COMMONWEALTH v. McNULTY

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. SJC-09669.

Attorney(S)

Sharon Fray-Witzer for the defendant. Kenneth E. Steinfield, Assistant District Attorney, for the Commonwealth.

Judges

Robert J. Cordy

See more information ...

Smart Summary

Please sign up to generate summary.

COMMONWEALTH v. JEROME McNULTY.

DECISION

JEFFREY S. MATTSON, Magistrate.

We Care Oregon (Plaintiff) appeals the denial by the Washington County Assessor (Defendant) of its application for a property tax exemption for the 2008-09 tax year.

A trial was held in the Tax Court courtroom, Salem, Oregon on April 2, 2010. Kevin Mannix, Attorney at Law, appeared on behalf of Plaintiff. Jacquilyn Saito-Moore, Assistant County Counsel, Washington County, appeared on behalf of Defendant. Randall Carl (Carl) and Jerry Schmidt, officers of Plaintiff, testified for Plaintiff. Betty O'Rourke (O'Rourke), Senior Administrative Exemptions Specialist, Washington County Department of Assessment and Taxation, testified for Defendant.

Plaintiff offered Exhibits 1 through 4 and 6 through 10, which included information regarding the activities of Plaintiff that was previously not provided to Defendant. Defendant offered Exhibits A through G. The court received all exhibits without objection. The record closed on May 5, 2010.

I. STATEMENT OF FACTS A. Nonprofit status and functions of Plaintiff

The majority of the facts are uncontested. Plaintiff is an incorporated nonprofit organization that works to "provide[] quality business assistance to non-profit [clients]." (Def's Ex F at 1.) The Internal Revenue Service approved Plaintiff as exempt for charitable purposes under section 501(c)(3) of the Internal Revenue Code (IRC) in a letter dated December 26, 2006. (Ptf's Ex 4 at 1-2; Def's Ex C at 1-2.) Plaintiff's articles of incorporation state that Plaintiff is incorporated under the Not for Profit Corporation Act of the State of Oregon and that "[t]he Corporation is organized exclusively for charitable * * * purposes, including for such purposes, the making of distributions to organizations that qualify as exempt organizations under section 501(c)(3) of the [IRC.]" (Ptf's Ex 2 at 1; Def's Ex D at 1.)

Upon dissolution, all assets of Plaintiff are to "be distributed exclusively to one or more charitable * * * organizations which would then qualify under * * * Section 501(c)(3) of the [IRC.]" ( See Ptf's Ex 2 at 1; Def's Ex D at 1.) Plaintiff's bylaws expand on this wording by stating specifically that "[u]pon dissolution, all remaining assets must be used exclusively for exempt purposes, such as charitable * * * purposes." (Ptf's Ex 3 at 5.) The charitable object of Plaintiff is stated in its bylaws as "strengthen[ing] faith-based and community organizations that serve people in need by supporting and leveraging public, corporate and private resources." (Ptf's Ex 3 at 1; Def's Ex E at 1.)

The financial summary provided by Plaintiff separates income into direct public support, indirect public support, and program services. (Ptf's Ex 8 at 1.) Carl testified that "direct public support" is cash received in donation form; "indirect public support" is cash received from the sale of donated items; and "program services" are fees received for services provided to nonprofit clients, including event management, financial consulting, and development and marketing. (Ptf's Ex 8 at 1.)

Additionally, the financial summary of Plaintiff separates expenses into program services, designated program services, management and general expenses, and fundraising. ( Id.) Carl testified that "program services" include cash donations provided directly to nonprofit clients as well as the administrative expenses associated with those program services. ( Id.) Carl distinguished "designated program services," which similarly include cash donated to Plaintiff, though donations are designated to a particular nonprofit client or type of nonprofit client chosen by the original donor. ( Id.)

When discussing "designated program services," Carl made alternate references to "designated program services" and "directed giving." The court will refer to "designated program services" rather than "directed giving" because that is the term used in the financial statements of Plaintiff.

Plaintiff testified that it occupies the property claimed as exempt as its primary office space in Portland, Oregon. The officers and other employees of Plaintiff work on-site at that property and Plaintiff uses its office space to meet with nonprofit clients and perform business and donation services for those clients. (Ptf's Ex 1 at 1; Def's Ex B at 1.) Business services provided by Plaintiff include event management, financial consulting, and development and marketing. ( See Ptf's Ex 8 at 1.) Plaintiff also provides direct cash donations to its nonprofit clients.

B. Nonprofit Clients of Plaintiff and Fees Charged to Clients

All nonprofit clients that receive services or donations from Plaintiff are approved IRC section 501(c)(3) nonprofits. Nonprofit clients that have received assistance in recent years include the Oregon War Veterans Association, which helps the families of veterans and current members of the armed forces; the YWCA Salem Outreach Shelter, which provides for the humanitarian needs of women; Family Building Blocks, which provides training programs aimed at the prevention of child abuse; and Life Directions, which provides a mentoring program for at-risk teens. (Ptf's Ex 8 at 1; Ptf's Ex 9 at 1.) Nonprofit clients of Plaintiff are not members of Plaintiff and do not pay dues for membership. (Ptf's Compl at 5.)

Regarding fees, Carl testified that: (1) nonprofit clients are not required to pay any membership fees; (2) nonprofit clients do not pay any initial fees for services; (3) Plaintiff provides the majority of its services for free; (4) Plaintiff does not charge fees to its nonprofit clients for its designated program services; and (5) nonprofit clients only pay fees for services when their requests become "cost-prohibitive" to Plaintiff. Carl testified that requests are "cost-prohibitive" when Plaintiff has not received enough charitable donations from other sources to cover the specific requests of its nonprofit clients.

Carl testified that even when nonprofit clients are required to pay fees for services provided, Plaintiff does not usually require payment of those fees until after the nonprofit client has successfully raised funds with the assistance of Plaintiff. Plaintiff charges for approximately twenty percent of its total services provided to nonprofit clients and Plaintiff receives payment for approximately five percent of its total services provided to nonprofit clients. Plaintiff charges fees for its services on a case-by-case basis and does not charge nonprofit clients unless their requests are "cost-prohibitive." Plaintiff does not require any initial fees and Plaintiff does not charge nonprofit clients any fees for cash donations provided by Plaintiff.

C. Procedural History

On April 1, 2008, Plaintiff sent Defendant its application for a charitable property tax exemption for the 2008-09 tax year. (Ptf's Ex 1 at 1.) The application requested the charitable property tax exemption under ORS 307.130 and stated that "[t]he purpose of th[e] organization [of Plaintiff] is[] to provide business services to non-profit [clients] to enhance their sustainability and viability." ( Id.) The first application was marked "timely by US Post Mark" by Defendant. ( Id.) Defendant received a second application from Plaintiff on June 13, 2008, that reflected a change of address, phone, and lease information of the Plaintiff. (Def's Ex B at 1.) Defendant marked the second application "LATE FILED" and "New 2008-09." ( Id.)

Defendant mailed a letter of denial to Plaintiff on April 23, 2009, stating that Plaintiff was not eligible for a charitable property tax exemption because "[t]he activity conducted is not for the direct good or benefit of the community at large" and "[p]ublic benefit must be the primary purpose rather than a by-product." (Ptf's Ex 6 at 1; Def's Ex A at 1.) Defendant also noted in the letter of denial that the claimed property use was for "[o]ffices used for paid consulting, financial and fund raising assistance to For Profit and Non-Profit Organizations[.]" (Ptf's Ex 6 at 1; Def's Ex A at 1.)

During the trial and in Defendant's Post Trial Memorandum, Defendant requested a late filing fee of $573.58 from Plaintiff in the event that the court finds in favor of Plaintiff. (Def's Post Trial Mem at 4.) The late filing fee request is based upon the second application having been received June 13, 2008, which was after the original due date of April 1, 2008. ( See Def's Ex B at 1.)

D. Contentions of the Parties

Plaintiff contends that it is entitled to a charitable property tax exemption because it is a nonprofit organization and a charitable institution that provides a direct good or benefit to the public or community at large. (Ptf's Compl at 3-4; Ptf's Ltr at 2, Apr 27, 2010.) Defendant argues that Plaintiff is not entitled to a charitable property tax exemption because Plaintiff is merely a "pass-through" organization that "does not provide a direct good or benefit to the public or community at large." (Def's Post Trial Mem at 2, 3.) Defendant also argues that Plaintiff is responsible for a late filing fee of $573.58. ( Id. at 4.)

