Commonwealth v. Mark Barry.

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

23-P-589

COMMONWEALTH

vs.

MARK BARRY.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In 2013, the defendant pleaded guilty to two counts of

possession of child pornography. In 2015, he filed a motion to

withdraw his guilty plea and for a new trial (later amended in

2017), alleging that his plea counsel was ineffective for

failing to file a motion to suppress evidence and statements and

that his plea was not knowing and voluntary because of his

mental health limitations.1 The motion judge, who was not the

1The 2017 motion, filed pursuant to Mass. R. Crim. P.
30 (b), as appearing in 435 Mass. 1501 (2001), was an amendment
to the one filed in 2015. In his amended motion, the defendant
asserted additional grounds to withdraw his plea, specifically,
that his cognitive processing issues and developmental delays
due to cerebral palsy prevented him from voluntarily consenting
to the interactions with police in 2012 and during his 2013 plea
colloquy.
plea judge, denied the defendant's motion without an evidentiary

hearing, and the defendant now appeals. We vacate and remand

for an evidentiary hearing on the defendant's amended motion.

Background. Although the Superior Court judge who accepted

the defendant's change of plea ordered an evidentiary hearing on

the defendant's motion to withdraw his guilty plea, the motion

judge subsequently assigned to the case proceeded without one.

The motion judge relied on grand jury testimony and police

reports for the facts recited in his decision, and therefore we

do as well.2 Like the motion judge, we did not see the witnesses

firsthand; nor was there an opportunity for cross-examination.

On August 9, 2012, an Amtrak "red cap" at South Station

observed the defendant surreptitiously taking pictures of an

eleven year old girl on his cell phone. The girl was wearing a

dress and sitting on a bench next to her parents. The red cap

walked behind the defendant to confirm that the image of the

girl was on the defendant's phone and, once confirmed, he

attempted to find a police officer. Unable to find a police

officer, the red cap alerted a uniformed Amtrak patrol officer

of the defendant's behavior. The red cap and Amtrak officer

2 We acknowledge that the grand jury minutes remain
impounded and discuss them only as necessary to resolve this
appeal.

2
approached the defendant, and the defendant attempted to quickly

walk away. The Amtrak officer told the defendant to stop.

At that time, another Amtrak officer approached the

defendant, resulting in the defendant being boxed in by the

Amtrak employees. One of the Amtrak officers asked the

defendant if he could hold the defendant's phone. The officer

asked for the phone to prevent the defendant from running away.

The defendant complied and gave the officer his phone. The

officer then asked the defendant if he would come with him to

the station services office; the defendant complied and followed

the officer. At no point during this interaction did the Amtrak

officers handcuff the defendant or place him under arrest. Once

in the office, an Amtrak officer contacted the Massachusetts Bay

Transportation Authority (MBTA) police department.

Before the MBTA police arrived, one of the Amtrak officers

asked the defendant if she could look at the photographs in his

phone; the defendant complied. The officer saw photographs of

the girl wearing a dress and could view the girl's underwear in

at least one of the photographs. When the Amtrak officers

questioned the defendant, he admitted to taking the photographs.

An MBTA detective arrived approximately fifteen minutes

later; the detective stated that she provided the defendant with

his Miranda warnings, though there was no signed record of that,

3
and questioned him. After the defendant admitted to

photographing the girl, the detective took him to transit police

headquarters for a recorded interview.3

At the outset of the interview, the defendant was reminded

that he was given his Miranda warnings at the South Station

Amtrak office. The detective read the defendant his Miranda

warnings a second time and asked the defendant to sign the form.

The detective then asked the defendant if he wanted to continue

to talk to the police. In response, the defendant said, "I

guess I'll talk, but I don't know," and asked if he was "allowed

to leave." He was told he could not leave, although he was also

told, "You're not under arrest though. I'm not arresting you

right now. But I'm just saying that I would rather talk to you

because some things are questionable." The defendant asked

again if he was under arrest, and was told the following:

"You're not under arrest right now, no. But I would
have to discuss it with my supervisor on whether or
not I would place you under arrest.

"Ultimately, what I would like to do is get consent
from you to look through this telephone, signed
consent because you see that this phone is frozen on a
picture right now. . . .

