Commonwealth v. Tillson

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22-P-889 Appeals Court

COMMONWEALTH vs. THOMAS TILLSON.

No. 22-P-889.

Bristol. January 8, 2024. – May 17, 2024.

Present: Vuono, Wolohojian, & Toone, JJ.1

Rape. Indecent Assault and Battery on a Person with an
Intellectual Disability. Consent. Evidence,
Authentication, Court record, Admissions and confessions,
Voluntariness of statement. Practice, Criminal,
Voluntariness of statement, Required finding, Motion to
suppress, Instructions to jury.

Indictments found and returned in the Superior Court
Department on October 18, 2018.

A pretrial motion to suppress evidence was heard by Raffi
N. Yessayan, J., and the cases were tried before Thomas F.
McGuire, Jr., J.

Megan A. Siddall for the defendant.
Robert P. Kidd, Assistant District Attorney, for the
Commonwealth.

1 Justice Wolohojian participated in the deliberation on
this case and authored this opinion prior to her appointment as
an Associate Justice of the Supreme Judicial Court.
2

WOLOHOJIAN, J. After a jury trial, the defendant was

convicted of rape, G. L. c. 265, § 22 (b), and indecent assault

and battery on a person with an intellectual disability, G. L.

c. 265, § 13F. He raises four arguments on appeal. First, he

argues the evidence was insufficient in two respects. With

respect to all the crimes, he argues that the evidence was

insufficient to prove lack of consent -- either as a matter of

actual consent or of incapacity to consent. With respect to the

rape charges, he also argues that the evidence was insufficient

to prove force. Second, the defendant argues that a

guardianship decree issued by the Probate and Family Court

should not have been admitted in evidence because it was not

properly authenticated and that the error was prejudicial.

Third, the defendant argues that his statements to police should

have been suppressed because they were involuntary. Fourth, the

defendant argues that voluntariness was a live issue at trial

such that the judge was required sua sponte to give a humane

practice instruction and that the failure to do so resulted in a

substantial risk of a miscarriage of justice. We affirm.

Background. We recite the facts pertinent to the

defendant's arguments regarding the sufficiency of the evidence

through the lens of Commonwealth v. Latimore, 378 Mass. 671,

677-678 (1979), reserving additional facts for later discussion.

The victim was a fifty year old man with developmental deficits.
3

The victim's mother had been his guardian until she died in

1994. Thereafter, the victim moved in with his brother and

sister-in-law, who became his court-appointed permanent

guardians in 1995 and, as such, had responsibility to take care

of the victim financially and to watch over him.

The victim could not read, and could write only in a

limited fashion by copying things. He could spell his name and

address. He graduated from high school at the age of twenty-

two, after following a curriculum that did not include classes

in English or math, but did include archery, basketball, and

baseball. After being diagnosed with mild retardation,2 the

victim was determined to be in need of assistance and was

provided services by the Department of Mental Retardation (DMR)

and later by the Department of Developmental Services.3 The

victim has for decades also received services on a daily basis

from an entity called People Incorporated.

2 We use the phrase mental retardation, or variations of it,
only in fidelity to the evidence at trial. It is no longer a
favored nomenclature. See Commonwealth v. St. Louis, 473 Mass.
350, 358 n.12 (2015).

3 The Department of Mental Retardation's name was changed to
the Department of Developmental Services effective June 30,
2009. See G. L. c. 19B, § 1, as amended through St. 2008,
c. 182, §§ 9, 115, and St. 2008, c. 451, §§ 28, 184; M.D. v.
Department of Developmental Servs., 83 Mass. App. Ct. 463, 463
n.2 (2013).
4

In 1999, the brother used half of the proceeds from the

sale of the deceased mother's house to purchase a condominium in

Fall River for the victim to live in. Although the victim lived

in the condominium by himself, he needed significant supports

for many aspects of daily life. The victim, for example, could

not drive. He was assigned a mentor who would take him

shopping, and do other activities with him. One of the mentors

lived next door to the victim in an adjoining unit, and helped

him shop and cook. Also by way of example, the victim was not

capable of safely using an oven. The sister-in-law prepared

meals for the victim, which he reheated using a microwave. The

brother and sister-in-law called the victim at least once a day,

and visited him weekly. The victim needed guidance and

reminders to make sure that he had eaten, shaved, cleaned, and

brushed his hair.