II. ANALYSIS

The issue in this case is whether Plaintiff is entitled to a charitable property tax exemption under ORS 307.130. ORS 307.130 provides, in pertinent part:

All references to the Oregon Revised Statutes (ORS) are to the 2007 edition.

"(2) Upon compliance with ORS 307.162, the following property owned or being purchased by * * * incorporated * * * charitable * * * institutions shall be exempt from taxation:

"(a) Except as provided in ORS 748.414, only such real or personal property, or proportion thereof, as is actually and exclusively occupied or used in the * * * charitable * * * work carried on by such institutions."

ORS 307.130. In order to decide whether Plaintiff qualifies for a charitable property tax exemption, the court must first determine whether Plaintiff is organized as a nonprofit corporation. Second, the court will determine whether Plaintiff separately accounts for funds and donations. Third, the court will use a three-part test to determine whether Plaintiff qualifies as "charitable institution" under ORS 307.130. Fourth, the court will determine whether the subject property was "actually and exclusively used" for charitable purposes under ORS 307.130. Finally, the court will determine whether Plaintiff owes a late filing fee to Defendant.

A. Whether Plaintiff is organized as a nonprofit corporation

To qualify for a charitable property tax exemption, Plaintiff must first be organized as a nonprofit corporation. Grantmakers for Educ. v. Multnomah County Assessor ( Grantmakers), TC-MD No 021216E, WL 22119790 at *2 (Aug 21, 2003); OAR 150-307.130-(A)(1)(b). ORS 307.130(1)(c) defines "nonprofit corporation" as "a corporation that: (A) Is organized not for profit, pursuant to ORS chapter 65 or any predecessor of ORS chapter 65; or (B) Is organized and operated as described under section 501(c) of the [IRC][.]" ORS 307.130. The Not for Profit Corporation Act of the State of Oregon is found in ORS chapter 65. See ORS 65.001-65.990. The articles of incorporation of Plaintiff state that Plaintiff is incorporated under the Not for Profit Corporation Act of the State of Oregon and state that the corporation is organized solely for charitable purposes. (Ptf's Ex 2 at 1; Def's Ex D at 1.) Plaintiff is also an approved IRC section 501(c)(3) nonprofit as required by ORS 307.130(1)(c)(B). (Ptf's Ex 4 at 1-2; Def's Ex C at 1-2.) The court finds that Plaintiff was a nonprofit corporation during the 2008-09 tax year as required by Grantmakers and defined in ORS 307.130(1)(c).

B. Separate accounting of funds and donations

In addition to being a "charitable institution," Plaintiff must "separately account[] for funds committed to charitable use, while not operating for the profit or private advantage of the taxpayer's founders and officials." SW Oregon Pub. Def Services v. Dept. of Rev. (SW Oregon), 312 Or 82, 91, 817 P2d 1292 (1991); see also OAR 150-307.130-(A)(1)(c). For a corporation to maintain its charitable status, the organization must use any earned fees for charitable purposes. See Benton Co. v. Allen, 170 Or 481, 486-87, 133 P2d 991 (1943) (citations omitted).

The financial summary of Plaintiff separates each income source and expense type into its own distinct category. (Ptf's Ex 8 at 1.) Plaintiff receives its income through direct public support, indirect public support, and program services. (Id.) In 2007, about 95 percent of the income of Plaintiff was from direct public support, less than one percent was from indirect public support, and about four percent was from program services. In 2008, about 83 percent of the income of Plaintiff was from direct public support and about 17 percent was from program services. (Id.) Plaintiff pays expenses for program services, designated program services, management and general expenses, and fundraising. ( Id.) In 2007, cash donations made by Plaintiff to nonprofit clients were about 44 percent of the total expenses of Plaintiff. In 2008, cash donations made by Plaintiff to nonprofit clients were about 35 percent of the total expenses of Plaintiff. ( See id.)

In its financial summary for 2007, Plaintiff shows $807,388 in direct public support, $2,135 in indirect public support, and $37,176 in program services, for a total income of $846,699. For 2008, Plaintiff shows $994,753 in direct public support and $204,113 in program services, for total income of $1,198,866.

In its financial summary for 2007, Plaintiff shows cash donations of $353,900 and total expenses of $810,348. For 2008, Plaintiff shows cash donations of $417,555 and total expenses of $1,179,199.

Because the financial statements of Plaintiff break income and expenses into distinct charitable categories, the court finds that Plaintiff has separately accounted for funds committed to charitable use.

C. Whether Plaintiff is a "charitable institution" under ORS 307.130(2)(a)

The next step in ascertaining whether Plaintiff meets the charitable property tax exemption requirements is to determine whether the nonprofit activities of Plaintiff qualify as charitable activities. See Grantmakers, TC-MD No 021216E at *2. The Oregon Supreme Court has stated:

"[T]here are three elements to qualifying as a "charitable institution' under ORS 307.130: (1) the organization must have charity as its primary, if not sole, object; (2) the organization must be performing in a manner that furthers its charitable object; and (3) the organization's performance must involve a gift or giving."

SW Oregon, 312 Or at 89. Plaintiff must meet these three elements in order for Plaintiff to qualify as a "charitable institution." See Mazamas v. Dept. of Rev., 12 OTR 414, 415 (1993). The court must analyze whether Plaintiff met each prong of the SW Oregon test for the 2008-09 tax year.

1. Whether charity is the primary or sole object of Plaintiff

The first prong of the SW Oregon test is whether charity is the primary object of Plaintiff. SW Oregon, 312 Or at 89. When determining whether charity is the primary object of Plaintiff, "[t]he articles and bylaws of a corporation are prima facie evidence of the character of the corporation." Dove Lewis Mem. Emer. Vet. Clinic v. Dept. of Rev. (Dove Lewis), 301 Or 423, 427, 723 P2d 320 (1986) (citations omitted). A charitable property tax exemption requires, in part, "that the organization's articles of incorporation or bylaws require that its assets be used for charitable purposes upon dissolution." The Enterprise for Employment and Education v. Marion County Assessor (Enterprise), TC-MD No 070841C at 4, n 3 (citing OAR 150-307.130-(A)(2)).

Here, the articles of incorporation of Plaintiff state that Plaintiff is an Oregon nonprofit organization organized solely for charitable purposes. (See Ptf's Ex 2 at 1; Def's Ex D at 1.) The articles of incorporation and the bylaws of Plaintiff state that assets must be distributed to charitable organizations upon dissolution. (See Ptf's Ex 2 at 1; Ptf's Ex 3 at 5; Def's Ex D at 1.)

Because Plaintiffs articles of incorporation and bylaws show, without ambiguity, that charity is the primary object of Plaintiff, the court finds that Plaintiff has met the first prong of the SW Oregon test.

2. Whether Plaintiff is performing in a manner that furthers its charitable object

The second prong of the SW Oregon test is whether Plaintiff is performing in a manner that furthers its charitable object. See SW Oregon, 312 Or at 89. To determine whether an organization is performing in a manner that furthers its charitable object, the court must assess the organization's individual activities. See Goodwill Indus. of the Columbia Willamette, Inc. v. Benton County Assessor (Goodwill), TC-MD 060676D, WL 1168679 at *4 (Apr 18, 2007); Hazelden Springbrook, Inc. v. Yamhill County Assessor, TC-MD 031037D, WL 1237628 at *4 (May 11, 2004). The individual activities of the organization must contribute substantially to its charitable object. German Apost. Christ. Church v. Dept. of Rev. (German Apost), 279 Or 637, 641, 569 P2d 596 (1977) (citation omitted). Additionally, "[t]he activity conducted by the charitable institution must be for the direct good or benefit of the public or community at large. Public benefits must be the primary purpose rather than a by-product." Enterprise, TC-MD No 070841C at 4 (citation omitted; internal quotation marks omitted). An organization that exists chiefly for the convenience or benefit of its members is not a charitable institution. Id.

German Apost concerns ORS 307.140, which provides a property tax exemption for religious organizations. Id. at 641. However, the court in German Apost treats ORS 307.130 as "an analogous statute" and discusses the requirements to qualify for exemption under ORS 307.130." Id. at 641-42.

