Commonwealth v. Nicholas Perez.

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

24-P-346

COMMONWEALTH

vs.

NICHOLAS PEREZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The defendant, Nicholas Perez, appeals from an order

denying his new trial motion. After a 2017 jury trial the

defendant was convicted of one count of possession with intent

to distribute a class D substance, G. L. c. 94C, § 32C (a), and

one count of resisting arrest, G. L. c. 268, § 32B. The

defendant noticed a timely appeal from his convictions but, for

reasons that need not presently concern us, that appeal did not

proceed. In October 2023, following appointment of

postconviction counsel, the defendant filed a motion for new

trial, contending that he was deprived of effective assistance

of counsel because certain statements used against him at trial

were obtained in violation of his right to counsel under the
Fifth Amendment to the United States Constitution, as

interpreted by Miranda v. Arizona, 384 U.S. 436 (1966). That

motion was denied and the defendant noticed the appeal now

before us. Because it appears that the motion judge, who also

was the trial judge, erred in applying a subjective rather than

objective test to determine if the defendant's request for

counsel was clear and unambiguous, we vacate the order denying

the defendant's motion for a new trial and remand for an

evidentiary hearing and reconsideration consistent with this

memorandum and order.1

1. Factual Background. Around 9:55 P.M. on July 22, 2014,

Worcester Police Officers Ignacio Garcia and Thomas Duffy were

in an unmarked cruiser in an apartment complex looking for the

defendant. The officers were dressed in plain clothes, wearing

black tactical vests with the word "Police" displayed on the

front, and each had a tool belt carrying a firearm, handcuffs,

and baton.

The officers saw the defendant in a crowd of eight to ten

other men. As they approached the group, the defendant stood up

and they ordered the defendant to show his hands, informing him

that he was under arrest. The defendant sprinted to the

1 In light of the present disposition, and to the extent the
defendant's direct appeal from his convictions is before us, we
need not address it.

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alleyway, holding his waistband. The police officers chased the

defendant, yelling at him to "stop" and telling him that he was

under arrest. After a short chase, Officer Garcia caught up to

the defendant and tackled him to the ground. Officer Garcia

attempted to handcuff the defendant, but the defendant's hands

were under his body. When Officer Garcia tried to grab hold of

his arm, the defendant tensed up and pulled his arm away.

Officer Garcia repeatedly instructed the defendant to stop

resisting arrest and to put his hands behind his back. Despite

these commands, the defendant continued to flail and toss and

turn. Eventually, Officers Garcia and Duffy were able to

control one of the defendant's arms and they placed him in

handcuffs. A search of the defendant revealed three small

glassine baggies and two larger baggies of marijuana and $381

located in the defendant's pocket.

The defendant was transported to the police station where

Detectives Elias Baez and Joseph Essex escorted him into an

interview room and informed him that the interview would be

audio and video recorded. After the defendant entered the

interview room, and prior to receiving his Miranda warnings, he

asked, "Can I call my lawyer, my dad, please." Neither

detective responded to this request. Detective Essex then

directed the defendant where to sit down. Detective Baez

informed the defendant of his statutory right to use the

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telephone "to communicate with family or friends or to arrange

for bail or to contact an attorney." The defendant said he

understood, but made no further request. Detective Baez then

read the defendant his Miranda warnings and asked the defendant

if he wanted to waive his rights and speak to the detectives.

The defendant agreed and thereafter provided incriminatory

statements in which he admitted to selling "weed" and that he

was aware that there was an outstanding warrant for his arrest.

2. Procedural Background. The defendant's counsel did not

file a motion to suppress his statements but raised the issue in

a motion in limine. At trial, the judge raised the issue about

the admissibility of the defendant's statements at sidebar.

Trial counsel explained that he did not file a motion to

suppress because, while the defendant had asked for an attorney,

he was then read his Miranda rights and voluntarily spoke to the

police. The defendant's statements were admitted into evidence.

