COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss SUPERIOR COURT CRIMINAL SESSION DKT. NO. 14-0330 COMMONWEALTH OF MASSACHUSETTS DEN COUNTY "YOBERISRSouRT . FILED DENNIS L ROSA ROMAN SEP 10 2015 MOTION TO SUPPRESS Beef Now comes the defendant and moves to suppress the several statements he gave to investigators/interrogators on November 5, 2013. He asserts his rights under the 4", 5" and 14" Amendments to the United States Constitution and articles 12 and 14 of the Massachusetts Declaration of rights. The Commonwealth interrogators violated Defendants rights in the following ways: The defendant asserted his rights to terminate the interview per Miranda several tines and Commonwealth interrogators ignored said assertions, The interrogating officers lied and used trickery to obtain subsequent statements and deceitful tactics to get Defendant to subsequently waive his rights, and to continue talking to the officers. Further statements were the result of the previous violations of Roman's rights to terminate the interview and the direct result “cat out of the bag.” Instead of scrupulously honoring his request for_a lawyer, the officers continued to interrogate Roman. Further reasons are stated on the memorandum of law filed herewith, DATED: September 10, 2015 By: fald W. Frank, EsqCOMMONWEALTH OF MASSACHUSETTS 1AMPDEN, $s I eee app en fi CRIMINAL SESSIO? : COUNTY BEERS Quay Der NO. 180330 0 SRIOR COMMONWEALTH OF MASSACHUSETTS SEP 13 2015 DENNIS RANDALL ROSA ROMAN elle DEFENDANT'S AFFIDAVIT IN SUPPORT-OF MOTION TO SUPPRESS | am the defendant in the above-captioned matter and | say the following under the pains and penalties of perjury. 1. On or about November 5, 2013 | went to the Westfield Police department to be interviewed about the death of Amanda Plasse 2. | was met by Trooper Ronald Gibbons and Sgt. Eric Watson. They took me into @ room where | was isolated. | was nervous and afraid. They positioned me behind a desk and placed themselves in front of the exit. They read me my Miranda rights. 3. At some point during the interrogation, they showed me gruesome Pictures. It was very upsetting and | wanted to stop the interview. | told them that | wanted the interrogation to stop and go home, but they would not let me, According to the transcript, said the following: "You guys trying to do what? What's up? | don’t have no time here. | gotta go.” Instead of letting me terminate the interrogation or leave, Trooper Gibbons told me: We're investigating stil.” | was not allowed to leave. | was in custody. | was not allowed to terminate the interview. The interrogators continued to question me. 4. The officers lied to me and told me they knew that my DNA was under Ms. Plasse's fingernails. | later learned.that they did not have this information at that time. It further upset and overwhelmed me, and prevented me from thinking rationally. | made a series of statements after that as a direct result of their fabrication. | told them again that | wanted to go home. | also demanded to see a lawyer. Fac | waived my Miranda rights later because | believed their fabrication, and thought | had no choice. 5. Instead of being allowed to go home, | was handcuffed and booked. The interrogators report that | made another'statements about how I was present while the victim was being killed, and tangled with the perpetrator while | was being booked in Westfield. It is alleged that | said that “She grabbed me and pulled me inside by the arm and then he grabbed me and tried to throw me downthe stairs.” I had nothing to loose by repeating my story, as | had already said that to the interrogators. 6. The interrogators, or at least one of them, brought me to Chicopee police station. They asked me repeatedly if | wanted to speak to them, and told me that I could not unless | waived my rights to a lawyer. Again, | felt completely overwhelmed, as | had. already made certain statements, some of which contradicted other statements. 7. lexecuted a Miranda waiver because | felt not to do so would be an act of futility. | had already been told that | was not allowed to terminate my interview and the had continued to interrogate me. 8. When the officers interrogated me again in Chicopee, | responded to their repeated questions getting me to expand what I had told them. This was a continuation of the Westfield interrogations. | had nothing to loose and the officers.asked me to speak to them after | had requested a lawyer and had asked them to'stop the interrogation at least 2 times. It was hopeless because | had already incriminated myself and they did whatever they wanted despite their assurances that | could terminate the interviews whenever | wanted. They also did not give me a way to contact a lawyer. 