NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

13-P-1821 Appeals Court

COMMONWEALTH vs. MICHAEL PACHECO.

No. 13-P-1821.

Bristol. December 4, 2014. - April 17, 2015.

Present: Cohen, Fecteau, & Massing, JJ.

Constitutional Law, Waiver of constitutional rights by juvenile, 

Admissions and confessions. Practice, Criminal, Motion to 

suppress, Admissions and confessions, Waiver. Waiver.

Complaint received and sworn to in the Bristol County 

Division of the Juvenile Court Department on September 28, 2012.

Indictments found and returned in the Superior Court 

Department on November 1, 2012.

A pretrial motion to suppress evidence was heard by 

Lawrence Moniz, J., in the Bristol County Division of the 

Juvenile Court Department.

An application for leave to prosecute an interlocutory 

appeal was allowed by Barbara A. Lenk, J., in the Supreme 

Judicial Court for the county of Suffolk, and the appeal was 

reported by her to the Appeals Court.

Tara L. Blackman, Assistant District Attorney, for the 

Commonwealth.

Joseph Maggiacomo, III, for the juvenile.
2

MASSING, J. Following the execution of a search warrant, 

resulting in the discovery of a handgun and several bags of 

heroin in the defendant youthful offender's bedroom, the Taunton 

police arrested the juvenile and took him to the police station 

to question him about his suspected involvement in a shooting

that took place on the railroad tracks near his home. Because 

he was sixteen years old, the police arranged for the juvenile's

guardian to be present during questioning. A Juvenile Court 

judge found that the juvenile validly waived his Miranda rights 

at the outset of questioning, but that the police failed to 

honor his mid-interview request to consult with his guardian. 

Accordingly, the judge denied the juvenile's motion to suppress 

statements made during the first part of the interview, but 

allowed the motion with respect to statements made after his 

request to consult. We affirm.

Background. The facts found by the judge at the hearing on 

the motion to suppress, as amplified by uncontested evidence 

presented at the hearing and by the contents of the videotaped 

interview,1 are as follows. On September 22, 2012, at 

 

1 "Where the judge's factual findings are based on a 

videotape of the defendant's interview, 'we . . . take an 

independent view of [statements made at the interview] and make 

judgments with respect to their contents without deference to 

the fact finder, who is in no better position to evaluate 

the[ir] content and significance.'" Commonwealth v. Bermudez, 

83 Mass. App. Ct. 46, 50 (2012), quoting from Commonwealth v. 

Novo, 442 Mass. 262, 266 (2004).
3

approximately 8:30 P.M., two Taunton police officers went to the 

apartment where the juvenile lived with his guardian, Crystal 

Courtney,

2 to execute a search warrant for a firearm as part of 

an investigation into a shooting. After discovering a handgun 

and several glassine bags containing a substance that appeared 

to be heroin in the juvenile's bedroom, the officers arrested 

the juvenile and transported him to the police headquarters for 

questioning. The police advised Ms. Courtney that she could 

accompany the juvenile, who was sixteen years, ten months old at 

the time, to the station to act as an interested adult and 

brought her to the police station shortly after the juvenile's 

arrival.

At approximately 11:06 P.M., Detective Lynne Pina commenced 

a videorecorded interrogation of the juvenile in a small 

interview room at the station, assisted by Brian Dunham, another 

officer from the department. Pina gave the juvenile and Ms. 

Courtney a notification of rights form, read them the Miranda 

rights from the form, and gave them an opportunity to read it 

themselves. Neither Pina nor Dunham left the room. Without 

requesting an opportunity to speak to each other in private, the 

juvenile and his guardian signed the rights form. 

 

2 The record does not disclose Ms. Courtney's age or 

relationship with the juvenile, other than that they lived 

together and that she was his guardian. The juvenile does not 

assert that she was unqualified or incompetent to act as an 

interested adult on his behalf.
4

Pina began the interview by questioning the juvenile about 

the night of the shooting. He initially denied any involvement. 

At approximately 11:31 P.M., another officer interrupted the 

interrogation to say that the video equipment was not recording. 

Pina and Dunham left the interview room to address the problem. 

When they returned approximately four minutes later, Pina told 

the juvenile, "We will pick up where we left off; you have been 

given rights and signed forms," and resumed the interrogation. 

