Commonwealth v. Jonathan Lopez.

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

22-P-332

COMMONWEALTH

vs.

JONATHAN LOPEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following a jury trial in the Superior Court on two counts

of aggravated rape of a child, G. L. c. 265, § 23A, and three

counts of indecent assault and battery on a child under

fourteen, G. L. c. 265, § 13B, a panel of this court affirmed

the defendant's judgments of conviction in an unpublished

decision. See Commonwealth v. Lopez, 91 Mass. App. Ct. 1113

(2017). Three years later, the defendant filed a motion for new

trial, alleging that his appellate counsel was ineffective in

not raising the issue of the admission at trial of a video

recording of the booking process (booking video) which contained

statements the defendant made to his girlfriend during a

telephone call. The motion judge denied the defendant's motion
in a thorough sixteen-page decision.1 Concluding that appellate

counsel's failure to challenge the admission of the booking

video did not deprive the defendant of a substantial ground of

defense, we affirm.

Background.2 On March 6, 2013, the defendant voluntarily

went to the police station regarding allegations of sexual

assault, where, after being read his Miranda rights, he was

interrogated for over one hour. During the questioning, a

police officer informed the defendant, "You're not going to

speak at trial. Your attorney is going to do all the speaking

for you. He's going to cross-examine any witnesses that's

brought against you . . . . You then cannot say –- get up and

stand -- 'I didn't do this.' You can't stand up in court and

yell in court, 'I didn't do this.'"

Subsequent to the statements of the police officer, the

defendant admitted during the interrogation that the victim had

given him oral sex. After the defendant's confession, he was

arrested and placed in a holding cell, by himself, for over an

hour. The defendant was then booked and provided his Miranda

rights again and his right to make a telephone call. The

1 As the trial judge retired before briefing on the motion was
complete, the motion was assigned to a different judge.
2 We recount relevant facts from the videotapes of the

interrogation and phone call, each of which we viewed and
listened to, and from the judge's decision on the motion for a
new trial.

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defendant then called his girlfriend. The call was videotaped,

but only his part of the telephone call can be heard. The

defendant is heard to say, "I have no bail [and] I have court

tomorrow morning," and that "I need you to call . . . my boss."

He then says, "I fucked up . . . She gave me oral sex about a

year and a half ago . . . I never forced her or anything like

that." He subsequently states, "I'm sorry . . . calm down

please . . . I'm sorry." He tells the girlfriend, "I made a

mistake, I fucked up." Finally, toward the end of the

conversation he said, "she's trying to say I raped her and I

didn't do that."

At trial, the prosecutor did not introduce the

interrogation "out of an abundance of caution" because of the

police officer's interrogation techniques. However, after a

full hearing and over defense counsel's objection, the

Commonwealth was allowed to introduce the defendant's statements

to his girlfriend on the telephone.3 Appellate counsel did not

raise the issue of the admission of those statements in the

defendant's direct appeal.

Discussion. Because a challenge to the trial judge's

decision to allow the booking telephone call into evidence would

not have been clearly more likely to result in reversal on

3 The trial judge viewed the interrogation and booking videos, as
have we. The interrogation video was marked for identification.

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appeal, the defendant has failed to show that appellate counsel

was ineffective. Appellate counsel cannot be faulted for not

raising a claim that was unlikely to succeed on appeal. Thus,

the motion for a new trial was properly denied.

"A defendant has a heavy burden to establish ineffective

assistance of counsel sufficient to warrant a new trial."

Commonwealth v. Lao, 450 Mass. 215, 221 (2007), S.C., 460 Mass.

12 (2011). The defendant must show not only that counsel's

behavior fell "measurably below that which might be expected

from an ordinary fallible lawyer," but also that his conduct

"likely deprived the defendant of an otherwise available,

substantial ground of defen[s]e." Commonwealth v. Saferian, 366

Mass. 89, 96 (1974). See Commonwealth v. Sowell, 34 Mass. App.

Ct. 229, 231-232 (1993) (same standard applies for ineffective

assistance of both trial and appellate counsel).

"The review of such contentions has been described as
requiring a determination 'whether the issues which [the
defendant] claims appellate counsel failed to raise, would
have been clearly more likely to result in reversal or an
order for a new trial, and were so obvious from the trial
record that the failure to present such issues amounted to
ineffective assistance of appellate counsel.'"

Id. at 232, quoting Gray v. Greer, 800 F.2d 644, 647 (7th Cir.

1986).

1. Voluntariness. The defendant argues that because of

the assertedly coercive techniques used by the police officer

during his interrogation, any subsequent statements he made were

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involuntary. "A voluntary statement is one that is the product

of a rational intellect and a free will, and not induced by

physical or psychological coercion." Commonwealth v. Libby, 472

Mass. 37, 41 (2015), quoting Commonwealth v. Molina, 467 Mass.

