10 (2012) (police did not

improperly imply that they had evidence they did not when they

asked if there was "any reason" they might find defendant's

fingerprints on evidence).

The judge also did not err in admitting the unredacted

recording, which the defendant agreed to. We review to

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determine whether there was error, and if so, whether the error

created a substantial risk of a miscarriage of justice. See

Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016). The

unredacted recording contained opinions and accusations of the

interviewing officers, as well as repeated denials by the

defendant. While such evidence may not be offered to prove the

defendant's guilt, it may be admissible for some other purpose,

such as to show voluntariness of the defendant's statements or

to call into question the conduct of the police. See

Commonwealth v. Cruz, 373 Mass. 676, 692 (1977).

Throughout trial, the defendant's primary theory of defense

was that he did not commit the crime, and if he did, it was

under duress. The defendant maintained that his statements to

officers were involuntarily made, and in his closing argument,

he urged the jury to consider his statements in light of his

medical condition at the time. The defendant's repeated,

recorded denials were consistent with his theory of defense, and

his reference to the recording in his closing argument supports

that it was admitted as part of a trial strategy. Commonwealth

v. Adams, 434 Mass. 805, 813-814 (2001) (fact that challenged

evidence was part of trial strategy weighed heavily in

determining its prejudicial effect). The opinions and

accusations of the interviewing officers "were highly relevant

to the issue of voluntariness," an issue raised by the defendant

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and referenced in his closing argument. Cruz, 373 Mass. at 692.

Where the evidence was not objected to and was used as part of

an apparent defense strategy, and where the other evidence of

the defendant's guilt was substantial, we see no error in the

admission of the challenged recording.

Judgments affirmed.

By the Court (Massing,
Singh & Hershfang, JJ.7),

Clerk

Entered: February 8, 2023.

7 The panelists are listed in order of seniority.

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