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21-P-916 Appeals Court

COMMONWEALTH vs. WILLIAM EARL.

No. 21-P-916.

Suffolk. December 9, 2022. – June 7, 2023.

Present: Rubin, Massing, & D'Angelo, JJ.

Homicide. Assault and Battery by Means of a Dangerous Weapon.

Practice, Criminal, Motion to suppress, Admissions and 

confessions, Voluntariness of confession, Harmless error.

Constitutional Law, Admissions and confessions, Harmless 

error, Identification. Evidence, Admissions and 

confessions, Identification, Authentication, Medical 

record. Error, Harmless. Identification.

Indictments found and returned in the Superior Court 

Department on February 12, 2014. 

Pretrial motions to suppress evidence were heard by Robert 

N. Tochka, J., and the cases were tried before Linda E. Giles, 

J.

Joanne T. Petito for the defendant.

Paul B. Linn, Assistant District Attorney, for the 

Commonwealth.

MASSING, J. A Superior Court jury convicted the defendant, 

William Earl, of murder in the second degree of Samuel Constant 
2

and of assault by means of a dangerous weapon, a knife, upon 

Faniesha Hunter. The jury heard evidence that minutes after the 

murder, the defendant confessed that he had just killed someone 

for "running his mouth." The defendant argues that his 

confession was the product of custodial interrogation because a 

special police officer chased, tackled, handcuffed, and pat 

frisked the defendant before questioning him, and that the 

confession should have been suppressed because he was not given 

Miranda warnings. We agree. Because evidence of the 

defendant's confession was not harmless beyond a reasonable 

doubt, we reverse the judgments. We also address the 

defendant's claims with respect to issues that are likely to 

recur in any new trial. 

Background. The evidence at trial showed that one evening 

in January 2014, Hunter returned from work to her apartment in 

the Georgetowne Homes complex, located in the Hyde Park section

of Boston. She found Constant, whom she was dating at the time, 

in her apartment with the defendant. Hunter did not know the 

defendant, and his behavior made her uneasy, so she gestured to

Constant to follow her into one of the bedrooms. The defendant

followed them into the room, where he pulled a knife from the 

waistband of his boxer shorts and lunged at Hunter. Constant 

intervened and began to struggle with the defendant, wrestling 

him back into the living room. While the defendant and Constant 
3

fought, Hunter went to the kitchen to look for something to use 

as a weapon. She grabbed the first thing she could find, a 

kitchen utensil, and used it to hit the defendant. The 

defendant swung his knife at her but missed, then stumbled out 

the open front door of the apartment, still struggling with 

Constant. A Georgetowne Homes maintenance supervisor noticed 

two men running; one of them, Constant, fell to the pavement,

face down, and the other ran off. Constant was breathing with 

difficulty and bleeding from his mouth and nose. The 

maintenance supervisor called 911 and attempted to perform

cardiopulmonary resuscitation. Hunter went outside and found 

Constant lying in the parking lot. 

Shortly thereafter, the defendant was apprehended nearby by 

Vincent Tranfaglia and Jean Thermitus, two uniformed security 

guards certified as special Boston police officers and employed 

by Longwood Public Safety, a private security company contracted 

to patrol Georgetowne Homes and the surrounding area. Thermitus 

saw the defendant running down the middle of Crown Point Drive 

in heavy traffic, knocking on the windshields of passing 

vehicles and attempting to stop them. As yet unaware of the

stabbing, Thermitus activated the lights of his marked vehicle, 

parked in the middle of the street, and approached the 

defendant, who was bleeding heavily from his ear. Upon seeing 

Thermitus, the defendant fled. Thermitus ran after him, tackled 
4

him from behind, placed him in handcuffs, and pat frisked him. 

Thermitus then asked the defendant, "[W]hat was going on, why he 

took off." The defendant responded, "I just killed somebody,"

and added, "If you walk straight ahead you will find something."

When Thermitus asked him "why," the defendant answered, 

"[B]ecause he was running his mouth."

Tranfaglia, who had arrived on the scene and helped 

Thermitus secure the defendant, requested help from the Boston 

police and medical assistance for the defendant. About this 

time, the maintenance supervisor approached, yelling and 

gesturing for Tranfaglia's attention. Tranfaglia followed the 

maintenance supervisor to an area where Constant was lying on 

the ground, cradled in Hunter's arms. Constant had been stabbed 

in the face, head, shoulder, and chest, and had no pulse. By 

the time emergency medical personnel arrived, Constant was dead. 

The defendant was transported to the emergency room at 

Brigham and Women's Hospital (hospital), where he was treated 

for lacerations to his head and neck. Members of the Boston 

police homicide unit, who had arrived at the crime scene, 

arranged for Hunter to be taken to the hospital for an 

identification procedure. As soon as Hunter entered the 

emergency unit, she identified the defendant from across the 

room. The defendant was arrested and taken from the hospital to 

the police station for questioning. In a videotaped (recorded)
5

interview, he claimed not to understand why he was under arrest 

and that he had been the victim of an attack.1

The day after the murder the police recovered a "KA-BAR"

brand folding knife near the murder scene. A metal fragment 

from the knife was found in one of Constant's fatal stab wounds, 

and deoxyribonucleic acid (DNA) analyses of blood found on the 

knife's blade and knife's handle were consistent with the DNA 

profiles of Constant and the defendant, respectively. The 

statistical probability of random matches was infinitesimally 

small. 

A letter the defendant wrote to Constant's mother from jail 

two years after the murder was admitted in evidence. In the 

letter, the defendant "apologize[d] about what happened to your 

son," claimed that "it was not [his] intention to murder your 

son," but that he was being attacked and the only way he could 

escape the apartment was "by assaulting your son and stabbing 

him twice in his chest area." He added that he used "a kabar 

pocket knife."

