Commonwealth v. Abdallah M. Balla.

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-1049

COMMONWEALTH

vs.

ABDALLAH M. BALLA.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant, Abdallah M. Balla, was

convicted of one count of indecent assault and battery on a

child under the age of fourteen, G. L. c. 265, § 13B, and one

count of indecent assault and battery on a person aged fourteen

or over, G. L. c. 265, § 13H. On appeal, he claims error in the

order denying his motion to suppress his statements and

challenges the sufficiency of the evidence to convict him of

indecent assault and battery on a child under fourteen. Taking

each claim in turn, we affirm.

Discussion. 1. Motion to suppress. "In reviewing a

ruling on a motion to suppress, we accept the judge's subsidiary

findings of fact absent clear error 'but conduct an independent
review of his ultimate findings and conclusions of law.'"

Commonwealth v. Fisher, 492 Mass. 823, 837-838 (2023), quoting

Commonwealth v. Medina, 485 Mass. 296, 299-300 (2020). "The

determination of the weight and credibility of the testimony is

the function and responsibility of the judge who saw and heard

the witnesses, and not of this court." Commonwealth v.

Gonzalez, 487 Mass. 661, 668 (2021), quoting Commonwealth v.

Neves, 474 Mass. 355, 360 (2016). "Our appellate function

requires that we make our own independent determination on the

correctness of the judge's application of the constitutional

principles to the facts as found." Commonwealth v. Earl, 102

Mass. App. Ct. 664, 668 (2023), quoting Commonwealth v. Groome,

435 Mass. 201, 211 (2001).

At an evidentiary hearing on the defendant's motion to

suppress, the judge heard testimony from the defendant's brother

and one of the detectives. The judge also reviewed an audio

recording of the defendant's interview. Ultimately, the judge

denied the motion on the grounds that the interview was not

custodial and that the defendant's statements were voluntary.

Having considered the record, we conclude that there was no

error in the judge's findings of fact, and, accordingly, we will

not disturb them. The relevant facts are as follows.

In April 2019, a G. L. c. 119, § 51A report was filed with

the Department of Children and Families (department) alleging

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that the defendant had sexually abused the victim. Two Boston

police detectives, Michael Condon and Joshua Cummings, went to

what they believed was the defendant's home to speak with him.

They were accompanied by two members of the department.

Unbeknownst to the detectives, the defendant was no longer

living with his family at that address. His brother called the

defendant and told him that he needed to come over to the house,

and he arrived a short time later. On his arrival, the

defendant conversed in Arabic with his mother, who yelled at

him. Without prompting from the detectives, the defendant said,

in English, that he would answer their questions. The defendant

sat in a chair in the living room while the detectives stood on

either side of him, approximately three to five feet away. The

interview was audio recorded.

At the start of the interview, the detectives advised the

defendant of his Miranda rights.1 The defendant was hard of

hearing and at certain times the detectives asked follow-up

questions when the defendant's answers sounded unclear. The

detectives clarified the defendant's Miranda rights on multiple

occasions, and several times the defendant said that he

understood his rights. The detectives told the defendant he

could stop the questioning at any time, and he responded,

1 Miranda v. Arizona, 384 U.S. 436 (1966).

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"okay." The detectives asked whether the defendant understood

his rights and whether he wanted to speak to them without an

attorney present, to which he agreed. They then reiterated, "If

you change your mind at some point . . . you feel uncomfortable,

or you don't want to talk anymore, you can stop and nothing is

going to happen to you for exercising that right. Do you

understand all that?" The defendant replied, "Yes."

The defendant made several inculpatory statements during

the interview. He admitted when he lived in Maine that he had

put his penis in the victim's mouth and that he had touched her

chest with his hand when they lived in Boston. He admitted he

had tried to kiss the victim and that something "bad" had

occurred in Maine in which he forced the victim to do something

she did not want to do. Toward the end of the interview, the

defendant asked, "Is this information gonna be like, between us

four, five?" He said it is "too embarrassing" and asked, "What

is gonna happen to me?" The defendant was advised that he was

being placed under arrest and was transported to the police

station for booking.

We now independently apply the law to the facts as the

judge found them to determine whether the defendant's statement

was elicited through custodial interrogation or was involuntary.

a. Custody. "Miranda warnings are only necessary for

'custodial interrogations.'" Commonwealth v. Kirwan, 448 Mass.

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304, 309 (2007), quoting Commonwealth v. Jung, 420 Mass. 675,

688 (1995). Four factors are considered in determining whether

a person is in custody:

"(1) [T]he place of the interrogation; (2) whether the
officers have conveyed to the person being questioned any
belief or opinion that that person is a suspect; (3) the
nature of the interrogation, including whether the
interview was aggressive or, instead, informal and
influenced in its contours by the person being interviewed;
and (4) whether, at the time the incriminating statement
was made, the person was free to end the interview by
leaving the locus of the interrogation or by asking the
interrogator to leave, as evidenced by whether the
interview terminated with an arrest."

