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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v. Caputo, 437
Present:
John J. Courtney for the defendant.
Jane A. Sullivan, Assistant District Attorney, for the Commonwealth.
MARSHALL, C.J.
In 1991, a Superior Court jury found the
defendant, Michael P. Caputo, guilty on two indictments of murder in the first
degree by reason of deliberate premeditation and extreme atrocity or cruelty.
The victims were his estranged wife and his mother-in-law. The trial judge
sentenced the defendant to consecutive life sentences.
On appeal,[1] the defendant claims that statements he made to the police
in the hours after the killings should have been suppressed because they were
procured in violation of his rights under the Fourth and Fifth Amendments to
the United States Constitution, and his rights under arts. 12 and 14 of the
1. Facts. We summarize the evidence in its
light most favorable to the Commonwealth, reserving certain details for
discussion in connection with the issues raised.
In the early morning of
In the apartment's bedroom, the police found the body of the wife, who had been
stabbed twenty-two times, and the body of her mother, who had been stabbed seventeen
times. At trial, the medical examiner testified that both women died from the
stab wounds, both were alive when the wounds were inflicted, and both had
suffered defensive wounds.[2] The defendant's two young daughters were
also in the apartment, but had not been physically harmed.
The police noted an open kitchen window that led to the back porch, and
discovered that the telephone wires to the apartment had been cut. There was no
sign of forced entry. On the dining room table, the police found a protective
order dated
Shortly thereafter, at the request of the
2. Motion to suppress. Prior to trial, the
defendant moved to suppress his statements to the police and other evidence.[5]
The essence of the defendant's claim is that, when the police first located
him, they engaged in overpowering and coercive tactics and, as a result, the
presence of the police in his home was not consensual and none of the
statements he gave to the police was voluntary.
At approximately 6:25 A.M., after the Plymouth police had been informed by the
Boston police that the defendant was a suspect in a double homicide, six
officers from the Plymouth police department, including Sergeant Thornton Morse
and Sergeant Richard Dorman, arrived at the defendant's house. In an attempt to
ascertain whether anyone was home, the police officers knocked repeatedly on
the front and rear doors. After the police knocked for five minutes, the
defendant opened the front door. Morse and Dorman introduced themselves,
inquired as to the defendant's name, and asked whether they could enter the
house to speak to him. The defendant responded, "Come on in."
Inside the house, Dorman informed the defendant
that the police were investigating a double homicide, and then immediately read
the defendant his Miranda rights from a printed card, the first of six
occasions during that day that the defendant was advised of his rights. See
Miranda v.
Morse testified that, after a brief interval, he asked the defendant whether he
could use his telephone to call the police station.[7] The defendant
agreed. After the telephone call, Morse informed the defendant that the
Dorman and Morse then went outside, leaving two
officers inside the house. The defendant did not ask the remaining two officers
to leave. Dorman and Morse examined the automobile in the defendant's driveway,
which matched the description given to the
Dorman and Morse reentered the house, without objection from the defendant.
Dorman again asked whether he could use the defendant's telephone to call the
The defendant agreed to the officers' request
to accompany them to the police station. At the station, Morse and a detective
once more advised the defendant of his Miranda rights, and provided him with a
written copy delineating each right. Morse again read each right to the
defendant. The defendant himself read the form, making a check mark after the
listing of each right. Asked whether he wished to talk to them, the defendant
replied, "I'm not sure, I don't know if I should say anything or not. What
should I do?" Morse responded, "I can't tell you that, but I want you
to be aware of your rights and that you do not have to say anything to
me."
Morse once again informed the defendant of his Miranda rights, ascertained that
he understood them, and again asked the defendant whether he wished to speak to
the police. Then, and only then, the defendant elaborated on the statement he
earlier had given to police in his home. Among other things, the defendant now
told the officers that he remembered having blood on him, throwing an object
out of his automobile and, at some point during that night, being outside his
mother-in-law's home.[9]
At approximately 9:20 A.M. Sergeant Detective Charles Horsley of the Boston
police department arrived at the Plymouth police station. Informed that the
defendant had received his Miranda rights, he interviewed the defendant for
approximately forty-five minutes. When asked whether he had anything to do with
the murders, the defendant became upset and stopped talking. The defendant
asked to leave the police station, and was informed that he was under arrest.