The defendant was indicted on charges of murder in the 

first degree and assault by means of a dangerous weapon. The 

murder charge was submitted to the jury on theories of 

1 We set forth the circumstances of the defendant's roadside 

confession, the hospital identification, and the recorded 

interview in greater detail below in connection with the 

discussion of the defendant's motions to suppress.
6

deliberate premeditation and extreme atrocity and cruelty. The 

defendant's primary defense was that he acted in self-defense. 

The jury found the defendant guilty of murder in the second 

degree and assault by means of a dangerous weapon.

Discussion. A. Motions to suppress. Prior to trial, the 

defendant filed a motion to suppress statements -- his initial 

roadside confession and his subsequent recorded interview at the 

police station -- and a motion to suppress Hunter's hospital 

identification. After a two-day evidentiary hearing, the motion 

judge denied the motion to suppress the identification from the 

bench; he later issued written findings denying the motion to 

suppress statements. On appeal, the defendant argues that both 

motions were wrongly decided.

When reviewing a ruling on a motion to suppress, we are 

bound by the judge's subsidiary findings of fact, unless they 

are clearly erroneous; "[h]owever, where the ultimate findings 

and rulings bear on issues of constitutional dimension, they are 

open for review. 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" (quotations and citations omitted). 

Commonwealth v. Groome, 435 Mass. 201, 211 (2001). Accord 

Commonwealth v. Tremblay, 480 Mass. 645, 651-652 (2018)

(voluntariness of defendant's Miranda waiver and statements 
7

during custodial interrogation); Commonwealth v. Johnson, 473 

Mass. 594, 602 (2016) (identifications arising from police 

procedures); Commonwealth v. Carnes, 457 Mass. 812, 818-819

(2010) (whether defendant was subject to custodial 

interrogation). But see Johnson, supra (motion judge's 

assessment of suggestiveness of identifications without police 

wrongdoing under common-law principles of fairness reviewed for 

abuse of discretion). We "review de novo any findings based 

entirely on a video recording." Commonwealth v. Yusuf, 488

Mass. 379, 385 (2021).

We address the suppression motions in chronological order

by subject matter: the roadside confession, the hospital 

identification, and the recorded interview.

1. The roadside confession. a. Motion judge's findings. 

The defendant argues that his incriminating statements to 

special police Officer Thermitus should have been suppressed 

because Thermitus failed to give him Miranda warnings. We set 

forth the facts found by the motion judge, supplemented with 

uncontroverted testimony from the suppression hearing that does 

"not detract from the judge's ultimate findings." Commonwealth

v. Garner, 490 Mass. 90, 93-96 (2022), quoting Commonwealth v. 

Jones-Pannell, 472 Mass. 429, 431 (2015).

As noted above, Thermitus and Tranfaglia were security 

guards employed by a private security company and certified as 
8

special Boston police officers. They are State actors for 

Miranda purposes. See Commonwealth v. Leone, 386 Mass. 329, 

334-335 (1982). Thermitus was patrolling the Georgetowne Homes 

area in a marked "Longwood" cruiser around 5:45 P.M. on an 

"extremely cold" January night when he saw the defendant in the 

middle of Crown Point Drive, in heavy traffic, knocking on the 

windshields of passing vehicles. Thermitus activated his 

cruiser's lights, radioed for assistance, stopped in the middle 

of the street, and then approached the defendant on foot. The 

defendant was bleeding from his ear. Seeing Thermitus, the 

defendant took off his sweatshirt and threw it to the ground, 

leaving himself shirtless, took two "aggressive" steps toward 

Thermitus, and then turned and ran into a wooded area. 

Thermitus ran after him. 

Special police Sergeant Tranfaglia arrived at the scene in 

response to Thermitus's radio call. Tranfaglia saw Thermitus 

yelling at the defendant to stop.2 Thermitus tackled the 

defendant to the ground and immediately placed him in handcuffs. 

2 Tranfaglia testified that to assist Thermitus, he took out 

his pepper spray and yelled multiple times to the defendant, 

"I'm going to spray." The judge's findings do not mention this 

testimony, which suggested a more coercive atmosphere than the 

judge found. Rather than address whether this factual omission, 

which detracts from the judge's ultimate finding, see Garner, 

490 Mass. at 95-96, is clearly erroneous, we do not consider 

this aspect of Tranfaglia's testimony in our analysis.
9

Then, with Tranfaglia's help, Thermitus sat the defendant 

against a tree beside the road and pat frisked him; the 

defendant was unarmed. 

According to Tranfaglia, "the defendant stated that he had 

been shot down the street," although neither officer saw any 

evidence of gunshot wounds. Tranfaglia stepped away to request 

assistance from the Boston police and emergency medical 

services. Thermitus remained with the defendant and asked him 

"why he ran," to which the defendant replied, "I just killed 

somebody, and if you walk straight ahead you will find 

something." Thermitus asked the defendant, "[W]hy?" The 

defendant responded that "this person was running his mouth, so 

I did what I had to do."3 Thermitus remained with the defendant, 

who was still handcuffed, until an ambulance arrived and the 

Boston police took over. 

