author: LENK, J.

text:
    COMMONWEALTH v. Randall TREMBLAY.
    SJC-12493
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued May 10, 2018 Decided October 3, 2018
    Patrick Levin, Committee for Public Counsel Services, for the defendant.
    Janis DiLoreto Smith, Assistant District Attorney, for the Commonwealth.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, & Cypher, JJ.
   LENK, J.

The defendant stands accused of murder in the first degree in connection with the beating death of a woman who had obtained a restraining order against him. The Commonwealth appeals from an order suppressing both the statements that the defendant made during custodial interrogations and the forensic testing results obtained from his bloodstained clothing.

The motion judge heard testimony from police witnesses and watched an audio-video recording of a second custodial interrogation, which took place soon after the police realized that they inadvertently had failed to record the defendant's first interrogation. The judge concluded that the defendant was too intoxicated during both interviews to make a knowing, intelligent, and voluntary Miranda waiver. Consequently, the judge determined that the Commonwealth had not met its burden of proving beyond a reasonable doubt that the defendant validly waived his Miranda rights at the unrecorded first interview. See Commonwealth v. Hoyt, 461 Mass. 143, 149, 958 N.E.2d 834 (2011).

As to the suppression of the defendant's statements, the case calls upon us first to examine unsettled aspects of the standard of review to be applied to the judge's subsidiary findings, some of which were drawn from documentary evidence. We decline to adopt the Federal approach, which does not permit a reviewing court to make an independent assessment of pertinent documentary evidence, and instead requires deference to all subsidiary fact findings that are not clearly erroneous. See Anderson v. Bessemer City, N.C., 470 U.S. 564, 574-575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). We instead reaffirm the long-standing principle that an appellate court may independently review documentary evidence, but should accept subsidiary findings based partly or wholly on oral testimony, unless clearly erroneous. See Commonwealth v. Hoose, 467 Mass. 395, 399, 5 N.E.3d 843 (2014).

In such circumstances, the case should be decided "upon the entire evidence," see Berry v. Kyes, 304 Mass. 56, 57-58, 22 N.E.2d 622 (1939), giving "due weight" to the judge's subsidiary findings when required. See Edwards v. Cockburn, 264 Mass. 112, 120-121, 162 N.E. 225 (1928).

In the recording of the second interrogation, the judge saw a man then so intoxicated that his level of sobriety one hour or so earlier -- the pertinent time for assessing the validity of the Miranda waiver -- could only have been much worse. The recording of the second interview thus formed part of the predicate for the judge's conclusion that the defendant had been too intoxicated at the beginning of the unrecorded first interview to give a valid waiver. Our de novo review of that documentary evidence instead reveals that, for the duration of the recording of the second interview, the defendant appeared to be lucid, coherent, responsive, and in control of his mental faculties. Thus, the judge's findings regarding the defendant's condition during the second interview -- and, to the extent that they are premised on extrapolations from that interview, his findings concerning the defendant's capacity validly to waive his Miranda rights during the first interview -- are not supported by that evidence and cannot stand.

Mindful that the judge also made findings relating to the defendant's condition that are based on oral testimony, and to which we must defer, the case on appeal is to be decided on the "entire evidence." See Berry, 304 Mass. at 57-58, 22 N.E.2d 622. We therefore must weigh our de novo review of the second interview along with the judge's assessment of the oral testimony. Doing so presents unique challenges in these particular circumstances, where the findings focus largely on a comprehensive documentary record of the wrong time period. We do not know the extent to which the recording of the second interview may have had an impact on the judge's other factual findings and credibility determinations, or what else the judge might have found if he shared our view of the recording. Additionally, the judge failed to make factual findings or credibility determinations regarding certain material evidence. We are thus not confident that the remaining findings as to the testamentary evidence that are entitled to deference allow for meaningful review of the entire evidence in this case.

This being so, it is the better part of wisdom to remand this case so that the judge can make findings and credibility determinations regarding all pertinent evidence in light of our de novo assessment of the recording of the second interview. Cf.

Commonwealth v. Jones-Pannell, 472 Mass. 429, 438, 35 N.E.3d 357 (2015) ; Commonwealth v. Isaiah I., 448 Mass. 334, 338, 861 N.E.2d 404 (2007). Depending on the findings made on remand as to the defendant's condition and level of sobriety at the pertinent time, and recognizing that intoxication alone does not preclude a valid waiver, Commonwealth v. Wolinski, 431 Mass. 228, 231, 726 N.E.2d 930 (2000), a remand will also afford the opportunity to clarify any such nexus, and allow the judge as well to determine the voluntariness of the statements.

The situation is otherwise as to the suppressed forensic testing results. The police lawfully seized the defendant's clothing incident to arrest, and thereafter did not need a separate warrant to test the clothing for the presence of human blood. See Commonwealth v. Arzola, 470 Mass. 809, 816-817, 26 N.E.3d 185 (2015), cert. denied, --- U.S. ----, 136 S.Ct. 792, 193 L.Ed.2d 709 (2016). Accordingly, the order suppressing the results of the forensic testing of the defendant's clothing must be reversed.

1. Background. a. Findings of fact. The judge held an evidentiary hearing on the defendant's motion to suppress at which three officers testified and an audio-video recording of the defendant's second interview was submitted. The judge did not make any explicit adverse credibility findings, but stated that he credited the officers' testimony "to the extent it [was] consistent with [his] explicit findings of fact." The judge found as follows. Shortly after 2 A.M. on November 18, 2014, Boston police received a 911 call stating that the victim had died at her apartment. Her body was found, covered with a blanket, on a "very bloody" couch; her face was bruised and bloodied. Two of the defendant's friends were in the apartment when the officers arrived, but the defendant was not present. One friend appeared to be intoxicated; the other, who did not, had telephoned 911. Sergeant Scott Yanovitch of the Boston police department requested a dispatch to all relevant units; the dispatch went out around 2:50 A.M. Officer Shawn Roberts heard the dispatch and recognized the address because he had responded there to some previous complaints by the victim of domestic violence by the defendant. Roberts used his mobile data terminal to perform a search of the prior police reports regarding that address, found the defendant's name, and checked his criminal record. Roberts discovered that an active restraining order was in place requiring the defendant to stay away from the victim's residence, and that there was an outstanding warrant to arrest the defendant for failing to register with the Sex Offender Registry Board. Roberts also examined the defendant's booking photographs.

Over the next hour or so, Yanovitch saw a man who was later identified as the defendant "hanging out" near the victim's apartment. The first time, Yanovitch briefly stepped outside the victim's apartment to get some fresh air and saw the defendant walk past him, talking and mumbling to himself. The second time, when Yanovitch escorted one of the defendant's friends outside the apartment to smoke a cigarette, the defendant approached and asked the friend for a cigarette. Around the same time, Roberts completed his research and contacted Yanovitch over the police radio to tell him what he had learned about the defendant. Yanovitch asked Roberts to come to the scene to determine if the friend that he had escorted outside to smoke was the person Roberts had researched. Roberts arrived, confirmed that the friend was not the same individual, and left.

Back inside the apartment, Yanovitch heard the defendant, standing on the sidewalk, yelling loudly; he was yelling statements such as "What's going on in there?"; "I know what happened"; and "She was my friend." Yanovitch went outside again. The defendant approached him, asked, "What's going on in there?" and repeated, "She was my friend." Yanovitch asked the defendant for his name, and the defendant responded, "What, are you going to run me?" Yanovitch then asked Roberts to return to the scene to determine if the defendant was the person he had researched; by this time it was approximately 3:40 A.M.

When Roberts returned and approached the defendant, Roberts smelled alcohol. He identified the defendant and placed him under arrest pursuant to the outstanding warrant. The defendant stated that he had paperwork showing that the arrest warrant had been recalled, but the paperwork concerned a different warrant. Roberts read the defendant the Miranda rights; the defendant did not indicate whether he understood. Roberts and another officer then drove the defendant to Boston police headquarters. During the drive, the defendant repeatedly asked if he would be released because the warrant was a mistake; he said nothing about the victim.