"I'm not going to look through the telephone, but I
can get a search warrant for the phone."

The detective continued,

3 We have the video recording and transcripts of that
interview.

4
"Even if you were arrested tonight, I need to find out
what's going on with you. Why these pictures are
being taken and what help we can get you. Does a
person who's taking pictures of young girls just need
to get locked up and do prison time, does that help
them? I don't know. I don't think that it does. So
do I need to talk to the DA and say hey, we need a
different avenue for this; we need to go down a
different avenue. This guy, obviously, needs some
help because he's got something going on.

. . .

"I don't want you to continue to talk to me if you're
saying that you're concerned about talking to me. I
would have to have you sign this form first saying
yes, you agree to talk to me. I have to protect you
and your rights. If you don't want to talk to me, you
don't have to talk to me. You don't have to talk to
us. You don't have to do that.

"But then, like I said, I would have to get a search
warrant for the telephone. We're going to look into
the telephone. We'll probably get a search warrant
for your apartment. Go back to your apartment and
look in your apartment and see what else is in there.
I mean because now do I have to be concerned that
there's pornography or pictures of small children in
your apartment. If you have a computer at your
apartment, do I have to worry that there's anything
there? Do I even have to worry that there's a small
child tied up somewhere in your apartment? I know it
sounds a little crazy, right, but see if I don't talk
to you, what am I to go off of? But if we can talk,
if we can [get] some dialogue going, if you can tell
me what's going on with you, what type of things that
you prefer, what fetish you have, if I can get a
better understanding of who you are, then I know what
I'm dealing with and I know what I have to do and what
I have to say to the DA, if the DA has to get involved
in something like this and we say where do we go from
here. Does that make sense to you?

. . .

5
"Do you think you want to talk to us and tell me
what's going on with you? Why you are taking pictures
like this of small kids? Because then I have a
concern like you said that you have some nieces; do I
have to be concerned that something is going to happen
to your nieces? And is it your sister or your brother
that have children?"

The defendant responded, "My brother." The detective

continued, "Your brother, okay. So you don't want your brother

concerned about the kids, do you?" The defendant said, "No."

The detective responded,

"You want to be able to have a relationship with those
kids and so how do we get past this where you would be
able to have a relationship with those children. I
think those are legitimate questions that I have for
you. But it's up to you whether or not you want to
talk about it. I don't want to force you into
anything.

"However, one way or another, even if you decide that
you don't want to talk to me, I'm going to leave this
office right now. I'm going to leave you here just
for a couple of minutes and I'm going to discuss it
with my supervisor about what we're going to do. I
mean I already know that if you don't want to consent
to a search of this telephone, we're still going to
get a search warrant for the telephone because of the
one picture because of the family. The family saw you
taking pictures of the girl underneath her skirt. The
family saw that and there is a picture there, right
Mark? I mean you know that it's there. So that's why
I want to be able to get past this, get past the
Miranda portion of it, if you agree to talk to us. If
not, we're going to decide what else we're going to do
if we do need to make an arrest, if we do have to
arrest you tonight. I do have to make that decision.

"I'm just saying to you at this point, I'm not going
to place handcuffs on you, but at some point tonight,
I may do that. I may not let you walk out of here
tonight."

6
The defendant replied, "I've never touched anyone in my

life." The detective said, "So this is saying that you agree to

talk with me?" The defendant responded, "Yes, yes," and then

signed the Miranda warnings form.

Shortly thereafter, the defendant's girlfriend called his

phone and before he answered, the detective told him, "You don't

have to tell her anything right now . . . you don't have to tell

her that you're at the police station." Ultimately during the

interrogation, the defendant consented to the search of his

phone, and in response to the interrogation, made incriminating

statements. The next morning, the defendant signed another

waiver of his Miranda rights and a waiver of his right to

arraignment after an officer told him falsely, "This is so you

know you're not going to be here all day." In response to

interrogation, the defendant again made incriminating

statements.

Ultimately, a search warrant was executed of the

defendant's cell phone and revealed two images of prepubescent

girls dressed in adult lingerie and posed provocatively with

underwear revealing part of their genital areas.

On May 8, 2013, the defendant pleaded guilty in Superior

Court to two counts of possession of child pornography, G. L.