9, White Being interrogated in Chicopee, | again asked to stop the interview and they wouild not let me. alts of perjury this |{6F September 2016, ined under the pai Dennis Rosa Roman.501 State Street, Suite 501 Springfield, MA 01103 (413) 733 2808 BBO#: 545481 CERTIFICATE OF SERVICE | hereby certify that on date, | have served the above Motion on the attorney of record for the Commonwealth ssachusetts by giving a true copy of same in hand, to: The Office of the Dated: September 10, 2015 Donald W. Frank1) COMMONWEALTH OF MASSACHUSETTS HAMPDEN, ss SUPERIOR COURT CRIMINAL SESSION DAT. NO. 14-0330 couNTY HAMPDEN COMMONWEALTH OF MASSACHUSETTS SUPERIOR COURT FILED te SEP 1 DENNIS RANDALL ROSA ROMAN MEMORANDUM OF LAW NSUPPORTOF MOTION To suPpRESs (224 ‘The defendant submits this memorandum of law in support of his motion to suppress the several statements he gave to investigators/interrogators on November 5, 2013. He asserts his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and articles 12 and 14 of the Massachusetts Declaration of rights. The victim was brutally stabbed and killed on August 27, 2011 Investigators looked at numerous suspects but had not made any arrest until they located the defendant in the fall of 2013, Investigators found a “Dennis” who may have had contact with the victim and had lived near her around the time of her death. When investigators first contacted Dennis Rosa Roman on the street near his new home in Westfield, Massachusetts in late October 2013, he appeared somewhat rattled by their brief encounter and discarded his cigarette. On November 1, 2013 Roman contacted Trooper Ronald Gibbons and they agreed to meet at the Westfield Police Station for an interview. Trooper Giboons began the interview by giving Roman his Miranda Rights. Roman stated that had gone to the victim’s house to bring her “weed.” Roman knocked on the door and the perpetrator opened it, took the marijuana and closed it again. Roman told Trooper Gibbons that he had since been seeing the perpetrator everywhere and was afraid of him. He was allowed fo leave the station. Roman agreed to meet with Trooper Gibbons again on November 5, 2013 in Westfield (the "Westfield interrogation’). Sergeant Watson from the Chicopee police department joined Trooper Gibbons in the interrogation. Roman was given his Miranda rights. The officers violated his rights per Miranda and Edwards in the following ways: Roman asserted his rights to terminate the interview per Miranda. The interrogators ignored his assertion of his right to terminate the interview and indicated that he was not free to leave because the interview was not over. 0 2015 F oBuRTSRoman said that he gave Victim marijuana directly to her through her window. She asked him about a theft in her house which he denied. He admitted that he wrote on a white dry board “Denis was here.” They smoked marijuana together. Then the perpetrator appeared and confronted her about._money. Roman left. Then the police showed Roman pictures of he murder scene. After viewing pictures of the gross crime scene, the tenor of the interview changed and Roman became upset. Roman said the following: “You guys trying fo do what? What's up? | don’t have no time here. | gotta go.” Instead of letting Roman terminate the interview and leave, Trooper Gibbons told him: We're investigating still”, Roman responded: “Alright. But this like | want to know like this aint cool” Bates 202 The officers continued their interrogation, despite Roman's attempt to terminate the interrogation and leave. At this point the Roman's is in custody, and his right to terminate the interview was ignored. A person is in custody whenever he is “deprived of his freedom of action in any significant way.” Commonwealth v. Haas, supra at 551, 369 N.E.2d 692, quoting Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). “The crucial question is whether, considering all the circumstances, a reasonable person in the defendant's position would have believed that he wasin 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, 660 N.E.2d 660 (1996). In assessing the circumstances, 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. Commonwealth v. Bryant, 390 Mass. 729, 737, (1984). The greatest factor is, of course, that the interrogators prevented Roman's from leaving. “As noted, during the questioning, the defendant attempted to leave but was prevented from doing 80. Of all of the relevant factors, this is perhaps the most revealing of the truestatus of the interrogation here. Commonwealth v. Jones, 42 Mass.App.Ct. 378, 383 (1997), Rev. Dén’d 425 Mass. 1101 (1997) (Emphasis added). In the instant case the defendant came into the police station voluntarily, But the interview turned accusatory and hostile. Roman attempted to leave and was prevented from doing so. When he attempied to leave and thereby terminate the interview the interrogators ignored his request and told him that the ‘interview was not over.” This was also an assertion