3 Thermitus testified that the defendant confessed to the 

killing before saying that he had been shot, although Thermitus

wrote in his police report that the defendant said he had been 

shot first. Tranfaglia testified that after he helped Thermitus 

handcuff the defendant, the officers were trying to figure out 

"what was going on" when the defendant stated that he had been 

shot. At that point Tranfaglia went to call for Boston police 

backup and emergency medical assistance. The judge found that 

Tranfaglia left Thermitus with the defendant while he went to 

radio for help and returned about two minutes later. The 

judge's findings imply that the defendant confessed during the

two-minute interval he was left alone with Thermitus.
10

The motion judge found that the defendant was not in 

custody when he made the incriminating statements and that 

Thermitus's questioning did not amount to interrogation. 

b. Custody. "It is well settled that Miranda warnings are 

necessary only when a defendant is subject to custodial 

interrogation, Commonwealth v. Jung, 420 Mass. 675, 688 (1995), 

and that it is the defendant's burden to prove custody,

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

Commonwealth v. Vellucci, 98 Mass. App. Ct. 274, 277 (2020). 

"An interview is custodial where 'a reasonable person in 

the suspect's shoes would experience the environment in which 

the interrogation took place as coercive.'" Commonwealth v. 

Cawthron, 479 Mass. 612, 617 (2018), quoting Larkin, 429 Mass. 

at 432. "The crucial question is whether, considering all the 

circumstances, a reasonable person in the defendant's position 

would have believed that he was in custody. Thus, if the 

defendant reasonably believed that he was not free to leave, the 

interrogation occurred while the defendant was in custody, and 

Miranda warnings were required" (citations omitted). 

Commonwealth v. Damiano, 422 Mass. 10, 13 (1996).4 

4 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," Commonwealth v. Matta, 483 Mass. 357, 360 (2019), 

"the more pertinent question is whether an officer has, through 
11

In a myriad of cases assessing custody, "the court 

considers several factors: (1) the 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 so-called "Groome factors,"

see Carnes, 457 Mass. at 819, are not exclusive; the court must 

consider the totality of the circumstances. See Commonwealth v. 

Medina, 485 Mass. 296, 301 (2020). The Groome factors merely 

provide a framework for assessing the ultimate question: 

"whether the defendant was subjected to 'a formal arrest or 

words or conduct, objectively communicated that the officer 

would use his or her police power to coerce that person to 

stay," id. at 362. "The custody and seizure inquiries, however, 

are not identical." Commonwealth v. Evelyn, 485 Mass. 691, 698 

(2020). While the Matta decision did not alter the custody 

analysis, see Evelyn, supra at 698-699; Commonwealth v. Lugo, 

102 Mass. App. Ct. 170, 179 n.10 (2023), both tests focus on 

"the objective circumstances of the encounter" and "attempt to 

ascertain whether, considering the totality of the 

circumstances, an individual has been compelled to interact with 

the police." Evelyn, supra. In this case, the defendant has 

never claimed that the initial seizure was unjustified.
12

restraint of freedom of movement of the degree associated with a 

formal arrest.'" Medina, supra, quoting Thompson v. Keohane, 

516 U.S. 99, 112 (1995).

In concluding that the defendant was not in custody, the 

motion judge focused on the first three Groome factors. The 

judge found, first, that "[t]he questioning took place on a 

neutral site near a public road" and not in a "police-dominated 

atmosphere." Second, the special police officers did not convey 

to the defendant that he was suspected of Constant's murder; 

indeed, the officers had not yet learned of the stabbing. 

Third, "the questioning was informal and investigatory, and not 

aggressive, accusatory, or coercive." In light of these 

factors, the judge did not consider the fact that the defendant 

was handcuffed to be a sufficient restraint on his freedom to 

turn the encounter into the equivalent of a formal arrest. Our 

independent review of the facts as found by the motion judge 

leads to the opposite conclusion.

We begin, rather than end, by recognizing that restraints 

on the defendant's freedom of movement defined his encounter

with the special police officers: in response to the

defendant's erratic conduct in the middle of a busy street, the

officers chased him down, tackled him, handcuffed him, and pat

frisked him before seating him by the side of the road for

questioning. Such conduct would typically be perceived as
13

coercive. Cf. Commonwealth v. Portee, 82 Mass. App. Ct. 829,

833 (2012) (after troopers "sought to subdue [defendant] and

prevent him from fleeing, a reasonable person in the defendant's

circumstances would have understood that the troopers were in

the process of effecting an arrest" for purposes of proving

crime of resisting arrest).

The Groome factors, which derived in part from Commonwealth

v. Bryant, 390 Mass. 729 (1984), were developed because often

"the problem whether interrogation has taken place in custodial 

circumstances is a vexing one, susceptible to resolution . . . 

only by close scrutiny of the particular questioning session." 

Bryant, supra at 736. A nuanced analysis of the Groome factors 

is unnecessary, however, for "obvious cases in which a suspect 

has been formally arrested or otherwise deprived of his physical 

freedom by police agents." Bryant, supra. To illustrate the 

point, if a defendant is under arrest, the second and third 

Groome factors, which go to the nature of the communications 

between the officers and the defendant, are irrelevant: even if 

the arresting officer's questions are conversational and not 

accusatory, the defendant is no less in custody. Simply put, in

this case it is obvious that a reasonable person in the 

defendant's position would not have believed that he was free to 

leave.
14

Notwithstanding the Groome factors' questionable utility

here, we address them in the interest of completeness.

i. Place of the interrogation. The fact that questioning 

takes place on the street or in a public area often weighs

against a finding of custody. See, e.g., Commonwealth v. 

Tejada, 484 Mass. 1, 9, cert. denied, 141 S. Ct. 441 (2020)

(fact that "interrogation was in a public parking lot, not in a 

police station or other secluded area" weighed against 

determination that defendant was in custody); Vanhouton v. 

