NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

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Commonwealth v. Woodbine,

461 Mass. 720 (2012)

CONTRIBUTING EDITOR: BRITTANY PIERCE

I. Procedural History

Prior to trial, Woodbine filed a motion to suppress statements that he

made to detectives in the hospital. Defense counsel provided a transcript of Woodbine’s recorded statement to Detective Keeler and the prosecutor, and Keeler reviewed the transcript before the hearing. At the hearing, Keeler testified that he did not record, take notes, or write a report about Woodbine’s initial statements to him. The motion judge denied Woodbine’s motion to suppress the unrecorded statement, holding that the

statement was made voluntarily. However, the judge granted the motion to suppress the recorded statement, concluding that Woodbine had invoked his right to counsel before that part of the interview took place.1

In response to Woodbine’s oral motion to prevent Keeler from using

the transcript of the inadmissible recorded statement to refresh his recollection of the unrecorded statement, the judge found the issue to be moot. Therefore, Woodbine filed a written motion seeking to limit Keeler’s testimony. Following a brief voir dire, the judge ruled that Keeler could testify to all of Woodbine’s unrecorded statement with the exception of two topics for which he stated that had no independent memory.2

II. Facts3

On the evening of December 15, 2003, Aston Dwayne was shot and killed while walking to his car in Dorchester. Shortly thereafter, defendant Woodbine ran up to the car of Wilson Jean-Philippe and asked for help.

Woodbine was bleeding from his left leg, and when he began to reach for something in his pants, Jean-Philippe drove away. Jean-Philippe later

1 Commonwealth v. Woodbine, 461 Mass. 720, 725-726 (2012). 2 Id. at 726-727. 3 Id. at 721-725.

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returned to where he had been parked and found a gun on the ground that appeared to have blood on it. Woodbine was found at a nearby building and taken to the hospital. Upon arriving at the hospital, detectives attempted to question him, but left after he stated that he did not wish to

speak to them.

The next day, the detectives returned to the hospital, recited the Miranda rights, and informed Woodbine that he was being charged with murder. Woodbine asked to speak with Detective Keeler alone and

provided details of the shooting to Keeler, including a description of his accomplices and a motive. When Detective Callahan returned, they took a tape-recorded statement from Woodbine.

III. Issues Presented

1. Whether Woodbine’s motion to suppress the statements that he made to the detectives was properly denied?4

2. Whether it was proper for Keeler to testify in detail about Woodbine’s unrecorded statement when he had the opportunity to review

Woodbine’s subsequent recorded testimony at least twice before trial and there was no guarantee that he had a specific memory of the event?5

3. Whether the prosecutor influenced the jury to draw an improper inference during closing arguments?6

4. Whether it was an error for the trial judge to fail to give a DiGiambattista instruction?7

IV. Holdings and Reasoning

The Supreme Judicial Court reversed Woodbine’s convictions and remanded the case for a new trial.8

The Court first concluded that Woodbine’s motion to suppress was

properly denied because he received complete Miranda warnings prior to making his unrecorded statement.9 In addition, Woodbine’s statement was properly found to be knowingly and voluntarily made where he expressed a desire to speak with Keeler and there was no evidence that he was in a confused state, that he was on medication that rendered him unable to think clearly, or that he was unable to comprehend what the detectives

were saying.10 Similarly, because the detectives immediately ceased

4 Id. at 727. 5 Id. at 730. 6 Id. at 738-739. 7 Woodbine, 461 Mass. at 739-740. 8 Id. at 740. 9 Id. at 727-728. 10 Id. at 728-729.

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questioning when Woodbine stated that he did not wish to talk to them upon arriving at the hospital, did not return to question him for seventeen hours, and gave Woodbine his Miranda warnings prior to questioning him, the Court held that Woodbine’s subsequent unrecorded statement was

properly admitted.11

As to the defendant’s second argument, the Court held that it was improper for the trial judge to allow the detective to testify about Woodbine’s unrecorded statement. The judge must conduct a voir dire

examination of a witness when an issue arises as to whether they have an independent memory of an event or whether they are testifying about their memory of inadmissible evidence.12 The Court reasoned that where a witness refreshes his recollection with a suppressed document prior to trial, there is no indication to the jury that the witness had a prior inability to recall. Impeachment of the witness on cross-examination is therefore

hindered because the suppressed evidence may not be used.

Additionally, the Court concluded that the prosecutor asked the jury in closing arguments to draw an improper inference that Detective Callahan had created a written report of Woodbine’s unrecorded statement.13 The

prosecutor knew the report made by Detective Callahan only contained a reference to the recording of the suppressed statement and, as a result, the argument was improper.

Finally, the Court determined that because the recorded and

unrecorded statements made by Woodbine were “separate and distinct parts of a two-stage interrogation,” a DiGiambattista instruction should have been given.14 Therefore, the jury should have been instructed that there is a preference that interrogations be recorded and that they should evaluate the defendant’s statement with care.15

11 Id. at 729-730. 12 Id. at 731. 13 Woodbine, 461 Mass. at 738-739. 14 Id. at 739-740. “[I]t is only from a ‘complete recording of the entire interrogation that

produced such a statement or confession, [that a fact finder] can evaluate its precise contents

and any alleged coercive influences.’” Commonwealth v. DiGiambattista, 442 Mass. 423, 446

(2004). 15 Woodbine, 461 Mass. at 740, quoting DiGiambattista, 442 Mass. at 447-448.