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revision and are superseded by the advance sheets and bound 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

16-P-981 Appeals Court

COMMONWEALTH vs. RANDALL TREMBLAY.

No. 16-P-981.

Suffolk. April 14, 2017. - September 25, 2017.

Present: Trainor, Agnes, & Neyman, JJ.

Constitutional Law, Admissions and confessions, Voluntariness of 

statement, Waiver of constitutional rights, Search and 

seizure. Evidence, Admissions and confessions, 

Voluntariness of statement, Videotape, Intoxication.

Practice, Criminal, Motion to suppress, Admissions and 

confessions, Voluntariness of statement, Waiver, Findings 

by judge. Waiver. Intoxication. Search and Seizure, 

Clothing.

Indictments found and returned in the Superior Court 

Department on March 10, 2015.

A pretrial motion to suppress evidence was heard by Kenneth 

W. Salinger, J.

Applications for leave to prosecute interlocutory appeals 

were allowed by Geraldine S. Hines, J., and Robert J. Cordy, J., 

in the Supreme Judicial Court for the county of Suffolk, and the 

appeals were reported by them to the Appeals Court.

Zachary Hillman, Assistant District Attorney (Amy J. 

Galatis, Assistant District Attorney, also present) for the 

Commonwealth.
2

Patrick Levin, Committee for Public Counsel Services, for 

the defendant.

AGNES, J. The defendant, Randall Tremblay, was arrested 

and subsequently indicted for the murder of Stephanie McMahon, 

based on statements he made to the police both at the scene and 

in two subsequent custodial interrogations, and blood discovered 

on his clothing, which the police seized when they arrested him. 

The defendant moved to suppress all statements he made to the 

police and all evidence seized from him. The judge conducted an 

evidentiary hearing, during which he heard testimony from three 

police officers and viewed a videotape recording of the second 

custodial interrogation of the defendant following his arrest on 

a warrant for an unrelated offense.1 Based on the contents of 

that videotape recording, the judge concluded that the defendant 

was so intoxicated when he was questioned at the police station 

that he was incapable of making a knowing and intelligent waiver 

of his Miranda rights. As a result, the judge ruled that all of 

the statements made by the defendant at the police station must 

be suppressed. The judge also ruled that while the police 

 

1 The exhibits admitted in evidence at the motion to 

suppress hearing include the following: the defendant's signed 

Miranda rights form, the restraining order obtained by the 

victim against the defendant, the inadvertent videotape 

recording of the wrong interview room, the videotape recording 

of the defendant's second interview, photographs of items 

recovered from the dumpster behind the victim's apartment, and a 

videotape recording of a train platform depicting the defendant.
3

lawfully seized the defendant's clothing in order to preserve 

evidence of an apparent homicide, they acted unlawfully in 

subjecting the clothing to forensic testing without first 

obtaining a search warrant. Therefore, the judge made a further 

ruling that all forensic testing results from the defendant's 

clothing must be suppressed. 

For the reasons more fully explained in the discussion that 

follows, our independent review of the judge's ultimate finding 

that the defendant was too intoxicated to waive his rights leads 

us to conclude that it is erroneous. See Commonwealth v. JonesPannell, 472 Mass. 429, 431 (2015).2 In addition, our 

independent review of the judge's ruling of law that the 

Commonwealth failed to meet its burden to prove a valid waiver 

of the defendant's Miranda rights leads us to conclude that it 

too is erroneous. Finally, mindful of the limits on appellate 

fact finding, see id. at 438, we conclude that the unusual 

circumstances of this case brings it within the rule applied in 

Commonwealth v. Novo, 442 Mass. 262, 266 (2004), Commonwealth v. 

Hoyt, 461 Mass. 143, 148-151 (2011), and Commonwealth v. Newson, 

471 Mass. 222, 231-232 (2015). In those cases, the Supreme 

 

2 "In reviewing a decision on a motion to suppress, we 

accept the judge's subsidiary findings absent clear error but 

conduct an independent review of the ultimate findings and 

conclusions of law." Commonwealth v. Jones-Pannell, supra

(quotations omitted). See Commonwealth v. Haas, 373 Mass. 545, 

550 (1977); Commonwealth v. Alvarado, 420 Mass. 542, 544 (1995); 

Commonwealth v. Thomas, 429 Mass. 403, 405 (1999).
4

Judicial Court declined to defer to the factual findings made by 

the motion judge, conducted an independent review of a 

videotaped interrogation session, and determined whether there 

was compliance with the Miranda rights doctrine (Hoyt) and 

whether the statements were voluntary (Newson and Novo), without 

the need for a remand. In the present case, the judge relied on 

the videotaped interrogation session to find the facts that led 

him to conclude that the defendant was too intoxicated to waive 

his Miranda rights.

3 However, based on our independent review of 

the same documentary evidence, we conclude that there is ample 

evidence to support the conclusion that the Commonwealth met its 

"heavy burden," Commonwealth v. Hoyt, supra at 152, to establish 

that the defendant made a valid waiver of his Miranda rights, 

and that his statements were voluntary.

Background. The following facts are drawn from the 

findings made by the judge, and testimonial evidence presented 

at the motion to suppress hearing that is consistent with those 

 

3 The judge heard the testimony of three police officers in 

addition to viewing the videotape of the defendant's 

interrogation. The judge was entitled to make credibility 

assessments and weigh that evidence, which we are not permitted 

to do. Commonwealth v. Jones-Pannell, supra at 432. However, 

as we explain, infra, the judge's subsidiary findings relating 

to his conclusion that the defendant was incapable of waiving 

his Miranda rights are not supported by the testimonial 

evidence. In fact, the testimonial evidence is consistent with 

and supportive of the view we take of the videotape evidence. 