Sergeant Detective Michael Stratton interviewed the defendant for approximately one hour, starting at around 4:30 A.M. , while Roberts observed. Stratton told the defendant that they were being recorded, but, for the duration of the defendant's interview, the officers inadvertently recorded a different interrogation room. Stratton read the defendant the Miranda rights from a preprinted form, and the defendant initialed the form and signed his name. , The defendant then made statements implicating himself in the victim's death; the defendant said that he and the victim had gotten into an argument and that he had hit her in the head twelve to fifteen times. The defendant said that he "got her good," and, "I think I killed her."

The defendant also said that, when he woke up the next morning, the victim's body was cold and he thought she was dead. He stated that he then left the apartment and found his friend, and they drank beer together before returning to the victim's apartment. Once there, the defendant mopped puddles of blood from the floor and took out the trash. He then drank more beer, finishing the last of the beer as his other friend telephoned 911. Throughout the interview, the defendant also repeatedly insisted that the warrant was a mistake and asked when he would be released.

When he learned of the mistake in recording, Stratton asked the defendant if he would agree to a second interview; the defendant assented, but wanted a cigarette first. During the ten-minute cigarette break, the defendant continued to ask when he would be released.

Stratton interviewed the defendant a second time beginning at around 5:50 A.M. This interview was audio-video recorded. The judge found that the defendant was "quite intoxicated" throughout the interview, and that Stratton knew this but did not attempt to discern the defendant's level of intoxication. The judge found that the defendant was "stumbling around and very unsteady on his feet" when he re-entered the interview room, and that he "sound[ed] drunk and seem[ed] to have trouble speaking clearly." The defendant paid "very little attention while Stratton tried to review the Miranda form with him," and "reached across the table and started playing with Stratton's pen and papers." The judge found that, at that point, the defendant still did not realize that he had incriminated himself, as he was again arguing that the warrant was only a "straight warrant," a "mistake," and asking if he would be released. The defendant also made statements such as, "She's dead because of me," and, "I did whack her." The judge stated that, "[s]ince it is apparent that [the defendant] was quite intoxicated throughout the second police interrogation, the Court infers and therefore finds that he was even more drunk during the first interview."

After the second interview, Stratton arrested the defendant for murder. Stratton also seized all the defendant's clothing after he noticed apparent bloodstains on the defendant's shoes and socks. The officers had not obtained a warrant to seize or test the clothing. Every piece of clothing the defendant had been wearing tested positive for the presence of human blood.

b. Prior proceedings. The defendant was indicted on charges of murder in the first degree, G. L. c. 265, § 1, and violation of an abuse prevention order, G. L. c. 209A, § 7. He moved to suppress all statements he had made to police and all evidence seized from him. The judge allowed the motion to suppress in part. He ordered suppressed all statements the defendant made once he had been transported to the police station, but found that suppression was not required for statements made before the defendant had been transported to the police station. The judge found that the Commonwealth had not met its burden of demonstrating beyond a reasonable doubt that the defendant had validly waived his Miranda rights. The judge also ordered that the results of forensic testing of the defendant's clothing be suppressed, because no warrant had been obtained to test the clothes; he denied the motion to suppress the clothing itself, on the ground that the seizure was permissible under the exigent circumstances exception to the warrant requirement.

A single justice of this court allowed the Commonwealth's petition for interlocutory review of the partial allowance of the motion to suppress. The defendant's motion for leave to file a cross appeal of the partial denial of the motion to suppress also was allowed, and the appeals were consolidated and reported to the Appeals Court. The Appeals Court reversed the judge's partial allowance, Commonwealth v. Tremblay, 92 Mass. App. Ct. 295, 313, 84 N.E.3d 932 (2017), and this court then allowed the defendant's application for further appellate review.

2. Discussion. a. Standard of review. "In general, in reviewing a ruling on a motion to suppress, we accept the judge's subsidiary findings of fact absent clear error but conduct an independent review of his ultimate findings and conclusions of law" (quotation, citation, and alterations omitted). Commonwealth v. Clarke, 461 Mass. 336, 340, 960 N.E.2d 306 (2012). Massachusetts appellate courts have traditionally declined to defer to subsidiary findings based wholly on documentary evidence, however. See, e.g., Berry, 304 Mass. at 57-58, 22 N.E.2d 622. Because the judge's subsidiary findings rested on both testimonial and documentary evidence, we must first settle the open question whether our long-standing practice of independently reviewing documentary evidence survives in light of more recent legal developments.

i. Origins. Traditionally, "[g]reat weight is justly given to the conclusions on questions of fact of the justice who hears the case." Chase v. Hubbard, 153 Mass. 91, 92, 26 N.E. 433 (1891). This is because the judge "has [had] an opportunity to observe the conduct of the witnesses, their fairness and intelligence, and can judge better than the full court possibly can of the degree of credibility to be given to their testimony." Id. If a judge's subsidiary findings are drawn from documentary evidence, however, we have reasoned that "the reason of the rule largely disappears." Id. Thus, for over a century, Massachusetts appellate courts have distinguished between findings drawn from testimonial evidence and those drawn from documentary evidence. See Olivieri v. Atkinson, 168 Mass. 28, 30, 46 N.E. 422 (1897) ; Chase, supra.

Initially, this court held that, where the record consists entirely of documentary evidence, it is "proper to re-examine the evidence, and determine if on the whole the judgment was right." Olivieri, 168 Mass. at 30, 46 N.E. 422. Later, this rule was expanded, such that, within a given case, subsidiary findings based on documentary evidence were not entitled to deference, but subsidiary findings "based wholly or partly upon oral testimony are not to be set aside unless plainly wrong." Berry, 304 Mass. at 57-58, 22 N.E.2d 622. Even then, however, the case "is to be decided upon the entire evidence," giving "due weight" to the judge's subsidiary findings based on testimonial evidence. Edwards, 264 Mass. at 120-121, 162 N.E. 225.

ii. Rule 52 (a) of the Massachusetts Rules of Civil Procedure. The standard of review for subsidiary findings based on documentary evidence originated in civil cases, but such cases were later relied on in the criminal context as well. See, e.g., Commonwealth v. Novo, 442 Mass. 262, 266, 812 N.E.2d 1169 (2004) (citing civil cases such as Berry, 304 Mass. at 57-58, 22 N.E.2d 622, for standard of review); Commonwealth v. Wiseman, 356 Mass. 251, 256-257, 249 N.E.2d 610 (1969), cert. denied, 398 U.S. 960, 90 S.Ct. 2165, 26 L.Ed.2d 546 (1970) (same). Civil cases like Berry, supra, however, appear to conflict with Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996), which was adopted in 1974. See, e.g., Robertson v. Gaston Snow & Ely Bartlett, 404 Mass. 515, 525, 536 N.E.2d 344, cert. denied, 493 U.S. 894, 110 S.Ct. 242, 107 L.Ed.2d 192 (1989) (recognizing, but not resolving, conflict between traditional standard of review for findings based on documentary evidence and rule 52 [a] ); Rapp v. Barry, 398 Mass. 1004, 1005 n.3, 496 N.E.2d 636 (1986) (same). We take this opportunity to resolve this apparent conflict, affecting the standard of review in both civil and criminal cases.

Rule 52 (a) provides, in relevant part, "[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." It does not exempt findings drawn from documentary evidence.

The Massachusetts Rules of Civil Procedure were "patterned on the Federal Rules of Civil Procedure." Van Christo Advert., Inc. v. M/A-COM/LCS, 426 Mass. 410, 414, 688 N.E.2d 985 (1998). For this reason, "[i]n construing our rules, we follow the construction given to the Federal rules absent compelling reasons to the contrary or significant differences in content" (citation and quotation omitted). Id. At the time that Mass. R. Civ. P. 52 (a) was adopted, its language was identical to the cognate Rule 52 (a) of the Federal Rules of Civil Procedure. See Chance v. United States, 415 F.2d 330, 331 (5th Cir. 1969) (discussing prior wording of Fed. R. Civ. P. 52 [a] ).