Groome, 435 Mass. at 211-212. The last factor has been refined

to consider "whether an officer has, through words or conduct,

objectively communicated that the officer would use his or her

police power to coerce [the person being questioned] to stay."

Commonwealth v. Matta, 483 Mass. 357, 362 (2019). Further,

"[c]ustody must be determined based on how a reasonable person

in the suspect's situation would perceive his circumstances, not

on the subjective views harbored by either the interrogating

officers or the person being questioned" (quotation and citation

omitted). Commonwealth v. Medina, 485 Mass. 296, 303 (2020).

"The defendant bears the burden to establish the custodial

nature of his or her encounter with police." Id. at 300, citing

Commonwealth v. Larkin, 429 Mass. 426, 432 (1999). Applying the

Groome factors, the judge concluded that the interview of the

defendant was not custodial interrogation. We agree.

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The first Groome factor, the place of the interrogation,

weighs against a finding of custody. The defendant's brother

summoned him to the home after the detectives requested to talk

to him. The defendant was interviewed in his family's living

room, in a home where he used to live. See Medina, 485 Mass. at

302 ("[Q]uestioning [in a familiar setting] tends to be

significantly less intimidating than questioning in unfamiliar

locations" [citation omitted]). During the questioning, the

defendant's brother attempted to enter the living room and the

detectives motioned him away. There was no evidence that the

defendant perceived his brother attempting to enter the room.

The detectives did not otherwise restrict the defendant's

movement, block his egress, or "dominate" the space. Id. See

Kirwan, 448 Mass. at 310-311 (no custody where means of egress

not blocked). Cf. Commonwealth v. Coleman, 49 Mass. App. Ct.

150, 154 (2000) (finding coercion with three officers in small

room blocking exit). The detectives specifically told the

defendant more than once that he was free to end the interview,

which suggests he was free to leave the location. Overall, the

environment was "far removed from the incommunicado

interrogation of individuals in a police-dominated atmosphere

for which the Miranda protections were tailored" (citation

omitted). Medina, supra.

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The second Groome factor weighs in favor of a finding of

custody. The defendant was plainly a suspect. While the

detectives did not specifically tell the defendant that he was a

suspect, requesting that he come to the residence, providing him

with Miranda warnings, and then questioning him about a sexual

assault would have conveyed his status as a suspect to

reasonable a person in his position.

The third Groome factor weighs against a finding of

custody. The detectives' questions were "investigatory rather

than accusatory." See Medina, 485 Mass. at 303. The interview

lasted a total of thirteen minutes. The defendant volunteered

to answer the detectives' questions. The detectives did not

raise their voices or shout at the defendant. See Commonwealth

v. Sneed, 440 Mass. 216, 221 (2003) (lack of shouting weighed

against finding of custody).

The final Groome factor, as clarified by Matta, weighs

against a finding of custody. The interview concluded with the

arrest of the defendant, but, without more, an arrest after a

suspect makes an incriminating statement does not transform an

interview into a custodial interrogation. See Commonwealth v.

Cawthron, 479 Mass. 612, 622 (2018). The judge found that there

was no evidence of any act or statement from either detective

during the interview that would have communicated to the

defendant that he would not be free to leave at the end of the

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interview. In fact, the detectives explained multiple times

that the defendant was free to terminate the interview at any

time.

In light of all the circumstances, we agree with the motion

judge that the defendant failed to establish that he was in

custody at the time he made the incriminating statements at

issue. See Medina, 485 Mass. at 301-302. Accordingly, the

detectives were not required to inform him of his Miranda

rights, and the validity of his waiver is not at issue. See

Kirwan, 448 Mass. at 309.

b. Voluntariness. Due process requires a separate inquiry

into the voluntariness of a defendant's inculpatory statements.

See Commonwealth v. Weaver, 474 Mass. 787, 802 (2016), aff'd by

Weaver v. Massachusetts, 582 U.S. 286 (2017), citing

Commonwealth v. Siny Van Tran, 460 Mass. 535, 559 (2011). "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

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

emotional stability, experience with and in the criminal justice

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system, [and] physical and mental condition" (citation omitted).

Id. "[T]he Commonwealth must prove beyond a reasonable doubt

that . . . the will of the defendant was [not] overborne, but

rather that the statement was the result of a free and voluntary

act." Commonwealth v. Welch, 487 Mass. 425, 438 (2021), quoting

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

In the totality of the circumstances, including our own

independent review of the audio recording, we see no error in

the judge's conclusion that the Commonwealth proved beyond a

reasonable doubt that the defendant's will was not overborne.