Commonwealth, 424 Mass. 327, 331 n.7, cert. denied, 522 U.S. 834

(1997), quoting Pennsylvania v. Bruder, 488 U.S. 9, 10 (1988)

("traffic stops commonly occur in the 'public view,' in an 

atmosphere far 'less "police dominated" than that surrounding 

the kinds of interrogation at issue in [Miranda v. Arizona, 384 

U.S. 436 (1966)] itself'"); Commonwealth v. Smith, 35 Mass. App. 

Ct. 655, 657-658 (1993) (defendant not in custody where police 

stopped his car to investigate motor vehicle accident and asked 

preliminary "street-side" questions).

But the defendant was not questioned in connection with a

traffic stop, which generally does not rise to the level of 

custodial interrogation. See Vellucci, 98 Mass. App. Ct. at 277

("As a general rule, persons temporarily detained during an 

ordinary traffic stop are not in custody for purposes of 

Miranda, even though they may not feel free to leave"). Nor 
15

could the questioning of the defendant be characterized as a 

routine "field investigation" as in Smith, 35 Mass. App. Ct. at 

658, and the defendant did not initiate the encounter as in 

Tejada, 484 Mass. at 8. Here, prior to questioning, two 

uniformed officers positioned the defendant against a tree next 

to the side of the road on a cold winter night, after one of 

them had chased him, tackled him, placed him in handcuffs, and 

pat frisked him. "To determine if the location of an 

interrogation contributed to a coercive environment, we consider 

the circumstances 'from the point of view of the defendant.'"

Cawthron, 479 Mass. at 618, quoting Commonwealth v. Conkey, 430 

Mass. 139, 144 (1999), S.C., 443 Mass. 60 (2004). From the 

defendant's point of view, the officers' actions objectively 

created a coercive and police-dominated environment, even if it 

was not in a police station. 

ii. Conveying that defendant was a suspect. Questioning 

that conveys the message that the defendant is suspected of a 

crime lends to a coercive environment and typically supports the 

conclusion that the defendant is in custody. See Cawthron, 479 

Mass. at 619; Commonwealth v. Jones, 42 Mass. App. Ct. 378, 382 

(l997). Brief, preliminary questions asked in an effort to 

confirm or dispel suspicion of criminal activity typically do 

not. See Commonwealth v. Kirwan, 448 Mass. 304, 311 (2007). An 

open-ended preliminary question such as "What happened?" does 
16

not convey suspicion of wrongdoing. See Commonwealth v. 

Callahan, 401 Mass. 627, 630 (1988). 

Here, the judge erroneously focused on the officers'

subjective point of view, emphasizing that they did not yet know 

about the murder and that "Thermitus placed handcuffs on the 

defendant in order to find out what was going on. The defendant 

was not under arrest." "[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" (citations omitted). Medina, 485 Mass. at 303.5 

After being forcefully detained, the first statement that the 

defendant made was that he had been shot. The officers did not 

respond by asking neutral questions such as "what happened" or 

where he had been shot. Instead, Thermitus asked "why he ran."6 

From Thermitus's perspective, the question may have been 

5 The judge, who decided the motion to suppress in April 

2016, did not have the benefit of the Medina decision.

6 Tranfaglia in fact did testify that he asked the defendant

neutral, preliminary questions before the tenor of the 

questioning became more pointed. According to Tranfaglia, after 

the defendant said he had been shot, Tranfaglia asked,

"[W]here?," and the defendant said, "[W]ay down the street." 

Tranfaglia responded, "You were shot down there? What are you 

doing all the way up here?" The defendant then said, "Fuck you, 

. . . fuck this, get me EMS," prompting Tranfaglia to go back to 

his cruiser and radio for help. However, the motion judge 

omitted this part of Tranfaglia's testimony from his findings,

and we do not consider it in our analysis. See note 2, supra.
17

neutral, but from the defendant's perspective, it may have 

implied that if he had done nothing wrong, he would have had no 

reason to run. A reasonable person in the defendant's position,

having been pursued and tackled by a police officer, then asked 

why he had attempted to flee, would likely perceive that the 

officer suspected him of criminal activity. That Thermitus did 

not believe the defendant to be under arrest, or that he 

detained the defendant just so he could "find out what was going 

on," is immaterial if his words and actions conveyed something 

else. See Groome, 435 Mass. at 212 n.13 ("an officer's 

subjective suspicions are relevant to the custody inquiry only 

if those suspicions have been communicated to the defendant"). 

Cf. Damiano, 422 Mass. at 13 ("The question whether the 

defendant was in protective custody is not controlling. The 

crucial question is whether, considering all the circumstances, 

a reasonable person in the defendant's position would have 

believed that he was in custody").

iii. Nature of the interrogation. The nature of the 

questioning was also consistent with a custodial atmosphere. As 

we have already noted, even after the defendant said he had been 

shot, Thermitus questioned him about "why he ran." The followup question -– "why" the defendant had "just killed somebody" -–

was even more clearly intended to gather inculpatory evidence. 

Even if Thermitus's questioning was "not aggressive, accusatory, 
18

or coercive," as the motion judge found, it was hardly a 

"friendly chat" with the defendant's "voluntary acquiescence." 