Since 1985, Federal courts have not independently reviewed documentary evidence, and instead have applied the "clearly erroneous"

standard to all lower court findings. See Anderson, 470 U.S. at 574-575, 105 S.Ct. 1504. See also Maine v. Taylor, 477 U.S. 131, 145, 106 S.Ct. 2440, 91 L.Ed.2d 110 (1986) (applying Anderson, supra, to all findings of fact by Federal District Courts in criminal cases, other than ultimate findings of guilt). The United States Supreme Court did not provide this clarification, however, until more than ten years after Massachusetts adopted rule 52 (a). Until then, in applying Fed. R. Civ. P. 52, Federal courts were split as to whether findings based purely on documentary evidence were entitled to deference. See Advisory Committee Notes (1985) to Fed. R. Civ. P. 52(a) (collecting cases).

Furthermore, one month after the Supreme Court's decision in Anderson, 470 U.S. at 574-575, 105 S.Ct. 1504, the Federal rule was amended to reflect the clarification that the "clearly erroneous standard" applied even when findings were based on wholly documentary evidence. See Fed. R. Civ. P. 52(a) (amended April 29, 1985, effective August 1, 1985). Thus, Rule 52(a)(6) of the Federal Rules of Civil Procedure now states, "Findings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility" (emphasis added). Rule 52 (a) of the Massachusetts Rules of Civil Procedure, by contrast, remains unchanged. Since the meaning of Fed. R. Civ. P. 52(a) with regard to documentary evidence was not clarified until after Massachusetts adopted rule 52 (a), and there is currently a "significant difference[ ] in content" between our rule and the Federal rule, we expressly decline to depart from the long-standing practice in Massachusetts of independently reviewing documentary evidence in favor of the Federal approach (citation omitted). See Van Christo Advert., Inc., 426 Mass. at 414, 688 N.E.2d 985.

We now affirm the principle that an appellate court may independently review documentary evidence, and that lower court findings drawn from such evidence are not entitled to deference. See Clarke, 461 Mass. at 340-341, 960 N.E.2d 306. By contrast, findings drawn partly or wholly from testimonial evidence are accorded deference, and are not set aside unless clearly erroneous. Id. Accord Hoose, 467 Mass. at 399-400, 5 N.E.3d 843 ; Mass. R. Civ. P. 52 (a). The case "is to be decided upon the entire evidence," however, giving "due weight" to the judge's findings that are entitled to deference. Edwards, 264 Mass. at 120-121, 162 N.E. 225.

While there is no direct counterpart in the Massachusetts Rules of Criminal Procedure to Mass. R. Civ. P. 52 (a), we also defer to subsidiary factual findings in criminal cases unless they are clearly erroneous. See, e.g., Commonwealth v. Leahy, 445 Mass. 481, 485, 838 N.E.2d 1220 (2005). Thus, our pronouncement that the clearly erroneous standard set forth in Mass. R. Civ. P. 52 (a) does not apply to subsidiary findings based on documentary evidence extends to the criminal context as well.

We emphasize, however, that this does not give appellate courts carte blanche with respect to fact finding. "[A]s our long-standing jurisprudence makes plain, in no event is it proper for an appellate court to engage in what amounts to independent fact finding in order to reach a conclusion of law that is contrary to that of a motion judge who has seen and heard the witnesses, and made determinations regarding the weight and credibility of their testimony." Jones-Pannell, 472 Mass. at 438, 35 N.E.3d 357, citing Clarke, 461 Mass. at 340-341, 960 N.E.2d 306, and cases cited.

b. Suppression of statements. In order for a defendant's statements to be admissible at trial, the Commonwealth bears the "particularly heavy burden" of proving beyond a reasonable doubt that the defendant's Miranda waiver was valid. See Hoyt, 461 Mass. at 152, 958 N.E.2d 834, citing Commonwealth v. Day, 387 Mass. 915, 920, 444 N.E.2d 384 (1983). A waiver is valid when it is made "voluntarily, knowingly, and intelligently." Hoyt, supra at 153, 958 N.E.2d 834. This determination is based on the "totality of the circumstances, including the characteristics of the accused and the details of the interrogation." Id."[T]he judge may consider, among other things, the defendant's age, education, intelligence, physical and mental stability, and experience with and in the criminal justice system," Commonwealth v. Anderson, 445 Mass. 195, 203, 834 N.E.2d 1159 (2005), as well as his "outward behavior," Commonwealth v. Sarourt Nom, 426 Mass. 152, 159, 686 N.E.2d 1017 (1997).

The Commonwealth does not appear to have presented evidence concerning most of the aforementioned factors, such as age, education, or intelligence, nor did the judge address them. The evidence primarily concerned the defendant's outward behavior and demeanor, particularly with regard to his intoxication. The judge, in turn, concentrated his findings and conclusions on the defendant's level of intoxication, without establishing the nexus between the defendant's intoxication and his ability validly to waive his rights. Expressly relying on the audio-video recording, the judge concluded that the defendant was "quite intoxicated" during the second interview, and inferred that the defendant therefore must have been even more intoxicated during the first interview.

i. The recording. As the recording is documentary evidence, the judge's findings drawn from it are not entitled to deference and we may review such evidence de novo. See, e.g., Commonwealth v. Monroe, 472 Mass. 461, 464, 35 N.E.3d 677 (2015) (recorded interrogation constitutes documentary evidence); Clarke, 461 Mass. at 341, 960 N.E.2d 306 (same);

Hoyt, 461 Mass. at 148, 958 N.E.2d 834 (same). We take a view quite different from what the motion judge did as to what the recording reveals about the defendant's condition.

As the judge noted, at the beginning of the audio-video recording, the defendant was a bit unsteady on his feet when he was led into the interrogation room; this unsteadiness dissipated quickly, however. For example, the defendant was able to stand and pantomime hitting the victim repeatedly, without any instability or stumbling. He also spoke coherently; as he entered the interrogation room he was clearly arguing with the officers about the warrant for his arrest, and was insisting that it was a "straight warrant" rather than a "default."

The recording also shows that the defendant was paying attention while Stratton reviewed the Miranda rights, and told Stratton he already knew what Stratton was going to say. The defendant did not "play" with Stratton's pen and paper, as the judge found, but rather grabbed them while stating that he would sign the Miranda waiver form again. He indicated that he understood each right and remembered his earlier waiver, stating "I understand everything.... I initialed everything, I signed it, and I dated it." When Stratton asked if the defendant understood that he had a right to remain silent, he exclaimed, "I'll tell you whatever you want!"

Throughout the recording, the defendant was very responsive to questions. He was able to recall details of the incident, such as times, locations, and the specific bus he took, and even corrected a few of Stratton's statements. His account of hitting the victim repeatedly in the head was consistent with his statements during the first interview, and he made some of the same incriminating statements. When Stratton asked for the defendant's friend's last name, he declined to provide it. The defendant also minimized his culpability, insisting that he only hit the victim in the face with an open hand, and that he had her permission to be in the apartment and had not stolen her keys.

The defendant was cooperative and cordial throughout the interview, but when asked pointed questions about the victim, his demeanor would become more grave and reticent, and he made statements such as, "It shouldn't have happened," and "I fucked up." Thus, although the defendant repeatedly asked when he would be released, and disputed the technicalities of the prior outstanding warrant, he also, contrary to the judge's findings, understood the gravity of the situation. In addition, he understood that he had incriminated himself; regarding the victim's condition, he made statements such as, "You're not going to let me go now, are ya?"; "I'm going to jail, aren't I?"; and "Are you going to charge me with something?"

In sum, our de novo review of the audio-video recording reveals that, during the second interview, the defendant's demeanor was lucid, coherent, and responsive, and he appeared to be in control of his mental faculties. Although intoxication "bears heavily on the validity of a Miranda waiver," and there is no dispute that the defendant drank at least some alcohol in the hours prior to his arrest and interrogation, intoxication is "insufficient alone to require a finding of involuntariness" (citation omitted).