Instead, the judge's conclusion that the defendant was too 

intoxicated to waive his Miranda rights is derived from the 

inferences he draws from the videotape evidence.
5

findings. See Commonwealth v. Isaiah I., 448 Mass. 334, 337 

(2007). We reserve certain details for our analysis of the 

issues raised on appeal.

1. At the crime scene. Shortly after 2:00 A.M. on 

November 18, 2014, Boston police Sergeant Scott Yanovitch 

arrived at an apartment in the Hyde Park area of Boston shortly 

after the victim, Stephanie McMahon, had been pronounced dead. 

Another officer and two emergency medical personnel were already 

on scene, after responding to a 911 call reporting that a woman 

had died in the apartment. Sergeant Yanovitch requested that 

the police dispatcher issue a "full notification" for a crime 

scene team and homicide detective to come to the scene. He then 

interviewed two witnesses who were present at the apartment when 

the police arrived, Michael Doucette and Gay Finley.

4 At one 

point, Sergeant Yanovitch stepped outside for some fresh air. 

He observed a man, later identified as the defendant, walk past 

the apartment while talking and mumbling to himself. Sergeant 

Yanovitch had no interaction with the defendant at that time. 

Later, Doucette asked to go outside and smoke a cigarette. 

Sergeant Yanovitch accompanied him. While outside, Sergeant 

Yanovitch again observed the defendant walk by the apartment 

while talking to himself. The defendant stopped and asked 

 

4 We adopt the judge's spelling of Finley.
6

Doucette for a cigarette. Sergeant Yanovitch told the defendant 

to move along, but otherwise had no interaction with him. 

At the time of dispatch to the victim's apartment, Boston 

police Officer Shawn Roberts was on patrol with his partner in a 

marked police cruiser. Officer Roberts recognized the address 

as one that he had previously responded to some months earlier

for a report of a broken window. He was also aware of a number 

of incident reports related to that address, most of which were 

for domestic violence incidents between the victim and a man 

named Randall Tremblay. When Officer Roberts received the full 

notification from Sergeant Yanovitch, he looked up Tremblay and 

discovered that there was an active restraining order against 

Tremblay requiring him to stay away from the victim's apartment, 

as well as an active arrest warrant against Tremblay for failing 

to register as a sex offender. He also obtained a photograph of 

Tremblay. Officer Roberts contacted Sergeant Yanovitch and 

informed him of the previous domestic violence incidents between 

the victim and Tremblay and the active restraining order. 

Shortly thereafter, Sergeant Yanovitch radioed Officer Roberts 

and asked him to come to the scene to determine if Doucette, who 

did not have identification, was the person whom Officer Roberts 

had radioed him about. Officer Roberts arrived on scene and 

told Sergeant Yanovitch that Doucette was not Tremblay; Officer 

Roberts then left. 
7

Later, around 3:40 A.M., Sergeant Yanovitch was inside the 

apartment when he heard loud yelling coming from the street 

outside. He went outside and discovered the defendant, who was 

yelling things like, "What's going on in there? I know what 

happened," and "She was my friend." The defendant approached 

Sergeant Yanovitch and asked him what was happening in the 

apartment and repeated that "she was [his] friend." Sergeant 

Yanovitch asked for the defendant's name, who replied, "What, 

are you going to run me?" Because the defendant had just 

suggested that he knew the victim and may have information about 

her death, Sergeant Yanovitch radioed Officer Roberts to return 

to the scene. Officer Roberts returned and informed Sergeant 

Yanovitch that the defendant was Randall Tremblay, and that he 

had an active arrest warrant. Officer Roberts placed the 

defendant under arrest and advised him of his Miranda rights.

5

2. Unrecorded custodial interrogation. Officer Roberts 

and his partner brought the defendant to police headquarters to 

be interviewed. Beginning at around 4:00 A.M., Sergeant 

Detective Michael Stratton interviewed the defendant in an 

interview room. Sergeant Detective Stratton believed that the 

interview was being recorded, but the recording equipment was 

 

5 The judge found that the defendant did not acknowledge 

whether he understood his rights, but as the defendant was not 

questioned until later at the police station, nothing turns on 

this finding. 
8

inadvertently turned on for a different interview room. As a 

result, the interview was not recorded.

6 However, Officer 

Roberts was able to observe and listen to the interview on the 

recording system's monitor outside the interview room. 

Sergeant Detective Stratton began the interview by

explaining that the interview would be recorded and advising the 

defendant of his Miranda rights. The defendant was shown a form 

with each right listed, and the detective went over each right 

with the defendant. The defendant signed his initials next to 

each right, and indicated that he understood it. He also signed 

and printed his name at the bottom of the form. 

During the course of the interview, the defendant made 

statements implicating himself in the victim's death. He stated 

that two days previously he had been with the victim at her 

apartment when they got into an argument around 9:00 P.M. The 

defendant stated that he struck the victim in the head twelve to 

fifteen times, that "she got it good," and that "I think I 

killed her." After he struck the victim, she lay on the couch, 

not moving, with blood on her face. The defendant fell asleep, 

and woke up early the next morning to find the victim had not 

moved. He believed he had killed her.