Bryant, 390 Mass. at 737.

iv. Defendant's freedom to end the encounter. From

beginning to end, the special police officers' interaction with

the defendant communicated to a reasonable person in the

defendant's position that he was not at liberty to end the

interview and leave. After using force to prevent the defendant

from running away, the special police officers did not leave his

side, nor remove the handcuffs, until Boston police detectives

took over and the defendant was transported by ambulance to a

hospital. The defendant was later formally arrested. The

fourth Groome factor, whether the defendant "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 212, supports a

finding of custody.

v. Totality of the circumstances. Viewed in their

totality, the facts as found by the motion judge depicted a

coercive environment. Moreover, the judge erroneously

discounted the officers' use of handcuffs to restrain the

defendant throughout the encounter. Placing a suspect in

handcuffs is usually considered a physical restraint on freedom

tantamount to arrest. See, e.g., Commonwealth v. Pinney, 97
19

Mass. App. Ct. 392, 396-397 (2020); Commonwealth v. Gordon, 47

Mass. App. Ct. 825, 827 (1999). Conversely, the absence of

handcuffs is usually cited to negate a finding of custody. See,

e.g., Cawthron, 479 Mass. at 618 (defendant not in custody where 

questioning occurred "in a public parking lot, during the 

daytime, and the defendants were neither handcuffed nor 

otherwise physically restrained"); Commonwealth v. Lopes, 455

Mass. 147, 163 (2009) ("defendant was not in custody after his

handcuffs were removed and he was told he was not under

arrest"); Commonwealth v. Burbine, 74 Mass. App. Ct. 148, 152

(2009) (interrogation of defendant not custodial where officers

"did not place him under arrest, handcuff him, or physically

restrain him by placing him in a cruiser or escorting him into

the station").

Although "[i]t is not dispositive that the defendant was 

handcuffed," Commonwealth v. Williams, 422 Mass. 111, 118 

(1996), cases holding that a handcuffed suspect was not in 

custody usually arise where the defendant had been detained to 

allow officers to complete a threshold inquiry justified by 

reasonable suspicion of criminal activity. Where handcuffing 

the suspect is considered a reasonable step to ensure officer 

safety or to prevent flight, it does not transform an 

investigative stop into an arrest. See, e.g., id. at 117-119; 

Vellucci, 98 Mass. App. Ct. at 277, 279; Commonwealth v. Dyette, 
20

87 Mass. App. Ct. 548, 556-557 (2015); Commonwealth v. Andrews, 

34 Mass. App. Ct. 324, 329-330 (1993). The motion judge found 

that the officers were confronted with "a volatile situation 

that occurred quickly and unexpectedly"; however the evidence 

did not suggest,7 nor did the judge find, that the officers were 

in any danger or that the defendant presented a threat to public 

safety that might excuse the failure to give Miranda warnings. 

See Pinney, 97 Mass. App. Ct. at 397, quoting New York v. 

Quarles, 467 U.S. 649, 657 (1984) ("The United States Supreme 

Court has stated that, in some circumstances, 'the need for 

answers to questions in a situation posing a threat to the 

public safety outweighs the need for the prophylactic rule 

protecting the Fifth Amendment's privilege against selfincrimination'").

While our independent analysis of the Groome factors

supports our view that the defendant's detention by the special 

police officers was custodial, as discussed supra, it is largely 

beside the point: it is obvious that a reasonable person in the 

defendant's position would have experienced the interaction as 

coercive, would not have believed that he was free to leave, and 

would have perceived the restraint on his freedom of movement as 

7 Thermitus testified, repeatedly, that he had no concern 

for his own safety, and any hint of danger was quickly dispelled 

when he pat frisked the defendant.
21

the equivalent of that associated with a formal arrest. Because 

we conclude that the defendant was in custody, we turn to the 

question whether he was subjected to interrogation.

c. Interrogation. "Miranda warnings are required when a 

person is subjected to 'custodial interrogation,' i.e., 

'questioning initiated by law enforcement officers after a 

person has been taken into custody or otherwise deprived of his 

freedom of action in any significant way.'" Commonwealth v. 

Doyle, 12 Mass. App. Ct. 786, 792 (1981), quoting Miranda, 384 

U.S. at 444. The defendant was subject to "express questioning"

beyond that "normally attendant to arrest and custody." Rhode 

Island v. Innis, 446 U.S. 291, 300-301 (1980). See Commonwealth

v. Kacavich, 28 Mass. App. Ct. 941, 941 (1990). After taking 

the defendant into custody, Thermitus asked him "why he ran," 

and when the defendant responded that he had just killed 

somebody, Thermitus asked, "Why?"

The motion judge, however, did not consider Thermitus's 

questioning to amount to "interrogation" because the judge

viewed the questions as "preliminary in nature and directed to 

discovering who the defendant was and what had happened to him." 

In so concluding, the judge erroneously relied on Commonwealth

v. Gonsalves, 445 Mass. 1, 9 (2005), cert. denied, 548 U.S. 926 

(2006) ("Questioning by law enforcement agents to secure a 

volatile scene or establish the need for or provide medical care 
22

is not colloquially understood as interrogation . . . . Rather, 

such questioning is considered part of the government's 

peacekeeping or community caretaking function" [emphasis 

added]). This language was taken from the court's discussion of 

whether statements made to law enforcement agents are to be 

considered "testimonial" under Crawford v. Washington, 541 U.S. 

36 (2004). The court made it clear that it was not relying on 

"definitions of interrogation found throughout the Miranda v. 

Arizona, 384 U.S. 44 (1966), case law, but rather on everyday, 

common understandings of the term." Gonsalves, supra at 7.8

The Commonwealth's reliance on Kirwan, 448 Mass. at 311 

(officer's "questioning was generally of a fact-finding nature, 

intended to verify or dispel a reasonable suspicion of criminal 

activity, for which Miranda warnings are not required"), is also

misplaced. This language was taken from the Kirwan court's 

analysis of the Groome factors and concerned whether the 

defendant was in custody, not whether he was subjected to 

interrogation. See Kirwan, 448 Mass. at 313.9

8 Although at the hearing on the motion to suppress the 

Commonwealth relied on the quoted language from Gonsalves to 

argue that questions asked in the course of community caretaking 

are not interrogation, on appeal the Commonwealth makes no 

argument concerning community caretaking. Accordingly, we need 

not decide whether community caretaking was involved here or, if 

it was, whether that would be relevant to any issue before us.