See Wolinski, 431 Mass. at 231, 726 N.E.2d 930. See also Holton v. Boston Elevated Ry. Co., 303 Mass. 242, 246, 21 N.E.2d 251 (1939) ("Liquor affects individuals in various ways," and "it is sometimes difficult to determine degrees of intoxication"). In this case, the recording demonstrates that the defendant's level of intoxication at that point did not appear to impede his capacity knowingly, intelligently, and voluntarily to waive his rights during the second interview.

This conclusion, however, is not sufficient to resolve the matter. The recording captured the defendant's condition more than one hour after he had made the waiver, when the effects of his intoxication presumably had declined to an unknown extent. Unlike in Clarke, 461 Mass. at 337 n.1, 338-340, 343, 960 N.E.2d 306, and Novo, 442 Mass. at 263, 267-268, 812 N.E.2d 1169, where the audio-video recordings were dispositive, here the recording itself does not show the defendant's condition when he made the waiver and cannot be conclusive. We must accordingly consider the recording in light of the "entire evidence," Berry, 304 Mass. at 57-58, 22 N.E.2d 622, to determine whether the Commonwealth met its heavy burden. Hoyt, 461 Mass. at 152, 958 N.E.2d 834.

ii. The entire evidence. "It is the motion judge's responsibility to make credibility assessments, weigh the evidence, and make findings of fact; it remains the responsibility of an appellate court to evaluate whether those findings are clearly erroneous." See Jones-Pannell, 472 Mass. at 431 n.3, 35 N.E.3d 357. In this regard, it is also the motion judge's responsibility to find adequate facts pertinent to the matter at hand; those facts "should be stated clearly, concisely and unequivocally, and be worded so that they are not susceptible of more than one interpretation." Isaiah I., 448 Mass. at 339, 861 N.E.2d 404.

Our ability fairly to assess the entirety of the evidence in this case is complicated by two factors. First, we do not know the extent to which the recording had an impact on even those findings that did not expressly rely on it. Second, the judge failed to address certain testimony plainly material to the issue before him, calling into question the adequacy of the facts found to support his conclusion as to the ultimate issue in this case, i.e., the defendant's capacity validly to waive his Miranda rights at the time of the first interview.

As to the first complicating factor, to the extent the judge expressly relied on the recording of the second interview to make findings concerning the defendant's condition during the unrecorded first interview, these findings must be set aside in light of our independent assessment of the recording. To the extent that the judge made findings about the defendant's condition that do not rest on the recording, they are drawn from oral testimony and are entitled to deference. See Clarke, 461 Mass. at 341, 960 N.E.2d 306. We cannot know the extent to which the recording may have had an impact on these findings, however, and are unable to evaluate how, if at all, our de novo review of the recording might alter the judge's view of the testamentary evidence. Additionally, we cannot know whether the judge would have reached different credibility determinations had he shared our view of the defendant's condition at the second interview.

As to the second complicating factor, our ability fairly to evaluate the entirety of the evidence is compromised by the inadequacy of the findings made as to certain material matters. For example, the judge credited police officer testimony that, at the crime scene, approximately one hour before the first interview, the defendant was talking and mumbling to himself repeatedly, and yelling statements loudly at the officers such as, "What's going on in there?"; "I know what happened"; and "She was my friend." This testimony is not self-explanatory, however, and the judge made no further findings regarding what, if any, relationship this bore to the defendant's condition at the time of the first interview.

Further, the judge did not address certain oral testimony by the same police witnesses that was plainly material to the ultimate issue in this case. This would include their testimony that the defendant did not appear intoxicated at the crime scene, and that the defendant was cooperative, lucid, articulate, and even strategic in answering questions during the first interview. In addition to not making any findings as to this testimony, the judge also did not make any express credibility determinations as to these three police witnesses.

The judge's prefatory statement that he credited the officers' testimony "to the extent it [was] consistent with [his] explicit findings of fact" does not relieve him of his obligation to make adequate findings. Of course, motion judges need not make findings with respect to every piece of evidence in the record, irrespective of pertinence. It is understandable that busy trial court judges will use brief, prefatory language as shorthand to indicate that they are aware that the record contains additional testimonial evidence, but find only certain portions of the testimony credible or relevant. See Jones-Pannell, 472 Mass. at 431 n.3, 35 N.E.3d 357. While such prefatory language precludes supplementation of the findings by the reviewing court, it does not insulate such findings from being reviewed for their adequacy. Id.

Here, the portion of the officers' testimony that was omitted from the judge's findings was the only evidence directly addressing the defendant's condition during the unrecorded first interview. As such, it warranted the judge's attention. While the credibility of this testimony was for the motion judge alone to assess, the testimony should have been addressed, and not ignored. This omission unnecessarily impairs our ability on the entire evidence to evaluate whether the judge's findings adequately support his ultimate conclusions of law.

Nevertheless, appellate courts must not overstep our boundaries by substituting our view of the testamentary evidence, appearing in a cold transcript, for that of the motion judge who, as it were, "eyeballed"

the witnesses when in a unique position to assess credibility. See Jones-Pannell, 472 Mass. at 438, 35 N.E.3d 357, citing Clarke, 461 Mass. at 340-341, 960 N.E.2d 306, and cases cited. Given this, we have little alternative but to remand the matter for further fact finding, despite the fact that remand is ordinarily disfavored; it comes at the expense of court and litigants' resources and time, and prolongs proceedings. Here, however, remand is prudent to ensure that the judge will have an opportunity to make findings regarding all pertinent evidence in light of our assessment of the recording of the second interview. It will also give the judge an opportunity to clarify the nexus, if any, between the defendant's intoxication and his capacity to make a valid waiver during the relevant period. Cf. Jones-Pannell, 472 Mass. at 437, 35 N.E.3d 357 ("where the facts as found are susceptible of more than one interpretation, and there is additional evidence in the record, neither implicitly credited nor discredited by the judge, remand may be appropriate" [quotation and citation omitted] ); Isaiah I., 448 Mass. at 338, 861 N.E.2d 404 (remand for further fact finding necessary where judge's findings omitted certain evidence and it was unclear whether omission was result of credibility determination or clear error).

Because of the unusual circumstances here, including the factors complicating our ability fairly to assess the entire evidence, this case is the exception, not the rule. Now, as before, what is needed from a trial court judge are credibility determinations as to pertinent matters, and concise, clear, and adequate findings of fact. See Isaiah I., 448 Mass. at 339, 861 N.E.2d 404. This will allow a reviewing court to evaluate whether the findings are clearly erroneous and whether they support the judge's ultimate findings and conclusions of law.

c. Voluntariness of statements. Remand also is appropriate here because the judge made no separate findings concerning the voluntariness of the defendant's statements. "Due process requires a separate inquiry into the voluntariness of [a defendant's statement] apart from the validity of the Miranda waiver" (citation omitted). Commonwealth v. Morales, 461 Mass. 765, 776, 965 N.E.2d 177 (2012). This is necessary in order to ensure that the statements were "free and voluntary" and "not the result of inquisitorial activity that had overborne his will." Id."Relevant factors include, but are not limited to, promises or other inducements, conduct of the defendant, the defendant's age, education, intelligence and emotional stability, experience with and in the criminal justice system, physical and mental condition, the initiator of the discussion of a deal or leniency (whether the defendant or the police), and the details of the interrogation, including the recitation of Miranda warnings" (quotation and citation omitted). Id.