7
c. 272, § 29C, first offense.4 On October 20, 2015, the

defendant filed a motion to withdraw his guilty plea and for a

new trial. Therein, he claimed that his counsel failed to file

motions to suppress evidence and statements.

Both the defendant and Commonwealth requested an

evidentiary hearing on the motion to withdraw the guilty plea.

On July 18, 2016, the plea judge ordered an evidentiary hearing

on the defendant's motion. However, the scheduling of the

hearing was stayed pending the defendant's amended motion, which

was docketed on July 20, 2017. In his amended motion, the

defendant asserted additional grounds to withdraw his plea,

specifically, that his cognitive processing issues and

developmental delays due to cerebral palsy prevented him from

voluntarily consenting to the interactions with police in 2012

and during his 2013 plea colloquy. In support, the defendant

submitted affidavits from his sister and a psychologist.

The plea judge also allowed the defendant's motions for

expert funds. Through discovery, the defendant obtained medical

records and a neuropsychological exam report. Notably, they

reflect that at around the age of fifty-five, the defendant

4 Pursuant to the plea agreement, the defendant's third
indictment, for photographing a nude or partially nude person,
G. L. c. 272, § 105, was dismissed and the counts for possession
of child pornography were reduced from subsequent offense counts
to first offense counts.

8
presented with a "substandard logical reasoning ability,"

similar to that of a nine year old child. A 2018 report

summarized the defendant to have an "impaired intellectual

ability . . . stemming from a medical issue, cerebral palsy."

His intelligence quotient (IQ) scores -- which have tested

between sixty-seven and ninety during his life –- have resulted

in "a severe learning disability that affects his ability to

integrate and organize his perceptual and emotional experience."

Prior to the evidentiary hearing, the case was assigned to

another judge (motion judge) and hearings were held. Defense

counsel informed the motion judge that he intended to call two

experts, a psychologist who would testify regarding the

defendant's cerebral palsy and another expert on police coercive

techniques used by the MBTA police. The motion judge requested

that the parties submit a filing detailing the grounds that

exist to withdraw the plea, including from any information

gleaned during discovery. The judge stated that after he

reviewed the filings, he "might hold a hearing." He went on,

"It might be evidentiary or not. It depends on what your filings

say. I'm not denying a hearing, but until I see the papers, I'm

not exactly sure what kind of a hearing we need."

9
On April 14, 2023, the motion judge denied the defendant's

motion without holding an evidentiary hearing. The defendant

timely appealed.

Discussion. Generally, we review a motion judge's decision

whether to hold an evidentiary hearing for an abuse of

discretion. See Commonwealth v. Denis, 442 Mass. 617, 628

(2004). Where, as here, however, the motion judge was not the

plea judge, and the motion judge only reviewed documentary

evidence, we review the denial of a motion for a new trial de

novo. See Commonwealth v. Mazza, 484 Mass. 539, 547 (2020).

See also Commonwealth v. Lykus, 451 Mass. 310, 326 (2008) (where

motion judge was not trial judge and took no evidence, review on

appeal is de novo).5

"Although a defendant's motion and affidavits need not

prove the issue raised, to be adequate they must at least

contain sufficient credible information to cast doubt on the

issue" (emphasis added; quotation and citation omitted).

5 We give deference to the plea judge who ordered the
evidentiary hearing. See Commonwealth v. Lastowski, 478 Mass.
572, 575 (2018). See also Commonwealth v. Sullivan, 435 Mass.
722, 733 (2002) (awarding substantial deference to trial judge
on issue whether to hold evidentiary hearing). Here, the first
judge, who had taken the defendant's plea, ordered an
evidentiary hearing on the defendant's claim for ineffective
assistance of counsel. As discussed infra, we agree that an
evidentiary hearing should have been ordered on the defendant's
motion (and amended motion) for a new trial.

10
Commonwealth v. Lys, 481 Mass. 1, 5 (2018). An evidentiary

hearing should be conducted "where a substantial issue is raised

and is supported by a substantial evidentiary showing."

