Commonwealth v. Holbrook (Lawyers Weekly No. 11-122-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.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   12-P-1881                                       Appeals Court   COMMONWEALTH  vs.  CLIFTON HOLBROOK. No. 12-P-1881. Suffolk.     June 5, 2014. – September 26, 2014.   Present:  Cohen, Carhart, & Maldonado, JJ.     Indecent Assault and Battery.  Practice, Criminal, Motion to suppress, Instructions to jury.  Intent.       Indictment found and returned in the Superior Court Department on November 12, 2008.   A pretrial motion to suppress evidence was heard by Frank M. Gaziano, J., and the case was tried before Thomas A. Connors, J.     William A. Korman for the defendant. Donna Jalbert Patalano, Assistant District Attorney, for the Commonwealth.      COHEN, J.  After a Superior Court jury trial, the defendant was convicted of indecent assault and battery of a child under the age of fourteen, arising from an incident involving his five year old grandniece.  On appeal, the defendant makes the following claims:  (1) his motion to suppress statements made during his police interview should have been allowed because he was intoxicated at the time he waived his Miranda rights; (2) it was error to deny his motion for a required finding of not guilty because he was only a passive recipient of the indecent touching and did not intend for it to happen; and (3) the judge erred in instructing the jury as to how the element of intent could be satisfied.  We affirm. 1.  Motion to suppress.  The defendant waived his Miranda rights after having been informed of them twice — first at booking and again at the beginning of the recorded interview.  He affirmed that he understood each of the rights and initialed an acknowledgment.  When asked if he was “under the influence of alcohol or any drugs right now,” the defendant responded in the negative.  He now argues that, in fact, he was impaired by alcohol and drugs when he gave the statement, and his waiver therefore was invalid. The evidence at the motion hearing consisted of an audiotape recording of the interview and the testimony of three witnesses:  the two detectives who conducted the interview, and the defendant’s sister.  Because the motion judge considered the audiotape in light of the hearing testimony and made credibility determinations relevant to his subsidiary findings of fact, we afford those findings substantial deference.  See Commonwealth v. Clarke, 461 Mass. 336, 341 (2012). The judge found that the detectives had the opportunity to […]

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