People Incorporated arranged for the victim to work at a

bank, where he watched parked cars and picked up litter. The

victim also volunteered at a hospital, where he washed pots and

pans in the kitchen. People Incorporated transported the victim

to and from his work, and also from the hospital.4 People

Incorporated also provided an afterwork program for the victim.

4 The victim took the bus home until he got lost;
thereafter, People Incorporated transported him.
5

The victim has had a girlfriend, who has a similar

disability to his, for almost thirty years since high school.

The victim and his girlfriend would go on walks together, or out

to dinner, or "things like that." The two were never left alone

together, but instead were accompanied either by a mentor or by

the brother and sister-in-law.

The defendant, who is more than ten years older than the

victim, lived in the same condominium complex with his wife and

son.5 Towards the back of the complex, there was a grassy area

and a picnic table where the victim, the defendant, and other

residents of the complex regularly congregated. The victim

became friendly with the defendant, whom he met through the

defendant's son.

One day, the victim had a conversation with the defendant

in which the defendant warned him to be careful of ticks. The

defendant and the victim then went into the victim's

condominium, where the victim got undressed and the defendant

shaved his penis to supposedly check for ticks. The victim did

not ask the defendant to do this; instead, the defendant did it

of his own initiative. The defendant remained clothed during

this episode.

Although they were not legally married, the defendant had
5

lived for approximately forty years with the woman referred to
during the trial as his wife.
6

On another occasion, the defendant wanted the victim "to do

him" or "to give him a blow job." The victim "said no," and

that he did not "want to do it." The defendant "wanted me to do

it so I wouldn't get in trouble," and the victim complied. The

defendant then attempted to put his penis in the victim's "bum."

The defendant then forced his penis into the victim's mouth,

something the victim did not want to have happen. The defendant

then asked the victim to touch the defendant's penis "[t]o see

if it will squirt." The defendant also touched the victim's

penis by putting his penis together with the victim's penis

"[t]o make them squirt" even though the victim did not want to

do this. The defendant also touched the victim's penis with his

hands. The defendant and the victim were alone when these

events took place. The victim did not want to engage in any of

these activities, he told the defendant so, and the conduct made

him scared.6 It was the victim's first time engaging in such

activity.

While the defendant was in the victim's condominium, the

victim tried to alert his mentor to the situation by banging on

the wall to see if he could get her attention, but she did not

6 The victim testified that the conduct with the defendant
happened four times, although it is not clear whether the victim
meant that all of the conduct just recited occurred on each
occasion, or whether each act occurred on a different occasion.
The ambiguity makes no difference to the issues raised on
appeal.
7

respond. The defendant told the victim not to say anything

because the defendant did not want to get into trouble. He also

told the victim not to sit at the picnic table anymore.

In 2017 going into 2018, the brother and sister-in-law

noticed that the victim looked very sickly, had lost a lot of

weight, complained of body aches, was agitated, and was swearing

and getting angry at people. This was unusual behavior, and the

brother and sister-in-law became concerned that the victim was

seriously ill. They took him to the doctor several times, but

tests did not reveal any physical ailment.

On the evening of April 13, 2018, the sister-in-law called

the victim to see if he had eaten his supper. She noticed that

he "wasn't acting right on the phone." The victim was unable to

offer a clear explanation as to what was wrong, but said that he

could not pick up his pants, that his legs and side were in

pain, and that he was sweating. The sister-in-law and brother

drove immediately to the victim's condominium and found him

sweating in his pajamas. The victim again stated that he did

not know what was wrong, and the sister-in-law and brother

decided to drive him to the hospital. En route, the victim

revealed that the defendant had been hurting him, that the

defendant had shaved his penis for ticks, and that the defendant

had tried to put his penis in his "bum." The victim said that

he had not wanted to engage in sexual activity with the
8

defendant. When the brother and sister-in-law brought the

victim to their home that night, the victim curled up and "cried

and cried," a form of expression he had not previously

manifested even in moments of deep personal grief such as the

loss of his mother.

Ten days later, on April 23, 2018, the defendant

voluntarily went to the police station, where he made

inculpatory statements during a one-hour interview that was

audio-visually recorded. The defendant confirmed the broad

details of the victim's account, except that he denied anal

penetration. He acknowledged that he had engaged in sexual

activity with the victim on approximately six occasions, but

said that he stopped when he became uncomfortable with the

situation given the victim's intellectual deficits.