9 Similar language from Commonwealth v. Borodine, 371 Mass. 

1, 4 (1976), cert. denied, 429 U.S. 1049 (1977) ("The questions 
23

The questioning here was much like that found to be 

interrogation in Gordon, 47 Mass. App. Ct. at 826, where the 

arresting officer was "attempting, he testified, to calm [the 

defendant] down, and asked what she was doing in the area at 

that early hour (5:15 A.M.)." "The fact that [Thermitus's] 

question was introductory does not automatically cause it to be 

classified as merely 'preliminary' and not interrogatory for 

Miranda purposes." Id. at 828 (distinguishing cases in which 

preliminary questioning did not amount to custodial 

interrogation). See Damiano, 422 Mass. at 13 ("The fact that 

the trooper's initial questioning was not hostile and was 

undertaken simply to find out what the defendant knew about what 

had happened does not excuse the failure to give Miranda 

warnings").

The defendant was subject to custodial interrogation. 

Because he was not given Miranda warnings, his motion to 

suppress his statements to Thermitus should have been allowed.10

d. Harmless error analysis. The question remains whether 

the improper admission of the defendant's statements was 

were preliminary, directed to discovering who the defendant was 

and what he knew about the circumstances"), likewise concerned

the issue whether the questioning was custodial, see id. at 4-5.

10 Because we conclude that the defendant's roadside 

confession should have been suppressed on this ground, we need 

not address the defendant's separate contention that it was not 

voluntary. 
24

harmless beyond a reasonable doubt. See Chapman v. California, 

386 U.S. 18, 24 (1967); Commonwealth v. Santos, 463 Mass. 273, 

287-289 (2012). Other than the defendant's confession, the 

Commonwealth presented no evidence of motive, and the 

inferential evidence of the defendant's intent to kill Constant 

was not overwhelming. Indeed, according to Hunter's version of 

the events, the defendant's actions, which began with an attempt 

to stab her, were inexplicable. The defendant claimed that he 

acted in self-defense, as he maintained in his letter to 

Constant's mother, and the jurors were also instructed on 

voluntary and involuntary manslaughter. The evidence that the 

defendant admitted, shortly after the crime, that he had "just 

killed somebody" because that person was "running his mouth" was 

the strongest evidence offered at trial to provide a motive for 

the defendant's actions, to disprove his self-defense claim, and 

to prove malice. The prejudicial impact of this evidence was 

"too strong to be considered harmless." Commonwealth v. Howard, 

469 Mass. 721, 737 (2014), S.C., 479 Mass. 52 (2018). See 

Commonwealth v. Harris, 371 Mass. 462, 473 (1976) (referring to 

"the almost conclusive effect of any defendant's confession on a 

jury"). Accordingly, the defendant's convictions must be

reversed.11

11 As the defendant was impliedly acquitted of murder in the 

first degree, any retrial of the murder indictment must be 
25

2. Hospital identification. The defendant claims that 

Hunter's identification of him in the hospital should have been 

excluded because the procedure was unreliable and unnecessarily 

suggestive. At the suppression hearing, Boston police 

Detectives Francis McLaughlin and Robert Kenney, whose testimony 

the motion judge "found to be truthful in all respects,"

testified that the identification proceeded as follows.

McLaughlin accompanied Hunter, in the back seat of a police 

cruiser, as she was transported to the hospital. He explained 

that there was a person at the hospital who might or might not 

have been involved in the stabbing of Constant -- the police did 

not know -- and that it was important to determine if this 

person was or was not involved. Before bringing Hunter into the 

emergency room, McLaughlin asked the police officers standing 

near the defendant to move away; he intended to walk Hunter 

around the perimeter of the emergency room, past the partitioned 

areas where the patients were being treated, to see if she 

recognized anyone. However, as soon as McLaughlin and Hunter 

rounded the corner from the hallway to the treatment area, 

Hunter saw the defendant across the room and said, "That's him, 

that's him. He's the one." At the time, the defendant had just 

treated as a trial for murder in the second degree. See 

Commonwealth v. Figueroa, 468 Mass. 204, 228 (2014); 

Commonwealth v. Harrington, 379 Mass. 446, 455 (1980).
26

received treatment for head wounds, and his face was illuminated 

by a surgical light. 

The motion judge found that the police did "an exemplary 

job of trying to make sure the identification procedure was done 

fairly and orderly," that it was conducted promptly after the 

incident, and that the lighting did not make the procedure 

"unduly suggestive." We agree.

"Although one-on-one showup identification procedures are 

generally disfavored as inherently suggestive, they only raise 

due process concerns if it is determined that the procedure was 

unnecessarily or impermissibly suggestive" (quotation and 

citation omitted). Commonwealth v. Moore, 480 Mass. 799, 811-

812 (2018). Moreover, showup identifications are appropriate 

"if there is 'good reason' to secure prompt identification of a 

suspect." Id. at 812, quoting Commonwealth v. Dew, 478 Mass. 

304, 306 (2017). See Commonwealth v. Austin, 421 Mass. 357, 

361-362 (1995); Commonwealth v. Travis, 100 Mass. App. Ct. 607, 

613 (2022). The burden is on the defendant to prove not only 

that the identification procedure being challenged "was 

suggestive, but [also] that it was 'unnecessarily suggestive.'" 

Johnson, 473 Mass. at 597, quoting Commonwealth v. Crayton, 470 

Mass. 228, 235 (2014).

Here, the police had good reason to conduct the hospital 

identification promptly, during the investigation of a violent 
27

crime, to determine whether to arrest or release the defendant. 