In testimony, Carl described the activities of Plaintiff as providing free or low-cost services to nonprofit clients, including event management, financial consulting, and development and marketing. (See Ptf's Ex 8 at 1.) He also stated that Plaintiff provides cash donations to nonprofit clients. (Id.) All of those nonprofit clients are IRC section 501(c)(3) "community organizations that serve people in need" as required by the bylaws of Plaintiff and all of those nonprofit clients received cash donations, rather than exclusively services, from Plaintiff. (Ptf's Ex 3 at 1; Ptf's Ex 8 at 1; Ptf's Ex 9 at 1.)

Defendant contends that Plaintiff does not meet the second prong of the SW Oregon test because Plaintiff is a "pass-through" organization that provides its services to other organizations, rather than to individual citizens of the community. (Def's Post Trial Mem at 3.) The primary case that Defendant relies upon is Grantmakers. In Grantmakers, the charitable exemption claimed by the taxpayer was denied because the court found that the taxpayer only directed its services to other organizations, most of which were members of the taxpayer. Grantmakers, WL 22119790 at *3. The services provided to members by the taxpayer in Grantmakers focused on enhancing the education of its members, primarily through programs and seminars. Id. at *1. Members of the taxpayer in Grantmakers were required to pay a fee for membership. Id.

Defendant's reliance on Grantmakers is in error. The Plaintiff here is distinguishable in three ways from the taxpayer in Grantmakers. First, Plaintiff does not have members. Second, Plaintiff provides specific cash donations to its nonprofit clients, rather than services only. Third, the services of Plaintiff that are provided to nonprofit clients are business services with a tangible benefit, including event management, financial consulting, and development and marketing. Plaintiff does not strive to help nonprofit clients solely through education; instead, it provides services normally provided by paid employees of organizations. The types of services provided by Plaintiff to its nonprofit clients provide them with cash by saving them money directly. Conversely, the services of the taxpayer in Grantmakers simply provided its members with the knowledge of how to save money by increasing efficiency. Although knowledge may be a by-product of the services Plaintiff provides to its nonprofit clients, its services are not primarily geared toward education.

Additionally, the nonprofit clients that benefit from the activities of Plaintiff are members of the community at large, not limited to members of Plaintiff. By providing cash to those organizations, Plaintiff is directly influencing the resources of the public and the community at large, and is thus directly benefitting the public through its activities. Cash is a direct benefit that can be used to meet almost any need of a nonprofit client's target group. It cannot be considered a by-product because it is a donation. Cash given to the Oregon War Veterans Association is used to meet the needs of veterans' families; cash given to the YWCA provides for the humanitarian needs of the women helped by that organization; and cash given to Family Building Blocks directly funds the training programs provided to the public. Because the individual activities of Plaintiff contribute substantially to and further its charitable object, and because public benefits are the primary purpose of the activities of Plaintiff, the court finds that Plaintiff has met the second prong of the SW Oregon test.

3. Whether the performance of Plaintiff involves a gift or giving

The third prong of the SW Oregon test is whether the performance of Plaintiff involves a gift or giving. See SW Oregon, 312 Or at 89. "The essence of charity is giving" and "the element of giving must be viewed from the perspective of the recipient[.]" Goodwill, WL 1168679 at *5 (citations omitted; internal quotation marks omitted). "In determining whether an organization is, by its conduct, charitable, the crucial consideration is the element of a gift or giving." Dove Lewis, 301 Or at 428. Whether the performance of Plaintiff involves a gift or giving is based upon the overall activities of Plaintiff, not a portion thereof. See Mercy Medical Center, Inc. v. Dept. of Rev.(Mercy Medical), 12 OTR 305, 307 (1992).

A nonprofit organization that provides services to recipients meets the element of gift or giving if its services are provided with no expectation that the organization would be paid or reimbursed for them. See Goodwill, WL 1168679 at *5 (citation omitted; internal quotation marks omitted). A nonprofit organization meets the element of gift or giving if the organization "receive[s] limited donations * * * [and] appl[ies] those donations and substantial volunteer labor" to its charitable services. See Rigas Maja, Inc. v. Dept. of Rev., 12 OTR 471, 475 (1993).

Here, Plaintiff provides nonprofit clients with services that are free (or nearly free) and with cash donations. Viewed from the recipients? perspectives, Plaintiff gives services that the nonprofit clients would normally have to pay for. Additionally, Plaintiff gives cash that the nonprofit clients would have to raise another way. Plaintiff ultimately receives payment for only approximately five percent of the total services provided to nonprofit clients. The overall activities of Plaintiff involve a gift or giving. Plaintiff provides the vast majority of its services with "no expectation of compensation or renumeration." Goodwill, WL 1168679 at *5. Plaintiff receives limited cash donations and applies those donations and significant volunteer labor to its charitable services.

1. Collection of fees

"The fact that an organization charges a fee for its services does not necessarily invalidate its claimed status as charitable. It is a factor to be considered in the context of the organization's manner of operation." OAR 150-307.130-(A)(3)(d)(C); see also Dove Lewis, 301 Or at 430-431 ("Although the fact that a corporation makes a profit or charges a fee for its services does not necessarily vitiate its claimed status as charitable, it is a factor to be considered in the context of the corporation's manner of operation" (citation omitted)). Because Plaintiff collects fees for services provided to nonprofit clients on a case-by-case basis, the court must assess whether those fees received disqualify Plaintiff from receiving a charitable property tax exemption. See Found. of Human Understanding v. Dept. of Rev., 301 Or 254, 259, n 5, 722 P2d 1 (1986). Three factors to consider when evaluating a nonprofit organization's fee collection schedule are: "(1) [W]hether the fee schedule is structured to cover all costs; (2) whether charges are made to all patrons, and * * * (3) whether patrons receive the same treatment irrespective of their ability to pay." Portland State Univ. Bookstore v. Multnomah County Assessor ( Portland State), TC-MD No 060824C, WL 323496 at *6 (Jan 29, 2009) (citing Dove Lewis, 301 Or at 428-31).

The Order on Cross Motions for Summary Judgment was adopted by the court in its decision, issued June 20, 2009. See Portland State Univ. Bookstore v. Multnomah County Assessor, TC-MD No 060824C, WL 1913203 (Jun 30, 2009).

According to the testimony of Carl, nonprofit clients of Plaintiff are not required to pay membership fees, initial fees for services, or fees for designated program services. Furthermore, Plaintiff provides the majority of its services for free and nonprofit clients only pay fees for services when their requests become "cost-prohibitive" to Plaintiff. Carl testified that requests are "cost-prohibitive" when Plaintiff has not received enough charitable donations from other sources to cover the specific requests of its nonprofit clients.

In addition to the relative rarity of charges, nonprofit clients are typically not billed for assessed charges until after they have raised money with the assistance of Plaintiff. Ultimately, Plaintiff receives payment for only five percent of its total services provided. The financial summary of Plaintiff shows that Plaintiff has received fees that amount to substantially less than the value of its cash donations and services provided to nonprofit clients. (Ptf's Ex 8 at 1.)

Plaintiff has met the factors outlined in Portland State for evaluating the fee collection schedule of a nonprofit organization: the fee schedule of Plaintiff is not structured to cover all costs, charges are not made to all patrons, and patrons receive the same treatment irrespective of their ability to pay. Because Plaintiff subsidized the expenses of its clients during the 2008-09 tax year, Plaintiff necessarily contributed fees received to its charitable purpose and did not operate for the profit or private advantage of its founders and officials. Considered in the context of Plaintiff's manner of operation, the court finds that the fees received by Plaintiff in the 2008-09 tax year do not disqualify Plaintiff from receiving a charitable property tax exemption.

