Supreme Judicial Court, March 28 2012

When a witness relies on a suppressed statement to refresh his recollection prior to testifying at trial, a judge must ensure that the Commonwealth met its burden of establishing that the witness will testify from an independent memory of the separate event, rather than from a memory of the suppressed statement.  

A Suffolk Superior Court jury convicted the defendant of murder in the first degree.  The murder occurred on December 15, 2003. The following evening a warrant issued for the defendant and two police detectives went to the hospital to speak to the defendant, who was being treated for a gunshot wound to his leg.  Detective Sergeant Keeler informed him he was being charged with murder and verbally gave the defendant his Miranda rights.  The defendant agreed to speak only to Keeler.  In his 10-15 minute statement, which was not recorded for strategic reasons, the defendant provided details of the shooting, information about his accomplice and his motive for participating.  Afterwards, the second detective returned to the room, and the defendant then agreed to give a recorded statement.  This recorded statement was suppressed before trial.  

The Court decided there were four issues that cumulatively amounted to a substantial likelihood of a miscarriage of justice.  Three of those issues are discussed below:i

1. Before trial, the police witness refreshed his recollection with the suppressed statement and there was no voir dire to ensure he was testifying from his independent memory.

Approximately four years passed between the night of the murder and the trial.  Keeler did not make any report or writing to memorialize the defendant’s statements that were unrecorded; however, he reviewed a transcription of the suppressed recorded statement at least twice before testifying at trial.  The Court held that when a witness uses a suppressed statement to refresh his recollection before taking the stand, “before such a witness is permitted to testify, the judge must ensure that the Commonwealth has met its burden of establishing that the witness will testify not from a memory of the suppressed statement, which by definition is not to be placed in evidence, but from an independent memory of the separate event.”  In order to establish that the Commonwealth satisfied its burden, the trial judge should “conduct a voir dire through which the basis for the witness's assertion that he or she has a present recollection of the separate event may be thoroughly examined.”    

2. Defense counsel’s cross-examination was substantially hindered from the trial court judge’s pretrial ruling

Prior to trial, the Commonwealth filed a motion to limit the defendant’s right to cross-examine Keeler on his memory of the unrecorded statement because it would then open the door to the admission of the suppressed recorded statement on rebuttal.  The judge did not allow the Commonwealth’s motion but warned defense counsel that he could ask about Keeler’s note taking only once, or risk the Commonwealth being allowed to introduce the suppressed recorded statement in rebuttal.
The SJC acknowledged that “[t]he limits of cross-examination ordinarily rest in sound judicial discretion” but held “[h]ere, the judge's restriction of the defendant's right to cross-examine amounted to an abuse of discretion. It is the Commonwealth that must bear the consequences of a police officer's decision not to record an interrogation. By restricting the defendant's right to challenge Keeler's testimony, and by suggesting that broader cross-examination might open the door to introduction of the suppressed statement, the judge effectively relieved the Commonwealth of its burden and shifted it to the defendant.”  Citing Commonwealth v. DiGiambattista, 442 Mass. 423 (2004).

3. The failure to give the DiGiambattista instruction

Before trial, the Commonwealth filed a motion requesting that no instruction be given pursuant to DiGiambattista. The judge ruled that a defendant "cannot benefit from a DiGiambattista charge in a situation where a judge has decided that the statement that is [recorded] is suppressed," and that giving an instruction would distort reality "when, in fact, he was [recorded]." The defendant acquiesced to this view and did not request an instruction. The SJC held in this case that law enforcement made a strategic decision not to record a portion of the statement and cannot capitalize on their decision to only record a portion of the statement.  The jury should be instructed that "the State's highest court has expressed a preference that such interrogations be recorded whenever practicable," and that "they should weigh evidence of the defendant's alleged statement with great caution and care." Id. at 447-448.   

i.  The SJC discussed one additional error concerning the prosecutor’s closing argument, where she asked the jury to draw an improper inference.