The juvenile continued to deny his involvement in the 

shooting. Pina and Dunham then told the juvenile that they had 

evidence he possessed the gun even before the shooting took 

place, and that a dog had traced a scent from the railroad 

tracks where the shooting occurred to his back door. Moreover, 

they had spoken with the victim, who gave them "very good 

descriptions" and said "he'd probably be able to identify the 

people who shot him." The police urged the juvenile to tell 

them the truth, saying he had an opportunity to "help 

[him]self." Pina continued, "There was somebody with you. Who 

was with you?," adding that "this is going to go a long way to 

help you in the court system, the [district attorney] will look 

at you favorably, if you start cooperating with the case and the 

investigation." Referring to Ms. Courtney, Pina asked, "Do you 

want to talk to her about it? Do you want to ask her what you 

should do?"
5

The officers continued to try to convince the juvenile to 

cooperate, saying, "You should be helping yourself right now." 

When the juvenile repeated, "I didn't shoot the guy," Pina 

asked, "So who did? Tell us what happened." The juvenile then 

asked, "Can I have a few minutes first?" Dunham said, "Sure, 

absolutely. You want to talk to Crystal?" The juvenile

replied, "I just want to make sure, you know what I'm saying?"

Before the officers left the room, Ms. Courtney asked 

whether the video recording machinery would continue to record; 

she was told that it would. The officers left the room, but 

watched the juvenile and his guardian on a screen in the 

detectives' room. Speaking in low tones, the juvenile and Ms. 

Courtney began to exchange Ms. Courtney's cellular telephone

(phone). The juvenile first took the phone, entered some text, 

and showed it to her. She entered some text and returned the 

phone to him. After about thirty seconds, while the juvenile

was entering text on the phone, Pina returned to the interview 

room and told the juvenile to stop. He complied and returned 

the phone to Ms. Courtney. When Pina left them alone this time, 

they did not speak any more. Ms. Courtney broke into tears and 

hugged the juvenile until Pina and Dunham returned and resumed 

the interrogation at 11:50 P.M. 

The interview continued for another twenty minutes. The 

juvenile first told the officers that a friend of his did the 
6

shooting, but when pressed further, he ultimately admitted that 

he shot the gun. During the rest of the interview, Ms. Courtney

used her phone without any objection from the officers. The 

interrogation ended shortly after the juvenile's confession.

The juvenile was charged, and later indicted, as a youthful 

offender for armed assault with intent to murder, G. L. c. 269, 

§ 18(b); assault and battery by means of a dangerous weapon, 

G. L. c. 265, § 15A(b); and unlawful carrying of a firearm, 

G. L. c. 265, § 10(a). After the motion judge decided the 

juvenile's motion to suppress statements, the Commonwealth 

appealed from the partial suppression order, the juvenile crossappealed from the partial denial of his motion, and a single 

justice of the Supreme Judicial Court allowed the Commonwealth's 

application for interlocutory appellate review.3 

1. Opportunity to consult with interested adult. "Special 

caution . . . must be exercised in examining the validity of 

inculpatory statements made by juveniles." Commonwealth v. 

 

3 The juvenile argues that a different Juvenile Court judge 

abused his discretion in allowing the Commonwealth to file its 

notice of appeal and application for leave to appeal late. See 

Commonwealth v. Jordan, 469 Mass. 134, 147-148 (2014); 

Mass.R.Crim.P. 15(b)(1), as appearing in 422 Mass. 1501 (1996). 

Mindful of the fact that the single justice has already 

determined that the appeal warrants interlocutory review, we 

find no reason to disturb the Juvenile Court judge's 

determination that the Commonwealth's failure to timely file its 

notice and application was the result of excusable neglect; 

therefore, we focus our discussion on the merits. See id. at 

149 & n.26.
7

MacNeill, 399 Mass. 71, 74 (1987), quoting from Commonwealth v. 

King, 17 Mass. App. Ct. 602, 609 (1984). In general, when 

police interrogation involves a juvenile over the age of 

fourteen,4 as is the case here, the juvenile "may properly waive 

his constitutional rights if, after having been advised of those 

rights, he was afforded an opportunity to consult with an 

interested adult who was informed of and understood those 

rights." Commonwealth v. McCra, 427 Mass. 564, 567 (1998).5

Whether the juvenile had a "realistic opportunity" to 

consult is the critical question, not whether he actually 

availed himself of the opportunity. Commonwealth v. MacNeill, 

supra at 78. See Commonwealth v. McCra, supra at 567-568. The 

Commonwealth is not required to establish that the adult and 

juvenile actually had a private consultation.6 Commonwealth v. 