The motion judge concluded that, although the
defendant was not arrested until
(a) Fifth Amendment and art. 12. The judge was
correct to deny the defendant's motion to suppress evidence of his statements
while the
The defendant argues that by surrounding his
house and knocking continuously until he opened the door, the four officers
"coerce[d] their way into the house of the extremely nervous prime suspect
of a double homicide intent on questioning him, developing other information,
and assuring his availability for
The defendant's claim that his subsequent
statements, made at the police station, were not voluntary is similarly without
merit.
Because we reject the defendant's claims that his statements to the police at
his home should have been suppressed, we need not consider his argument that
his later statements should have been suppressed as "fruit of the
poisonous tree."
We also need not consider the defendant's argument that "the cat was out
of the bag" when he gave his statements at the police station. There was
no initial unlawful police action and no need to suppress any subsequent
statements.
(b) Fourth Amendment and art. 14. Relying on
Commonwealth v. Krisco Corp., 421 Mass. 37, 46 (1995), the defendant claims,
for the first time on appeal, that the statements he made to the police at his
house were obtained in violation of his Fourth Amendment and art. 14 rights
because the police transgressed the bounds of what he refers to as his
"limited purpose" in allowing them to enter his house, and then
remained after his "authorization" for the police to be in his house
ended. There is no merit to the claim.
It is clear from the record that the police sought to enter the house to speak
to the defendant and not to search the premises. Assuming, arguendo, that the
police presence in the defendant's house that morning did constitute a
"search," the limitations imposed by the Fourth Amendment and art. 14
do not require the suppression of statements made while a search -- even one
determined to be "unlawful" -- was underway.
In any event the defendant's claim that his
consent to a "search" was limited in scope and later withdrawn is not
persuasive. See United States v. Dichiarinte, 445 F.2d 126, 129 n.3 (7th Cir.
1971) ("defendant's consent may limit the extent or scope of a warrantless
search in the same way that the specifications of a warrant limit a search
pursuant to that warrant"). The defendant argues that he invited the
police into his house in response to their request to "talk" with
him, and that they were required to leave after he told them he did not wish to
say anything. But there was no reasonable basis for the police to infer that
the defendant had limited, or withdrawn, his consent for them to be in his
house. After the defendant said he did not wish to talk to the police, he did
not ask them to leave. After Dorman and Morse went outside, he did not ask the
two officers who remained inside to leave, and he did not object when Morse and
Dorman reentered the house after inspecting his automobile. We see no basis to
conclude that the defendant's invitation to the police to enter his house was
circumscribed in any way.
All of the evidence obtained from the defendant -- his statements to the police
and the physical evidence later obtained pursuant to a search warrant -- was
properly admitted.
3. The prosecutor's comments. The defendant
argues that the prosecutor improperly inquired about and commented on his invocation
of his right to remain silent.[12],[13] See Doyle v.
Pursuant to the Commonwealth's humane practice
rule, a defendant may seek to convince a jury that incriminating statements he
made to the police were not voluntary.
It was therefore error for the prosecutor in his opening statement to direct
the jury's attention to the defendant's invocation of his right to remain
silent. See note 12, supra. While the defendant had raised the issue of the
voluntariness of his statements in his pretrial motions, the judge had
determined that the statements were voluntary and admissible, and the
prosecutor could not have known for certain that the defense would make
voluntariness a live issue at trial.
As to the prosecutor's direct examination of
Morse, see note 12, supra, at that point in the trial the defendant
himself had not placed before the jury any evidence of his invocation of his
right to remain silent.[15] Consistent with our humane practice rule,
and to rebut the thrust of the defense that he had been "coerced"
into making the incriminating statements, the prosecutor could bring to the
jury's attention the warnings given to the defendant, the request by police to
use the defendant's telephone, evidence of the number of police present in the
house, and so on, without specifically commenting on the defendant's statement
that "he [thought] it best if [he didn't] say anything at this time."