Commonwealth v. Stewart, 383 Mass. 253, 260 (1981). See

Commonwealth v. Drayton, 473 Mass. 23, 36-38 (2015), S.C., 479

Mass. 479 (2018) (substantial issue raised regarding admission

of witness's affidavit that directly contradicted incriminating

testimony by purported eyewitness). "In determining whether a

motion for a new trial warrants an evidentiary hearing, both the

seriousness of the issue itself and the adequacy of the

defendant's showing on that issue must be considered." Denis,

442 Mass. at 628.

A motion for new trial alleging ineffective assistance of

counsel "raises 'an issue of constitutional importance' that

readily qualifies as a serious issue" depending on the adequacy

of the showing with respect to that issue. Denis, 442 Mass. at

629, quoting Commonwealth v. Licata, 412 Mass. 654, 661 (1992).

Here, the defendant's motion for a new trial adequately raised

substantial issues regarding ineffective assistance of counsel.

The defendant's motion for new trial asserts two grounds:

(1) his counsel was ineffective for failing to file a motion to

suppress both the photographs on his cell phone and the

11
statements he made while in custody,6 and (2) his plea was not

knowing or intelligent because of his mental health limitations.

1. Failure to file a motion to suppress. When a defendant

asserts a motion for a new trial based on the failure of counsel

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, 91 (2004).

"We analyze that likelihood objectively, 'given what [the

attorney] knew or should have known at each relevant moment in

time,' and without 'the advantage of hindsight'" (citations

omitted). Commonwealth v. Gosselin, 486 Mass. 256, 260 (2020).

The defendant argues that there were three different

reasons a motion to suppress likely would have succeeded:

(1) the defendant was seized without reasonable suspicion or

probable cause; (2) the waiver of his Miranda rights was

invalid; and (3) the statements and consent to search were

involuntary as a matter of due process. His argument is that

6 The motion judge concluded that the defendant's counsel
strategically chose to forgo filing a motion to suppress because
the defendant was facing a five-year mandatory minimum sentence
for the two child pornography counts as charged. However,
counsel claimed that she did not file a motion to suppress not
as a strategic matter or because she thought it lacked merit,
but because she "thought that the court would not allow the
motion."

12
the defendant's statements and consent to search his phone were

fruits of any and all of these errors.

a. Seizure of the defendant. "A person is seized by the

police only when, in light of all the attending circumstances, a

reasonable person in that situation would not feel free to

leave." Commonwealth v. DePeiza, 449 Mass. 367, 369 (2007).

"[A]n investigatory stop is constitutionally justified if it is

conducted on reasonable suspicion that the person seized has

committed, is committing, or is about to commit a crime." Id.

at 371. Such "suspicion must be grounded in 'specific,

articulable facts and reasonable inferences [drawn] therefrom'

rather than on a 'hunch.'" Id., quoting Commonwealth v. Scott,

440 Mass. 642, 646 (2004). "If an officer exceeds the scope of

an investigatory stop, the seizure becomes an arrest," requiring

probable cause to believe a crime has been committed.

Commonwealth v. Manha, 479 Mass. 44, 48 (2018). "Whether a stop

is a seizure, requiring reasonable suspicion, or an arrest,

requiring probable cause, depends upon the circumstances of each

case." Id.

"Whether an encounter between a law enforcement official

and a member of the public constitutes a noncoercive inquiry or

a constitutional seizure depends upon the facts of the

particular case." Commonwealth v. Matta, 483 Mass. 357, 363

13
(2019). For instance, "coercion must be objectively

communicated through the officer's words and actions for there

to be a seizure." Id. at 364. "[A]n initially consensual

encounter between a police officer and a citizen can be

transformed into a seizure . . . if the target of the inquiry

refuses to answer and the police take additional steps . . . to

obtain an answer" (quotations and citations omitted).

Commonwealth v. Barros, 435 Mass. 171, 174-175 (2001).

The Supreme Judicial Court reasoned in Barros, 435 Mass. at

172, that an officer's initial request of a defendant, "Hey you

. . . I want to speak with you" was not a seizure. See id. at

174. Whereas, the officer's second request, "Hey you. I wanna

talk to you. Come here," id. at 172, which was accompanied by

the officer stopping his cruiser, walking up to and pointing at

the defendant, "had a compulsory dimension to it that the first

request did not." Id. at 174. As such, the officer's second

request was "what a reasonable person would understand as a

command that would be enforced by the police power." Id. at

176. The court went on, "[e]vidence that the defendant did in

fact stop suggests that he believed, as would any reasonable

person, that he was not free to leave."7 Id.