 

6 The judge found that the first interview of the defendant 

was not recorded due to an error in turning on the recording 

equipment for the wrong interview room, and did not find that it 

was the result of any police misconduct.
9

The defendant told Sergeant Detective Stratton that he then 

left the apartment and took a train to meet his friend, 

Doucette. He told Doucette, "I think I killed [the victim]," 

and asked Doucette to return with him to the victim's apartment 

to check. Before they did so, they purchased beer, drank some 

together, and met with Finley. The three returned to the 

victim's apartment, where Doucette confirmed that the victim was 

deceased. They remained in the apartment and drank another beer 

while the defendant cleaned up. The defendant stated that he 

"mopped up some big puddles of blood in the apartment and took 

out some trash." Finley then called 911 to report that the 

victim was deceased. Doucette told the defendant that he should 

leave the apartment because the victim had an active restraining 

order against him, so he left the apartment and waited around 

the corner. 

After he concluded the interview and left the room, 

Sergeant Detective Stratton learned of the error with the 

recording equipment. He returned to the interview room and 

explained to the defendant that the interview had accidently not 

been recorded, and asked the defendant if he was willing to do 

another interview. The defendant agreed, asking if he could 

have a cigarette first. 

3. Recorded custodial interrogation. After being taken 

outside to smoke a cigarette, the defendant was brought back to 
10

the interview room to be re-interviewed by Sergeant Detective 

Stratton with the proper recording system running. The 

videotape begins with an empty interrogation room. The 

videotape then shows Sergeant Detective Stratton and the 

defendant entering the room. Before commencing the second 

interview, Sergeant Detective Stratton showed the defendant the 

Miranda rights form that the defendant had initialed and signed 

prior to the first interview. Sergeant Detective Stratton read 

each right to the defendant and asked him if he understood it. 

The defendant indicated that he did. Sergeant Detective 

Stratton asked the defendant the same questions he had asked in 

the first interview, with the defendant giving similar answers. 

The second videotaped interview did not differ in any material 

respect from the unrecorded first interview. The defendant 

explained in detail the events surrounding the victim's death

and what he did the next day after finding her apparently 

lifeless. The defendant repeated his admission to Sergeant 

Detective Stratton that he hit the victim in the head numerous 

times, and stated that he believed he had killed her. He stated 

that "she's dead because of me." Throughout the interview, the 

defendant asked Sergeant Detective Stratton when he was going to 

be released. After the conclusion of the second interview, the 

defendant was taken for photographs and booking. Because some 

of the defendant's clothing had apparent blood stains, his 
11

clothing was held and submitted for forensic testing. The 

defendant was later indicted for the murder of the victim.

Discussion. 1. Standard of review. Ordinarily, when we 

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

subsidiary findings of fact absent clear error 'but conduct an 

independent review of his ultimate findings and conclusions of 

law.'" Commonwealth v. Scott, 440 Mass. 642, 646 (2004), 

quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). 

However, we apply a different standard when the judge's findings 

of fact are drawn from documentary evidence and there is no

independent testimonial evidence to support those findings. As 

the Supreme Judicial Court has stated, "[w]e have consistently 

held that lower court findings based on documentary evidence 

available to an appellate court are not entitled to deference." 

Commonwealth v. Novo, 442 Mass. at 266. This is because we are 

in as good a position as the judge to view and assess such 

evidence. See Commonwealth v. DiGiambattista, 83 Mass. App. Ct. 

180, 181 (2013).

The critical question in a case like this, in which the 

judge heard the testimony of three police officers in addition 

to the videotape evidence, is whether the controlling facts are 

attributable to the testimonial evidence or to the videotape, or 

a combination of the two. If the controlling facts (here the 

facts about the degree of the defendant's intoxication) are 
12

based on testimonial evidence, we must defer to the judge's 

findings unless they are clearly erroneous. Commonwealth v. 

Hoose, 467 Mass. 395, 399-400 (2014). On the other hand, if the 

controlling facts were derived from documentary evidence, we are 

authorized to review those findings de novo. Commonwealth v. 

Clarke, 461 Mass. 336, 341 (2012) ("Here, to the extent that the 

judge based his legal conclusions on facts found by virtue of a 

video recording, we are in the same position as the [motion] 

judge in viewing the videotape" [quotation omitted]). In this 

case, the judge's several findings that the defendant was 

intoxicated during the first and second interviews were based on 

a combination of documentary and testimonial evidence. However, 

the controlling facts that support the judge's ultimate finding 

that the degree of the defendant's intoxication rendered him 

incapable of waiving his Miranda rights are based exclusively on 

documentary evidence.7

 

7 In one respect, we conclude that a subsidiary finding that 

may have been important to the result reached by the judge is 

clearly erroneous. "A finding is 'clearly erroneous' when 

although there is evidence to support it, the reviewing court on 

the entire evidence is left with the definite and firm 

conviction that a mistake has been committed." J.A. Sullivan 

Corp. v. Commonwealth, 397 Mass. 789, 792 (1986), quoting from 

United States v. United States Gypsum Co., 333 U.S. 364, 395 

(1948). The judge found that prior to the first unrecorded 

interview, "[Sergeant Detective Stratton] then read [the 

defendant] his Miranda rights from a preprinted form. [The 

defendant] put his initials next in [sic] each spot that 

Stratton told him to initial, and signed his name where Stratton 

told him to sign." Insofar as this finding means that Sergeant 
13

2. The finding that the defendant was intoxicated, without 

more, does not support the judge's ultimate finding and ruling 

that there was no valid waiver of Miranda rights. At several 

different points in his decision, the judge refers to the 

defendant as "intoxicated" or "quite intoxicated." The source

of the evidence for these findings is both the testimony of the 

police officers and the videotaped interview of the defendant.