The defendant was indicted of one charge of indecent

assault and battery on a person with intellectual disability,

G. L. c. 265, § 13F (defendant touching victim's penis, victim

touching defendant's penis, and victim and defendant touching

penises together), and three charges of rape (oral rape victim

on defendant, oral rape defendant on victim, and anal

intercourse), G. L. c. 265, § 22 (b). At trial, the defense

acknowledged that sexual activity had occurred between the

defendant and the victim but argued that it was consensual. The

jury convicted him of the indecent assault and battery (all
9

three acts), and the two oral rape charges; he was acquitted of

the rape charge alleging anal intercourse.

Discussion. 1. Sufficiency of evidence. a. Lack of

consent. The defendant argues that the Commonwealth failed to

prove beyond a reasonable doubt that the victim did not actually

consent or was incapable of consent. Lack of consent is an

element of both rape and indecent assault and battery on a

person with an intellectual disability. See G. L. c. 265,

§ 22 (b);7 G. L. c. 265, § 13F;8 Commonwealth v. St. Louis, 473

Mass. 350, 360-361 (2015) (elements of indecent assault and

7 "Whoever has sexual intercourse or unnatural sexual
intercourse with a person and compels such person to submit by
force and against his will, or compels such person to submit by
threat of bodily injury, shall be punished by imprisonment in
the state prison for not more than twenty years; and whoever
commits a second or subsequent such offense shall be punished by
imprisonment in the state prison for life or for any term or
years." G. L. c. 265, § 22 (b).

8 "Whoever commits an indecent assault and battery on a
person with an intellectual disability knowing such person to
have an intellectual disability shall for the first offense be
punished by imprisonment in the state prison for not less than
five years or not more than ten years; and for a second or
subsequent offense, by imprisonment in the state prison for not
less than ten years. Except in the case of a conviction for the
first offense for violation of this section, the imposition or
execution of the sentence shall not be suspended, and no
probation or parole shall be granted until the minimum
imprisonment herein provided for the offense shall have been
served. This section shall not apply to the commission of an
indecent assault and battery by a person with an intellectual
disability upon another person with an intellectual disability."
G. L. c. 265, § 13F.
10

battery on person with intellectual disability); Commonwealth v.

Lopez, 433 Mass. 722, 727 (2001) (elements of rape) "The

element of lack of consent in a prosecution for indecent assault

and battery is the same as in a prosecution for rape." St.

Louis, 473 Mass. at 361, citing Commonwealth v. LeBlanc, 456

Mass. 135, 138 (2010). It may be established either by proving

that the victim did not actually consent or that the victim did

not have the capacity to consent.9 See St. Louis, 473 Mass. at

361 n.16 (acknowledging both methods of proving lack of consent

for purposes of indecent assault and battery on person with

intellectual disability); Commonwealth v. Blache, 450 Mass. 583,

591 (2008) (intellectual disability may be basis of incapacity

to consent in rape charge); Commonwealth v. Urban, 450 Mass.

608, 613 (2008) (same). We examine the totality of the

circumstances to determine whether the Commonwealth met its

burden of proof as to lack of consent. See St. Louis, 473 Mass.

at 361. A victim's intellectual disability is among the

circumstances to be considered. See id. at 362.

The evidence in this case was sufficient to prove beyond a

reasonable doubt that the victim did not consent to the sexual

9 The Commonwealth pursued both avenues of proof at trial,
and the jury were instructed that the Commonwealth could satisfy
its obligation to prove lack of consent in either fashion. The
jury returned a general verdict that did not specify the basis
for their finding of lack of consent.
11

conduct with the defendant. The victim testified that he did

not want to engage in the conduct and that he told the defendant

so. A victim's testimony of facts constituting an element of a

charged offense is sufficient, standing alone, if credited by

the jury as it was here. See Commonwealth v. Santos, 100 Mass.

App. Ct. 1, 3 (2021). There was also abundant circumstantial

evidence from which the jury could infer that the victim did not

consent. For example, the victim attempted to summon his

mentor's help by banging on the wall -- conduct that is

inconsistent with a consensual sexual encounter. Moreover, it

was the first time the victim had engaged in such sexual

conduct, the conduct scared him, and he suffered acute physical

and emotional distress as a result of it. See St. Louis, 473

Mass. at 362 (conduct made victim uncomfortable). In addition,

the defendant told the victim not to disclose the incidents,

something that could be construed to indicate a lack of consent.

