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

21-P-940

COMMONWEALTH

vs.

MICHAEL GONZALEZ.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a jury trial, the defendant was convicted of multiple

offenses relating to an armed robbery of his coworker's 

apartment. The defendant claims error in (1) the denial of his 

motion to suppress and (2) the admission of an unredacted audio

recording at trial. We affirm.

Background. We summarize the evidence presented at trial 

and in the record, reserving additional facts for later 

discussion. Around 1:40 A.M. on July 22, 2015, the defendant, 

with two other men, broke into his coworker's apartment and 

stole marijuana plants. Of the intruders, only the defendant 

had been to the apartment before and knew where the plants were 

located. While taking the plants from an upstairs bedroom, the 

defendant shot one of the apartment residents (the roommate) in 
2

the leg.1 The defendant then fled the apartment and disposed of 

the gun in the woods.

Later that morning, the defendant went to a hospital 

emergency room with abdominal pain from a bowel obstruction

related to his Crohn's disease. He was placed in a room within

the emergency room area and given medication (Dilaudid, 

oxycodone, and Benadryl) throughout the day.

Around 12:30 P.M. that same day, two police officers

arrived at the hospital to interview the defendant. They found

him awake and sitting up in his hospital bed. At some point 

during the first interview, which was not recorded, the 

defendant admitted that he had been involved in the robbery. 

At about 2:30 P.M., in the presence of both officers, the 

defendant consented to the audio recording of a second 

interview. During the recorded interview, the defendant 

recounted specific details about the robbery. He denied firing

the gun and admitted to disposing of it. He attempted to 

exculpate himself by stating, among other things, that he was 

pressured into participating in the robbery and "didn't want to 

be involved" and by asking if it would "help [his] case" to give 

the officers his clothes, which he said had no blood on them. 

At one point, a doctor arrived to tend to the defendant; the 

1 The gunshot wound ultimately resulted in the amputation of the 

roommate's leg.
3

officers paused the interview and left the room. The interview

ended when the defendant said he was "a little. . . high" and 

asked to end it.

The defendant remained hospitalized for five days. While 

in the hospital, he made several calls to one of the officers, 

and on July 27, he consented to another recorded interview.2 

Before this interview, the defendant was advised of, and waived, 

his Miranda rights. Police interviewed him for about two hours, 

at which point the defendant asked to stop the recording. After 

the recorder was turned off, the defendant confessed that he 

shot the victim. 

The defendant moved unsuccessfully to suppress all 

statements made to officers on July 22, as well as other 

evidence, as fruits of the poisonous tree.3 At the suppression 

2 Unlike the July 22 interviews, which took place before the 

defendant had been admitted to the hospital, the July 27 

interview was conducted in the defendant's private hospital 

room.

3 The defendant argued that he was not given Miranda warnings

until after the first unrecorded interview had begun, and that, 

due to his pain medication, his statements were not voluntarily 

made. He further argued that he was unable to freely, 

intelligently, and voluntarily waive his Miranda rights in the 

recorded interviews because he remained on painkillers. The 

admission of those statements, he argued, would violate his 

constitutional rights under the Fifth and Fourteenth Amendments 

to the United States Constitution and under art. 12 and art. 14

of the Massachusetts Declaration of Rights. The defendant also

argued that the police improperly seized his cell phone without 

a warrant in violation of the Fourth and Fourteenth Amendments, 

and arts. 12 and 14.
4

hearing, the motion judge heard testimony from the officers and 

from the defendant's expert witness, a board-certified physician

who had not examined the defendant and testified about the 

defendant's medications based on his medical records. 

The judge denied the motion to suppress, finding that the 

defendant was not in custody when questioned by police on July 

22 and that his statements were voluntary beyond a reasonable 

doubt. After the subsequent jury trial, the defendant was 

convicted of three counts of armed home invasion, G. L. c. 265,

§ 18C; two counts of armed robbery, G. L. c. 265, § 17; use of a 

firearm during a felony, G. L. c. 265, § 18B; assault and 

battery by means of a dangerous weapon causing serious bodily 

injury, G. L. c. 265, § 15A (c) (i); and assault by means of a 

dangerous weapon.4 This appeal followed. 