The defendant came to the interview willingly and offered to

answer the detectives' questions unprompted. In support of his

position that his statements were not voluntary, the defendant

offered expert testimony at the motion to suppress. The expert

opined that the defendant spoke English at a "low-intermediate"

level. The judge nevertheless found that the defendant

understood the detectives' questions and responded in English

without any apparent difficulty.2 The defendant had consumed

marijuana earlier in the day, which the judge appropriately

considered and found that it did not interfere with his ability

to communicate rationally with the detectives. "[A]n otherwise

voluntary act is not necessarily rendered involuntary simply

2The motion judge determines the weight and credibility of
witness testimony. See Gonzalez, 487 Mass. at 668.

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because an individual has been drinking or using drugs"

(quotation and citation omitted). Commonwealth v. Weidman, 485

Mass. 679, 688 (2020). The defendant's motion to suppress the

statements was properly denied.

2. Sufficiency of the evidence. The defendant moved for

required findings of not guilty at the close of the

Commonwealth's case and at the close of the evidence. Both

motions were denied. In these circumstances, "[w]e [first]

consider the state of the evidence at the close of the

Commonwealth's case to determine . . . whether the Commonwealth

[had] presented sufficient evidence of the defendant's guilt to

submit the case to the jury" (citations omitted). Commonwealth

v. Alden, 93 Mass. App. Ct. 438, 444 (2018), cert. denied, 139

S. Ct. 2010 (2019). We evaluate the sufficiency of the

Commonwealth's evidence to determine "whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt" (citation omitted).

Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). "The

evidence may be direct or circumstantial, and we draw all

reasonable inferences in favor of the Commonwealth."

Commonwealth v. Watson, 487 Mass. 156, 162 (2021), quoting

Commonwealth v. Ayala, 481 Mass. 46, 51 (2018).

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The elements of indecent assault and battery on a child

under the age of fourteen under G. L. c. 265, § 13B, are "(1)

the child was not yet fourteen years old at the time of the

offense, (2) the defendant intentionally touched the child

without legal justification or excuse, and (3) the touching was

indecent" (citation omitted). Commonwealth v. Colon, 93 Mass.

App. Ct. 560, 562 (2018). The defendant only challenges the

first element and argues that the Commonwealth presented

insufficient evidence to prove beyond a reasonable doubt that

the victim was under the age of fourteen when the assault

occurred. We disagree.

The Commonwealth's evidence that the first element was

satisfied consisted primarily of the victim's trial testimony.

We recount trial facts in the light most favorable to the

Commonwealth. See Latimore, 378 Mass. at 676-677. A review of

the victim's trial testimony reveals that she never specifically

testified that she was a certain age when the assault occurred.

She did, however, testify that she was born in August 2004 and

that she moved to the address where the assault occurred in 2016

or 2017. She also testified that she moved back to Boston from

Maine after she finished school in 2017, before she started

eighth grade. She testified that the assault happened before

winter, between September and November. At trial, the

prosecutor asked the victim, "So when you were around [thirteen]

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years old, did anything happen in that living room?" The victim

adopted the Commonwealth's assertion that she was around

thirteen by answering the question. In response to the

Commonwealth's question about how old she was when she moved to

the first address, the victim responded that she was "probably

either [fifteen] or [fourteen]." She later clarified that she

would have been twelve years old.

The defendant argues that the victim's testimony that she

was fourteen or fifteen when she moved, along with the victim's

general lack of clarity regarding the timeframe of the assault,

is equivocal and tends equally to support that she was thirteen

or fourteen when the assault occurred. See Commonwealth v.

Rodriguez, 456 Mass. 578, 582 (2010) (evidence insufficient

where it tends equally to support either of two inconsistent

propositions). The victim's testimony that she was twelve or

thirteen, however, is direct evidence of her age at the time of

the assault. See Commonwealth v. Gonzalez Santos, 100 Mass.

App. Ct. 1, 3 (2021) ("The sworn testimony of the victim of a

sexual assault . . . is evidence of the facts asserted"). Even

if the victim's testimony (though later clarified) that she was

fourteen or fifteen could be considered inconsistent with the

testimony that she was twelve or thirteen, such inconsistencies

do not foreclose a guilty finding. Drawing the inferences in

the light most favorable to the Commonwealth, sufficient

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evidence existed for a rational jury to find that the victim was

under the age of fourteen when the assault occurred.

Judgments affirmed.

By the Court (Blake, C.J.,
Walsh & Hodgens, JJ.3),

Clerk

Entered: December 23, 2024.

3 The panelists are listed in order of seniority.

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