of his right to remain silent and Roman was in custody. See State v. DeJong, 287 Neb. 864 (Nebraska, 2014) (Defendant's statements to investigators that she was “done,” tired, and wanted to go to sleep constituted unequivocal invocation of her right to terminate interrogation and remain silent.) Deviney v. State 112 So.3d 57 (Fla. 1913) (Defendant unequivocally invoked his right to remain silent, thus rendering involuntary a confession to murder given during continuing questioning, by saying six times that he was “done” with questioning, though he followed one of those statements with “[IJf I did do it, | want you all to show me that I did do it," where defendant subsequently stated, “I'm done. I'm ready to gohome. Can | leave?’) All statements that followed Roman's assertion of his right to terminate the interrogation must be suppressed. 2) The interrogating officers lied and used trickery to obtain subsequent statements and deceitful tactics to get Roman to subsequently waive his rights, and to continue talking to the officers. Prior to the interrogations, the officers had obtained biological material from the victim, and may have even obtained biological material from Roman on October 29, 2013 from a discarded cigarette, There had not been any DNA comparison of the two before the interrogation, Despite that, Interrogator Sergeant Watson told Roman that they knew he was lying and then stated the following: Sergeant Watson “Let me give you this — under her fingernails there’s DNA that does not belong to her. Roman: Okay. You guys.got my DNA. Sergeant Watson: Yeah, Listen to me. The DNA that was found underneath her fingernails connects you to her. You know what? It doesn't just get there. You don't get there from shaking hands — you're not telling us. Yeah.Bates 283.The interrogators had no such evidence at the time. * Roman briefly attempted to explain how this might have happened, stating “I tried to grab her and the guy fucking tossed me down the stairs” The interrogators continued to question Roman and only terminated the interview when Roman stated; "I want a lawyer. I want a lawyer. | want a lawyer. | want to go home. | want to get out of here. | want a lawyer. That's it.” Bates 285 Any further statements and waivers were thereby rendered involuntary. The Supreme Judicial Court considered the effect of false statements on voluntariness and stated: While we have here considered the false statement as being relevant but not conclusive on the issue of waiver, we expressly disapprove of the tactics of making deliberate and intentionally false statements to suspects in an effort to obtain a statement, Since Miranda such tactics cast doubt on the issue of whether a waiver is knowing, intelligent and voluntary, Miranda v. Arizona, 384 U.S 438, 476, (1966), as well as on the voluntariness of confessions See Schmidt v. Hewitt, 573 F.2d 794, 801 (3d Cir. 1978); Swaney v. State, Ind.App., 374 N.E.2d 554, 556 (1978). Compare Frazier v. Cupp, 394 U.S. 731, 739, (1969), with Commonwealth v. Green, 302 Mass. 547, 551, (1939), Commonwealth v. Taylor, 374 Mass. 426, f.n.8 (1978). The Supreme Judicial Court recently considered this exact falsehood several weeks ago and stated the following: The use of false information by police during an interrogation is deceptive and is a relevant factor indicating @ possibility that the defendant's statements were made involuntarily." Commonwealth V. Selby, 420 Mass. 656 664 (1995). Here, Detective Brissette informed the defendant that they had evidence of his DNA on the victim who had allegedly been assaulted that morning, It is evident from the record that the detectives could not have yet known to whom any DNA recovered from that victim belonged. In combination with the psychological coercion, the minimization, and false statement support our conclusion that the defendant's inculpatory statements were involuntary. * Such evidence was developed well after Roman's interrogation and arrest.Commonwealth v. Monroe, 015 WL 4920316, decided August 19, 2015. In the instant case Sgt. Watson made the same false statement as the detective in Monroe. This followed the interrogators’ previous refusal to honor Roman's attempt to terminate the interrogation. it renders any further statements. and waivers involuntary. 