2. Percentage of giving

In order to determine the level of giving of a nonprofit organization, the Oregon Supreme Court has evaluated the relationship of the amount of giving with the total revenue of the organization. See YMCA v. Dept. of Rev.(YMCA), 308 Or 644, 653-54, 784 P2d 1086 (1989). The Supreme Court in YMCA declined to find a gift or giving when the total relationship of giving of the plaintiff to its revenue in the tax year at issue was less than four percent. YMCA, 308 Or at 654. The percentage of the cash giving of Plaintiff in relationship to its revenue in 2007 was 41.79 percent, and the percentage of the cash giving of Plaintiff in relationship to its revenue in 2008 was 39.3 percent. ( See Ptf's Ex 8 at 1.) The percentage of service giving of Plaintiff in relationship to its revenue in 2007 was 15.96 percent and the percentage of service giving of Plaintiff in relationship to its revenue in 2008 was 44.36 percent. ( See Ptf's Ex 8 at 1.) Cumulatively, Plaintiff gave 58 percent (rounded) of its revenue in 2007 and 83 percent (rounded) of its revenue in 2008. In contrast to the plaintiff in YMCA, Plaintiff gave 83 percent of its revenue in the tax year at issue.

In 2007, total cash giving amounted to $353,900 and total revenue amounted to $846,699. In 2008, total cash giving amounted to $471,555 and total revenue amounted to $1,198,866. (Ptf's Ex 8 at 1.)

In 2007, total service giving amounted to $135,159 and total revenue amounted to $846,699. In 2008, total service giving amounted to $531,921 and total revenue amounted to $1,198,866. (Ptf's Ex 8 at 1.)

Because Plaintiff gave a significant percentage of its income during the tax year at issue to its nonprofit clients, the court finds that the performance of Plaintiff involves a gift or giving. The original charitable property tax exemption application of Plaintiff did not describe the cash giving element of its organization. However, testimony and exhibits provided at trial show that the charitable activity of Plaintiff was within the scope of ORS 307.130 during the 2008-09 tax year. After careful review of the facts established by Plaintiff through this appeal, the court finds that Plaintiff meets all three elements required by SW Oregon to qualify as a "charitable institution" during the 2008-09 tax year.

D. Whether Plaintiff used the subject property for its charitable work

ORS 307.130(2)(a) allows a property tax exemption only for "such real or personal property as is * * * actually and exclusively used in the * * * charitable * * * work" of the organization. The charitable use of the property must be "the primary as distinguished from the incidental use." German Apost., 279 Or at 641, citing Mult. School of Bible v. Mult. Co., 218 Or 19, 36-37, 343 P2d 893 (1959). Additionally, the use of the property must "`substantially contribute' to achieving the organization's purposes." Mercy Medical, 12 OTR at 308 (citations omitted).

Here, the property claimed as exempt by Plaintiff is used for the charitable work completed by Plaintiff; it is the primary office space for officers and other employees of Plaintiff and the primary place where the employees of Plaintiff meet with nonprofit clients. (See Ptf's Ex 1 at 1; Def's Ex B at 1.) Plaintiff uses its office space to write grants, plan events for nonprofit clients, and distribute donations. (Id.) Thus, Plaintiffs use of the subject property substantially contributes to its purpose of providing business services to non-profit clients.

Plaintiff has established that it is a non-profit corporation that separately accounts for funds and donations. Plaintiff has met the three prongs of the SW Oregon test and is therefore a charitable institution within the meaning of ORS 307.130. Finally, the subject property is "actually and exclusively" used for charitable purposes. Thus, Plaintiff is entitled to a charitable property tax exemption under ORS 307.130.

E. Whether Plaintiff owes a late filing fee to Defendant

During trial, O'Rourke, witness for Defendant, stated that Plaintiff might be responsible for a filing fee of $573.58 if the exemption is approved because the final charitable property tax exemption application of Plaintiff was received on June 13, 2008, and the initial deadline was April 1, 2008. (See Def's Ex B at 1; Ptf's Ex 1 at 1.) Defendant failed to raise any claim for fees in any of its pre-trial pleadings. Based on the evidence provided by the parties, the court finds any alleged late filing fee to be inappropriate. Two applications for the 2008-09 tax year were sent to Defendant by Plaintiff; the first was received on April 1, 2008, and marked "timely by US Post Mark" by Defendant; the second was received on June 13, 2008, and marked "LATE FILED" and "New 2008-09" by Defendant. (See Ptf's Ex 1 at 1; Def's Ex B at 1.) There are only minor differences between the two applications: the address, phone number, and lease information provided by Plaintiff, which was updated on the June 13, 2008, form. (See Ptf's Ex 1 at 1; Def's Ex B at 1.) The court finds as a result that the original charitable property tax exemption application was received by Defendant within the time period required; the second filing merely added additional supporting details as an amendment to the original. Under these specific facts, no late filing fee should be assessed to Plaintiff.

IV. CONCLUSION

It is the conclusion of the court that Plaintiff is a nonprofit charitable institution that meets the requirements of ORS 307.130 for a charitable property tax exemption. Now, therefore,

IT IS THE DECISION OF THIS COURT that Plaintiff is entitled to a charitable property tax exemption under ORS 307.130 for the 2008-09 tax year; and

IT IS FURTHER DECIDED that no late filing fee is due from Plaintiff.

Dated this ___ day of November 2010.

If you want to appeal this Decision, file a Complaint in the Regular Division of the Oregon Tax Court, by mailing to: 1163 State Street, Salem, OR 97301-2563; or by hand delivery to: Fourth Floor, 1241 State Street, Salem, OR. Your Complaint must be submitted within 60 days after the date of the Decision or this Decision becomes final and cannot be changed. This document was signed by Magistrate Jeffrey S. Mattson on November 18, 2010. The Court filed and entered this document on November 18, 2010.

otes themselves would have remained in their untransformed state as simply Marks's notes and, as such, inadmissible. See Commonwealth v. Beaulieu, 333 Mass. 640, 649 (1956). Cf. Commonwealth v. Brum, 438 Mass. 103, 114 (2002). Instead, the jurors were provided the complete statement — prebreak, post-break and the portion indicating the defendant was rejecting the assistance of an attorney — in documentary form. We have recognized "the exceptionally potent quality of a defendant's statement or confession," Commonwealth v. DiGiambattista, 442 Mass. 423, 447 (2004), and also that the "potency can only be magnified when the evidence of that statement or confession is presented by one or more of the interrogating officers." Id. The jury here not only heard Marks read the defendant's complete statement word for word, but they were able to review and discuss together every detail of the statement as closely as they chose during their deliberations because it was before them in the form of an exhibit. One may reasonably surmise that jurors are likely to give greater weight to a written document than oral testimony on the same subject, for which they must rely on their memories. See State v. Beckley, 157 Vt. 446, 450 (1991), quoting People v. Minis, 204 Ill. App. 3d 87, 93 (1990) (although testimony regarding substance of defendant's confession would be admissible, if defendant's signature on typed confession was "tainted" by improper police promises, document should not be admitted in evidence; "we are concerned by the `undue weight that jurors may accord the written word, especially when they must rely on their memories alone when considering the oral testimony`"). Cf. Commonwealth v. Avila, 454 Mass. 744, 756-757 (2009) (error to admit interrogating police officer's notes of witness's statements to police in part because admission created risk that jurors might substitute written notes for collective memory of witness's trial testimony).

Third, the postbreak portions of the written statement, while to some extent cumulative of what the defendant had already said before the break, were far from entirely so. Moreover, some of the differences might well have increased the likelihood that the jury would view the defendant as a liar, a man who would change his story in order to avoid responsibility for his crimes. Thus, the defendant's postbreak comments about not smoking marijuana on the night of the incident, not "do[ing]" cocaine, and only feeling "tired" (not intoxicated) from drinking five to six ounces of rum contradicted the defendant's own trial testimony, and also conflicted directly with information he had provided to Dr. Joss, one of the two expert witnesses on whom the defendant relied at trial to explain his PTSD and its effect on him. And the defendant's explicit, categorical statement, made only during the postbreak period, that he "never had a knife in my hand the whole time" reemphasized the glaring conflict between the defendant's version of events and what the physical evidence and other witnesses' testimony showed — as the defendant essentially admitted at trial, when he stated he must have used a knife and slashed or stabbed the victims. Finally, the portion of the written statement that described how the defendant declined the offer to speak with his appointed lawyer, and instead chose to continue speaking to the police, could be interpreted by the jury to support a view of the defendant not only as a deliberative prevaricator — a quality suggested by the addition of his signatures to the "statement" — but as one who was also self-confident enough to talk to the police, and construct his story, on his own.

The prosecutor emphasized this conflict in her cross-examination of both Joss and the defendant himself, and defense counsel, in his closing argument, conceded that the defendant had lied to the police.