See id. (defendant told victim to keep incidents secret). The

jury could find that the defendant was an authority figure to

the victim, both older in age to the victim and (at least in the

victim's eyes) able to instruct the victim not to return to the

picnic table where he used to socialize. See id. (authority

based on age disparity).

The defendant also argues that the evidence was

insufficient to prove that the defendant was incapable of
12

consent. As the defendant points out, the victim lived on his

own for a long time (albeit with daily supports), was capable of

holding a job and engaging in volunteer work, had graduated from

high school, had a girlfriend, and owned and watched

pornographic videos. The Commonwealth did not present any

direct evidence that the victim was incapable of consenting to

sexual activity of any kind. On the other hand, the jury could

observe the victim's testimony and assess the scope of his

intellectual disability for themselves. See St. Louis, 473

Mass. at 361; Commonwealth v. Roderick, 411 Mass. 817, 819

(1992); Commonwealth v. Fuller, 66 Mass. App. Ct. 84, 91 (2006).

The transcript shows that the victim's comprehension and manner

of expression were limited and idiosyncratic. The jury could

also consider the victim's limitations and his need for daily

support, services, and help. See Fuller, 66 Mass. App. Ct. at

91. Among other things, the victim could not read, drive, or

cook, and he had only a limited ability to write. Although the

victim graduated from high school, he had done so with a

modified curriculum that did not include English or math. See

Commonwealth v. Bonds, 445 Mass. 821, 825 (2006) (victim in

special needs classes). He had for decades qualified for

services from the Department of Mental Retardation and,

subsequently, the Department of Developmental Services. See

Commonwealth v. Aitahmedlamara, 63 Mass. App. Ct. 76, 77 (2005)
13

(victim eligible to receive DMR services). The victim's family

checked on him daily to make sure he was safe and sound. It is

an open question whether the constellation of facts here were

such that a reasonable inference could be drawn that the victim

was incapable of consenting to sexual activity of any kind,

contrast St. Louis, 473 Mass. at 353, 361 (victim was missing

half of her cerebellum, lived with her mother, and had verbal

intelligence quotient [IQ] of forty-seven); Bonds, 445 Mass. at

825 (victim "did not have 'normal intellectual capacity,'"

"could not hold a steady job," and received special education);

Roderick, 411 Mass. at 818 (victim was resident of group home,

severely impaired since birth, could not hear or speak, could

communicate only by gesture and vocal sounds); Fuller, 66 Mass.

App. Ct. at 85-86 (victim incapable of being alone in society,

did not graduate from high school, had never worked despite

receiving job training for six to seven years, could not drive,

and needed assistance for basic life activities);

Aitahmedlamara, 63 Mass. App. Ct. at 77 (victim's IQ

significantly below threshold required for DMR eligibility,

victim required assistance with virtually all basic life

skills), or that no expert testimony was required on the point,

contrast Bonds, 445 Mass. at 830 n.14 (no expert opinion

necessary where mother capable of testifying to victim's mental

disease and capacity); Fuller, 66 Mass. App. Ct. at 90-91
14

(expert opinion not necessary where DMR service provider

testified to victim's intellectual capacity and extensive need

of assistance); Aitahmedlamara, 63 Mass. App. Ct. at 77

(testimony of DMR service provider regarding victim's IQ level,

level of functioning, and need for assistance). See generally

Murphy & O'Callaghan, Capacity of adults with intellectual

disabilities to consent to sexual relationships, 34

Psychological Med. 1347-1357 (2004).

All that said, because the evidence was sufficient to prove

that the victim did not actually consent, we need not consider

whether the evidence was also sufficient to prove that he was

incapable of consent. Lack of actual consent and incapacity to

consent are not alternate theories of the crimes of rape or

indecent assault and battery on a person with an intellectual

disability. Instead, they are closely-related alternate methods

of proving the single element of lack of consent required for

both crimes. See Blache, 450 Mass. at 592 (incapacity is

alternate way of proving element of lack of consent); Urban, 450

Mass. at 613 (same). As such, even were we to assume that the

evidence was insufficient to prove that the victim was incapable

of consent due to his intellectual disability, reversal would

not result. See Commonwealth v. Santos, 440 Mass. 281, 289

(2003), overruled on other grounds by Commonwealth v. Anderson,

461 Mass. 616, 633, cert. denied, 568 U.S. 946 (2012);
15

Commonwealth v. Inoa, 97 Mass. App. Ct. 262, 264 (2020);

Commonwealth v. Oquendo, 83 Mass. App. Ct. 190, 193-194 (2013).