The judge should not have permitted the prosecutor to elicit that statement
from Morse. See note 14, supra.
During the cross-examination of Morse, however, defense counsel himself
explicitly and pointedly raised the defendant's invocation of his right to
remain silent. In an effort to show that the defendant's post-Miranda,
post-invocation statements were coerced by the police, defense counsel asked
Morse, whether, in response to his advising the defendant of his Miranda
rights, the defendant had said, "I think I'd better not say anything right
now.". Because defense counsel elicited this testimony, and because in his
closing argument the prosecutor referred to the statement solely to challenge
the defendant's claim of coercion, we conclude, on the unique facts of this
record, that the prosecutor's reference in his closing statement to the
defendant's invocation of his right to remain silent was permissible. The
prosecutor did err in his closing statement, however, when he commented that
the defendant had "no good explanation" for the second registration
plate on his automobile. See note 12, supra. That comment did not concern the
voluntariness of defendant's statements to the police, and should not have been
made. It improperly placed a burden on the defendant to produce evidence.
Despite the improper comments made by the
prosecutor, we conclude that reversal of the conviction is not required, for
several reasons. First, we are hard pressed to conclude that the defendant's
exercise of his right to remain silent was in fact used against him. See Greer
v. Miller, 483
4. The judge's evidentiary rulings and jury
charge. We agree with the defendant that certain testimony of a civilian
witness, Richard Telford, should have been struck. For a brief period
The defendant also argues, for the first time on appeal, that the judge erred
in certain of his jury instructions. First, the defendant claims that the judge
did not give a proper "humane practice" instruction, see Commonwealth
v. Benoit, 410
As to his second challenge, the Commonwealth
concedes that the judge gave an incorrect instruction on malice for conviction
of murder on a theory of deliberate premeditation. Because the jury were
correctly instructed on the elements of murder by reason of extreme atrocity or
cruelty, and because the jury convicted the defendant of murder in the first
degree for both homicides on that theory, as well as on the theory of
deliberate premeditation, the defendant was not prejudiced by the error.
Finally, the defendant argues that immediately after defense counsel impeached
Horsley with his grand jury testimony, the judge should have instructed the
jury that such testimony could be used for substantive purposes.
5. Motion for a new trial. In his motion for a
new trial, the defendant claimed that his trial counsel was ineffective at his
sentencing because counsel did not suggest to the judge that the defendant's
psychiatric condition should be considered as a mitigating factor.[20]
Rather, his counsel gave a cursory two-sentence explanation as to why the
defendant should not serve consecutive life sentences. We conclude that a more
extensive recitation of the defendant's situation was not likely to
"affect the sentences imposed." Commonwealth v. Lykus, 406
The defendant also argues that the judge should have authorized counsel to
retain a psychiatrist to assist him in evaluating the psychiatric records so
that counsel could determine whether there were other substantive issues to
pursue on appeal. We considered and rejected that argument in Commonwealth v.
Serino, 436 Mass. 408, 415 (2002) ("A defendant is not entitled to receive
funds to prosecute a motion for a new trial, even where that motion raises a
claim of ineffective assistance of counsel").
6. G. L. c. 278, § 33E. We have reviewed the entire record in this case as
required by G. L. c. 278, § 33E. We conclude that the jury's verdicts were
fully supported by the evidence and the law. The interests of justice do not
require either a new trial or the entry of verdicts of a lesser degree of
guilt. The verdicts stand.
Judgments affirmed.
Order denying motion for a new trial affirmed.
FOOTNOTES:
[1] This is the defendant's direct appeal. At oral
argument, counsel represented that the prolonged period between trial and this
appeal was due, in part, to changes in counsel. In addition, in 1997, the
defendant successfully petitioned a single justice of this court for funds for
an independent psychiatric evaluation to determine whether the defendant was
competent to participate in the prosecution of his appeal.