The defendant does not argue otherwise. Rather, he focuses on 

two factors that he characterizes as "especially suggestive 

circumstances": the fact that his head was illuminated by a 

surgical light, and "Hunter's knowledge that she hit the 

assailant in the head with a metal object." 

As to the lighting, which was the result of medical rather 

than a police procedure, we discern no abuse of discretion in 

the judge's determination that it did not create "highly or 

especially suggestive circumstances" that would render the 

identification unreliable. Johnson, 473 Mass. at 598, 602. 

Even when suspects are illuminated as the result of police 

procedure during a showup, this circumstance does not make an 

identification impermissibly suggestive. See, e.g., 

Commonwealth v. Meas, 467 Mass. 434, 442, cert. denied, 574 U.S. 

858 (2014); Commonwealth v. Phillips, 452 Mass. 617, 628-629 

(2008). The defendant's suggestion that Hunter positively 

identified the defendant based on the wound to his head is mere 

speculation. Moreover, the appearance of a suspect based on his 

recent involvement in the crime under investigation is part of 

the inherent suggestiveness of a showup procedure, not a special 

element of unfairness. See Commonwealth v. Chotain, 31 Mass. 

App. Ct. 336, 341-342 (1991) (hospital identification reliable 

notwithstanding officers' statement to witness "that the man he 
28

would see had a gash on his head in the same place that [the 

witness] had struck the intruder").12

3. Recorded interview. The defendant argues that his 

recorded interview at the police station following his arrest 

should have been suppressed because the Commonwealth failed to 

show, beyond a reasonable doubt, that his waiver of his Miranda 

rights, and the statements themselves, were voluntary. See 

Tremblay, 480 Mass. at 655-656, 661-662 ("Due process requires a 

separate inquiry into the voluntariness of [a defendant's 

statement] apart from the validity of the Miranda waiver" 

[citation omitted]). Because the motion judge's ruling on the 

defendant's motion to suppress the recorded interview was based 

entirely on his review of the recording and not drawn from any 

live testimony, our review is de novo, without deference to the 

motion judge's findings of fact. See Yusuf, 488 Mass. at 385;

Tremblay, supra at 646-647, 656-657.

The recorded interview begins with the defendant walking 

into the interview room, taking a seat, standing up when 

directed to a different chair, remaining standing as an officer 

removes his handcuffs, and then sitting again, all without 

assistance. The defendant listened and responded appropriately 

12 Because Hunter's unequivocal out-of-court identification 

of the defendant was admissible, she was properly permitted to 

identify him in court. See Dew, 478 Mass. at 315.
29

as McLaughlin asked for identifying information and then went 

through the defendant's Miranda rights one by one; the defendant

followed along on a written Miranda waiver form, initialed each 

as it was read to him, and then signed the form. The tone of 

the interview was cordial and conversational throughout. After 

waiving his Miranda rights, the defendant said, "I won't answer 

any questions until I gain a full understanding of what's going 

on." McLaughlin explained that a man had been stabbed in Hyde 

Park and that the defendant was under arrest as a result of the 

police investigation. The defendant responded, "I still have no 

idea why I'm here," and during the interview he maintained not 

only that he did not understand what was going on, but also that 

he had been the victim of an attack. At one point, he asserted, 

"You guys don't have the crucial evidence to put me away."

Toward the end of the interview, the defendant said, "I had 

nothing to do with anything, I don't understand why I'm in the 

police station, where's the guy who could have attacked me?"

Kenney answered, "It could be the guy that's dead," to which the 

defendant responded, "Somebody did a good job then." Soon 

thereafter the defendant said he was done answering questions, 

and the detectives promptly ended the interview. 

Although "[t]he voluntariness of the waiver on the basis of 

Miranda and the voluntariness of the statements on due process 

grounds are separate and distinct issues," Commonwealth v. 
30

Edwards, 420 Mass. 666, 673 (1995), the defendant's argument 

does not distinguish between the two. He argues that his 

"incoherent" responses to questions, his statements that he did 

not know what was going on, and his voluntary consumption of 

substances13 rendered his waiver and statements involuntary. In 

any event, both issues are "determined in light of the totality 

of the circumstances and they share many of the same relevant 

factors." Id. These include the defendant's conduct, his "age, 

education, intelligence and emotional stability, . . . his 

physical and mental condition, . . . and the details of the 

interrogation, including the conduct of the police." 

Commonwealth v. St. Peter, 48 Mass. App. Ct. 517, 519 (2000). 

See Commonwealth v. Welch, 487 Mass. 425, 438 (2021). "The 

Commonwealth bears the burden of proving beyond a reasonable 

doubt, in the totality of the circumstances, that a defendant's 

waiver was voluntary, knowing, and intelligent, and that his 

statements were voluntary." Commonwealth v. Auclair, 444 Mass. 

348, 353 (2005).

Having conducted an independent review of the recorded 

interview, we agree with the motion judge that the defendant's 

waiver and statements were voluntary beyond a reasonable doubt. 

13 During the interview, the defendant asserted that could 

not answer the detectives' questions about his earlier 

activities because he had been "trippin' balls all day" on 

marijuana and crystal methamphetamine. 
31

The defendant is a high school graduate and had completed one 

year of college. Although he at times appeared lethargic, his 

responses were coherent, consistent, and even calculated. His 

repeated assertion that he did not understand what he was doing 

in the police station was not a statement about his orientation 

with respect to place, time, or situation, but rather had to do 

with the quantum of evidence the police had against him. His

comments regarding smoking marijuana tainted with crystal 

methamphetamine pertained to his alleged lack of memory of the 

events that took place earlier that day, not his inability to 

engage in a conversation.14 "[T]he mere influence of drugs or 

alcohol on the defendant will not transform otherwise voluntary 

statements into involuntary ones." Welch, 487 Mass. at 439. 