On remand, the judge therefore should assess separately the voluntariness of the defendant's statements.

d. Suppression of clothing and forensic testing. "The Fourth Amendment [to the United States Constitution] and art. 14 [of the Massachusetts Declaration of Rights] provide that every person has the right to be secure against unreasonable searches and seizures of his or her possessions" (quotation and citation omitted). Commonwealth v. White, 475 Mass. 583, 587, 59 N.E.3d 369 (2016). Warrantless searches and seizures are presumptively unreasonable, but may be justified if the Commonwealth can demonstrate that the search or seizure "falls within a narrow class of permissible exceptions to the warrant requirement" (quotation and citation omitted). Id. at 588, 59 N.E.3d 369. For instance, police may seize a defendant's clothing incident to arrest if they have "probable cause to believe that the [clothing] was connected to the crime." Commonwealth v. Robles, 423 Mass. 62, 66, 666 N.E.2d 497 (1996). "[P]robable cause requires a substantial basis for concluding that the items sought are related to the criminal activity under investigation" (quotations and citations omitted). Commonwealth v. Kaupp, 453 Mass. 102, 110, 899 N.E.2d 809 (2009).

In this case, the defendant's clothing was validly seized incident to his arrest. The officers had probable cause to arrest the defendant even in the absence of his incriminating statements. See Commonwealth v. Williams, 422 Mass. 111, 119-120, 661 N.E.2d 617 (1996) (because arrest was proper, police were permitted to seize as evidence clothing and shoes worn by defendant at time of arrest); Commonwealth v. Gliniewicz, 398 Mass. 744, 750, 500 N.E.2d 1324 (1986) ("Once a defendant has been arrested and is in custody, clothing that constitutes evidence may be taken from him").

Specifically, although the defendant initially was arrested at the crime scene pursuant to a warrant for failure to register as a sex offender, police also had probable cause at that time to arrest him for the victim's death. That arrest took place after police observed him standing outside the apartment where the victim's body had been found, shouting that he knew the victim and knew what had happened to her. The officers knew that the defendant had been involved in prior incidents of domestic violence involving the victim, at the same address, and his proximity to the victim's apartment indicated that he was in violation of the abuse prevention order. Since the officers could have arrested the defendant for murder at the crime scene, their later observation of apparent bloodstains on his socks and shoes provided a substantial basis to conclude that his clothing contained evidence of the victim's death. See Robles, 423 Mass. at 66-67, 666 N.E.2d 497 (defendant's coat properly seized incident to arrest where police observed bloodstains on it and defendant was wearing same clothes he had worn on night of murder).

Once the defendant's clothing was properly seized, the officers did not need a separate warrant for forensic testing. We repeatedly have rejected such a requirement in the context of clothing. See Robles, 423 Mass. at 65 n.8, 666 N.E.2d 497 ; Commonwealth v. Varney, 391 Mass. 34, 38-39, 461 N.E.2d 177 (1984). While an individual has a reasonable expectation of privacy in the clothes he or she is wearing, that expectation dissipates once the clothes are lawfully in the possession of the police. See Arzola, 470 Mass. at 816-817, 26 N.E.3d 185. At that point, clothing is more comparable to latent fingerprints. Id. In such cases, the "DNA analysis is not a search in the constitutional sense." Id. at 820, 26 N.E.3d 185. See Commonwealth v. Aviles, 58 Mass. App. Ct. 459, 463, 790 N.E.2d 1103 (2003) ("where the police have lawfully obtained evidence, it may be subjected to scientific testing").

The judge's reliance on Kaupp, 453 Mass. at 106 n.7, 899 N.E.2d 809, was misplaced. That case concerned forensic analysis to search the contents of a computer that was seized pursuant to the exigent circumstances exception to the warrant requirement. It is inapposite here, particularly as the search of a computer can produce significantly more information than basic forensic testing of clothing. See Commonwealth v. Keown, 478 Mass. 232, 239, 84 N.E.3d 820 (2017), cert. denied, --- U.S. ----, 138 S.Ct. 1038, 200 L.Ed.2d 292 (2018) ("Searches of the many files on electronic devices ... must be done with special care and satisfy a more narrow and demanding standard than searches conducted in the physical world" [quotations and citation omitted] ). Compare Varney, 391 Mass. at 41, 461 N.E.2d 177 ("A white powder, unlike a film, is not a communicative medium. A warrantless scientific examination by government agents of white powder lawfully obtained and plainly visible may confirm the fact that it is contraband ... [but] does not, in our view, implicate any Fourth Amendment privacy interest"). Accordingly, the suppression of the results of forensic testing of the defendant's clothing is reversed. 3. Conclusion. So much of the judge's order requiring suppression of the results of forensic testing of the defendant's clothing is reversed. So much of the judge's order requiring suppression of the defendant's statements is remanded for further factual findings, reconsideration of legal conclusions in light of the further findings, and other proceedings consistent with this opinion.

So ordered.

      The remaining evidence presented consisted of the defendant's Miranda waiver form, a restraining order obtained by the victim against the defendant, a video recording of the wrong interrogation room, photographs of the crime scene, and a video recording of the defendant with his friend at a Massachusetts Bay Transportation Authority (MBTA) station more than four hours before he was interrogated. At the hearing, the witnesses also referenced video surveillance from a liquor store more than five hours before the defendant was interrogated, but that footage was not played or submitted. The judge did not discuss these other pieces of evidence in his findings. Although the record on appeal does not include the video recordings of the defendant with his friend at the MBTA station and the liquor store, these materials would not aid our analysis, because they were recorded four or five hours before the defendant's first interrogation.

      The defendant's waiver form states that his waiver was obtained at 5 a.m. The judge credited the time stamp on the recording that was taken of the wrong interview room, however, which indicated that the first interview began at 4:30 a.m. We defer to this finding, which also is consistent with the fact that the interview lasted for approximately one hour and was followed by a ten-minute cigarette break before the defendant was reinterviewed at 5:50 a.m.

      References to the "unrecorded" waiver denote the fact that the defendant's waiver process was not captured on an audio-video recording, and are not meant to suggest that the defendant failed to sign a waiver form.

      Nonetheless, in the four decades since the adoption of rule 52 (a), Massachusetts courts have continued the practice of reviewing de novo subsidiary findings based wholly on documentary evidence. See, e.g., Commonwealth v. Hoose, 467 Mass. 395, 399, 5 N.E.3d 843 (2014) ; Meschi v. Iverson, 60 Mass. App. Ct. 678, 681 n.7, 805 N.E.2d 72 (2004) ; Guempel v. Great Am. Ins. Co., 11 Mass. App. Ct. 845, 848, 420 N.E.2d 353 (1981).

      The United States Supreme Court held that the clearly erroneous standard should apply to all lower court findings, not just those involving credibility determinations, because trial judges have expertise in fact finding, and "[d]uplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources." Anderson v. Bessemer City, N.C., 470 U.S. 564, 574-575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Additionally, "the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one." Id. at 575, 105 S.Ct. 1504. "[T]rial on the merits should be the main event ... rather than a tryout on the road" (quotations and citation omitted). Id.

      This principle was articulated differently in Commonwealth v. Novo, 442 Mass. 262, 266, 812 N.E.2d 1169 (2004), which explained that we independently review evidence that is "reduced to a tangible form." The discussion in that case was referring to documentary evidence, such as "transcripts of deposition testimony" or "photographs." See id. The case did not extend the rule regarding findings based on documentary evidence to include all forms of physical evidence.

      "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.' " See Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160, 360 N.E.2d 1051 (1977), quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).

      The fact that the defendant's waiver was documented in writing is not dispositive; the validity of a waiver depends on the totality of the circumstances. See Commonwealth v. Magee, 423 Mass. 381, 387 n.8, 668 N.E.2d 339 (1996).

      The Commonwealth contends that the defendant validly waived his rights before both interviews. The recording instead demonstrates that at the start of the second interview, the defendant and the officers simply reviewed the waiver form he signed during the first interview. In any event, even if the defendant had waived his rights at the start of the second interview, the Commonwealth would still be required to prove beyond a reasonable doubt that the first, unrecorded waiver was valid. "In this Commonwealth, there is a presumption that a statement made following the violation of a suspect's Miranda rights is tainted, and the prosecution must show more than the belated administration of Miranda warnings in order to dispel that taint" (quotations and citation omitted). Commonwealth v. Osachuk, 418 Mass. 229, 235, 635 N.E.2d 1192 (1994). "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." Id. Here, the second interview began ten to twenty minutes after the first interview ended; this is insufficient to constitute a "break in the stream of events." See id.