During cross-examination, Detective Baez acknowledged that

the transcript of the recorded interview confirmed that, upon

entering the interview room, the defendant did in fact ask to

speak to his attorney. Detective Baez denied ignoring the

defendant's request for counsel, testifying at first that he did

not hear the defendant invoke his right to counsel and later

testifying that "I didn't hear -- maybe I didn't hear." But,

Detective Baez testified, "I advised him of his Miranda rights.

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So if he wanted an attorney at that point, he could have asked

for an attorney."

The judge denied the defendant's motion for a new trial

without an evidentiary hearing. In his decision, the judge

found that the recorded interview supported "the inference that

Detective Baez did not hear the defendant ask if he could call

his lawyer or dad as the defendant was being led into the

interview room." The judge concluded that the defendant waived

his Miranda rights and never again inquired about an attorney.

The judge further concluded that trial counsel was not

ineffective because a motion to suppress the statement was not

likely to be granted and that trial counsel made a tactical

decision regarding the statements.

3. Discussion. "The trial judge upon motion in writing

may grant a new trial at any time if it appears that justice may

not have been done." Mass. R. Crim. P. 30 (b), as appearing in

435 Mass. 1501 (2001). We review the denial of a motion for a

new trial for an abuse of discretion or clear error of law.

Commonwealth v. Sorenson, 98 Mass. App. Ct. 789, 791 (2020),

cert. denied, 142 S. Ct. 107 (2021). "We afford particular

deference to a decision on a motion for a new trial based on

claims of ineffective assistance where the motion judge was, as

here, the trial judge." Id., quoting Commonwealth v. Diaz-

Perez, 484 Mass. 69, 73 (2020). See Commonwealth v. Nieves, 429

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Mass. 763, 770 (1999) (judge's decision to grant new trial is

given great deference and it will not be reversed unless "it is

manifestly unjust or unless the trial was infected with

prejudicial constitutional error").

To the extent the judge's findings of fact were based on

documentary evidence such as a video recording, "this court

stands in the same position as did the [motion] judge, and

reaches its own conclusion unaffected by the findings made by

the [motion] judge." Commonwealth v. Miller, 486 Mass. 78, 82

(2020), quoting Commonwealth v. Clarke, 461 Mass. 336, 341

(2012). However, where the judge makes credibility

determinations that are relevant to subsidiary findings of fact,

we afford those findings substantial deference. Miller, 486

Mass. at 82.

a. Ineffective assistance of counsel. The defendant

claims that he is entitled to a new trial because, by failing to

file a motion to suppress his statements, his lawyer provided

constitutionally deficient assistance. A claim of ineffective

assistance of counsel requires an examination of counsel's

performance to determine, first, "whether there has been serious

incompetency, inefficiency, or inattention of

counsel -- behavior of counsel falling measurably below that

which might be expected from an ordinary fallible lawyer," and,

if so, second, "whether it has likely deprived the defendant of

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an otherwise available, substantial ground of defence."

Sorenson, 98 Mass. App. Ct. at 791, quoting Commonwealth v.

Saferian, 366 Mass. 89, 96 (1974). "[I]n order to prevail on an

ineffective assistance of counsel claim on the ground of failing

to file a motion to suppress, the defendant has to demonstrate a

likelihood that the motion to suppress would have been

successful." Commonwealth v. Comita, 441 Mass. 86, 89 (2004).

In other words, it is not ineffective assistance of counsel to

fail to file a motion to suppress if it has only minimal chance

of success. Id. at 90-91.

b. Invocation of right to counsel. During a custodial

interrogation, if an accused requests counsel, "the

interrogation must cease until an attorney is present." Edwards

v. Arizona, 451 U.S. 477, 481 (1981) (quotation omitted). A

defendant's request for counsel must be "scrupulously honored"

by the police. Commonwealth v. Gonzalez, 487 Mass. 661, 670-671

(2021) (quotation omitted). See Miller, 486 Mass. at 88. The

defendant must be clear and unequivocal in the request, "such

'that a reasonable police officer in the circumstances would

understand the statement to be a request for an attorney.'"