To be sure, the improperly admitted evidence at issue did not include a confession or even an inculpatory admission. Contrast Mavredakis, 430 Mass. at 853 (while attorney was waiting in police station, defendant changed from denying to admitting his involvement in shooting); McKenna, 355 Mass. at 318-320 (after defendant's attorney had contacted police, defendant admitted participation in crime). However, the defendant's proffered theory of defense focused almost entirely on his mental and emotional condition at the time of the critical events. In that context, the improper evidence had a real potential to weaken or even undermine the defendant's efforts to present himself as a mentally and emotionally impaired man suffering from PTSD who, at the relevant time, overreacted to a perceived threat to his safety arising from the conduct of Linda (as well as the other two victims), dissociated from what was going on, and was unable to think or act rationally about how to extricate himself from the danger he perceived.

Turning to additional factors listed in our cases as relevant to the harmless error analysis, see Commonwealth v. Dagraca, 447 Mass. at 553; Commonwealth v. Mahdi, 388 Mass. at 696-697, we think it clear that the defendant's complete, signed statement was significant to the prosecution. It was the prosecution that introduced the statement, through Marks. The prosecutor called Marks as her final witness, and his reading of the entire statement, followed by the admission of the written document as an exhibit, were the capstones of the Commonwealth's case-in-chief. The prosecutor's cross-examination of the defendant thereafter focused repeatedly on the statement, including the defendant's act of signing it, and she featured the statement as the first topic discussed in her closing argument. As the Commonwealth stated during oral argument before this court, the defendant's full, signed statement was "definitely an important part of the Commonwealth's case." Finally, on the "weight or quantum of evidence of guilt," Commonwealth v. Dagraca, supra, there was indeed a great deal of evidence that the defendant killed Linda and wounded the other two victims. Given the premise of the defense, however, what is critical is not the quantum of this evidence, but rather the evidence pertaining to the defendant's mental state on the night of March 28 and into the morning of March 29, and concerning what happened between the defendant and Linda while the two were in her bedroom during this time. Little was presented on either topic. As the trial judge remarked to the attorneys, "We just don't know what happened," and, "Here we don't know what the motive is." The principal source of evidence bearing on the defendant's mental state was the defendant's expert witnesses and the defendant himself. Even assuming the jury's disbelief of these witnesses, such disbelief would not create affirmative conflicting evidence. Beyond these witnesses, there was evidence that Colahan had described the defendant as without expression when he came out of Linda's room, and evidence from witnesses who interacted with the defendant at the temporary employment agency that the defendant was acting strangely. Considering all these factors, we cannot say with assurance that the improperly admitted evidence of the defendant's full and signed statement "might [not] have had an effect on the jury or contributed to the verdicts," id., and that it was therefore harmless beyond a reasonable doubt.

The Commonwealth accepts the trial judge's conclusion that under Mavredakis it was error to admit any evidence of statements made by the defendant between 10:15 A.M., when the defendant was advised about his attorney, and 10:45 A.M. Like the trial judge, however, the Commonwealth adopts the position that the Mavredakis error ended at that point, and that accordingly, there was no error in admitting evidence concerning the defendant's signing of the statement — which occurred after 10:45 A.M. — or in admitting the signed document itself as a trial exhibit. For reasons we have discussed previously, we reject that position.
With respect to the postbreak statements themselves, the Commonwealth contends that their admission was harmless beyond a reasonable doubt because they were merely cumulative of what the defendant had already stated before the break; the statements could have and would have been placed before the jury to impeach the defendant's trial testimony, see Commonwealth v. Mahnke, 368 Mass. 662, 692-693 (1975), cert. denied, 425 U.S. 959 (1976); and the statements favored the defendant because they supported his self-defense. We also reject these claims. As previously indicated, the postbreak statements were cumulative to some extent, but also provided new, independent, and damaging evidence against the defendant. As for impeachment, any conclusion that the postbreak statements would come in for this purpose is speculative at best, because we cannot know whether the defendant would have chosen to testify if he knew that the admissible evidence of his "statement" would be limited to Sergeant Marks's testimony describing the contents solely of the prebreak portion. Finally, with respect to the evidence being favorable to the defendant, we note that the defendant certainly did not need the post-break portion of his "statement" to argue a theory of self-defense, and we have difficulty discerning how any aspect of the postbreak portion offered anything of benefit to the defense.

(ii) Convictions of assault and battery by means of a dangerous weapon. The defendant's convictions of two counts of assault and battery by means of a dangerous weapon stand on different ground. As discussed, the "premise of the defense" at trial, Commonwealth v. Mahdi, 388 Mass. at 696, was that the defendant's alleged PTSD, a mental impairment, rendered him incapable of the malice necessary for murder, and we have concluded that the admission of the entire signed statement was not harmless because it could be viewed as impairing or undermining that defense. While mental impairment is relevant to the murder conviction, which requires proof of a specific intent, see, e.g., Commonwealth v. LaCava, 438 Mass. 708, 717-718 (2003), it is not relevant to these convictions. Assault and battery by means of a dangerous weapon is a general intent crime and, as such, obligates the Commonwealth to prove beyond a reasonable doubt that the defendant had a general intent to do the act causing the battery, but not that he had a specific intent to injure the victim. Commonwealth v. Appleby, 380 Mass. 296, 307 (1980). See Commonwealth v. Ford, 424 Mass. 709, 711 (1997). We do not consider mental impairment (short of a lack of criminal responsibility, which is not claimed here) relevant to the jury's determination whether the defendant was able to form the requisite general intent. See Commonwealth v. Fano, 400 Mass. 296, 305 n. 14, 308 n. 17 (1987), citing Commonwealth v. Grey, 399 Mass. 469, 474 (1987) (jury permitted to decide if mental condition "rendered the defendant unable to form the specific intent necessary for the crime of murder, but that finding would not exonerate the defendant from guilt for a crime requiring only general intent"). The defendant has not suggested on appeal that as a result either of his PTSD or intoxication, he was incapable of forming the requisite general intent. While he may not have intended the consequences of touching Colahan and AlexSandra, or while he may have felt threatened in some manner before he struck, there is no suggestion in the evidence that the defendant was not aware of any relevant circumstance or that he did not intend the touching. See Commonwealth v. Ford, supra at 711-712; Commonwealth v. Appleby, supra.

Moreover, the primary focus of the entire statement was on the defendant's actions relative to Linda; his interactions with AlexSandra and Colahan are referenced relatively briefly, and primarily in the portion of the statement that the defendant gave before 10 A.M. — the substance of which was admissible. Indeed, the only postbreak reference in the statement to either Colahan or AlexSandra directly repeats something the defendant had stated prebreak, namely, that he knocked the knife out of Colahan's hand. (There is no postbreak mention of AlexSandra.) See Commonwealth v. Perez, 411 Mass. 249, 260 (1991). Given the statement's limited references to these victims, we are satisfied that the impact of the defendant's signature on the pages of the statement was equally minimal. Furthermore, independent of the statement, the evidence that the defendant cut or slashed AlexSandra and Colahan was overwhelming. See id. at 261. In light of all the circumstances, we are certain that these two convictions were "surely unattributable to the [ Mavredakis] error," Commonwealth v. Vasquez, 456 Mass. at 361, quoting Sullivan v. Louisiana, 508 U.S. 275, 279 (1993), and that, as to those convictions, the erroneous admission of the defendant's complete, signed statement was harmless beyond a reasonable doubt.

The defendant told the police before 10 A.M. that Colahan was knocking on the door of Linda's bedroom, that when he opened the door she was standing there holding a kitchen knife and pointing it at him while yelling at him to leave, and that he "smacked" the knife out of her hands two times. With respect to AlexSandra, the defendant told the police before 10 A.M. that she was there with her cousin Tatiana, and that he told them to telephone 911 as he left the apartment.

In light of our determination that these convictions should be affirmed but that his conviction of murder in the first degree must be reversed, it will be necessary on remand for the defendant to be resentenced; the sentences the judge imposed on these convictions were ordered to run from and after the sentence on the murder conviction.