The testimonial evidence relating to the defendant's 

consumption of alcohol consists of the following. Sergeant

Detective Stratton testified at the motion to suppress hearing 

that the defendant stated during his interview that on the 

evening of Sunday, November 16, 2014, prior to the homicide, the 

defendant and the victim drank beer and took some pills. 

Sergeant Detective Stratton also testified that the defendant 

stated that he left the victim's apartment during the day of 

 

Detective Stratton told the defendant to sign the waiver form, 

there is no evidence in the testimony or in the videotape to 

support this finding. The testimony at the hearing before the 

judge was that, prior to the first interview, Sergeant Detective 

Stratton advised the defendant of his Miranda rights and went 

over each right on a printed form. The defendant wrote his 

initials next to each right and signed and printed his full name 

at the bottom of the form. The videotape shows that Sergeant 

Detective Stratton reviewed with the defendant each of the 

Miranda rights on the form before he conducted the second 

interview, and the defendant responded by stating that he 

understood his Miranda rights. Thus, insofar as the judge's 

finding that Sergeant Detective Stratton told the defendant to 

initial and sign the written Miranda rights form was intended to 

indicate that the defendant did not make a knowing, voluntary,

and intelligent waiver of his Miranda rights before the first, 

unrecorded interview, we disregard it.
14

November 17 and met Doucette. They purchased some beer. There 

is videotape evidence of the defendant and Doucette standing on 

the platform at the Back Bay train station minutes before 

midnight on November 17 drinking from a can or bottle inside a 

paper bag. The defendant also stated that when he, Doucette, 

and Finley returned to the victim's apartment during the early 

morning of November 18, he drank a beer before the victim's 

death was reported to the police at approximately 2:00 A.M. 

Finally, there is testimony from Officer Roberts, who detected a 

"slight odor of alcohol" on the defendant at the crime scene 

shortly before his arrest.

8

The judge did not further explain what he meant by 

"intoxication." Although the law recognizes that "the effects 

of liquor upon the mind and actions of men are well known to 

 

8 The bulk of the testimonial evidence regarding the 

defendant's intoxication, which the judge disregarded, as he was 

entitled to do, indicates that the defendant was not 

intoxicated. For example, while Officer Roberts testified that 

the defendant had a "slight odor of alcohol" about him at the 

scene, he also testified that the defendant exhibited no other 

signs of intoxication, such as slurred speech or difficulty 

walking. He also observed the defendant at the police station, 

and testified that the defendant did not appear to have 

difficulty understanding him and did not appear to be confused. 

Sergeant Yanovitch, who interacted with the defendant at the 

scene, testified that the defendant did not smell of alcohol and 

did not appear intoxicated. Significantly, Sergeant Yanovitch 

also testified that Doucette did smell of alcohol and did appear 

intoxicated. In addition, Sergeant Detective Stratton, who 

spent nearly three hours with the defendant, testified that the 

defendant did not smell of alcohol, did not slur his speech, was 

lucid, cooperative, and articulate, and did not appear 

intoxicated at any point that night.
15

everybody," Commonwealth v. Taylor, 263 Mass. 356, 362 (1928), 

the term intoxication does not have a single, uniform meaning. 

"Liquor affects individuals in various ways and it is sometimes 

difficult to determine degrees of intoxication." Holton v. 

Boston Elevated Ry. Co., 303 Mass. 242, 246 (1939).9 It is 

precisely because the term intoxication refers to a range of 

conditions and competencies that the law recognizes that a 

person's intoxication does not preclude a determination that the 

person made a valid waiver of his Miranda rights.

10

 

9 See Commonwealth v. Canty, 466 Mass. 535, 542 (2013) (lay 

opinion testimony regarding person's intoxication probative 

"because such an opinion, especially as to the level of 

intoxication, may be shaped by observations too numerous or 

subtle to mention" [emphasis original]). The fact that 

intoxication describes a range of conditions is reflected in our 

decisional law. See, e.g., Commonwealth v. Henson, 394 Mass. 

584, 592-593 (1985) (defendant's voluntary intoxication does not 

negate specific intent as matter of law, but is factor which 

jury may consider in determining whether he had capacity to form 

specific intent); Commonwealth v. Urban, 450 Mass. 608, 613 

(2008) (before jury may find that adult is incapable of 

consenting to sexual activity with another, they must find "an 

extreme degree of intoxication").

10 The following cases illustrate that a person may be 

intoxicated and nonetheless make a valid waiver of Miranda 

rights. See, e.g., Commonwealth v. Simmons, 417 Mass. 60, 65 

(1994) (noting that there was basis for judge’s finding that 

"although the defendant may have been somewhat intoxicated when 

he spoke to the police, his mind was rational and his faculties 

were under control"); Commonwealth v. Mello, 420 Mass. 375, 383 

(1995) ("intoxication alone is insufficient to negate an 

otherwise voluntary act"); Commonwealth v. Griffin, 19 Mass. 

App. Ct. 174, 182-183 (1985) (upholding judge's decision that 

defendant was under influence of alcohol, but nonetheless alert 

and capable of waiving his Miranda rights). See also 

Commonwealth v. Wolinski, 431 Mass. 228, 231 (2000) ("[T]he 
16

"An otherwise voluntary act is not necessarily rendered 

involuntary simply because an individual has been drinking or 

using drugs." Commonwealth v. Shipps, 399 Mass. 820, 826 

(1987).11 For these reasons, we conclude that the judge's

determination that the defendant was intoxicated at the time he 

was advised of his Miranda rights does not answer the question 

whether he was capable of validly waiving his Miranda rights. 