65, 75 (2014). Even if an initial confession is found to be

involuntary due to police misconduct, subsequent confessions are

not automatically tainted and thus involuntary. See

Commonwealth v. Mahnke, 368 Mass. 662, 681 (1975), cert. denied,

425 U.S. 959 (1976).

We assume without deciding, as did the motion judge, that

aspects of the police interview were coercive. "[E]ach case

must be examined in light of three factors: the temporal

proximity of the [misconduct] to the obtaining of the evidence;

the presence of intervening circumstances; and the purpose and

flagrancy of the misconduct." Commonwealth v. Fredette, 396

Mass. 455, 460 (1985). In assessing these factors, "[w]e do not

apply a 'but for' test," but rather, we consider "whether . . .

the evidence . . . has been come at by exploitation of that

illegality or instead by means sufficiently distinguishable to

be purged of the primary taint" (citations omitted).

Commonwealth v. Long, 476 Mass. 526, 536-537 (2017). "The

Commonwealth bears the burden of proving that evidence

subsequently obtained is untainted." Fredette, supra at 459.

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"We examine the first two factors 'in conjunction with each

other.'" Commonwealth v. Jones, 95 Mass. App. Ct. 641, 649

(2019), quoting Commonwealth v. Damiano, 444 Mass 444, 455

(2005). The defendant's telephone call to his girlfriend was

made at least an hour after his statement to the police.4 During

that entire time, the defendant was alone in a holding cell and

had no contact with the police. Thereafter, during his booking,

the defendant was again administered his Miranda rights, he

stated he understood them, he was informed of his right to make

a phone call, and he asked to make a call to his girlfriend.

The decision to make the phone call, and what to say during the

phone call, was not done at the officers' urging and was an

affirmative choice of the defendant wholly independent from the

police misconduct. See Long, 476 Mass. at 537; Commonwealth v.

Maldonado, 55 Mass. App. Ct. 450, 454 (2002), S.C., 439 Mass.

460 (2003). See also Commonwealth v. Manning, 44 Mass. App. Ct.

695, 700 (1998) ("the taking of the defendant's photograph

during the booking process was standard police procedure . . .

and bore no relation to the purpose or validity of the arrest").

The statements made by the defendant to his girlfriend were

4 Without rejecting the parties' oral stipulation to a lapse of
about an hour, we note that the time stamps on the booking video
suggest that two hours and forty minutes elapsed between when
the defendant was booked after his confession and when he made
his telephone call.

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attenuated from the earlier interrogation by both time and

intervening circumstances, supporting the trial judge's finding

that they were purged of the taint of any prior illegality. See

Commonwealth v. Bradshaw, 385 Mass. 244, 258 (1982) (confession

not tainted by illegal arrest where defendant was given Miranda

warnings at least twice and over an hour elapsed before

confession).

As to the purpose and flagrancy, "we ask, first, whether

the police performed the illegal act for the purpose of

obtaining the evidence that the defendant seeks to suppress, and

second, whether the police knew that their actions were illegal

but proceeded anyway (flagrancy)." Jones, 95 Mass. App. Ct. at

649. We discern no error in the trial judge's implicit

determination that the actions of the officer during the

interrogation did not amount to flagrant misconduct. We cannot

conclude that the interview techniques had the purpose to bring

about the later phone call, nor do we view the introduction in

evidence of the phone call as "exploiting" any constitutional

violation that may have occurred earlier.

No court has ever found the defendant's confession during

his interrogation to be involuntary due to police misconduct.

In fact, the trial judge viewed the interrogation video and

stated that although she had not been asked to evaluate the

voluntariness, she did not "think [the defendant] was frankly

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coerced into making any statements and giving any answers during

the interview" and that "most of [the officer's questioning] was

unnecessary but it didn't in any way confuse or put pressure on

the defendant." Contrast Commonwealth v. Novo, 442 Mass. 262,

268-269 (2004) (confession tainted when "misrepresentation of

[defendant]'s right to defend himself at trial, [was] repeated

incessantly" [emphasis added]); Commonwealth v. Lugo, 102 Mass.