Commonwealth v. Molina, 81 Mass. App. Ct. 855, 866 (2012), S.C.,

467 Mass. 65 (2014), quoting Commonwealth v. Hoyt, 461 Mass.

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143, 150 (2011).2 The defendant does not need to make repeated

requests to speak to an attorney; if the defendant clearly and

unambiguously asks to speak to an attorney, police must

immediately stop questioning. However, the mere mention or

reference to an attorney does not require police to cease

questioning. See Commonwealth v. Dubois, 451 Mass. 20, 24-26

(2008).

Whether a person has invoked his right to counsel is an

objective test. In other words, the question that must be

answered is whether the request for counsel is clear and

unambiguous such that a reasonable police officer in the

circumstances would understand the statement to be a request for

an attorney. See Davis, 512 U.S. at 459.

We acknowledge that this case involves an unusual set of

circumstances. The parties have not cited, nor have we found,

any case law in Massachusetts addressing this specific issue.

Generally, whether a request for an attorney is clear and

unequivocal focuses on the actual words used by the suspect.

This is not the situation here, as the videotape recording

2 Even if the statement requesting counsel could be viewed
as unclear or ambiguous, the police must cease interrogation but
are allowed to clarify the defendant's intent. "After such an
inquiry to clarify whether a suspect has indeed requested an
attorney, nothing further should be asked unless the suspect
responds to the question in the negative." Commonwealth v.
Santos, 463 Mass. 273, 286 (2012).

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establishes that the defendant did ask to call his attorney.

However, the detective did not acknowledge the defendant's

request and testified at trial that he did not hear the

defendant. The question then is whether the defendant's

invocation of his right to counsel can be considered clear and

unequivocal when the request is made to a police officer who did

not hear the request.

In denying the motion for a new trial, the judge applied

what appears to be a subjective test, and he appears to have

focused his inquiry on whether Detective Baez did in fact hear

the defendant ask for an attorney. While the judge did not make

specific credibility determinations, he did find that the

reasonable inference supported the conclusion that Detective

Baez did not hear the defendant's request for an attorney. The

judge then went on to analyze whether the defendant's waiver was

knowing and voluntary, concluding that it was.

The question that must be determined is whether the

defendant's invocation of his right to counsel was clear and

unequivocal if the police officer does not hear the request.

However, the resolution of that question does not rise or fall

solely upon a credibility determination of the officer claiming

not to hear the request. The proper focus is not whether

Detective Baez heard the defendant's request for an attorney,

but rather whether, in light of all of the circumstances, a

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reasonable officer would have heard the defendant's request. In

other words, it is an objective standard, rather than a

subjective one, that applies in these circumstances. In making

this determination, the videotape evidence certainly needs to be

considered, but the question that must be resolved is not simply

what can now be heard on the video recording, but whether a

reasonable officer in these circumstances would have heard an

invocation of the right to counsel. Also, the testimony of the

officers present and the defendant (if he chooses to testify)

will, of course, be relevant to resolving the issue.

Finally, we add that "[a] 'reasonable officer' is one with

ordinary hearing abilities who has taken steps to ensure that

clear communication can occur between the officer and the

suspect. Further, the reasonable officer is attentive to the

suspect's answers to questions." State v. Chavarria-Cruz, 784

N.W.2d 355, 363 (Minn. 2010). See Cox v. Commonwealth, 641

S.W.3d 101, 117-122 (Ky. 2022). This analysis requires a

consideration of several factors including, but not limited to,

the actual words used by the defendant, the volume of the

defendant's statement, the layout of the room and positioning of

the parties, and the manner in which it was made.

In conclusion, we vacate the order denying the defendant's

motion for a new trial and remand the matter for an evidentiary

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hearing and reconsideration consistent with this memorandum and

order.

So ordered.

By the Court (Meade, Walsh &
Smyth, JJ.3),

Clerk

Entered: November 19, 2024.

3 The panelists are listed in order of seniority.

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