3) A so-called “spontaneous utterance” was the result of the previous violations of Roman’s rights to terminate the interview and the direct result “cat out of the bag.” As discussed above in parts 1 and 2, Roman was prevented from terminating the interview. Sgt. Watson had just lied to him regarding the presence of his DNA on Victim's fingemails. Just before the Westfield interrogation terminated the following exchange took place: Roman: | know the mother-fucker, all right? Sgt. Watson: You know the what? Roman: | know the mother-fucking murderer, and I tried to save her life, Sgt. Watson: What did you do. Roman: | know the fucking murderer. Sgt. Watson: What did you do to try to save her life? Roman: | tried to grab her and the guy fucking tossed me down the stairs. Tr. Gibbons: So, why don't you tell me the whole story. Tell me everything that happened. Roman: | can't. He’s gonna fucking kill me. Tr. Gibbons: Why don't you tell me everything that happened. Roman: He's gonna fucking kill me. What the fuck do | do? Tr. Gibbons: Well, why don't you tell us everything that happened in the apartment. Roman: | know the fucking murderer. That's all | know. | can’t give you more. I'm sorry. That's it. Bates 284-285. Following Roman's request for a lawyer, Roman was formally arrested. As he was being handcuffed, he was extremely upset and resisted. During the affray Roman grabbed Trooper Gibbons -and allegedly said: “She grabbed me and pulled me inside by the arm and then he grabbed me and tried to throw me down the sI ” Bates 391. The statement was a response to a previous questions about how the DNA got under Victim’s fingernails, it was not “spontaneous.” Moreover, the statement followed the interrogators’ unlawful refusal to honor Roman’s assertionof his right to terminate the interview and go home. There had been no readministration of Roman's Miranda rights. Even if it was spontaneous, it was a fruit of the poisonous tree and excluded by the so-called “cat-out-of-the-bag" analysis. There was no break in the stream of events. The question is only whether the ‘cat was out of the bag.” The cat-out-of-the-bag line of analysis requires the exclusion of @ statement if, in giving the statement, the defendant was motivated by the belief that, after a prior coerced statement, his effort to withhold further information would be futile and he had nothing to lose by repetition or amplification of the earlier statements.” Commonwealth v. Mahnke, 368 Mass. 662, 686, (1975), cert. denied, 425 U.S. 959, (1976) quoted in Thomas, supra at 552. The tainted Westfield interrogation included inculpatory information. After denying that he entered the apartment and did not even see Victim, Roman told Sgt. Watson "I tried to grab her and the guy fucking tossed me down the stairs.” A few minutes later, after Roman was formally arrested by the same interrogators, he merely repeated and amplified his earlier statement by stating “She grabbed me and pulled me inside by the arm and then he grabbed me and tried to throw me down the stairs.” Bates 391. These statements are inclulpatory. In that they indicate previous falsehoods and place Roman at the scene during the killing. See Commonwealth v. Damiano, 422 Mass. 10, 13 (1996) ("The judge found that the questioning was continuous and ruled correctly that the unlawfully obtained statements were incriminating because they placed the defendant at the scene of the crime and presented an implausible explanation for the victim's death.”) See also Commonwealth v. Osachuk, 418 Mass 229, 236-237 (1994) (Tainted and subsequent statements inculpatory where Defendant admitted previous fabrications and placed him at the scene.) “That the defendant may have intended to convey a version of events that ignored the most obvious inculpatory detail does not mean that the earlier details do not incriminate him. Clearly they do.” Id. The statement is no more than a repetition and amplification of his earlier inculpatory statement, It must be excluded from evidence 4) The Miranda waiver for second interrogation in Chicopee was ineffective. Following Roman ‘s demand for a lawyer and formal arrest in Westfield, Roman was brought to Chicopee (the city where the killing occurred) for further processing. While en route the interrogators asked Roman if he wanted to speak to them again. He was taken to the Chicopee police station and readministered and purportedly waived his Miranda rights. This is his second interview onNovember 5, 2013. ("The Chicopee interview.”) Roman tried to explain the inculpatory statements he made in his Westfield interrogation. “When a defendant invokes his right to counsel, all subsequent statements are inadmissible unless counsel is provided or the Commonwealth can prove beyond a reasonable doubt that the defendant “initiated further communication, exchanges, or conversations with the police ... and thereby waived his right to counsel.” Commonwealth v. Hoyt, 461 Mass. 143, 151, 958 N.E.2d 834 (2011), quoting Edivards, 451 U.S. at 485, 101 S.Ct. 1880. In Com. v. Thomas, 469 Mass. 531, (2014) the SJC addressed the issue where a defendant “initiated further communication, exchanges, or conversations with the police’ during booking” following the assertion of one’s rights per Edwards and Miranda, It determined that “the initiation question is only “the first step of a two-step analysis,” and that, if the defendant is found to have initiated the post-invocation conversation, the police may re-interrogate only if the defendant also knowingly, intelligently, and voluntarily waives the right to counsel after receiving the Miranda wamings.” Commonwealth v. Thomas, 469 Mass. 531, 549 (2014), If the booking statement is more than simply an answer to the previous questions, it is conceded that it was ‘sufficient to initiate further conversation.” Thomas, supra at 850. “Thus the next inquiry is ‘whether the purported waiver was knowing and intelligent and found to be so under the totality of the circumstances, including the necessary fact that the accused, not the police, teopened the dialogue with the authorities.’ " Bradshaw, 462 U.S. at 1046, 103 S.Ct. 2830, quoting Edwards, 451 U.S. at 486 n. 9. See Commonwealth v. Ward, 426 Mass. 290, 295-296 (1997).” /d. Under the Massachusetts Declaration of Rights, before there can be a valid waiver following a tainted interrogation, the SJC requires the following: Under our constitutional law, we “presume that a statement made following the violation of a suspect's Miranda rights is tainted,” and require the prosecution to “show more than the belated administration of Miranda wamings in order to dispel that taint.” Commonwealth v. Smith, 412 Mass. 823, 836, (1992). A statement obtained in violation of Edwards, and thus also in violation of Miranda, is "by definition ‘coerced,’ " Smith, supra, quoting State v. Lavaris, 99 Wash.2d 851, 857(1983). The presumption of taint under our constitutional law arises from the recognition that, where the police procure a statement from a suspect in violation of Miranda, a subsequent statement may be the product of the initial coercion even where the suspect knowingly and voluntarily waives her right to silence and to counsel, if the custodial interrogation was essentially continuous or if the suspect believes that it would be futile to invoke her rights because she incriminated herself in thefirst statement. See Hoyt, 461 Mass. at 153; Commonwealth v. Prater, 420 Mass. 569, 580-581(1995). This presumption may be overcome by showing that either: (1) after the illegally obtained statement, there was a break in the stream of events that sufficiently insulated the post-Miranda statement from the tainted one; or (2) the illegally obtained statement did not incriminate the defendant, or, as it is more colloquially put, the cat was not out of the bag.” Prater, supra at 580, quoting Commonwealth v. Osachuk, 418 Mass. 229, 235, (1994). ‘Whether one or both lines of analysis is required before a confession is admitied turns on the facts of the case.” Commonwealth v. Torres, 424 Mass. 792, 799-800, (1997), quoting Prater, supra at 580 n. 10, “The focus and ultimate goal of undertaking either or both lines of analysis is a determination of the voluntariness of the later confession. If the defendant's subsequent statements were not a product of coercion, either by coercive external forces or primarily by a sense of futility that he has already incriminated himself with the first statement,” then suppression of the subsequent statement is not required. Prater, supra at 581, 651 N.E.2d 833. Com. v. Thomas, 469 Mass. 531, 550-51 (2014). The waiver of Roman's Miranda rights at the Chicopee interview, following the violations during the Westfield interview, was part of the stream of events without any intervening factors, The fruits of the Chicopee interrogation was, however, Roman's attempt to expand the incriminating statements from the Westfield interrogation: First that he did not see Victim during the assault, then thal he sew Victim and he tried to grab her and the perpetrator threw him down the stairs. In the Chicopee interrogation, Roman merely repeats and amplifies his statement from the tainted Westfield interrogation. See further discussion, part 3 infra ‘The presumption that the Miranda waiver at the Chicopee interrogation is not ‘overcome, and the fruits of the interrogation must be suppressed, 5) In the Chicopee interrogation, the interrogators again ignored Roman's assertion of his right to terminate the interrogation. During the course of the Chicopee interrogation Trooper Gibbons told Roman that he was “gong to jail.” Roman said: “Then | am not going to say no more. ... You can try this shit, but | am done.” Bates 327-8. Trooper Gibbons ignored request to terminate the interview (for the second time) and continued to question him about the killing.are admissible up to that point, they at If the fruits of the interrogations r the reasons stated in Part 1 least must be suppressed from this point forward for of this memorandum spectfully submitted, FENDANT DATED: September 10, 2015 Springfield, MA 01103 (413) 733 2898 BBO#: 54548 1 hereby certify that on date, | attorney of record for the Commonwealth cof same, via email delivery to: The Offi Dated: fagrank