App. Ct. 170, 181-182 (2023) (flagrant police misconduct where

police department formal protocol authorized unconstitutional

practice). Although we acknowledge that the officer's interview

techniques came close to, and may have crossed, constitutional

lines, we do not view the use of those techniques as being as

egregious as in any of the cases the defendant has relied on.5

5 The defendant relies on Commonwealth v. Thomas, 469 Mass. 531,
542 (2014), where the Supreme Judicial Court declared that
statements by police to a suspect telling them that they may be
losing their chance to tell their side of the story to police
officers was "improper where a suspect has invoked her right to
counsel." Here, the defendant did not invoke his right to
counsel, and in fact explicitly waived that right at the
beginning of the interrogation. The defendant also relies on
Commonwealth v. Harris, 468 Mass. 429, 436 (2014), for the
contention that "the standard interrogation tactic of
minimization is problematic." However, the case goes on to say
that "[u]se of the tactic by itself, however, does not compel
the conclusion that a confession is involuntary" (citation
omitted). Id. Lastly, the defendant cites Commonwealth v.
Baye, 462 Mass. 246 (2012), as a case where minimization
tactics, implied assurance of leniency, and now-or-never
propositions by officers led to a statement that the court
concluded was not freely and voluntarily made. However, the
facts in that case were much more egregious than the case at
hand: the officers interrogated the defendant for ten hours,

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2. Cat out of the bag. The defendant also argues that the

coercive techniques used to elicit his first confession caused

him to "let the cat out of the bag," tainting the statements he

made to his girlfriend on the telephone. Under a "cat-out-of-

the-bag line of analysis,"

"[a] subsequent statement is inadmissible as the direct
product of an earlier coerced statement 'if, in giving the
statement, the defendant was motivated by the belief that,
after a prior coerced statement, his effort to withhold
further information would be futile and he had nothing to
lose by repetition or amplification of the earlier
statements.'"

Commonwealth v. Thomas, 469 Mass. 531, 552 (2014), quoting

Mahnke, 368 Mass. at 686. The presumption of taint

"may be overcome by showing that either: (1) after the
illegally obtained statement, there was a break in the
stream of events that sufficiently insulated the post-
Miranda statement from the tainted one; or (2) the
illegally obtained statement did not incriminate the
defendant, or, as it is more colloquially put, the cat was
not out of the bag" (citation omitted).

Thomas, supra at 551. "[W]hether one or both lines of analysis

is required before a confession is admitted turns on the facts

of the case." Commonwealth v. Prater, 420 Mass. 569, 580 n.10

(1995). "The focus and ultimate goal of undertaking either or

suggested that if the defendant "did not confess then and there,
he would be charged with crimes more serious than those of which
they thought him guilty," and dissuaded the defendant from
speaking to an attorney when he expressed a desire to do so.
Id. at 257.

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both lines of analysis is a determination of the voluntariness

of the later confession." Id. at 581.

Here, as discussed above, we have determined the

defendant's second statement was sufficiently attenuated from

the first confession. This case is similar to Prater, 420 Mass.

at 582-584, where the Supreme Judicial Court held that

suppression of the defendant's subsequent confession was not

required where there was one and one-half hours between the

defendant's first and second confessions, Miranda warnings were

given to the defendant before the second confession, and the

defendant's demeanor during the second confession showed that he

was not motivated by a feeling that the cat was out of the bag,

even though he said he had "nothing to lose." In this case, as

the motion judge observed, there was at least an hour between

the interrogation and phone call where the defendant sat alone

in a cell with no police contact, the defendant was given his

Miranda warnings before the phone call, and the defendant

willingly made the phone call for the purpose of asking his

girlfriend to inform his boss that he would not be able to come

into work, rather than out of the belief that "his effort to

withhold further information would be futile and he had nothing

to lose by repetition or amplification of the earlier

statements," which would suggest he had previously let the cat

out of the bag. Thomas, 469 Mass. at 552, quoting Mahnke, 368

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Mass. at 686. The booking video, which again we have viewed,

also supports a conclusion that the defendant's statement to his

girlfriend was voluntary. See Prater, supra at 584.

Therefore, because the defendant's second statement was

sufficiently attenuated from the first confession, appellate

counsel did not render constitutionally ineffective assistance

by failing to challenge the admission of the phone call into

evidence on direct appeal.6

Order denying motion for new
trial affirmed.

By the Court (Sacks, Shin &
D'Angelo, JJ.7),

Clerk

Entered: July 11, 2023.

6 Because we do not find the claim of ineffectiveness of
appellate counsel meritorious, see supra, we conclude that the
defendant failed to raise a substantial issue, see Commonwealth
v. Chatman, 466 Mass. 327, 334 (2013), and so the motion judge
did not abuse his discretion by failing to hold an evidentiary
hearing. Nor did the trial judge's admission of the evidence
and defense counsel's failure to challenge it on appeal result
in a "substantial risk of a miscarriage of justice," for the
reasons discussed supra.
7 The panelists are listed in order of seniority.

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