4. Issues that may arise at retrial, a. Voluntariness of defendant's statement. In addition to the Mavredakis errors, the defendant claims that the entirety of his statement to the police should have been suppressed, because the Commonwealth could not prove the voluntariness of the statement beyond a reasonable doubt. See Commonwealth v. Auclair, AAA Mass. 348, 353 (2005). In particular, he contends that at the time of the police interrogation, he suffered from mental illness and humiliation caused by the fact that his clothes had been taken from him and he was covered only by a blanket; he also contends that "misrepresentation [of facts concerning Linda's condition], intoxication, and mental illness" worked to render his statements involuntary. After an evidentiary hearing, the motion judge rejected the claim, concluding:

The defendant again raised the voluntariness claim in his motion for a new trial. In ruling on that motion, the trial judge accepted as correct the motion judge's findings and his ultimate ruling that the defendant's statements were voluntary. We therefore focus on the motion judge's findings and rulings.

It is not clear whether he raised all these factors before the motion judge. To the extent he did not, he may not rely on them as grounds to seek reversal of the motion judge's decision. See Commonwealth v. Silva-Santiago, 453 Mass. 782, 795 (2009).

"[I]n the totality of the circumstances, the defendant's statements were voluntary as the defendant's will was not `[o]verborne to the extent that his statement was not the result of a free and voluntary act.' Commonwealth v. Selby, 420 Mass. 656, 662-663 (1995). In the totality of the circumstances surrounding the questioning of the defendant, the police did not make any promises or other inducements. The defendant did not appear to the police to be tired or under the influence of drugs or alcohol, nor did the defendant appear to be emotionally unstable. The defendant was read his complete Miranda rights twice — once during booking and again in the interview room before questioning began. Furthermore, the defendant indicated that he understood the Miranda rights by the physical voluntary act of signing the Miranda card indicating that he understood his rights."

In reviewing a decision of a motion judge, we accept his findings of fact absent clear error, "and a finding of voluntary waiver is given substantial deference." Id. The motion judge was entitled to accept the testimony of the police about the defendant's appearance and level of sobriety, see Commonwealth v. Anderson, 445 Mass. 195, 204 (2005), citing Commonwealth v. Dunn, 407 Mass. 798, 803-805 (1990), and to give weight to the repeated issuance of Miranda warnings. See Commonwealth v. Auclair, supra at 355. With respect to the claim that the defendant's level of emotional upset was too great to permit a finding that his Miranda waiver and statements were voluntary, "emotional upset alone does not render a waiver of Miranda rights or the voluntariness of the statement itself invalid where there is no evidence that the defendant was acting irrationally [during the interrogation]." Id. See Commonwealth v. LeBlanc, 433 Mass. 549, 555 (2001). There was no error in the denial of the defendant's motion to suppress on voluntariness grounds.,

The defendant claimed in his motion for a new trial, but not in his motion to suppress, that his humiliation at being without his clothes was exacerbated by the fact that he was photographed naked before both male and female officers. See Commonwealth v. Collins, 11 Mass. App. Ct. 126, 131-132 n. 4 (1981) (nudity coercive). The motion judge found that the defendant's clothes were removed for evidentiary purposes, and there is no evidence to suggest that the purpose of the photograph was improper, despite the defendant's assertion that the photograph did not help identify him, show relevant marks, or catalog the absence of marks. The existence of the photograph does not alter our view that the motion judge's determination of voluntariness was not erroneous in this case, although the effect of such photographs, and the lack of clothing during a custodial interview, may be factors considered on the question of voluntariness.

The defendant asserts that the exhibit containing his statement was not admissible at trial because it constituted a "denial of guilt in response to accusations . . ., which should have been excluded as indistinguishable from an assertion of the right to silence, even if false." The argument, which was not raised below, fails on its merits in any event. As the Commonwealth argues, and as we have discussed previously, the defendant's statement set out a version of events that attempted to minimize his responsibility for the injuries that the victims sustained; it was not an unequivocal denial of guilt responding to police accusations. Cf. Commonwealth v. Womack, 457 Mass. 268, 272 (2010); Commonwealth v. Diaz, 453 Mass. 266, 273 (2009).

b. Admission of autopsy photographs. The defendant asserts error in the admission of certain autopsy photographs, claiming they were more prejudicial than they were probative. See Commonwealth v. Richmond, 371 Mass. 563, 565-566 (1976). The photographs in question showed the results of surgery, as well as bruising and swelling from "coagulopathy," a condition caused when the units of blood the victim received did not clot. While we have said that unduly gruesome autopsy photographs present "special problems," Commonwealth v. Bastarache, 382 Mass. 86, 106 (1980), a trial judge has discretion to admit them in appropriate cases. Despite showing some surgical alterations, the trial judge could properly conclude that what the photographs showed was relevant to the Commonwealth's theory that the defendant acted with extreme atrocity or cruelty. See Commonwealth v. Anderson, 445 Mass. at 209; Commonwealth v. Keohane, 444 Mass. 563, 573 (2005).

This conclusion is aided by the trial judge's limiting instruction to examine the photographs "dispassionately, unemotionally, indeed coldly." See Commonwealth v. Anderson, 445 Mass. 195, 209-210 (2005).

c. Admission of 911 call. The defendant also claims error in the admission over objection of a tape recording of the 911 call initiated by six year old Tatiana in the apartment's kitchen, who was neither a stabbing victim nor a witness at trial. In the recording, Tatiana screamed, "He's killing us," and ten year old AlexSandra told the police that the knife "went right through me." The trial judge expressed reservations about admitting the evidence, because "it's very emotional" and "doesn't tell [us] much," but allowed the recorded call to be played to the jury, finding that it went to the Commonwealth's theory of extreme atrocity and cruelty. While hearing the two children's panicked 911 call to the police may be relevant to Linda's own emotional suffering, and therefore also relevant to the issue of extreme atrocity or cruelty, cf. Commonwealth v. Murphy, 426 Mass. 395, 402 (1998) (defendant killed victim, his wife, in presence of their two year old son); Commonwealth v. Barros, 425 Mass. 572, 581 (1997) (defendant killed victim in presence of victim's wife and friend), it is not clear from the record whether Linda, although still alive, was able to hear the call. Absent any such evidence, the recording of the 911 call may well be more prejudicial than probative, and appropriately excluded.,

Contrary to the defendant's argument, admission of this 911 call did not violate Crawford v. Washington, 541 U.S. 36 (2004). To the extent that Alex-Sandra was the caller, she testified at trial, and thus there could be no confrontation issue. See Commonwealth v. King, 445 Mass. 217, 236 (2005), cert. denied, 546 U.S. 1216 (2006). Moreover, the trial judge properly could, and did, find that Tatiana was seeking help for an ongoing medical emergency, and did not anticipate that her statements would be used for purposes of prosecution. Davis v. Washington, 547 U.S. 813, 822 (2006). See Commonwealth v. Simon, 456 Mass. 280, 298-299 (2010).

The defendant contends the trial judge committed other evidentiary errors at trial, including the exclusion of Raymond Buso's proffered testimony concerning his observations of the defendant when Buso met with him at the police station on March 29, 2001, one half-hour after the end of the defendant's custodial interview with the police; and the exclusion of proffered testimony by the defendant's mother concerning a fight she witnessed between Linda and another girl friend of the defendant. We do not address these claims because it is not clear whether or in what context this evidence might be offered at a retrial. We also do not address the defendant's arguments concerning the prosecutor's closing argument or the jury instructions, because the contents of both are likely to be different at retrial. Finally, the defendant claims that he was entitled to discovery of, and an evidentiary hearing on, police procedures regarding notification of suspects being interrogated when an attorney contacts the police station on their behalf. In light of our decision, the issue is moot.

5. Conclusion. The judgments of conviction of assault and battery by means of a dangerous weapon are affirmed. The judgment of conviction of murder in the first degree is reversed, and the verdict is set aside. The case is remanded for a new trial on the murder indictment, and further proceedings consistent with this opinion.

So ordered.

CORDY, J. (concurring).

I agree that the police in this case did not adequately inform the defendant of his attorney's efforts to render legal assistance. I also agree with the court's careful analysis of why, in the circumstances of this case, the admission of the defendant's "postbreak" statements was not harmless. I write separately to express my view that the inadequacy lay in the police not informing the defendant that his attorney had telephoned, wanted to talk to him, and was on his way to the station. This is information necessary to "actualize" the abstract right to counsel within the meaning of art. 12 of the Massachusetts Declaration of Rights as we have interpreted it in Commonwealth v. Mavredakis, 430 Mass. 848, 859-860 (2000). I do not agree that the police had any obligation to communicate the substance of any legal advice the attorney may have wanted to convey to his client. In this regard, I agree with Justice Gants that if a suspect wishes to hear his attorney's legal advice before continuing with the interrogation, he may simply ask to do so.