We, therefore, need not and do not consider whether the evidence

of incapacity was sufficient.

b. Force. In addition to arguing that the Commonwealth

failed to prove lack of consent, the defendant argues that the

Commonwealth failed to prove force. Unless the victim was

incapable of consent (a theory we do not consider for the

reasons set out above),10 the Commonwealth was required to prove

that the "the defendant compelled the victim's submission by use

of physical force; nonphysical, constructive force; or threat of

force." Lopez, 433 Mass. at 728–729.

For essentially the same reasons already given in our

discussion of the evidence bearing on the victim's lack of

consent, the evidence of force was sufficient. To begin with,

there was direct evidence that the defendant forced his penis in

the victim's mouth. In addition, a combination of physical and

constructive force could be reasonably inferred from the

victim's attempt to summon aid by banging on the wall to summon

10In cases where the Commonwealth proves that the victim
was incapable of consenting by reason of intellectual
incapacity, proof of force may not be necessary. See
Commonwealth v. Eldridge, 28 Mass. App. Ct. 936, 937 (1990)
(incapacity to consent by reason of intellectual disability "may
permit a jury, with proper instruction, validly to conclude that
the force necessary to effect the intercourse is sufficient to
constitute the force element of the crime of rape").
16

his mentor, his physical and emotional reaction to the

defendant's sexual conduct, see Commonwealth v. Molle, 56 Mass.

App. Ct. 621, 627 (2002) (victim sobbing and shaking), the fact

that the victim could perceive the defendant as an authority

figure, see Commonwealth v. Testa, 102 Mass. App. Ct. 149, 152

(2023), and the victim's testimony that he was scared.

2. Authentication. The Commonwealth was permitted to

introduce, through the testimony of the victim's brother, an

unattested-to copy of a 1995 decree of the Probate and Family

Court appointing the brother and sister-in-law as the victim's

guardians. The decree reflected a Probate and Family Court

judge's finding that the victim was "mentally retarded to the

degree that he is incapable of making informed decisions with

respect to his -- personal -- financial affairs and that the

failure to appoint a guardian would create an unreasonable risk

to the [victim's] health, welfare and property." The defendant

timely preserved an objection to the authenticity of the decree

on the ground the document was neither an original nor an

attested-to copy. The defendant did not, however, raise a

hearsay objection.

On appeal, the defendant argues that the decree should not

have been admitted because it failed to satisfy the

authentication requirements of G. L. c. 233, § 76. That statute

provides that, with certain exceptions, "[c]opies of books,
17

papers, documents and records in any department of the

commonwealth or of any city or town, authenticated by the

attestation of the officer who has charge of the same, shall be

competent evidence in all cases equally with the originals

thereof" (emphasis added). On its face, section 76 does not

appear to apply to court records because courts are not

departments of the Commonwealth nor of any city or town. See

Attorney General v. Ware, 328 Mass. 18, 23-24 (1951) (school

committee records); Grover v. Smead, 295 Mass. 11, 14 (1936)

(registry of motor vehicles records); Commonwealth v. Martinez-

Guzman, 76 Mass. App. Ct. 167, 171 n.3 (2010) (same);

Commonwealth v. Dias, 14 Mass. App. Ct. 560, 564 (1982) (same).

But see Ux v. North Reading, 379 Mass. 914, 915 (1979) (Federal

agency maps); Commonwealth v. Cuevas, 87 Mass. App. Ct. 205, 207

(2015) (out-of-State conviction); Commonwealth v. Ellis, 79

Mass. App. Ct. 330, 332-333 (2011) (record of convictions);

Commonwealth v. Crapps, 64 Mass. App. Ct. 915, 916 (2005)

(rescript) (record of conviction). Setting that issue to the

side, under Mass. R. Crim. P. 40 (a) (1),11 the decree should

have been authenticated in order for its contents to have been

11"An official record kept within the Commonwealth, or an
entry therein, when admissible for any purpose, may be evidenced
by an official publication thereof or by a copy attested by the
officer having legal custody of the record, or by his deputy."
Mass. R. Crim. P. 40 (a) (1).
18

admitted for their truth, a matter the Commonwealth concedes on

appeal. See Mass. G. Evid. § 902(b) (2023).