The answer to that question depends on whether there was 

physical or psychological coercion on the part of the police and 

whether, based on the totality of the circumstances, the 

defendant had the capacity to make a rational choice about 

 

defendant was not intoxicated to the point his ability to think 

freely and rationally was impaired").

11 The principle that intoxication alone does not preclude a 

person from making a valid waiver of Miranda rights and does not 

make an otherwise voluntary statement involuntary has been 

stated repeatedly by the Supreme Judicial Court and this court. 

See Commonwealth v. Doucette, 391 Mass. 443, 447-448 (1984); 

Commonwealth v. Shipps, supra at 826-827 (defendant appeared 

glassy-eyed and smelled of alcohol); Commonwealth v. Ward, 426 

Mass. 290, 294 (1997) (defendant had been drinking for several 

hours, smelled of alcohol, and had .39 blood alcohol content);

Commonwealth v. Wolinski, supra (defendant had drug and alcohol 

addiction and had used heroin earlier that day); Commonwealth v. 

Silanskas, 433 Mass. 678, 686 (2001) (officer testified that 

defendant smelled of alcohol and was under influence of 

alcohol); Commonwealth v. Duffy, 36 Mass. App. Ct. 937, 938-939

(1994) (defendant had been drinking before he walked into police 

station and confessed); Commonwealth v. Liptak, 80 Mass. App. 

Ct. 76, 79 (2011) (defendant had .19 blood alcohol content, had 

strong odor of alcohol on breath, and had been given morphine 

and oxycodone at hospital); Commonwealth v. Bigley, 85 Mass. 

App. Ct. 507, 509 (2014) (defendant had strong odor of alcohol, 

glassy eyes, and was unsteady on his feet).
17

whether to speak or to remain silent or to request an attorney. 

See Commonwealth v. Silanskas, 433 Mass. 678, 685-688 (2001). 

In the present case, the judge's answers to those questions were 

based entirely on the videotape evidence. 

3. Waiver of Miranda rights. The judge connected his 

subsidiary finding that the defendant was intoxicated to his 

ultimate finding that the defendant was incapable of waiving his 

Miranda rights, and to his ruling that the Commonwealth did not 

meet its burden of proving a valid waiver of Miranda rights, by 

drawing inferences from the appearance and conduct of the 

defendant during the second, recorded, interrogation. Our 

independent review of the same evidence leads us to reach a 

different conclusion, namely, that based on the conduct of 

Sergeant Detective Stratton and the defendant's statements and 

behavior throughout the course of the videotape, the 

Commonwealth satisfied its heavy burden to prove that the 

defendant made a valid waiver of his Miranda rights. See

Commonwealth v. Hilton, 443 Mass. 597, 607-608 (2005), S.C., 450 

Mass. 173 (2007). 

In deciding whether a defendant's waiver of his Miranda 

rights is valid, "[we] must examine the totality of the 

circumstances surrounding the making of the waiver." 

Commonwealth v. Edwards, 420 Mass. 666, 670 (1995), quoting from

Commonwealth v. Medeiros, 395 Mass. 336, 345 (1985). This
18

requires us to consider such factors as the "conduct of the 

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

emotional stability, experience with and in the criminal justice 

system, [and] physical and mental condition." Commonwealth v.

Martinez, 458 Mass. 684, 692 (2011) (quotation omitted). An 

officer is entitled to rely on the suspect's outward appearance, 

words, and other behaviors in assessing whether he is capable of 

waiving his Miranda rights and whether he, in fact, did waive 

them. Commonwealth v. Lanoue, 392 Mass. 583, 588-589 (1984).

"[S]pecial care is taken to review the issue of 

voluntariness where the defendant claims to have been under the 

influence of drugs or alcohol." Commonwealth v. Mello, 420 

Mass. 375, 383 (1995). When a suspect is under the influence of 

alcohol or drugs, "police should not assume they can immediately 

receive a knowing and intelligent waiver of Miranda rights and 

commence interrogation." Commonwealth v. Hosey, 368 Mass. 571, 

579 (1975). Here, based on his viewing of the videotaped 

interview, the judge noted a number of factors that led him to 

conclude that the defendant was too intoxicated to waive his 

Miranda rights.

The judge found that the defendant was not paying attention 

when Sergeant Detective Stratton went over his Miranda rights 

again prior to the second interview. When asked if he 

understood each right, the defendant responded, "Yes" or 
19

"Obviously." While the defendant does appear to be more 

interested in explaining why the arrest warrant was incorrect, 

we do not regard that as evidence that he did not understand 

what the warnings meant. The defendant was not a stranger to 

police. He had had numerous interactions with the police in the 

past, had been arrested on at least one prior occasion, and 

demonstrated knowledge of police procedures and the criminal 

justice system.12 See Commonwealth v. St. Peter, 48 Mass. App. 

Ct. 517, 519-520 (2000) ("experience in the criminal justice 

system" is "relevant factor" with respect to Miranda rights

waiver). 

The judge also found that the defendant had "great 

difficulty walking" to his seat, and that he stumbled several 

times before sitting down. While the defendant does appear to 

stumble when he first enters the room with handcuffs on, at 

several points during the interview, the defendant stands up, 

and each time he appears quite steady on his feet. At one 

point, he stands to demonstrate how he hit the victim, and 

raises his knee while standing steady on one foot. When the 

 

12 For example, the defendant was hesitant to provide his 

name to Sergeant Yanovitch at the scene out of fear that the 

sergeant would "run" him. He knew the difference between a 

straight warrant and a default warrant. He had paperwork 

pertaining to an arrest warrant on his person. From his warrant 

for failing to register as a sex offender, it can be inferred 

that he had a prior conviction requiring him to register. See 

G. L. c. 6, § 178E(f).
20

defendant is led out of the room at the end of the interview, he 

shows no signs of unsteadiness or difficulty walking.