GANTS, J. (dissenting).

I agree with the court that, under art. 12 of the Massachusetts Declaration of Rights, once an attorney representing a suspect held in custody tells the police that the attorney wants to speak to his or her client to provide legal advice, the police have an affirmative duty immediately to interrupt the interrogation and inform the suspect of the attorney's efforts to provide legal advice. See Commonwealth v. Mavredakis, 430 Mass. 848, 859-861 (2000) ( Mavredakis); Commonwealth v. Vao Sok, 435 Mass. 743, 751 (2002) ( Vao Sok). Consequently, I agree with the court and the trial judge that this "duty to inform," Mavredakis, supra at 860, was triggered by Attorney Raymond Buso's initial telephone call at 10:31 A.M. to the Salem police station. I differ, however, with the court's conclusion that the information the police provided to the defendant at approximately 10:45 A.M. was not sufficient to satisfy the "duty to inform." The police gave the defendant notice that Buso had been appointed to represent him; that he could stop talking to the police and speak to his attorney "at this time"; or that he could continue to speak with the police. I believe that the "duty to inform" is a "duty to inform a suspect of an attorney's efforts to render assistance." Id. I do not believe, as the court concludes today, that the duty includes a duty to inform the suspect of the attorney's legal advice. Because I conclude that the police ultimately satisfied the "duty to inform" and that the defendant, having been so advised, knowingly and voluntarily waived his right to speak to his attorney at 10:52 A.M., I agree with the trial judge that only the defendant's statements made after the break until his waiver need be suppressed, and that the admission of these statements was harmless beyond a reasonable doubt. Therefore, I respectfully dissent.

Duty to inform. In Mavredakis, supra at 859, we rejected the United States Supreme Court's assumption in Moran v. Burbine, 475 U.S. 412 (1986), that "information regarding the immediate availability of an attorney has no bearing on a suspect's ability knowingly and intelligently to waive Miranda rights." We concluded that "there is an important difference between the abstract right to speak with an attorney mentioned in the Miranda warnings, and a concrete opportunity to meet `with an identified attorney actually able to provide at least initial assistance and advice.`" Mavredakis, supra, quoting State v. Haynes, 288 Or. 59, 72 (1979), cert. denied, 446 U.S. 945 (1980). "Essentially, the duty to inform a suspect of an attorney's efforts to render assistance is necessary to actualize the abstract rights listed in Miranda v. Arizona, 384 U.S. 436 (1966)." Mavredakis, supra at 860.

In Vao Sok, supra at 751-752, we clearly informed police what they must do to satisfy the "duty to inform":

"[W]hen an attorney identifies himself or herself to the police as counsel acting on a suspect's behalf, art. 12 requires the police to stop their questioning and inform the suspect of the attorney's availability immediately. . . . If the suspect accepts the attorney's offer of assistance, the police must suspend questioning until the suspect consults with the attorney. . . . We acknowledged in Mavredakis, however, that a suspect may choose to decline the attorney's offer. . . . To this extent, an attorney's directive to the police to stop questioning the defendant requires only that they terminate questioning long enough to afford the defendant the opportunity to avail himself of the attorney's advice." (Citations omitted.)

The police here complied with that guidance. They stopped their questioning of the defendant and informed him that Buso had been appointed to represent him, and that he may stop talking to the police and speak to his attorney "at this time," or continue to speak with the police. The court concludes that the police "essentially failed" to inform the defendant that Buso "wanted to speak" to him and that the attorney "would be at the station shortly." Ante at 316. The police, however, owe no obligation to tell a suspect that his attorney "wants" to speak with him; they are required merely to inform him that his attorney is available to speak with him. See Vao Sok, supra at 751-752. Nor can the police be faulted for failing to tell the defendant that his attorney "would be at the station shortly" where they told him that he could speak to his attorney "at this time," which suggested that the attorney was available immediately to speak with him.

The court suggests that, when the police told the defendant that "he may stop [speaking] to [the police] and speak to [Attorney] Buso at this time," the defendant may have understood this to mean that he would be able to speak to his attorney for the first time at his arraignment. Ante at 317 n. 11. No reasonable defendant would have given that statement such a meaning. "At this time" means "now," which is less ambiguous and sooner than the information the attorney gave to the police that the court concludes should have been forwarded — that he would be at the station "shortly."

The court also concludes that the police "essentially failed" to inform the defendant "of the specific advice that the identified attorney, Buso, was already giving, namely, that the defendant should not continue to speak to the police." Ante at 316-317. While the court recognizes that the police are not required to "deliver verbatim to a defendant the message given by his attorney," ante at 317, quoting Vao Sok, supra at 752, the court now requires the police to inform a defendant of the substance of the "specific advice" that the attorney asked the police to pass on to the defendant. The court appears to believe that this is not a new addition to the "duty to inform," but it is. The court has never before declared that the "duty to inform" includes a duty to communicate an attorney's specific legal advice to a suspect.

The court finds support in three cases for adding a duty to communicate the attorney's legal advice to the "duty to inform," but none actually provides such support. First, the court quotes the language in Mavredakis that "the duty [the court] announce[s] concerns solely the obligation `to apprise the defendant of a specific communication from his attorney that bore directly on the right to counsel.`" Mavredakis, supra at 861, quoting State v. Stoddard, 206 Conn. 157, 169 (1988). But this assertion in Mavredakis did not mean that the police had an obligation to pass on the legal advice the suspect's attorney wished to convey; the specific communication from the two attorneys in Mavredakis asked simply to speak with the defendant. Mavredakis, supra at 852-853. Moreover, this assertion in Mavredakis came in response to the Commonwealth's argument that the "duty to inform" "would create administrative difficulties"; it was intended to emphasize the limited nature of the duty, and to clarify that the court did not "mean that the police have a duty to provide information such as the `nature and quality of the evidence' that the investigation has amassed against the suspect." Id. at 860-861, quoting Oregon v. Elstad, 470 U.S. 298, 317 (1985).

Nor did the attorney in State v. Stoddard, 206 Conn. 157, 161 (1988), ask the police to pass on legal advice; he simply told the police he wanted to speak with his client.

The Supreme Court of Connecticut, State v. Stoddard, supra at 169, used the following language to respond to a similar argument: "The police conduct at issue in this case . . . consists not of a failure to supply generally useful information but of a failure to apprise the defendant of a specific communication from his attorney that bore directly on the right to counsel."

Second, the court cites Vao Sok, supra at 752, where, in finding the defendant's waiver of his right to counsel to be valid, we noted that the police had told the defendant that an attorney had said he did not want the polygraph test to continue, that he was attempting to locate the defendant on behalf of the defendant's attorney, and that he wanted all questioning of the defendant to end. The issue in Vao Sok was whether the defendant's waiver was invalid because the police did not tell the defendant that his own attorney had wanted to speak with him and be present for any further questioning. Id. In concluding that the duty to inform had been satisfied, we did not focus on the transmission of the other attorney's legal advice but on the transmission of information regarding "the availability of an identifiable attorney," concluding that the defendant "was made aware not only that an attorney was attempting to assist him, but that he could stop the questioning and speak with a specific attorney if he so wished." Id. Moreover, as noted earlier, in Vao Sok we specifically defined the "duty to inform," and that duty did not include a duty to communicate an attorney's legal advice. Id.

Third, the court cites Commonwealth v. Anderson, 448 Mass. 548 (2007), where the police told the defendant before commencing the interrogation that Attorney Bruce Ferg was going to represent him on an indictment for murder and that the attorney wished he not speak to anyone. Id. at 552. We concluded that the defendant's waiver of his right to consult with counsel and to have counsel present before speaking to the police was intentional, knowing, and voluntary, but added that the waiver might not have been knowing and intelligent under art. 12 if the police had not fully informed the defendant of his attorney's entry into the case and the attorney's request that the defendant not be interviewed. Id. at 555-556. This dictum does not suggest that we intended to amend the duty to inform by adding a duty to communicate an attorney's legal advice.