Although the judge erred in admitting the unauthenticated

decree, the defendant was not prejudiced because the contents of

the decree essentially duplicated the victim's brother's

unobjected-to testimony on all essential points. Specifically,

the brother testified that the victim had at one time been

diagnosed as "mildly retarded," that he and his wife were court-

appointed guardians of the victim, and that, as such, they took

care of the victim's financial and other wellbeing. See

Commonwealth v. Deramo, 436 Mass. 40, 49 (2002) (erroneous

admission of unauthenticated document reviewed for prejudice

where error preserved). Although it is true that the brother

did not testify that the Probate and Family Court judge made a

finding that the victim was "mentally retarded," the brother

testified that the victim had been "diagnosed" with "mental

retardation" and there is no reason to think that the jury would

have given greater weight to a judge's finding than to that of a

person equipped to make a diagnosis.

The defendant also correctly argues that the contents of

the decree were inadmissible hearsay. "The fact that a document

is authentic as an official record does not mean that the

document is admissible under the official or public records

exception to the hearsay rule." Commonwealth v. Shangkuan, 78
19

Mass. App. Ct. 827, 830 (2011). But this argument, which we

review under the less demanding standard for unpreserved errors,

see Commonwealth v. Keevan, 400 Mass. 557, 562 (1987), is of no

more help to the defendant for the same reason we have just

given. See Commonwealth v. O'Connor, 407 Mass. 663, 670 (1990)

("mistaken admission of hearsay evidence, if merely cumulative

of another witness's testimony, does not constitute reversible

error").

3. Motion to suppress. Voluntariness. The defendant's

motion to suppress his statements to police was accompanied by

an affidavit of trial counsel stating that the defendant had

graduated from high school when he was almost twenty years old,

having apparently repeated first and fourth grades. Counsel

also averred that the defendant was unemployed, received social

security disability benefits, and had "blatantly obvious

mobility issues." The affidavit concluded that "[i]t would

appear almost axiomatic that the [d]efendant did not understand

the significance of waiving his rights."

The motion judge conducted an evidentiary hearing on the

motion at which one of the officers who interviewed the

defendant testified, and the videotape of the interview was

introduced and played. Ultimately, the judge denied the motion

on the grounds that (1) the interview was not custodial; (2) the

defendant voluntarily waived his Miranda rights; and (3) the
20

defendant's statements were voluntary. Although the defendant

had not directly raised the issue, the judge also considered

whether the officers had used improper interrogation techniques,

such as minimizing the seriousness of the situation or offering

the defendant leniency, such that the defendant's will was

overborne, and the judge concluded that they had not.

On appeal, the defendant challenges only the judge's

conclusion regarding voluntariness, arguing that the police used

impermissible interrogation tactics to overbear the defendant's

will and render his statements involuntary. Specifically, the

defendant contends that the police misled him by stating at the

outset of the interview, "All right, so like I said, you're not

in any trouble. You're free to leave whenever you want. Just

going to have a conversation," when, in fact, the police already

had spoken with the district attorney's office and knew the

district attorney wished to press charges. The defendant also

argues that the officers suggested to him that he would be

helping himself if he admitted to consensual activity with the

victim. He points specifically to an officer's question, "If

this were to go to court and come out and say the district

attorney wanted to prosecute a case like this, wouldn't you want

something to be seen, as like you said, consenting opposed to

forcible or coercion?" and to a later statement that, "You need
21

to help us understand. You also need to help yourself out."12

None of the defendant's current arguments were specifically

raised in connection with the motion to suppress and they are,

accordingly, waived. See Commonwealth v. Quint Q., 84 Mass.

App. Ct. 507, 514 (2013). Nonetheless, because the motion judge

on his own identified and reached the question of whether the

officers' interrogation tactics overbore the defendant's will,

we do as well.