 

4 Effective September 18, 2013, the Legislature amended the 

definitions of "delinquent child" and "youthful offender" to 

include seventeen year olds. St. 2013, c. 84, § 7. See Watts

v. Commonwealth, 468 Mass. 49, 50-51 (2014). Accordingly, the 

"interested adult" rule now applies to youths under the age of 

eighteen. Id. at 59.

5 A waiver may still be valid without an opportunity for 

consultation so long as the circumstances "demonstrate a high 

degree of intelligence, experience, knowledge, or sophistication 

on the part of the juvenile." Commonwealth v. Alfonso A., 438 

Mass. 372, 380 (2003), quoting from Commonwealth v. A Juvenile, 

389 Mass. 128, 134 (1983).

6 By contrast, juveniles under the age of fourteen must have 

an "actual opportunity" to consult with an interested adult for 

their waivers to be valid. Commonwealth v. Mark M., 65 Mass. 
8

Philip S., 414 Mass. 804, 811-812 (1993). See Commonwealth v. 

McCra, supra at 568; Commonwealth v. Guthrie G., 66 Mass. App. 

Ct. 414, 416 (2006), S.C., 449 Mass. 1028 (2007). "The choice 

of a sixteen year old juvenile not to consult with an available 

friendly advisor concerning those matters suggests that the 

juvenile's understanding was such that consultation was 

unnecessary." Commonwealth v. Alfonso A., 438 Mass. 372, 381

(2003), quoting from Commonwealth v. MacNeill, supra at 79.7

In Commonwealth v. Guthrie G., supra, the juvenile faced 

custodial interrogation at the police station after the police 

discovered a gun in his bedroom. The juvenile's father met him 

at the police station to act as an interested adult, and the 

officer read the Miranda warnings to the juvenile and his 

father. The father signed the Miranda form.

8 Although the 

officer did not specifically give the juvenile time to consult 

with his father about the meaning and consequences of waiving 

his rights, "either the father or the juvenile could have 

immediately asked to discuss the warnings privately or sought to 

 

App. Ct. 703, 706 (2006). See Commonwealth v. A Juvenile, 389 

Mass. at 134.

7 On the other hand, a juvenile under the age of fourteen is 

unlikely to fully comprehend his rights without an actual 

consultation with an interested adult. Commonwealth v. A 

Juvenile, supra at 134.

8 The juvenile testified at the motion to suppress that he 

understood his rights. Commonwealth v. Guthrie G., supra at 

416, 420 n.10.
9

exercise the Miranda rights after they were read." Id. at 420. 

We concluded that "[t]he presence of the parent and child 

together" was sufficient to establish that the juvenile had an 

opportunity to consult with his father. Ibid. 

Applying these standards, we agree with the motion judge 

that the juvenile had an opportunity to consult with his 

guardian and validly waived his rights before talking to Pina. 

Pina advised the juvenile of his Miranda rights in Ms. 

Courtney's presence, and both the juvenile and she signed the 

waiver form. "Nothing more need be shown to demonstrate that 

the presence of [his guardian] gave the juvenile a realistic 

opportunity to get helpful advice if he needed it." 

Commonwealth v. MacNeill, 399 Mass. at 78. 

The Supreme Judicial Court has observed that the "better 

practice . . . with any juvenile is for the investigating 

officials explicitly to inform the juvenile's parent, or other 

interested adult, that an opportunity is being furnished for the 

two to confer about the juvenile's rights." Commonwealth v.

Philip S., 414 Mass. at 811 n.5. The juvenile urges us to 

require the police affirmatively to provide juveniles an 

opportunity to confer with an interested adult in private. 

However, the Supreme Judicial Court has specifically declined to 

impose such a requirement, see Commonwealth v. Ward, 412 Mass. 

395, 397 (1992); Commonwealth v. Philip S., supra, at 812, and 
10

this court has rejected even the notion that "at a minimum . . . 

the parent must be physically present with the juvenile for a 

sufficiently long period of time prior to a waiver of Miranda 

rights, as would permit consultation should they wish to engage 

in it." Commonwealth v. Guthrie G., 66 Mass. App. Ct. at 430-

431 (Duffly, J., dissenting).

