Commonwealth v. DiGiambattista (Lawyers Weekly No. 11-014-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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       11‑P‑1919                                       Appeals Court   COMMONWEALTH  vs.  NICOLA V. DiGIAMBATTISTA.     No. 11‑P‑1919. Suffolk.     November 16, 2012.  ‑  January 25, 2013. Present:  Grasso, Vuono, & Milkey, JJ.   Indecent Assault and Battery.  Constitutional Law, Admissions and confessions, Waiver of constitutional rights.  Evidence, Admissions and confessions.  Practice, Criminal, Admissions and confessions, Voluntariness of confession.       Complaint received and sworn to in the Chelsea Division of the District Court Department on November 15, 2010.   A pretrial motion to suppress evidence was heard by D. Dunbar Livingston, J.   An application for leave to prosecute an interlocutory appeal was allowed by Francis X. Spina, J., in the Supreme Judicial Court for the county of Suffolk, and the case was reported by him to the Appeals Court.     Allison Callahan, Assistant District Attorney, for the Commonwealth. Edward Crane for the defendant.     MILKEY, J.  After making various incriminating statements to the Revere police, the defendant was charged with three counts of indecent assault and battery on a person fourteen or older (his stepdaughter).  G. L. c. 265, § 13H.  He then moved to suppress those statements as involuntary.  Following an evidentiary hearing, a District Court judge allowed the motion to suppress, explaining his reasoning in a detailed and thoughtful opinion.  The Commonwealth obtained approval to pursue an interlocutory appeal.  Because we agree with the Commonwealth that the motion judge misapplied the relevant legal principles, we reverse. Standard of review.  The key evidence before the judge was the video recording of the defendant’s interview.  That recording speaks for itself, and the essential subsidiary facts necessary to resolve the motion to suppress are thus uncontested.  Although the judge relied on his observations of what that recording revealed, he made no specific findings on this, apparently cognizant that an appellate court is “in the same position as [him] in viewing the .”  Commonwealth v. Novo, 442 Mass. 262, 266 (2004) (citation omitted).  The judge did make factual findings as to the background facts and what transpired outside the interview room.  We accept those findings unless they are clearly erroneous (which they have not been shown to be).  See Commonwealth v. Welch, 420 Mass. 646, 651 (1995).  The factual statements set forth below are drawn from those findings and our own observation of the video recording.  We are to “make an independent […]

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