      We are not unaware that the widespread use of such prefatory language also may have arisen in response to perceived appellate overreaching in the form of augmented or substituted fact finding, often to reach a different outcome from that reached by the trial court. Such perceived overreaching may occur when the reviewing court supplements findings by relying upon apparently uncontroverted witness testimony of record that has not been otherwise specifically discredited by the trial court judge. See Jones-Pannell, 472 Mass. at 432, 35 N.E.3d 357.

      The officers first noticed the bloodstained clothing during the booking process after they had arrested the defendant for murder following the second interview.


source: Caselaw Access Project

author: CYPHER, J.

license: Public Domain

text:
    CITY OF PITTSFIELD v. LOCAL 447 INTERNATIONAL BROTHERHOOD OF POLICE OFFICERS.
    SJC-12450
    Supreme Judicial Court of Massachusetts, Berkshire..
    Argued May 7, 2018 Decided October 3, 2018
    Richard M. Dohoney for the plaintiff.
    Timothy M. Burke (Jared S. Burke also present) for the defendant.
    Eric R. Atstupenas, for Massachusetts Chiefs of Police Association, Inc., amicus curiae, submitted a brief.
    Present: Gants, C.J., Gaziano, Lowy, Budd, & Cypher, JJ.
   CYPHER, J.

Dale Eason was terminated from his position as a police officer in the Pittsfield police department on grounds of conduct unbecoming a police officer, untruthfulness, and falsifying records. His union, Local 447 International Brotherhood of Police Officers (union), filed a grievance, pursuant to a collective bargaining agreement between the union and the city of Pittsfield (city). The union and city submitted Eason's termination to arbitration with two agreed-upon issues: (1) "Was there just cause to terminate the employment of Dale Eason?"; and (2) "If not, what shall the remedy be?" The arbitrator found that there was not just cause for termination and reinstated Eason with a three-day suspension.

The city commenced an action pursuant to G. L. c. 150C, § 11, in the Superior Court to vacate the arbitrator's award, arguing that it is contrary to public policy. A Superior Court judge confirmed the arbitration award, and the city appealed. We thereafter granted the city's application for direct appellate review. We conclude that the arbitrator's award of reinstatement does not violate public policy in the circumstances of this case, where the arbitrator found that the officer's statements were "intentionally misleading" but not "intentionally false" and where the statements did not lead to a wrongful arrest or prosecution, or result in any deprivation of liberty or denial of civil rights.

Background. We recite the facts as found by the arbitrator. The case arose from a February, 2016, incident in which Eason responded to a reported larceny at a supermarket. Eason arrested a woman, identified by supermarket security, and placed her in the back of his police cruiser. In his arrest report, Eason said the suspect "began thrashing her body around in the back seat .... For her safety, I attempted to remove the [suspect] from my vehicle and place her onto the ground to control her body." He additionally noted, "Also, [supermarket] [s]ecurity wanted to get a photo as part of their process."

The arbitrator explained that "[w]hen questioned during the investigation, [Eason] acknowledged that he removed the [suspect] from the back seat of his police cruiser to enable the supermarket security to photograph her, pursuant to a practice of photographing larceny suspects, which officers know about and facilitate." The city terminated Eason for "conduct unbecoming a police officer, untruthfulness, and falsifying records, based on the reason [he] reported for removal of the [suspect], expressed [as]: 'for her safety.' " The city also asserted that there was no evidence that the suspect was thrashing in the cruiser. Eason "acknowledge[d] that he removed the [suspect] to enable the store to photograph her, according to practice" and "also assert[ed] that the [suspect] had been out of control in the back of the car before she was removed, but not immediately prior to her removal. [He] denie[d]

that he lied, implicitly, because she was thrashing and they needed to photograph her, fairly simultaneously."

The arbitrator held that Eason's misconduct did not amount to just cause for termination, "a capital offense in the employment context." The arbitrator found that "the three words at issue were untrue, intentionally misleading, and cause for discipline, but less than intentionally false" (emphasis in original). He also found that there was "persuasive evidence that the [suspect] acted up in the back before she was removed." The arbitrator held that the city failed to "persuade [him] that [Eason's] misconduct was so serious that it justified termination without prior, corrective discipline."

Discussion. A brief reminder of the history of labor arbitration is useful to put the discussion that follows in context. In 1935, Congress recognized that "the refusal by some employers to accept the procedure of collective bargaining lead[s] to strikes and other forms of industrial strife or unrest" and enacted the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 - 169. 29 U.S.C. § 151. In pursuit of labor peace and "the free flow of ... commerce," Congress declared it to be the policy of the United States to encourage collective bargaining. Id. See National Labor Relations Bd. v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 180, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967) ("National labor policy has been built on the premise that by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions"). To effectuate that policy, Congress established a framework for representation of private sector workers by a labor organization elected by the majority of employees. Once that organization, often a union, was elected and certified as the employees' exclusive bargaining representative, it was a violation of law for an employer to refuse to bargain in good faith to reach a collective bargaining agreement. 29 U.S.C. § 158.

The NLRA, however, does not reach the bargaining relationship between workers and their public employers at the State and local level. In 1973, the Legislature established an analog to the NLRA, G. L. c. 150E, governing bargaining between public employers and employees. Similar to the NLRA, G. L. c. 150E prohibits employers from refusing to bargain in good faith with elected employee representatives.

The Legislature further evinces its preference for the results of collective bargaining, including the outcome of arbitration, in G. L. c. 150E, § 7 (d ), mandating that the terms of collective bargaining agreements shall prevail over certain statutes governing myriad working conditions of public employees, including regulations promulgated by a police commissioner. See id.; Boston v. Boston Police Patrolmen's Ass'n, 477 Mass. 434, 441, 78 N.E.3d 66 (2017) ( Williams ) (noting "courts' reluctance to allow [police commissioner's] broad discretionary powers to subsume bargained-for provisions").

1. Standard of review. The collective bargaining agreement between the city and the union, like many of its kind, contains a grievance procedure. A delicate balance of both parties' concessions and demands yielded the city's promise to consider the union's grievances through a process that, if necessary, culminates with arbitration. In any collective bargaining context, it is the arbitrator's expertise that the parties bargained for. United Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960). The Legislature has indorsed, and we must respect, a strong public policy favoring arbitration. School Comm. of Pittsfield v. United Educators of Pittsfield, 438 Mass. 753, 758, 784 N.E.2d 11 (2003) ("Public policy in the Commonwealth strongly encourages arbitration"). "Arbitration would have little value if it were merely an intermediate step between a grievance and litigation in the courts." Id. The Legislature has codified this priority, permitting courts to vacate arbitration awards only in rare, statutorily enumerated circumstances. See G. L. c. 150C, § 11.

The system of collective bargaining created and indorsed by the Legislature necessitates deference to the bargained-for result of an arbitrator's award. We review the trial judge's decision to uphold the arbitration award de novo, but our examination of the underlying award is informed by the "strong public policy favoring arbitration" (citation omitted). See Bureau of Special Investigations v. Coalition of Pub. Safety, 430 Mass. 601, 603, 722 N.E.2d 441 (2000). However, the relationship between a reviewing court and the result of an arbitration is unlike the relationship between an appellate court and the outcome of a lower court's proceedings. City of Lynn v. Thompson, 435 Mass. 54, 61, 754 N.E.2d 54 (2001), cert. denied, 534 U.S. 1131, 122 S.Ct. 1071, 151 L.Ed.2d 973 (2002). Our review of the underlying arbitration decision is considerably more deferential than even the abuse of discretion or clear error standards applied to lower court decisions. Id. See Williams, 477 Mass. at 439-440, 78 N.E.3d 66. Indeed, an arbitration award carries a presumption of propriety because it is the arbitrator's judgment, not necessarily an objectively correct answer, for which the parties have bargained. United Steelworkers of Am., 363 U.S. at 568, 80 S.Ct. 1343.