Therefore, the fact that the officers commenced the 

interrogation immediately after reading the juvenile and his 

guardian the Miranda rights, without leaving the room or 

offering the juvenile the opportunity to confer, is without 

legal significance. The mere presence of the juvenile and his 

guardian together facilitated "a request by one or both of them 

for consultation" if they had any "uncertainty in their minds." 

Id. at 420. The Commonwealth is not required to show more. The 

judge's partial denial of the motion to suppress was proper.

2. Mid-interrogation request to consult. For about ten 

minutes after remedying the malfunction in the videorecording 

machinery, the officers tried to persuade the juvenile to 

cooperate, even suggesting that he should speak with his 

guardian about what to do. The juvenile eventually did ask to 

for an opportunity to speak with Ms. Courtney. The officers 

left the room, but closely monitored the juvenile and his 

guardian from the detective's room. When the juvenile and his 

guardian attempted to communicate privately using the guardian's 
11

phone, Detective Pina quickly interrupted them and told the 

juvenile not to use the phone.

9 The motion judge found that the 

police's actions interfered with the juvenile's opportunity to 

consult with an interested adult and suppressed any statements 

following this interference. We affirm this aspect of the 

judge's order as well.

When a juvenile has waived his or her Miranda rights after

an opportunity to confer with an interested adult, subsequent 

statements are presumptively admissible at trial. See 

Commonwealth v. Torres, 424 Mass. 792, 799 (1997). However, if 

the juvenile is not afforded this "genuine opportunity," and the 

Commonwealth does not make an alternative showing of a "high 

degree of intelligence, experience, knowledge, or sophistication 

on the part of the juvenile," the statements must be suppressed. 

Commonwealth v. Alfonso A., 438 Mass. at 384, quoting from 

Commonwealth v. A Juvenile, 389 Mass. 128, 134 (1983). While, 

as discussed in part 1 supra, the police need not expressly 

inform the juvenile and the interested adult that they may 

 

9 Having found that the police "advise[d] the guardian not 

to use the phone, indicating that no phone use is allowed," the 

motion judge considered it telling that the police did not 

object to Ms. Courtney's use of her phone once the juvenile

started to confess. Upon review of the videotape, it was 

clearly the juvenile's use of the phone that prompted the 

interruption; the police never placed any limitations on Ms. 

Courtney's use of the phone. Nonetheless, the police-imposed 

prohibition on the juvenile's use of the guardian's phone 

effectively ended any consultation between them. 
12

confer in private, "the police may not properly deny them that 

right." Commonwealth v. Ward, 412 Mass. at 397 (affirming 

denial of motion to suppress where mother and juvenile son 

declined opportunity to consult, but noting, "[w]e would have a 

different case, of course, if the mother or the son had stated a 

desire to discuss the matter and the police had not allowed them 

to do so in private"). "If such a request has been made, it 

cannot be refused." Commonwealth v. Guthrie G., 66 Mass. App. 

Ct. at 420.

After a person under custodial interrogation knowingly and 

voluntarily waives his or her Miranda rights, questioning may 

continue unless and until the subject makes an "unambiguous 

invocation" of the right to remain silent. Commonwealth v. 

Clarke, 461 Mass. 336, 342 (2012), quoting from Berghuis v. 

Thompkins, [560 U.S. 370, 381] (2010). See Commonwealth v. 

Hearns, 467 Mass. 707, 716-717 (2014). So, too, if a juvenile 

requests to consult with an adult to determine whether to invoke 

his or her Miranda rights after questioning has begun, the 

police cannot deny that opportunity. The interested adult rule 

is based on our recognition that most juveniles do not fully 

understand the significance of Miranda warnings when they hear 

them, and further, that juveniles often lack the capacity to 

fully appreciate the consequences of their actions. See 

Commonwealth v. A Juvenile, supra at 131-132; Commonwealth v. 
13

Alfonso A., supra at 382. To effectively evaluate and exercise 

these rights, a juvenile often requires the guidance of an adult 

"to ensure that his rights do not become forfeit through fear, 

confusion[,] or intimidation." Taylor v. Commonwealth, 369 

Mass. 183, 192 (1975). See Commonwealth v. Cain, 361 Mass. 224, 

229, n.3 (1972) ("The Miranda warning that the [fifteen year

old] boy had a right to consult a lawyer was hollow indeed when 

he was denied access to his father who, practically speaking, 

was the only avenue through which he could effectively evaluate 

and, if he wished, exercise the right to counsel").