Discussion. 1. Denial of motion to suppress. "'In 

reviewing a ruling on a motion to suppress evidence, we accept 

the judge's subsidiary findings of fact absent clear error,' and 

we defer to the judge's determination of the weight and 

credibility to be given to oral testimony presented at a motion 

hearing." Commonwealth v. Hoose, 467 Mass. 395, 399 (2014), 

4 The defendant was convicted of assault by means of a dangerous 

weapon as a lesser included offense on an indictment charging

assault and battery by means of a dangerous weapon causing 

bodily injury, G. L. c. 265, § 15A (b). A nolle prosequi was 

entered prior to trial on an indictment charging unlawful 

possession of a shotgun.
5

quoting Commonwealth v. Contos, 435 Mass. 19, 32 (2001). 

"[F]indings drawn partly or wholly from testimonial evidence are 

accorded deference, and not set aside unless clearly erroneous," 

Commonwealth v. Tremblay, 480 Mass. 645, 655 (2018), and "[w]e 

conduct an independent review of the judge's application of 

constitutional principles to the facts found," Hoose, supra at 

399-400. 

a. Custody. The motion judge's conclusion that the 

defendant was not in custody when questioned by police on July 

22 was amply supported by testimony of percipient witnesses and 

by the recording. See Commonwealth v. Groome, 435 Mass. 201, 

211-212 (2002) (factors relevant to custody include [1] place of 

interrogation; [2] whether officers conveyed to defendant any 

belief or opinion that defendant is suspect; [3] nature of 

interrogation; and [4] whether, at time statement was made, 

defendant was free to end interview, as evidenced by whether 

interview terminated with arrest). The interview was neither 

aggressive nor intimidating. The defendant had full and private 

access to medical personnel, and although he was unable to 

leave, the restraint on his liberty was caused by his medical 

condition rather than by the police. The defendant was

expressly told he could stop the conversation at any time and

was neither arrested nor informed he was a suspect. See 

Commonwealth v. Welch, 487 Mass. 425, 435-437 (2021) (defendant 
6

not in custody where he was held at hospital by medical 

personnel for medical purposes rather than by law enforcement 

for investigatory purposes, medical staff could come freely in 

and out of hospital room, and he could have asked officers to 

leave at any time). A reasonable person in the defendant's 

position would not have experienced the environment as coercive, 

especially where the officers immediately honored his request to 

stop the interview. See Commonwealth v. Kirwan, 448 Mass. 304, 

312 (2007) (interrogation not custodial where "circumstances did 

not demonstrate an environment so dominated by the police that a 

reasonable person would perceive that his liberty was restrained 

to a degree associated with a formal arrest").5 

b. Voluntariness. Our review of the record further 

supports that the defendant's Miranda waiver, as well as his 

statements made to officers on July 22, were voluntary beyond a 

reasonable doubt. "A statement is voluntary if it is the 

expression of a 'rational intellect' in its formulation and a 

'free will' in its expression." Commonwealth v. Lujan, 93 Mass. 

App. Ct. 95, 100 (2018), quoting Commonwealth v. Miller, 68 

Mass. App. Ct. 835, 842 (2007). In assessing voluntariness, "we 

5 Given our conclusion that the defendant was not in custody 

on July 22, we need not address his remaining Miranda claims. 

See Commonwealth v. Libby, 472 Mass. 37, 47 (2015), quoting 

Commonwealth v. Baye, 462 Mass. 246, 253 (2012) ("[t]he 

requirements of [Miranda] are not triggered unless the 

interrogation is custodial"). 
7

examine 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. Selby, 

420 Mass. 656, 663 (1995). 

At the suppression hearing, the officers testified that 

they did not perceive the defendant to be under the influence at 

any point on July 22. Although the judge heard expert testimony

about the possible effects of the defendant's pain medication, 

the recording supports that the defendant was awake and alert 

throughout the interview, expressed no signs of intoxication or 

extreme pain, and willingly gave detailed narrative responses to 

the officers' questions. See Commonwealth v. Richards, 485 

Mass. 896, 909-910 (2020) (effects of medication did not render 

statements involuntary where statements were rational and 

appropriate). Where the evidence supported the officers' 

testimony, the judge was free to discredit the expert's

testimony as inconsistent with the evidence, especially given 

the expert's admission that he lacked personal knowledge of the 

degree to which the medication affected the defendant. See 

Commonwealth v. Tolan, 453 Mass. 634, 644 (2009) (motion judge 

free to discredit testimony that is unsupported by evidence). 