We therefore "uphold an arbitrator's decision even where it is wrong on the facts or the law, and whether it is wise or foolish, clear or ambiguous." Boston v. Boston Police Patrolmen's Ass'n, 443 Mass. 813, 818, 824 N.E.2d 855 (2005) ( DiSciullo ). "Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator's view of the facts and of the meaning of the contract that they have agreed to accept." United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37-38, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987) ( Misco ). Where the arbitrator allegedly engaged in "improvident, even silly, factfinding," we are nonetheless bound by those facts. Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509, 121 S.Ct. 1724, 149 L.Ed.2d 740 (2001), quoting Misco, supra at 39, 108 S.Ct. 364. See City of Lynn, 435 Mass. at 62, 754 N.E.2d 54, quoting Delta Air Lines, Inc. v. Air Line Pilots Ass'n, Int'l, 861 F.2d 665, 670 (11th Cir. 1988), cert. denied, 493 U.S. 871, 110 S.Ct. 201, 107 L.Ed.2d 154 (1989) ("An arbitrator's result may be wrong; it may appear unsupported; it may appear poorly reasoned; it may appear foolish. Yet, it may not be subject to court interference"). An award cannot be disturbed even if an arbitrator's findings are so confusing or unclear that, in order to evaluate the merits of an award, we would have to confront conflicting inferences. See Misco, supra at 44, 108 S.Ct. 364 ("A refusal to enforce an award must rest on more than speculation or assumption," and it was "inappropriate" for lower court to infer connection between arbitrator's facts and public policy at issue); Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698, 701-703, 888 N.E.2d 945 (2008) (arbitrator's factual findings were "far from a model of clarity" but "it would not be appropriate to vacate the arbitrator's award based on possibly incorrect factual inferences we might draw from his ambiguous findings"). 2. Public policy exception. Bound by the facts as explicitly found by the arbitrator, we evaluate the city's argument that public policy prohibits the enforcement of the arbitration award. The city cites a public policy that requires police officers "to be truthful in all of their official dealings," which is necessary for "the police to gain and preserve the public trust [and] maintain public confidence" (citation omitted). The city finds the root of this public policy in G. L. c. 268, § 6A, prohibiting "false written reports by public officers or employees."

"[T]he judiciary must be cautious about overruling an arbitration award on the ground that it conflicts with public policy" (citation omitted). Bureau of Special Investigations, 430 Mass. at 604, 722 N.E.2d 441. "[W]e apply a stringent, three-part analysis" to determine whether the public policy exception applies to the otherwise mandated enforcement of an arbitration award (quotation and citation omitted). Williams, 477 Mass. at 442, 78 N.E.3d 66. "First, the policy at issue must be well defined and dominant, and is to be ascertained by reference to the laws and legal precedents and not from general considerations of supposed public interests" (quotations and citation omitted). Id. Second, the exception must not merely address "disfavored conduct, in the abstract"

but must target "disfavored conduct which is integral to the performance of employment duties" (emphasis in original). Id., quoting Massachusetts Highway Dep't v. American Fed'n of State, County, & Mun. Employees, Council 93, 420 Mass. 13, 16, 648 N.E.2d 430 (1995). Third, we inquire whether an award reinstating the employee violates public policy. Williams, supra at 442-443, 78 N.E.3d 66. The burden is on the party seeking vacation of the award, the city, to demonstrate that the award satisfies each of these prongs. DiSciullo, 443 Mass. at 819, 824 N.E.2d 855.

We have already held that public policy supports terminating police officers for lying and that such a public policy satisfies the first two prongs. Id. We turn our attention to the third prong of this test, whether the award violates public policy. It is crucial to note that "[t]he question in the third prong is not whether the employee's behavior violates public policy," but whether the award itself does. Williams, 477 Mass. at 442-443, 78 N.E.3d 66.

In the rare circumstances where Massachusetts reviewing courts have exercised the power to vacate an arbitration award on public policy grounds, there was no ambiguity in the material underlying factual findings. See Massachusetts Bay Transp. Auth. v. Boston Carmen's Union, Local 589, Amalgamated Transit Union, 454 Mass. 19, 24-26, 29-30, 907 N.E.2d 200 (2009) (arbitrator's award removing seniority from employee who won settlement as result of discrimination violated public policy); School Dist. of Beverly v. Geller, 435 Mass. 223, 224, 755 N.E.2d 1241 (2001) (vacating arbitration award where arbitrator reinstated teacher who had used physical force against students); Boston v. Boston Police Patrolmen's Ass'n, 74 Mass. App. Ct. 379, 380-382, 907 N.E.2d 241 (2009) (reinstatement of officer who admitted to sufficient facts for assault by means of dangerous weapon when off duty and whose case was continued without finding violated public policy).

In DiSciullo, 443 Mass. at 814, 824 N.E.2d 855, which the city argues is controlling, we vacated an arbitrator's award reinstating an officer who was found to have behaved with "egregious dishonesty and abuse of [an] official position." In that case, DiSciullo filed an incident report and a statement of criminal charges falsely alleging disorderly conduct, assault and battery on a police officer, and resisting arrest. Id. at 815, 824 N.E.2d 855. Thus, the factual findings established a clear nexus between the officer's dishonesty and the arrest and charges. Our decision to vacate the arbitrator's award in DiSciullo was based on our conclusion that the specific factual findings of the arbitrator concerning the officer's egregious dishonesty and abuse of official position mandated dismissal of the officer. Id. at 819-820, 824 N.E.2d 855. Here, the arbitrator's findings about Eason's misconduct do not describe conduct that rises to the level of misconduct that necessitated termination of the officer in DiSciullo. We cannot, in these circumstances, substitute our judgment for that of the arbitrator's in determining the appropriate discipline. See W.R. Grace & Co. v. Local Union 759, Int'l Union of the United Rubber, Cork, Linoleum & Plastic Workers of Am., 461 U.S. 757, 765, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983) ("Regardless of what our view might be of the correctness of [the arbitrator's] contractual interpretation, the Company and the Union bargained for that interpretation. A ... court may not second-guess it").

In Sheriff of Suffolk County, 451 Mass. at 701, 888 N.E.2d 945, we considered an arbitrator's decision where "the factual findings ... [were] far from a model of clarity." There, "the arbitrator concluded that [the jail officer] filed reports with the sheriff's internal investigation officers that were incomplete or false or misleading, but does not attempt to distinguish among these three possibilities" (emphasis added). Id. at 701-702, 888 N.E.2d 945. We stated that "[i]n a situation where a jail officer actually witnesses fellow officers assault an individual who is held in the sheriff's custody, and then lies about this fact and files false reports that memorialize the falsity, we have little doubt that established public policy would condemn such conduct and would require the discharge of such an officer." Id. at 702, 888 N.E.2d 945. In that case, therefore, there was a nexus between the misconduct of the jail officer and the harm to the prisoner. We concluded, however, that "the arbitrator's findings [were] not sufficiently clear on what [the officer] witnessed, or on the character of his reports and participation in the sheriff's investigation -- that is, did he supply false information, or was he simply less than complete?" Id. In light of the "strong public policy ... that favors arbitration," we determined that "it would not be appropriate to vacate the arbitrator's award based on possibly incorrect factual inferences we might draw from his ambiguous findings." Id. at 702-703, 888 N.E.2d 945.

In Williams, 477 Mass. at 436-437, 445, 78 N.E.3d 66, we were constrained to approve the reinstatement of an officer who used a choke hold on someone who "testified that he could not breathe and began to lose consciousness," because the arbitrator found that the officer did not use excessive force and was "not untruthful" in reporting the incident. We held that it was not a violation of public policy to reinstate an officer who, as found by the arbitrator, did not use excessive force and did not lie. Id. at 445, 78 N.E.3d 66.