7 As this court recently explained,

14
Here, one officer testified to the grand jury that as he

was walking toward the defendant the officer said, "Hey, just a

minute." In response, the defendant "looked at [the officer],

he looked away, and then he stopped."

The Amtrak officer's statement "Hey, just a minute" is

similar to the officer's first request in Barros, 435 Mass. at

172. The red cap, however, testified that the officer told the

defendant was told to stop. The red cap's testimony clearly

indicates a command to stop.8 This conflicting grand jury

testimony must be resolved by an evidentiary hearing.

The Amtrak officer then asked the defendant "if it was okay

that if [sic] I held on to his phone," explaining to the grand

jury that he asked for the phone "so [the defendant] wouldn't

"In the context of whether a police officer had 'seized'
the defendant, for which reasonable suspicion of criminal
conduct is required, the Supreme Judicial Court observed
that because civilians rarely feel 'free to leave' a police
encounter, the more pertinent question is whether an
officer has, through words or conduct, objectively
communicated that the officer would use his or her police
power to coerce that person to stay" (quotations and
citation omitted).

Commonwealth v. Earl, 102 Mass. App. Ct. 664, 670 n.4 (2023),
citing Matta, 483 Mass. at 360, 362.

Without hearing any evidence, the motion judge concluded
8

that all Amtrak police were not State actors and thus not
subject to constitutional restraints on searches and seizures.
Amtrak is an agency or instrumentality of the United States.
See Lebron v. National R.R. Passenger Corp., 513 U.S. 374, 394
(1995).

15
run away from [him]." Whether the officer's request for the

defendant's cell phone transformed this encounter to a seizure

also depends on the particular facts, necessitating an

evidentiary hearing. See Commonwealth v. Hilaire, 92 Mass. App.

Ct. 784, 790 (2018), quoting Commonwealth v. Greenberg, 34 Mass.

App. Ct. 197, 201-202 (1993) ("Whether one who hands his

property over to the police at their request voluntarily

consents, or merely acquiesces to a claim of lawful authority,

presents a question of fact"). See also Commonwealth v. Lopez,

451 Mass. 608, 611 (2008) ("Only when the officer, by means of

physical force or show of authority, has in some way restrained

the liberty of a citizen may we conclude that a 'seizure' has

occurred" [citation omitted]); Commonwealth v. Perry, 62 Mass.

App. Ct. 500, 502 (2004) (showing authority by "attempting to

block or control an individual's path, direction, or speed, or

commanding the individual to halt" may be considered a pursuit,

which, when "designed to effect a stop is no less intrusive than

a stop itself" [citations omitted]).

At the time the defendant was seized, either when he

stopped walking away from the officer or when the officer

obtained the defendant's cell phone, based on the record before

us, the officers lacked "specific, articulable facts" that the

defendant committed (or was going to commit) a crime. See

16
DePeiza, 449 Mass. at 371, quoting Commonwealth v. Scott, 440

Mass. 642, 646 (2004). The defendant was observed taking

photographs of a girl at the train station. Although his

behavior or posture may have been unusual,9 and upsetting, and

while his actions were certainly cause for concern, it is

undisputed that the girl who was the object of his photography

was clothed. It is not a crime to take a picture of a young

girl with clothes on. See G. L. c. 272, § 105, inserted by

St. 2008, c. 451, § 149 (criminalizing one who "willfully

photographs, videotapes or electronically surveils another

person who is nude or partially nude" [emphases added]);10 G. L.

c. 272, § 29C (vii) (criminalizing possession of photographs

depicting or portraying a child that is, among other things,

"depicted or portrayed in any pose, posture or setting involving

a lewd exhibition of the unclothed genitals, pubic area, [or]

buttocks" [emphasis added]). Moreover, the images viewed by the

red cap and the various officers prior to the forensic search of

the phone, to which the defendant ultimately consented that

night, depicted the girl's "whole body" and, the girl was

9 The red cap attendant described the defendant as "strange
looking," and said that the defendant appeared to be facing one
way, while pointing his camera in a different direction to
photograph the minor girl.

10We cite the version of the statute in effect at the time
of the defendant's arrest.