13 

The judge also found that the defendant "sounds drunk and 

seems to have trouble speaking clearly." To the contrary, the 

videotape demonstrates that the defendant is alert and his

answers to questions are responsive, coherent, and often "quite 

self-serving."

14 Commonwealth v. Silanskas, 433 Mass. at 686. 

The defendant's speech is clear and he appears alert and awake, 

not groggy or drowsy. He recounts a relatively complex series 

of facts replete with specific details, such as bus numbers, the 

name and location of a liquor store, the victim's home telephone 

number, and the location of specific items in the victim's 

apartment. The defendant corrects Sergeant Detective Stratton

at one point when he asked, "so what happened tonight?" The 

defendant replies, "actually, wait a minute, it didn't happen 

tonight." 

The judge's conclusion was also based on his finding that

the defendant did not appear to understand that he had 

 

13 The defendant also noted that he had previously sustained 

injuries requiring a hospital stay after jumping out of a fifthfloor window.

14 There are numerous examples of the defendant's selfserving statements during the interview. He is careful to tell 

the police that he only hit the victim with an open hand, not 

with closed-fist punches, and that he only hit her in the face. 

He says repeatedly that he only went to the victim's apartment 

when she invited him, knowing that there was a restraining 

order. He also withholds Doucette's last name.
21

incriminated himself with his statements during the interview. 

The judge reasoned that, because the defendant continuously 

asked when he was going to be released, he did not understand 

the consequences of waiving his Miranda rights and speaking with 

the police. However, the videotape shows that the defendant is 

aware that his statements were incriminating. Throughout the 

interview, he is very animated and forceful when talking about 

why he believes he should not have been arrested on a warrant 

that should have been recalled, but when asked about what 

happened to the victim, he becomes very quiet and subdued. He 

pauses, drums his fingers on the table, breaks eye contact with 

Sergeant Detective Stratton, and mumbles. The defendant also 

demonstrates that he is conscious of the consequence of his 

actions when he states many times during the interview, "I 

fucked up." In addition, several times during the interview, he 

makes statements indicating that he knows criminal charges could 

come from his statements. For example, at one point, the 

defendant opines that the victim "died in her own blood," then 

raises his hands and says, "charge me with something." Later,

he states, "Yeah I did whack her, and I'm sorry I did that. It 

sucks. But whatever you guys want to do." When asked if there 

was anything else he wanted to talk about, the defendant states,

"I had a restraining order. I wasn't supposed to be there in 

the first place. So I'm, it's jail-bound regardless, right?" 
22

The defendant also stated, "I've never done that to her before, 

either."15 Finally, toward the end of the interview, the 

defendant asks if he can see the victim. When Sergeant 

Detective Stratton says no, the defendant says, "I'm going to 

jail aren't I?" These statements demonstrate that the defendant 

was aware of the consequences of waiving his right to remain 

silent and speaking with the police.

16 The Commonwealth's burden 

of proof with respect to the waiver of Miranda rights does not 

require it to establish that the defendant understood and 

appreciated the tactical or strategic consequences of waiving 

his Miranda rights.

17

 

15 This statement can be viewed as an attempt by the 

defendant to minimize the seriousness of his conduct by avoiding 

an admission that he is a repeat abuser.

16 The judge viewed the defendant's admission of guilt and 

his questions about being released as so incompatible with one 

another that they were indicative of a person not thinking 

rationally. However, those two aspects of the defendant's 

statements are not incompatible. The videotape shows that the 

defendant strongly believed that the warrant was defective, and 

while he understood that there would be a penalty for being 

involved in the victim's death, he believed that the 

investigation was ongoing and that when it was time for charges 

to be filed, the police could easily find him because he was 

local.

17 The police are not required to provide a suspect with a 

"flow of information to help him calibrate his self-interest in 

deciding whether to speak." Commonwealth v. Raymond, 424 Mass. 

382, 393 (1997) (quotation omitted). The duty to advise 

suspects of their Miranda rights prior to questioning does not 

include the "requirement that a defendant be advised of all the 

ramifications of any waiver of his rights." Commonwealth v. 

Lee, 10 Mass. App. Ct. 518, 529 (1980). The police have no 
23

The judge relied on Commonwealth v. Hosey, 368 Mass. 571 

to support his conclusion that the defendant was incapable of 

making a rational choice. However, the facts of that case are 

markedly different from those in the case before us. In Hosey, 

the defendant was arrested for drunkenness while at the 

hospital, where his girl friend's young daughter was being 

treated for injuries. Id. at 573-574. After being taken to the 

police station and being advised of his Miranda rights, the 

defendant was questioned regarding the circumstances surrounding 

the injuries to the child. Id. at 576. The questioning officer 

testified that the defendant appeared "extremely high,"

"extremely emotional," and "detached from reality" while he was 

being questioned. Id. at 579. The court held that based on the

observations by the police, the defendant could not have made a 

valid Miranda rights waiver and that officers should have ceased 

questioning the defendant until he was capable of responding 

intelligently. Ibid. 

In addition, the circumstances surrounding the defendant's 

waiver in Hosey were concerning even without considering his 

 

"duty to give legal advice to suspects." Commonwealth v. 