The distinction between a statement that is "intentionally misleading" but not "intentionally false" is, at best, elusive. We need not dwell on the meaning of the arbitrator's factual findings, however, because the arbitrator found that the officer made a statement that was both "knowingly inaccurate" and "intentionally misleading" -- and this finding alone is sufficient to raise a question whether the arbitrator's award reinstating him is contrary to public policy. Undoubtedly, were we to conduct a de novo analysis we would not draw the same distinction between an "intentionally misleading" and an "intentionally false" statement, as did the arbitrator. See Williams, 477 Mass. at 444, 78 N.E.3d 66. See Misco, 484 U.S. at 38, 108 S.Ct. 364 ("an arbitrator must find facts and a court may not reject those findings simply because it disagrees with them"). "The question ... is not whether [Eason's] conduct justified termination, but whether it required termination, such that any lesser sanction would violate public policy" (emphasis in original). Williams, supra at 445, 78 N.E.3d 66. We have drawn the public policy exception quite narrowly because "[w]e cannot purport to encourage arbitration and yet devise ways to undermine an arbitrator's authority." School Dist. of Beverly, 435 Mass. at 248, 755 N.E.2d 1241 (Cowin, J., dissenting). Obligated to credit the arbitrator's conclusion that a phrase in Eason's report was no more than misleading and that termination was not permissible under the collective bargaining agreement, we must uphold the award. See Concerned Minority Educators of Worcester v. School Comm. of Worcester, 392 Mass. 184, 187, 466 N.E.2d 114 (1984) ("we have no business overruling an arbitrator because we give a contract a different interpretation").

Our decision does nothing to limit the ability of police chiefs to terminate officers for lying where the arbitrator agrees that such conduct occurred. Nor does this decision change the public policy exception that bars the reinstatement of officers, as was the case in DiSciullo, whose lies have restricted other's liberty. Even a statement which is "intentionally misleading ... but less than intentionally false" that resulted in arrest, prosecution, loss of liberty, or a violation of civil rights would justify, on public policy grounds, the decision of a police chief to terminate an officer.

General Laws c. 268, § 6A, which makes it a crime for a police officer in the course of his or her official duties to file or publish "any false written report, minutes[,] or statement, knowing the same to be false in a material matter," and G. L. c. 268, § 13B, which makes it a crime for anyone to wilfully mislead another person who is a judge, prosecutor, or police officer "with the intent to impede, obstruct, delay, harm, punish or otherwise interfere thereby" with a criminal investigation or any criminal, juvenile, or civil proceeding "or do so with reckless disregard," reflect the Legislature's embrace of the important public policy interest that our police officers speak and act with integrity. Had Eason's wilfully misleading statement constituted a crime under § 13B, meaning that it was made with the intent to impede, obstruct, or otherwise interfere with a criminal investigation or any criminal, juvenile, or civil proceeding, then the third prong would have been met and public policy would have required that we set aside an award reinstating him. But the suspect here was not charged with any conduct related to her removal from the police cruiser -- she was charged only with larceny, not with assault and battery on a police officer or disorderly conduct. Therefore, the officer's "knowingly inaccurate" and "intentionally misleading" statement in his police report was not made with the intent to impede, obstruct, or otherwise interfere with any criminal investigation or proceeding; the arbitrator's factual findings indicate instead that the officer made this statement solely in an attempt to avoid discipline for removing the suspect from his police cruiser for the purpose of allowing supermarket personnel to photograph her.

In making these employment decisions, police chiefs who are responsible for maintaining the integrity of their departments and for preserving public trust in their officers need clear lines. It requires commitment and courage for a police chief to terminate the employment of a police officer; it is generally easier to avoid doing so. Termination of an officer's employment means that the police department almost invariably will need to incur the expense of arbitration, including the substantial attorney's fees from litigating such an arbitration. And if the arbitrator disagrees with the decision to terminate, the officer will be reinstated and the police department will be required to make the officer whole with respect to lost benefits under the collective bargaining agreement, including back pay, compensation for lost income from overtime and details, and the return of seniority rights. If there are no clear public policy lines supporting termination, it is extremely difficult for a police chief to risk such a decision where it might be undone by an arbitrator whose decision cannot be reversed by a court even when it is plainly wrong as a matter of fact or as a matter of law.

Where a police chief decides to terminate an officer in circumstances in which the officer's false statements violated G. L. c. 268, § 6A or 13B, or which otherwise resulted in an unjustified arrest or prosecution, or in a deprivation of liberty or denial of civil rights, an arbitration award finding no just cause for such a dismissal and reinstating the officer would violate public policy. We affirm the arbitrator's award here only because it did not cross this public policy line.

Judgment affirmed.

      The arbitrator also found that the statements were "knowingly inaccurate."

      We have long recognized the relationship between Congress's endorsed policy of collective bargaining and that of the Legislature's as embodied in G. L. c. 150E. Trustees of Forbes Library v. Labor Relations Comm'n, 384 Mass. 559, 562 n.2, 428 N.E.2d 124 (1981).

      The grievance process allows the union or, pursuant to G. L. c. 150E, individual employees to object to an action taken by the city that is governed by the collective bargaining agreement. Such actions include, but are not limited to, the termination of employment, at issue here.

      Although we attempted to remand for clarification of facts in Sheriff of Suffolk County v. Jail Officers & Employees of Suffolk County, 451 Mass. 698, 702 n.5, 888 N.E.2d 945 (2008), remand was not possible due to the arbitrator's death, so we were left to wrestle with the facts as found. See United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) ("Arbitrators have no obligation to the court to give their reasons for an award. To require opinions free of ambiguity may lead arbitrators to play it safe by writing no supporting opinions. This would be undesirable for a well-reasoned opinion tends to engender confidence in the integrity of the process and aids in clarifying the underlying agreement" [footnote omitted] ).

      "Whoever, being an officer or employee of the commonwealth or of any political subdivision thereof or of any authority created by the general court, in the course of his official duties executes, files or publishes any false written report, minutes or statement, knowing the same to be false in a material matter, shall be punished by a fine of not more than one thousand dollars or by imprisonment for not more than one year, or by both such fine and imprisonment." G. L. c. 268, § 6A.

      The city also notes that in May, 2017, after Eason had been terminated, the district attorney for the Berkshire district sent the Pittsfield police chief a letter stating that he would not call Eason "to testify on behalf of the Commonwealth in any criminal matter, whether presently pending or in the future." Although very troubling, this was not part of the evidence considered by the city when firing Eason or by the arbitrator when making his decision. It therefore has no bearing on our consideration of the propriety of the arbitrator's decision. However, although it is required to abide by the results of this arbitration, the city is, of course, not prohibited from pursuing any additional appropriate discipline based on the district attorney's letter or any other newly acquired information.

      The city erroneously argues that "the burden ought to be on the party arguing against the mandatory termination of an officer who lies about a material matter in a police report to proffer some authority for that position" (emphasis in original). We decline to shift the burden from the party seeking judicial intervention in the arbitration process.

      Unlike in Boston v. Boston Police Patrolmen's Ass'n, 443 Mass. 813, 819, 824 N.E.2d 855 (2005), the union here does not concede any element of this test. The city and the union dispute whether Eason's alleged misconduct constituted knowingly false statements about a "material" matter in violation of G. L. c. 268, § 6A. Neither party cites any authority for its contention that the disputed aspect of the report was or was not "material."

      Logically, if a statement is not only "untrue" but also "knowingly inaccurate" and "intentionally misleading," it must also be "intentionally false."

      In contrast with § 6A, a violation of § 13B does not require a knowing false statement; it suffices that the statement "directly or indirectly, willfully ... misleads ... another person."

      The arbitrator wrote, "I believe the [officer] wanted to conceal the real reason for removing the [suspect] by falsely reporting that it was safety-related ... [and that] the [officer] referred to safety to deflect the readers of his report away from his bad judgment."