17
clothed. Likewise at least the record before us shows no

additional basis for probable cause by the time the defendant

was incontrovertibly in custody when the transit police took him

to headquarters and told him he could not leave.

Based solely on the record before us, the defendant's

behavior was not illegal given the plain language of the

statute. Nor is there anything in the record before us that

indicates that there was reasonable suspicion for the

defendant's seizure at any point in time prior to his responding

to the interrogation at the transit police headquarters.11

Nevertheless, the Commonwealth should have the opportunity to

present additional facts, if any, at an evidentiary hearing,

that might justify the seizure. See Commonwealth v. Santos, 95

Mass. App. Ct. 791, 798 (2019) ("In these circumstances, the

correct result on appeal is to decline to reach the merits of

the issue raised for the first time on appeal because it depends

on the development of facts not in the record before us"). See

also Commonwealth v. Brule, 98 Mass. App. Ct. 89, 92 (2020)

(record inadequate to review newly raised claim of whether

officer conducted unlawful search where circumstances of

patfrisk were not developed in trial court); Hilaire, 92 Mass.

11It was also not reasonable to think that the statute
covered clothed individuals when it clearly did not.

18
App. Ct. at 785 (eliciting facts at evidentiary hearing to

establish probable cause to stop defendant).12

b. Defendant's interrogation. The defendant's motion for

new trial also asserts that defense counsel was ineffective for

failing to move to suppress his statements given to the police

at the time of his interrogation. The defendant submits that he

was in custody and that his statements were given in violation

of Miranda, and that they, and the consent to search his phone,

12The Commonwealth asserts that there was also reasonable
suspicion at the time of the initial stop that the defendant was
guilty of "annoying and accosting a person of the opposite sex"
in violation of G. L. c. 272, § 53, as amended through St. 2009,
c. 27, § 98, on the basis that there were "specific and
articulable facts established that the defendant was taking
photographs of the eleven-year-old victim, while sitting 20 feet
away from, attempting to do so surreptitiously, and the victim
was so uncomfortable that she was crying, and her parents feared
he would post them online." This argument is wrong. The
statute requires an act that is not only offensive, but
disorderly. "'[D]isorderly' acts or language 'are those that
involve fighting or threatening, violent or tumultuous behavior,
or that create a hazardous or physically offensive condition for
no legitimate purpose of the actor, whether the resulting harm
is suffered in public by the public or in private by an
individual.'" Commonwealth v. Sullivan, 469 Mass. 621, 626
(2014), quoting Commonwealth v. Chou, 433 Mass. 229, 233 (2001).
"With respect to the creation of a 'physically offensive'
condition under G. L. c. 272, § 53, 'physical contact with a
victim's person is not necessary to render one's actions
physically offensive.' However, a defendant must create a
condition that would cause a reasonable person to fear imminent
physical harm." (Citations omitted.) Sullivan, supra at 627.
There is nothing in the record that amounts to a physically
offensive act here; the defendant was twenty feet away from the
family, trying not to be seen. Nor was there any threatening by
the defendant, who communicated nothing to anyone by his
conduct. Compare Chou, supra at 234.

19
were fruit of that poisonous tree. Among other things, whether

he was in custody involves unresolved questions of fact.

He argues that he was not, in fact, given Miranda warnings

by the detective in the office at South Station. Again, this,

at the least involves a question of fact. To the extent that

the defendant's reference to the "substantial coaxing from" the

MBTA detective prior to his signing the waiver of Miranda at the

police station is intended to challenge the validity or

voluntariness of that waiver, the issues are the same as those

described below with respect to the voluntariness of his

statements and consent at his interrogation at the transit

police headquarters, see infra.

