Criminal – Counsel request – Invocation

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Where a defendant filed a motion for new trial contending that certain statements used against him at trial were obtained in violation of his right to counsel, the trial judge’s decision to deny that motion must be vacated because the judge erred in applying a subjective rather than objective test to determine if the defendant’s request for counsel was clear and unambiguous.

“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. …

“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 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. …

“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. …

“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 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 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. …

“In conclusion, we vacate the order denying the defendant’s motion for a new trial and remand the matter for an evidentiary hearing and reconsideration consistent with this memorandum and order.”

Commonwealth v. Perez (Lawyers Weekly No. 81-127-24) (11 pages) (Docket No. 24-P-346) (Nov. 19, 2024).

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