"[T]he defendant was not demonstrating confusion" during the 

interview, Commonwealth v. Rivera, 482 Mass. 259, 267 (2019), 

and it does not appear that his waiver or statements "are 

attributable in large measure to [his] debilitated condition,"

Commonwealth v. Bell, 473 Mass. 131, 141 (2015), cert. denied, 

579 U.S. 906 (2016), quoting Commonwealth v. Allen, 395 Mass. 

448, 455 (1985). To the contrary, his comportment and behavior 

14 We note that the recorded interview took place 

approximately five hours after the defendant was first 

apprehended, and any use of substances must have occurred prior 

to that time.
32

"indicate a rational understanding of the situation and a 

voluntary decision to speak to police." Bell, supra at 142.15

B. Authentication of letter from jail. The defendant 

contends that the trial judge erred in admitting, without 

sufficient authentication, the handwritten letter received by 

Constant's mother. To admit the letter in evidence, the judge 

had to make a preliminary determination that the jury could find 

it more likely than not that the defendant was the author. See 

Commonwealth v. Purdy, 459 Mass. 442, 447 (2011); Commonwealth

v. Johnson, 102 Mass. App. Ct. 195, 200-201 (2023); Mass. G. 

Evid. §§ 104(b), 901(a) (2022). "In the context of written 

letters, where a witness has received a letter and cannot 

identify the writer's handwriting or signature, evidence that 

the writer identified himself as a particular individual is not 

sufficient to authenticate the letter." Purdy, supra at 449. 

However, "where other confirming circumstances are present, a 

letter can be authenticated and properly admitted in evidence"

(citation omitted). Id. Authentication of an item may be 

15 As the motion judge, acting on the defendant's motion to 

suppress, reviewed the recorded interview and ruled on the 

defendant's claim that his Miranda waiver and statements were 

involuntary, there was no need, as the defendant contends, for 

the trial judge to conduct a second voir dire on the same issue 

prior to admitting the recorded interview in evidence. See 

Bryant, 390 Mass. at 745. In addition, the trial judge gave a 

"humane practice" instruction contemporaneously with the 

admission of the interview and again in the final charge.
33

proved by the contents of the item itself. See id. at 447-448, 

quoting Mass. G. Evid. § 901(b)(1), (4) (2011) ("Evidence may be 

authenticated by direct or circumstantial evidence, including 

its '[a]ppearance, contents, substance, internal patterns, or 

other distinctive characteristics'"). See also Welch, 487 Mass. 

at 441 (confirming circumstances included content of text 

messages, "replete with details of the defendant's and the 

victim's lives, including the tensions within their 

relationship, aspects of their living arrangements, and the 

suspension of the defendant's driver's license from his 

[operating while under the influence of alcohol] charge"); 

Commonwealth v. Siny Van Tran, 460 Mass. 535, 547 (2011)

(airline documents authenticated by their use of "several 

distinctive internal codes"); Commonwealth v. Gilman, 89 Mass. 

App. Ct. 752, 759 (2016) (electronic communications 

authenticated by evidence that "the conversations were replete 

with personal references, including pet names the defendant and 

victim used for each other, and references to events in which 

the two alone participated").

Abundant confirming circumstances were present here. The 

letter was mailed from the Nashua Street jail, where the 

defendant was being detained prior to trial, and his name was 

handwritten in the return address corner of the envelope. The 

letter contained details that only someone familiar with the 
34

facts of the murder would know. The author referred to Constant 

and Hunter by name and stated that the assault originated in 

Hunter's bedroom, that Hunter hit him on the back of the head 

with a spatula, and that he used "a kabar pocket knife." The 

judge did not abuse her discretion in finding sufficient 

confirming circumstances that would allow the jury to determine, 

by a preponderance of the evidence, that the defendant wrote the 

letter.16

C. Defendant's medical records. The defendant also argues 

that the trial judge abused her discretion in excluding medical 

records regarding his two-week admission to Carney Hospital, six 

months before the murder, for what the records describe as a 

"psychotic break associated with significant aggression." The 

records of that admission also state that the defendant 

experienced "auditory hallucinations and paranoia" and that his 

history was "complicated by marijuana usage." At the final 

pretrial conference, the defendant argued that the evidence 

could be relevant to his ability to form the requisite intent 

for deliberate premeditation and extreme atrocity and cruelty. 

The judge granted the Commonwealth's motion "to preclude 

testimony about any alleged mental health diagnosis of 

16 When the letter was admitted, the judge instructed the 

jury that it was for them to decide whether the letter came from 

the defendant. 
35

defendant," reasoning that the records in question were not 

relevant because the defendant had not made any showing or 

proffered any evidence that he was suffering from the same 

mental condition at the time of the crime.17

The records were excluded in the context of a trial for 

murder in the first degree. Any new trial will be on a charge 

of murder in the second degree. See note 11, supra. As the 

evidence of the defendant's prior mental illness may have 

different relevance at any new trial, and as it was excluded 

based on the deficiencies of the defendant's particular showing 

at the time of the first trial, we decline to address whether 

the trial judge abused her discretion in excluding the records. 

Before any new trial, the defendant is free to renew his attempt 

to introduce relevant, admissible evidence of his mental health 

status prior to the murder.

Judgments reversed.

Verdicts set aside.

17 As the Commonwealth correctly notes in its brief, the 

defendant had previously waived the defenses of lack of criminal 

responsibility and diminished capacity in open court, and at the 

final pretrial conference he made no reference to calling a 

mental health expert at trial; the judge's ruling, therefore, 

related only to medical records.