Cunningham, 405 Mass. 646, 657 (1989). The constitutional 

measure of whether a person's decision to waive his Miranda 

rights and speak with police without counsel present is not 

whether the decision is in his best interests, but rather 

whether it was a voluntary choice by a person who was aware of 

his rights and had the capacity to make a rational choice. See 

Commonwealth v. Magee, 423 Mass. 381, 386-387 (1996).
24

intoxication. In Hosey, when reviewing the defendant's Miranda 

rights during the questioning, one of the officers interjected 

that it would be difficult for the defendant to obtain counsel 

at 5:00 A.M., but that he could do so if he "insisted." Id. at 

576. The court concluded that this statement, coupled with the 

defendant's mental condition and the officers' knowledge that 

the defendant wanted to finish quickly so that he could get to 

work at 6:00 A.M., was an improper attempt to induce a waiver. 

Id. at 578. As we said in Commonwealth v. Bigley, 85 Mass. App. 

Ct. 507, 513-514 (2014), "[t]he result in Hosey turned on a 

combination of three factors: severe intoxication, the 

officers' description of the defendant as 'detached from 

reality,' and the defective administration of Miranda rights." 

Hosey, thus, is not an appropriate guidepost for the present 

case.

For these reasons, on the basis of the same documentary 

evidence relied on by the judge below, our independent review 

leads us to conclude that the evidence was sufficient to meet 

the Commonwealth's burden to demonstrate that the defendant's 

waiver of his Miranda rights was knowing, intelligent, and 

voluntary. Contrary to the judge's conclusion, the video 

recording of the defendant's interview with the police does not 

reveal a person who is "far too intoxicated to be able to make a 

knowing and intelligent waiver of his right to remain silent." 
25

See Commonwealth v. Simmons, 417 Mass. 60, 65-66 (1994). 

Instead, we have a settled conviction that notwithstanding the 

defendant's intoxication, he made a knowing, intelligent, and 

voluntary waiver of his Miranda rights.

4. Voluntariness. The defendant also contends, as with 

his Miranda rights waiver, that his intoxication at the time of 

his questioning by the police rendered his statements 

involuntary. Whether the defendant made a valid waiver of 

Miranda rights and whether any statements he made were voluntary 

are separate and distinct questions. See Commonwealth v. Magee, 

423 Mass. 381, 387 (1996). When, as here, both issues are 

raised by the defendant, the judge must make findings and 

rulings on each question. See Commonwealth v. Melkebeke, 48 

Mass. App. Ct. 364, 366 (1999). However, we have generally 

applied the voluntariness test only after concluding that the 

police complied with their obligations under Miranda v. Arizona,

384 U.S. 436, 469 (1966). Commonwealth v. Baye, 462 Mass. 246, 

252 n.8 (2012). Here, the judge did not determine whether the 

defendant's statements were voluntary, as he concluded that the 

defendant did not knowingly and intelligently waive his Miranda 

rights. In the circumstances of this case, a remand to enable 

the judge to make findings of fact as to the issue of 

voluntariness is unnecessary because we are in as good a 

position to evaluate the recorded interview.
26

As with our analysis of the voluntariness of a Miranda 

rights waiver, we apply the "totality of the circumstances" 

test. Commonwealth v. Hensley, 454 Mass. 721, 730 (2009). 

"There is no bright line test for voluntariness . . . . [W]e 

[must] consider all of the relevant circumstances surrounding 

the statement[s] and the individual characteristics and conduct 

of the defendant." Commonwealth v. Burbine, 74 Mass. App. Ct.

148, 153 (2009). "A judicial determination of voluntariness 

involves an assessment of the totality of relevant circumstances 

to ensure that the defendant's [statements were] a free and 

voluntary act and [were] not the product of inquisitorial 

activity which had overborne his will." Commonwealth v. Allen, 

395 Mass. 448, 454-455 (1985) (quotation omitted). Among the 

relevant factors we consider under the totality of the 

circumstances test are "promises or other inducements, conduct 

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

and emotional stability, experience with and in the criminal 

justice system, physical and mental condition, the initiator of 

the discussion of a deal or leniency (whether the defendant or 

the police), and the details of the interrogation, including the 

recitation of Miranda warnings." Commonwealth v. Selby, 420 

Mass. 656, 663 (1995). The focus of our inquiry into 

voluntariness is whether the incriminating statements were "the 
27

result of coercion or intimidation." Commonwealth v. Durand, 

457 Mass. 574, 595 (2010). 

Here, the police did not engage in any coercion or use

discredited tactics such as minimization of the crime, false 

promises, or assurances of leniency. See Commonwealth v. Baye, 

supra at 257-260. They did not mischaracterize the law so as to 

make the defendant think he was not confessing to a crime, or 

tell him that his statements would not be used against him. See 

Commonwealth v. DiGiambattista, 442 Mass. 423, 435 (2004); 

Commonwealth v. Tremblay, 460 Mass. 199, 211-212 (2011).

The determination of voluntariness also requires us to 

consider the defendant's physical and mental condition at the 

time he made the statements. See Commonwealth v. Lopes, 455 

Mass. 147, 167 (2009). Statements that are the product of "a 

defendant's debilitated condition, such as insanity, drug abuse 

or withdrawal symptoms, [or] intoxication, are not the product 

of a rational intellect or free will and are involuntary." 

Commonwealth v. Allen, supra at 455 (citations omitted). 

"Although alcohol intoxication is an important factor bearing on 

the issue of voluntariness, intoxication alone is not sufficient 

to negate an otherwise voluntary act." Commonwealth v. Parker, 

402 Mass. 333, 341 (1988). A defendant's personal 

characteristics and demeanor during an interrogation are 
28

appropriate considerations when deciding the issue of 

voluntariness. See Commonwealth v. Durand, supra at 597-598.

