Court: If you really want your Miranda rights read, don't be sitting in your lawyer's office as the cops talk to you

A divided Supreme Judicial Court today rejected a Winchester murder suspect's attempt to dismiss statements he made to police at his Boston lawyer's office in 2007, saying the fact he had nearly an hour to talk to the lawyer beforehand was more than enough of safeguard of his federal and state rights against self incrimination and police coercion.

The court, however, also ruled the judge in his trial will have to exclude portions of a 911 call from another alleged victim because the man later died and so cannot testify in court.

Wally Jacques Simon is charged with shooting one man to death during a break-in. The man's brother, whom Simon is also charged with shooting and who called 911 to report the crime and ID Simon, died nine months later of a heart attack - which his family says was brought on by watching his brother get shot and die.

According to the court record, after the shooting, Simon drove to Boston, tailed by police, and pulled into a parking lot across from the office of his lawyer, Daniel Solomon, whom he then dialed up on his cell phone. Solomon whisked him upstairs, after telling police he'd get back to them on whether Simon would talk to them. After an hour, he let police into his office, where after questioning Simon, they arrested him for the two shootings.

Simon sought to have the conversation tossed because police did not read him his Miranda rights until he was being booked at a police station. In its 4-3 ruling, however, the court said the fact he'd spent at least 45 minutes talking to his lawyer was enough to ensure police were not coercing anything from him:

We conclude that the presence of an attorney during questioning, when combined with the opportunity to consult with the attorney beforehand, substitutes adequately for Miranda warnings.

The court added:

In this case, the attorney was present during the entirety of the interrogation, and the defendant had the opportunity to consult with the attorney in private beforehand. Accordingly, the defendant's right against self-incrimination was fully protected even in the absence of Miranda warnings. The motion to suppress the defendant's statements was properly denied.

The court also rejected Simon's effort to suppress the entire 911 call on the grounds he would be unable to confront his accuser because he's now dead - although it did say portions in which the brother IDed Simon as the shooter can be excluded - because most of the call qualified as a "spontaneous utterance" exempt from the Sixth Amendment confrontation clause:

Someone entered the victim's home and shot both the victim and his brother. The victim made his statements to the 911 dispatcher soon thereafter, while he was suffering from a gunshot wound and while he was aware of his brother's life-threatening condition. The content and tone of his statements indicate that the victim was in pain and agitated about his medical state and that of his brother. The shootings were startling events, and the victim's 911 telephone call and his responses to the dispatcher's questions were a spontaneous reaction to those events. ... Accordingly, the victim's statements to the dispatcher are admissible under the spontaneous utterance exception to the hearsay rule.

BOTSFORD, J. (dissenting, with whom Marshall, C.J., and Spina,

Justices Margot Botsford, Margaret Marshall and Francis Spina, dissented, arguing that Article 12 of the Massachusetts constitution grants defendants even broader rights than the Fifth Amendment - among them that only a person under questioning can explicitly waive his rights. In this case, the mere presence of a lawyer was imply not enough, they wrote.

The police have been administering Miranda warnings to suspects for more than forty years; doing so is an integral piece of proper police procedure. Cf. Commonwealth v. Smith, 412 Mass. at 836 ("The failure to administer the Miranda warnings as presently required by Federal law is itself an improper police tactic"). The warnings, and their administration, are clear and straightforward, and this clarity offers essential protection of a suspect's art. 12 rights.

Complete ruling.

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