"The test for voluntariness is 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" (quotation and citation omitted). Commonwealth v. Lopez,

485 Mass. 471, 482 (2020). "Relevant factors include, but are

not limited to, promises or other inducements, conduct of the

12 The defendant also argues that the officers' statement
that he "forced it on [the victim] because of his mental
capability" led directly to the defendant's admission to
nonforcible sexual contact. This argument, however, is based on
a mischaracterization of the record. In fact, the defendant
appears to have been referring to statements by people other
than the officers:

[DEFENDANT]: "Everybody is saying I forced it on him
because of his mental capability. They're saying
(indecipherable)."

[OFFICER]: "Well, that's not what we're saying. We want
to know whether or not somebody was forced into doing
something forcibly. Or did two people get together and
decide to experiment or do something?"
22

defendant, the defendant's age, education, intelligence and

emotional stability, experience with and in the criminal justice

system, physical and mental condition, the initiator of the

discussion of a deal or leniency (whether the defendant or the

police), and the details of the interrogation, including the

recitation of Miranda warnings" (quotation and citations

omitted). Id.

In the totality of the circumstances presented here,

including our own review of the videotape of the interview, we

see no error in the judge's conclusion that the defendant's will

was not overborne. The defendant drove himself voluntarily to

the station after officers asked him whether he would be willing

to speak with them about an investigation. He was interviewed

for approximately one hour, and the entire interview was

conducted in an informal manner with a cordial tone. The

defendant was not threatened or intimidated in any way by the

officers. At the outset of the interview, the defendant was

told he was free to leave at any time and that he was not under

arrest. The defendant was properly advised of his Miranda

rights, stated he understood them, and signed a waiver form that

clearly set out those warnings. The judge found that the video

showed no evidence that the defendant had any intellectual

limitations, and showed that the defendant understood his

Miranda rights. The judge further found:
23

"Although the defendant did not appear to be highly
educated, he did appear to have a clear mind, a sound mind,
and to be fully aware of what was going on around him. He
appeared to understand every question that was asked of him
and responded appropriately to the questions. Although the
defendant had no prior experience with the criminal justice
system, there was nothing to indicate he did not understand
the Miranda rights as they were being read to him. In
addition, the defendant could be observed on the video as
he read along with the detective while he was being read
his rights. The police made no promises or inducements to
the defendant. His discussion with the police was calm and
cordial. His will was not overborne. He did not display
slurred speech, nor was he swaying or nodding off during
the interview. There is nothing on the recording to
indicate that the defendant was in any way affected by the
consumption of drugs or alcohol."

At the end of the interview, the defendant was allowed to leave.

Considering the totality of the circumstances, although the

police occasionally used questioning techniques designed to put

the defendant at ease or to let down his guard, they were not of

such quality or quantity as can be said to have affected the

voluntariness of his statement. See Lopez, 485 Mass. at 380;

Commonwealth v. Tremblay, 460 Mass. 199, 208 (2011) (deception

alone will not ordinarily result in suppression). This is not a

case of psychological coercion such as Commonwealth v. Monroe,

472 Mass. 461, 469 (2015), or where minimization is tied to an

implication of leniency, such as Commonwealth v. DiGiambattista,

442 Mass. 423, 435-436 (2004), or to an assurance that the

statements would not be used against the defendant, such as

Commonwealth v. Baye, 462 Mass. 246, 258 (2012).
24

4. Humane practice instruction. The defendant did not

request a humane practice instruction at trial, but now argues

that the trial judge (who was not the motion judge) erred by

failing to give one sua sponte. "If the defendant does not

raise the issue of voluntariness, the judge has a sua sponte

obligation to conduct a voir dire only if the voluntariness of

the statements is a live issue such that there is evidence of a

substantial claim of involuntariness." Commonwealth v.

Bohigian, 486 Mass. 209, 219-220 (2020), quoting Commonwealth v.

Brown 449 Mass. 747, 765 (2007). If the judge concludes that

there is such evidence and that the defendant's statements were

voluntary, then the judge must give a humane practice

instruction and submit the question of voluntariness to the

jury.

There is no bright-line test to determine whether

voluntariness was a live issue at trial. See Commonwealth v.