Three circumstances in Anderson are not commonly found in cases that raise the so-called Mavredakis issue: the defendant initiated the interview; the defendant was already under indictment for the crime about which he was questioned; and the defendant was serving a State prison sentence in Maine, where the interview occurred. Commonwealth v. Anderson, supra at 552-553, 555. In addition, Ferg had not been told that the police were going to visit the defendant at the Maine prison, id. at 552, and the police did not inform the defendant that Ferg was available to speak with him. Rather, the police told the defendant that Ferg had been assigned to represent him on the charge under indictment, and that Ferg was advising the suspect not to speak to the police about that charge. In these circumstances, where the duty to inform as defined in Vao Sok, supra at 751-752, had not been satisfied, the court reasonably considered the totality of the circumstances, including Ferg's advice that the suspect should not speak to the police, in deciding that the suspect's waiver of his right to counsel was knowing and voluntary.

The duty to inform was meant to be a straightforward "bright-line rule," Mavredakis, supra at 860, requiring only that the police inform a suspect of an attorney's availability, but its bright line will be dulled if it includes a duty to inform a suspect of the attorney's legal advice. Once the court opens that door, it cannot be assured that the legal advice an attorney will ask to be forwarded will always be as simple as "don't speak to the police." It potentially could include advice as to what the client should do or say if he intended to disregard the attorney's advice to remain silent, or what subjects the client should not discuss. Do the police owe a duty to inform a suspect of all legal advice provided by the attorney? What if the police incorrectly relayed some of that legal advice? The court has not before needed to address these questions because of the limited scope of the duty to inform; the court will soon need to now that it has expanded that scope to include a duty to communicate legal advice.

The court ably characterizes my fears regarding the new requirement that the police inform a suspect of the legal advice that the attorney has asked to be conveyed — the court "will entangle the police and the courts in difficult, and pointless, debates about which specific pieces of advice need to be passed on, and were they passed on correctly" — but concludes that my fears are "misplaced" because the only legal advice that must be conveyed is advice that "essentially embod[ies] the rights already incorporated into the Miranda warnings themselves: the right to remain silent; the right to the assistance of counsel during any custodial interrogation; and the right to stop questioning at any time." Ante at 318 n. 12. This supposed limitation does not assuage my fears where the court provides no guidance to the police (or a judge considering a motion to suppress) as to what it means for legal advice to "essentially embody" the rights provided in the Miranda warnings. Because of this ambiguity, the police risk the suppression of a confession whenever they fail to convey all the legal advice that counsel asks to be conveyed.

Nor is there any logical reason to expand the scope of the duty to inform to include the communication of legal advice. If a suspect wishes to hear the attorney's legal advice before continuing with the interrogation, he may simply ask to do so. Where he knowingly and voluntarily chooses not to hear it, why would art. 12 require that he be told it anyway?

Harmless error analysis. The court concludes that, "because the police did not convey adequately to the defendant the substance of his attorney's telephone message and advice, the defendant's subsequent indication that he would continue to speak to the police did not constitute a knowing or intelligent waiver of the Miranda rights." Ante at 318. Therefore, the court concludes that all the statements the defendant made after the break at 10:15 A.M., including the statements made after the waiver of his right to counsel, were admitted in error. Because I conclude that the police belatedly complied with the duty to inform, I believe that the defendant's waiver was knowing and intelligent, and that the only statements admitted in error were those made after the break at 10:15 A.M. and before his waiver of counsel at 10:52 A.M. This disagreement is critical to the harmless error analysis because the court's conclusion that the admission of the defendant's statements made after the break at 10:15 A.M. was not harmless beyond a reasonable doubt rests heavily on the defendant's "postbreak" adoption of the statements he made before the break by signing his name to each page of Sergeant Marks's notes. If I am correct, the defendant's adoption of his earlier statements was properly admitted, and the harmless error analysis should focus on those few statements the defendant made after the break and before his waiver of the opportunity to speak with attorney Buso. With that narrower focus, I agree with the trial judge that the erroneous admission of that evidence was harmless beyond a reasonable doubt.

Between the break and the waiver of his opportunity to speak with attorney Buso, the defendant made eight statements that were admitted in evidence at trial. The first three concerned his sobriety on the night of the homicide:

1. The defendant did not smoke marijuana that night.

2. The defendant does not "do cocaine" but does smoke marijuana.

3. At 2:30 or 3 A.M., he had five to six ounces of rum but it had no effect on him other than to make him tired.

The final five concerned the defendant's memory of what happened that night:

4. He never had a knife in his hand on the night of the killing.

5. He touched a knife only when he tried to grab the knife out of the homicide victim's hand when she was on top of him.

6. He smacked a knife out of Heather Colahan's hand.

7. The homicide victim tried to hit the defendant with her other hand and even tried to bite him a couple of times.

8. He had no idea how he got the drugs that were found on him, which were in the same pouch that the homicide victim had taken from under the mattress.

As to his memory of the events that night, statement 4 could be inferred from what the defendant told the police before the break, but was stated more clearly after the break. In his testimony at trial, however, the defendant specifically said that he did not remember holding the knife, so the jury heard this information from him directly. The fifth, sixth, and seventh statements were cumulative of what the defendant told the police before the break.

Dr. Robert Joss, a defense expert, testified at trial that the defendant initially had told him that he did not know where the knife was and did not see it, but in a later interview admitted handling the knife. However, on cross-examination at trial, the defendant denied telling the police that he never had a knife in his hand during the incident.

The eighth statement had not been made to the police before the break. However, at trial, the defendant on cross-examination admitted that the pouch was one of several that the homicide victim kept under the mattress; he denied saying that this particular pouch had been taken from under the mattress. The difference in these two versions is inconsequential to the issue of his criminal responsibility. The only information that the jury heard from the eighth statement alone was the defendant's assertion that he had no idea how he obtained the drugs in the pouch, but this statement, too, was inconsequential because the Commonwealth did not claim that theft of the drugs was a motive for the killing.

As to the defendant's drug use, this information was not elicited prior to the break and contradicted his testimony at trial, where he testified that he had used cocaine and marijuana that evening. However, the postbreak statements matched what he initially told Dr. Robert Joss, the defense expert who opined that the defendant suffered from posttraumatic stress disorder on the morning of the homicide. On cross-examination at trial, Dr. Joss testified that the defendant initially told him he had not used marijuana or cocaine before his arrest, but later admitted to smoking five or six "blunts" that night and trying "lines" of cocaine. Consequently, even without the admission of the post-break statements, the jury would have learned from Dr. Joss that the defendant had contradicted himself as to his prior drug use.

The jury were not limited in their use of Dr. Joss's testimony regarding the prior statements the defendant made to him during his forensic interviews.

The jury also learned about the defendant's drinking of rum during the cross-examination of Dr. Joss, who testified that the defendant told him that he had drunk six or seven "rums" that evening, and drank the rum directly out of the bottle.

In assessing whether the admission of these statements was harmless error beyond a reasonable doubt, we ask "whether, on the totality of the record before us, weighing the properly admitted and the improperly admitted evidence together, we are satisfied beyond a reasonable doubt that the tainted evidence did not have an effect on the jury and did not contribute to the jury's verdicts." Commonwealth v. Tyree, 455 Mass. 676, 701 (2010). Because the erroneously admitted statements made by the defendant between the break and the waiver of his opportunity to speak with Buso were cumulative either of statements made before the break or of information learned by the jury during the testimony of Dr. Joss and the defendant, I am satisfied that the error was harmless beyond a reasonable doubt.

I have also considered whether there is a reasonable doubt the defendant would have called Dr. Joss to testify or whether the defendant himself would have testified at trial if these statements had been suppressed before trial. I am convinced beyond a reasonable doubt that the suppression of these statements would not have altered the defense's trial strategy in this regard. The gist of the defense was presented by Dr. Joss when he was asked his opinion as to the effect of the defendant's posttraumatic stress disorder at the time of the killing: "[H]is situation was such that he over perceived the threat that may have been there, acted in a manner to extricate himself as best he could and in so doing caused her death." I conclude that this opinion was so central to the defense that no reasonable defense attorney would have opted to forgo Dr. Joss's testimony to prevent the jury from learning of the defendant's contradictory statements regarding his drug use at the time of the incident.

For these reasons, I respectfully dissent.

COMMONWEALTH v. JEROME McNULTY.

Comments