Here, the defendant did not appear to be in the fragile 

physical or emotional state displayed by defendants in cases 

where the court found their statements involuntary. See, e.g., 

Commonwealth v. Meehan, 377 Mass. 552, 565-566 (1979) (evidence 

that defendant was in withdrawal from drug and alcohol 

intoxication). In contrast, throughout the videotaped 

interview, the defendant here appears "alert, oriented, and 

lucid." Commonwealth v. Durand, supra at 597. As noted in our 

discussion of his Miranda rights waiver, the defendant speaks 

clearly and effectively when describing a lengthy series of 

events taking place over a period of two days. He appears to 

understand Sergeant Detective Stratton's questions and responds 

appropriately. His answers are responsive, detailed, and at 

times, self-serving. On several occasions, he corrects Sergeant 

Detective Stratton when the latter incorrectly states something 

he recalls the defendant said previously. The defendant also 

waived his Miranda rights. See Commonwealth v. Selby, 420 Mass. 

656, 664 (1995) (whether defendant waived his Miranda rights is 

factor in assessment of voluntariness of statement). In sum, 

consideration of the totality of the circumstances surrounding 

the defendant's statements, including the details noted earlier 
29

in our discussion of the Miranda rights waiver issue, leads us 

to conclude that he spoke voluntarily.18

5. Seizure and forensic testing of clothing. The judge 

also suppressed the results of the forensic testing performed on 

the clothing seized from the defendant at the police station. 

The judge, finding that the defendant's statements implicating 

himself in the victim's death were obtained in violation of 

Miranda v. Arizona, 384 U.S. at 469, concluded that the police 

did not have probable cause to arrest the defendant for murder 

absent those statements, and thus the search of the defendant's 

clothing was invalid. He then reasoned that while the police 

could lawfully seize the defendant's clothing pursuant to the 

exigency exception to the search warrant requirement,19 they were 

obliged to secure a warrant prior to subjecting the clothing to 

any forensic examination. See Commonwealth v. Straw, 422 Mass.

 

18 Because we conclude that the voluntariness of the 

defendant's statements "appear[s] from the record with 

unmistakable clarity," Commonwealth v. Jackson, 432 Mass. 82, 85 

(2000) (quotation omitted), we need not address the defendant's 

request to remand this case for findings and rulings on the 

voluntariness of the defendant's statements. Our conclusion 

that the Commonwealth met its heavy burden to establish that the 

defendant's statements at the police station were made 

voluntarily should not be understood as a ruling that at a trial 

voluntariness will not be a "live issue." Thus, if a trial in 

this case takes place, the judge may be obligated to instruct 

the jury on our "humane practice." See, e.g., Commonwealth v. 

Pavao, 46 Mass. App. Ct. 271, 273-274 (1999).

19 See Illinois v. McArthur, 531 U.S. 326, 334 (2001); 

Commonwealth v. Gentile, 437 Mass. 569, 577 (2002).
30

756, 759 (1996) (warrant required to search briefcase as 

exigency expired once briefcase was seized). 

No search warrant was required if the police had probable 

cause to arrest the defendant for the murder of the victim. See 

Commonwealth v. Santiago, 410 Mass. 737, 742-743 (1991). Under 

those circumstances, the police could have seized and tested the 

defendant's clothing pursuant to a search incident to a valid 

arrest. See Commonwealth v. Robles, 423 Mass. 62, 65-66 (1996). 

See also United States v. Edwards, 415 U.S. 800, 806 (1974) 

(police may seize clothing worn at time of arrest when it 

becomes apparent that clothing may contain evidence). When 

seizing a defendant's clothing incident to an arrest, the police 

need only establish that the clothing contained evidence 

connected to the crime. See Commonwealth v. Robles, supra. 

Because we determine that the defendant's statements were 

obtained in compliance with Miranda v. Arizona, supra, and were 

made voluntarily, the police had probable cause to arrest him 

for murder. Thus, the police were authorized to seize and 

subsequently test his clothing. See Commonwealth v. Robles, 

supra at 65 n.8 & 67-68, and cases cited.

20

 

20 Even if the defendant's custodial statements are not 

considered, the police had probable cause to arrest the 

defendant for murder. The record shows that the defendant was 

first observed outside of the victim's residence in violation of 

an active restraining order. See Commonwealth v. Todd, 394 

Mass. 791, 794-795 (1985) (lurking near murder scene combined 
31

Conclusion. This is a case in which a conscientious judge 

viewed a videotaped interrogation of the defendant that lasts 

approximately forty-five minutes and inferred from the 

defendant's appearance and conduct that he was intoxicated to 

such an extent that he was not capable of waiving his Miranda 

rights. However, our independent review of the same documentary 

evidence leaves us with a settled conviction that the defendant 

had the capacity to make a knowing and voluntary waiver of his 

rights and that he did so. The same evidence persuades us that 

the defendant's statements made during the first and second 

interviews were voluntary. Finally, we conclude that the 

seizure and forensic testing of the defendant's clothing was 

justified as a search incident to a lawful arrest. Accordingly, 

so much of the judge's order that allowed the defendant's motion 

to suppress is reversed, and the case is remanded to the 

Superior Court for further proceedings consistent with this 

opinion.

So ordered.

 

with other conduct could be viewed as consciousness of guilt). 

The police knew that the victim had a history of domestic 

violence incidents with the defendant as the primary aggressor. 

The defendant also made statements to the police at the scene, 

which the judge did not order suppressed, indicating that the 

victim was his friend and that he knew what had happened to her. 

Finally, the police observed blood on the defendant's clothing 

and shoes, after investigating a murder scene that was "very 

bloody."