Pavao, 46 Mass. App. Ct. 271, 274-275 (1999) ("Cases which

address whether the voluntariness of a defendant's statements

was a live issue at trial consistently have failed to adopt any

per se rule that if certain factors are present, voluntariness

is a live issue"). For voluntariness to be considered a "live

issue," "substantial evidence of involuntariness [must be]

produced." Commonwealth v. Gallett, 481 Mass. 662, 686 (2019).
25

Here, the defendant moved in limine to exclude the

videotape on the ground that the defendant's admissions were

involuntary because he was not informed that he would be

charged. This was sufficient to make voluntariness a "live

issue" and, indeed, the judge himself understood that to be the

case. The judge took the steps necessary to conduct a voir dire

into the evidence bearing on voluntariness by asking for a copy

of the videotape so that "if there's any indication of

involuntariness, if that's a live issue, then it will have to be

submitted to the jury." The parties agreed to submit the

videotape after they worked out certain excisions. The

following day -- after the trial judge had viewed the videotape

-- the judge stated that the only concern he saw was with those

portions where the police expressed their personal opinions

regarding who was telling the truth. The judge then ruled on

certain excisions to the videotape based on that concern and

certain others. The judge did not make an explicit ruling

regarding the voluntariness of the defendant's statements. But,

in light of the trial judge's remark the preceding day that he

would review the videotape for that purpose and the judge's

statement that he noted no concern with the videotape apart from

the officers' expressions about who they believed, it is

reasonable to infer that the trial judge concluded that the

videotape showed no substantial evidence of involuntariness -- a
26

conclusion that is consistent with our own review of the

videotape.

Defense counsel indirectly continued to keep voluntariness

a live issue during the trial. When the Commonwealth sought to

introduce the videotape during the officer's testimony, the

defendant renewed his objection to its introduction on the same

grounds raised in his motion to suppress. In addition, defense

counsel's cross-examination of one of the officers who conducted

the interview focused on the fact that the defendant was not

told until the end of the interview that he would be charged,

and that he was told that consenting adults can agree to sexual

conduct. We understand these lines of examination to have been

designed to lay a foundation for an argument that the defendant

was lulled into making admissions he might otherwise not have

made. Along those same lines, defense counsel pointed out in

closing argument that the defendant did not admit to any of the

alleged conduct until the police reassured him that he would not

be in trouble, and he became more comfortable. That said, the

primary theme of the closing was that the victim was both

capable of consenting to sexual contact with the defendant and,

in fact, did so consent. And at no time did defense counsel

explicitly state or argue that the defendant's admissions to

police were not voluntarily made. Nor did the defendant ever

request a humane practice instruction.
27

Where, as here, voluntariness is a live issue at trial, and

"a judge determines that a defendant's inculpatory statements

are voluntary, 'the judge must instruct the jury that the

Commonwealth has the burden of proving beyond a reasonable doubt

that the statement was voluntary and that the jurors must

disregard the statement unless the Commonwealth has met its

burden.'" Commonwealth v. Richards, 485 Mass. 896, 912 (2020),

quoting Commonwealth v. Tavares, 385 Mass. 140, 152, cert.

denied 457 U.S. 1137 (1982). No such instruction was given in

this case, but we conclude that the error did not result in a

substantial risk of a miscarriage of justice. See Richards, 485

Mass. at 914. To begin with, the evidence of involuntariness

was not of the type or magnitude that our cases have found

results in a substantial risk of a miscarriage of justice from

the absence of a humane practice instruction. See Bohigian, 486

Mass. at 220 (defendant questioned while having head injury and

visible signs of head wound, lethargy, and being "not fine"

during questioning). Nor is this a case involving coercive

questioning or force; instead, the claim of involuntariness

rested on the notion that the defendant let his guard down after

he had been reassured by police and felt comfortable with them.

As we have already noted, the entire interview was conducted in

an informal manner with a cordial tone, the defendant was free

to leave at any time, he was properly advised of his Miranda
28

rights and stated he understood them, he appeared to be in no

distress, and he appeared to understand every question and to be

able to think through freely how to respond. Based on our own

review of the videotape of the defendant's interview by police,

we conclude that there is no serious risk that the jury, had it

received a humane practice instruction, "would have concluded

[from the videotape] that the Commonwealth failed to meet its

burden of proving that the defendant's statements to police were

voluntary and therefore disregarded them." Richards, 485 Mass.

at 914.

Conclusion. For the reasons set forth above, the

defendant's convictions are affirmed.

So ordered.