The defendant argues that the statements and consent given

in that interrogation were involuntary in the constitutional

sense. 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." Commonwealth v. Raymond, 424 Mass. 382, 396 (1997), S.C.,

450 Mass. 729 (2008), quoting Commonwealth v. Selby, 420 Mass.

656, 663 (1995), S.C., 426 Mass. 168 (1997). Factors which can

be relevant to the determination of voluntariness include the

defendant's age, education, intelligence, emotional stability,

20
experience with the criminal justice system, and any discussion

of leniency or a deal by police or other promises or

inducements. See Commonwealth v. Mandile, 397 Mass. 410, 413

(1986). Although the interrogation tactic of minimization does

not compel a conclusion that a confession is involuntary, see

Commonwealth v. Harris, 468 Mass. 429, 436 (2014), it is

problematic, as implied assurances of leniency or "now or never"

propositions by officers can lead a judge to determine that a

confession was not freely and voluntarily made. See

Commonwealth v. Baye, 462 Mass. 246, 257 (2012). Finally, and

critically,

"[w]hile the promise of psychiatric help standing alone
will not invalidate a statement, it may if the help is
offered as a quid pro quo for the statement, or if it, in
the totality of circumstances, overbore the defendant's
free will, inducing in him a belief that help, rather than
punishment, would be forthcoming" (citation omitted).

Commonwealth v. Felice, 44 Mass. App. Ct. 709, 712 (1998).

Review of the video footage and transcript from the

defendant's interrogation may lead a motion judge to conclude

that the defendant's will was overborne. See Baye, 462 Mass.

255. The detective said that if the defendant spoke with her,

but only if he did so, she would talk to the district attorney

about going down a "different avenue" than criminal prosecution.

On the record we have, this appears to amount to an

impermissible quid pro quo, see Commonwealth v. Magee, 423 Mass.

21
381, 387-389 (1996), because the detective told the defendant

that if he spoke to her, she would work to see that the

defendant would "not be prosecuted and would not go to jail."

Felice, 44 Mass. App. Ct. at 714.

Nonetheless, as with the claim that there was no reasonable

suspicion or probable cause for the detention at the transit

police headquarters, the record is inadequate for us to decide

the issue, and we think the Commonwealth should have an

opportunity to present any relevant additional evidence it may

have to meet its burden of establishing voluntariness. See

Santos, 95 Mass. App. Ct. at 797-798.

Additionally, a motion judge, who hears evidence regarding

the defendant's mental health limitations could reasonably

conclude that the defendant's waiver of his Miranda rights was

not valid. Thus, again barring a conclusion by the judge that

suppression was required on any of these other grounds, an

evidentiary hearing regarding the defendant's mental health

limitations in consideration of what took place during the

defendant's interrogation is warranted.

c. Voluntariness of the defendant's plea. Lastly, we

address the defendant's assertion that his plea was not

voluntarily made as a matter of due process. Factual questions

also remain unanswered regarding the voluntariness of the

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defendant's plea. See Commonwealth v. Buckley, 478 Mass. 861,

875 (2018), quoting Commonwealth v. Harmond, 376 Mass. 557, 561

(1978) ("Voluntariness of consent 'is a question of fact to be

determined in the circumstances of each case'"). An evidentiary

hearing would produce information regarding whether the

defendant's plea was knowing, voluntarily, and intelligent in

light of his mental health limitations. The motion judge

reasoned, "Nothing in this case suggests that [the defendant's]

psychological condition prevented him, a man experienced in the

criminal justice system, from understanding his rights and

voluntarily waiving them." However, the motion judge did not

have any evidence before him regarding the defendant's

limitations because plea counsel did not address the defendant's

mental health limitations. The defendant planned to have his

expert testify at an evidentiary hearing to provide evidence

supplied in the affidavits.

Conclusion. We acknowledge that a judge has discretion in

deciding whether to hold an evidentiary hearing. See

Commonwealth v. Meggs, 30 Mass. App. Ct. 111, 114 (1991). A

judge also has discretion in deciding whether to discredit

affidavits submitted in support of a motion for a new trial.

Commonwealth v. Vaughn, 471 Mass. 398, 405 (2015). On this

record, we believe the defendant has raised sufficient credible

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and persuasive information, not dependent on an affidavit which

a judge could determine was self-serving, on the issue whether

his counsel was ineffective for failing to file a motion to

suppress. Compare Commonwealth v. Gilbert, 94 Mass. App. Ct.

168, 178 (2018).

We accordingly vacate the order denying the defendant's

amended motion to withdraw his guilty plea and for a new trial

and remand the matter to the Superior Court for proceedings

consistent with this memorandum and order.

So ordered.

By the Court (Rubin,
D'Angelo & Smyth, JJ.13),

Clerk

Entered: March 11, 2025.

13 The panelists are listed in order of seniority.

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