Of course, the juvenile's right to request a mid-interview 

consultation with an interested adult must pertain to the

Miranda rights. The interested adult rule is intended "to 

ensure that the waiver is knowing and intelligent." 

Commonwealth v. MacNeill, 399 Mass. at 77. "Furthermore, the 

ultimate question is whether the juvenile has understood his 

rights and the potential consequences of waiving them before 

talking to the police." Id. at 79. The consultation is not 

intended to substitute for legal advice. See Commonwealth v. 

Philip S., 414 Mass. at 812 n.6.

Here, the juvenile unambiguously requested to speak with 

his guardian to "make sure" whether he should "help" himself and 

"start cooperating with the case and the investigation," as the 

officers were urging him or, instead, to end the interview. 
14

Once the juvenile made a request to consult with his guardian 

about the exercise of his Miranda rights, the police were 

obliged to afford them the ability to confer in private. See 

Hall v. State, 264 Ind. 448, 452 (1976) ("a meaningful 

consultation can occur only in the absence of the neutralizing 

pressures which result from police presence").

The Commonwealth contends that once a juvenile has waived 

his or her Miranda rights, having had one opportunity for 

consultation with an interested adult, the juvenile no longer 

may request a private consultation to discuss whether to invoke 

the right to remain silent and cut off further questioning. We 

disagree. The purpose of the interested adult rule is to put a 

juvenile on a roughly even footing with an adult defendant in 

terms of understanding and making a meaningful decision to waive 

or invoke the Miranda rights. Accordingly, a sufficiently clear 

request to consult with an interested adult about those rights, 

which is essential to the juvenile's understanding and effective 

exercise of them, must be honored as scrupulously as an adult 

defendant's request to cut off questioning or to speak with an 

attorney. See Commonwealth v. Clarke, 461 Mass. at 343; 

Michigan v. Mosley, 423 U.S. 96, 104 (1975).

The motion judge determined that the officers' actions 

"essentially truncated the communication between guardian and 

defendant." The Commonwealth concedes that "the police imposed 
15

ground rules that may have had the effect of constraining 

conversation between the two," but argues that the break in the 

interrogation alone was sufficient to "allo[w] the juvenile and 

his guardian to consider whether to continue with the interview 

or end it, or to continue only with the assistance of an 

attorney." We agree with the motion judge that in the 

circumstances of this case, the constraining ground rules 

imposed by the police deprived the juvenile of a "genuine

opportunity" to confer with his guardian about the exercise of 

his Miranda rights. The motion judge properly suppressed the 

statements the juvenile made after the police failed to honor 

his request to consult with an interested adult.

Conclusion. The Commonwealth met its burden of proving 

that the juvenile initially waived his Miranda rights after an 

opportunity to consult with an interested adult, but the police 

deprived the juvenile of an opportunity for meaningful 

consultation about his Miranda rights when he later asked to 

speak to his guardian. The order denying the juvenile's motion 

to suppress in part and allowing the motion in part is affirmed.

So ordered.
COHEN, J. (concurring). I write separately to comment on 

our disposition of the juvenile's cross-appeal from the judge's 

partial denial of the motion to suppress. I agree that under 

current law the police are not required to give a juvenile over 

the age of fourteen an unsolicited opportunity to confer in 

private with an interested adult before obtaining a waiver of 

the juvenile's Miranda rights. However, I believe that the time 

has come to revisit this issue. 

In Commonwealth v. Philip S., 414 Mass. 804, 811 n.5 

(1993), the Supreme Judicial Court observed that "the better 

practice . . . with any juvenile is for the investigating 

officials explicitly to inform the juvenile's parent, or other 

interested adult, that an opportunity is being furnished for the 

two to confer about the juvenile's rights" (emphasis added). 

The court further observed that "[a] private consultation . . . 

clearly is the most conducive means to [an] unconstrained and 

thorough discussion between the adult and child." Id. at 812. 

In light of what we have learned and continue to learn about the 

developmental immaturity that persists throughout the teenage 

years, cf. Roper v. Simmons, 543 U.S. 551, 569-574 (2005), 

quoting from Johnson v. Texas, 509 U.S. 350, 367 (1993)

(recognizing that juveniles older than sixteen remain prone to 

"ill-considered actions and decisions"), fresh consideration 

should be given to requiring that the "better practice" and 
2

"most conducive means" identified in Philip S., supra, be 

followed in all juvenile cases.