Despite the defendant's being hospitalized and treated with pain 

medication, the recording reflects a defendant who was
8

articulate, aware of his immediate surroundings, and coherent 

enough to offer exculpatory statements during the interview.

See Commonwealth v. Sneed, 440 Mass. 216, 222 (2003) 

(exculpatory statements supported finding defendant's statements 

voluntary). We see no error in the judge's conclusion, which 

was amply supported by the record and consistent with his 

decision to credit the officers' testimony. 

2. July 27 recorded interview. Before the motion judge, 

the defendant conceded the voluntariness of his recorded 

statements made on July 27 and challenged the recording only 

insofar as it constituted fruit of the poisonous tree.6 At 

trial, the defendant expressly allowed the jury to hear the 

unredacted recording in its entirety, declining a limiting 

instruction and reiterating his lack of objection when the 

recordings were introduced in evidence.

We are unpersuaded by the defendant's contention that his 

statements on July 27 were the involuntary product of police 

coercion. "[T]he issue of voluntariness turns on 'all the 

surrounding circumstances -- both the characteristics of the 

accused and the details of the interrogation'" (citation 

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

6 The defendant argues for the first time on appeal that the 

interview was coercive and that its unredacted admission at 

trial was error because it contained inadmissible evidence that 

was highly prejudicial.
9

Viewing the July 27 interview in context, the defendant

initiated the contact that led to the interview, received and 

waived his Miranda rights, and was awake, alert, and admittedly 

"clear-headed" enough for questioning. The officers immediately 

honored his request to stop recording. See Commonwealth v. 

Morales, 461 Mass. 765, 777 (2012) (defendant's will not 

overborne where he willingly responded to questions without 

hesitation, answered clearly and intelligently, had opportunity 

to rest between questioning, was afforded his Miranda rights, 

and there was no evidence of coercive conduct by police). The 

tone of the interview was predominantly conversational, and the 

questions asked by officers were justified by physical evidence, 

victims' accounts, and the inconsistencies in the defendant's 

narrative. See Commonwealth v. Molina, 467 Mass. 65, 76-77

(2014) (statements voluntary despite aggressive tone of 

interrogation, where officers did not engage in deception and 

defendant voluntarily came to station and appeared sober, alert, 

oriented, and lucid throughout interview); Commonwealth v.

Johnson, 463 Mass. 95, 105 & n.10 (2012) (police did not 

improperly imply that they had evidence they did not when they 

asked if there was "any reason" they might find defendant's 

fingerprints on evidence).

The judge also did not err in admitting the unredacted 

recording, which the defendant agreed to. We review to 
10

determine whether there was error, and if so, whether the error 

created a substantial risk of a miscarriage of justice. See

Commonwealth v. AdonSoto, 475 Mass. 497, 504 (2016). The 

unredacted recording contained opinions and accusations of the 

interviewing officers, as well as repeated denials by the 

defendant. While such evidence may not be offered to prove the 

defendant's guilt, it may be admissible for some other purpose, 

such as to show voluntariness of the defendant's statements or 

to call into question the conduct of the police. See 

Commonwealth v. Cruz, 373 Mass. 676, 692 (1977). 

Throughout trial, the defendant's primary theory of defense 

was that he did not commit the crime, and if he did, it was 

under duress. The defendant maintained that his statements to 

officers were involuntarily made, and in his closing argument, 

he urged the jury to consider his statements in light of his 

medical condition at the time. The defendant's repeated, 

recorded denials were consistent with his theory of defense, and 

his reference to the recording in his closing argument supports 

that it was admitted as part of a trial strategy. Commonwealth

v. Adams, 434 Mass. 805, 813-814 (2001) (fact that challenged 

evidence was part of trial strategy weighed heavily in 

determining its prejudicial effect). The opinions and 

accusations of the interviewing officers "were highly relevant 

to the issue of voluntariness," an issue raised by the defendant
11

and referenced in his closing argument. Cruz, 373 Mass. at 692. 

Where the evidence was not objected to and was used as part of 

an apparent defense strategy, and where the other evidence of 

the defendant's guilt was substantial, we see no error in the 

admission of the challenged recording. 

Judgments affirmed.

By the Court (Massing, 

Singh & Hershfang, JJ.7),

Clerk

Entered: February 8, 2023.

7 The panelists are listed in order of seniority.