[2] The medical examiner testified that the wife had
knife wounds all over her body, several severed ribs, and perforated organs
including her abdomen, liver, lung, and pulmonary artery. He testified that her
mother's wounds included several severed ribs, a severed bone in her arm, and a
perforated lung, heart, and abdomen.
[3] The Commonwealth's forensic expert testified that
the missing knife had a ten-inch blade, two inches at its widest part, and
that, to a degree of reasonable scientific certainty, the holes in the bed
clothing through which one of the victims was stabbed were consistent with
having been made by that size knife.
[4] There was also evidence that a life insurance
policy, effective
[5] The defendant filed five motions to suppress: (1)
a motion to suppress his statements made to police; (2) a motion to suppress
evidence obtained from a warrantless search of the defendant's home and car;
(3) a motion to suppress evidence obtained with a search warrant on
November 2, 1989; (4) a motion to suppress his statements made to a
civilian witness, Richard Telford; and (5) a motion to suppress all documents
used to analyze the defendant's handwriting. The motion judge denied each of
the motions, except that he ordered that personal papers and notebooks seized
from the defendant's house in the afternoon of
[6] The facts are drawn from the motion judge's
findings, which are fully supported by the record, supplemented by uncontested
evidence at the suppression hearing.
[7] Earlier, when the police had informed the
defendant that they were investigating a double homicide on behalf of the
[8] It was later determined that the outer
registration plate belonged to a Jamaica Plain resident who lived one-quarter
to one-half mile away from the crime scene, while the plate assigned to the
defendant's automobile was underneath.
[9] While at the police station, the defendant was
offered cigarettes, coffee, and water. A
[10] The defendant suggests inferentially that, at
some point before he was taken to the police station, he was in "custody."
Because the police informed the defendant of his Miranda rights before he made
any statements, and because he immediately invoked his right to remain silent,
it is not necessary to decide whether the defendant was in custody at this
time. As noted earlier, the motion judge found that the defendant was in
custody at
[11] The defendant also
claims that he was not informed of his right to use a telephone while he was
being questioned by the police. The police are not required to inform the
defendant that he is entitled to a telephone call until the defendant is
arrested. See G. L. c. 276, § 33A. See also Commonwealth v.
Painten, 429
[12] Specifically, the
defendant challenges certain statements made by the prosecutor in his opening
statement, direct examination of Morse, and closing argument. In his opening
statement, the prosecutor said that the police "asked [the defendant] if
he'd been home," adding, "At first he declined to talk to them,"
and "you will find that when [the defendant] was confronted by the police
he first told them that he wasn't going to talk to them." Second, during
his direct examination of Morse, the prosecutor first asked Morse to repeat for
the jury
the Miranda rights read to the defendant. He then asked Morse whether the
defendant "respond[ed] in any way." Morse replied that the defendant
"stated he thought it was best if he didn't say anything at that
time." Last, during his closing argument, the prosecutor commented,
"Well, when the police first arrived and said, 'There's been a homicide,'
he said: 'Gee, I think I better not talk to you, I'd better not incriminate
myself.'" He also told the jury that the defendant had "no good
explanation" for the second registration plate on his automobile.
[13] The defendant invoked his right to remain
silent before he was arrested, but after he had been advised of his rights. We
analyze the prosecutor's comments as if they referred to the defendant's
postarrest silence.
[14] During the direct examination of Morse, at a
sidebar conference defense counsel told the judge that testimony of "a
statement after [the defendant] asserted his Miranda rights" is
"inadmissible," and requested that the prosecutor be instructed to
"proceed directly to the part where [the defendant] made his statement,
rather than dwell on the invocation of his rights." The judge ruled that
the defendant's post-Miranda statement to the police was admissible under the
humane practice rule because the defendant had asserted "that he wasn't
properly given his Miranda rights." The judge said that he would instruct
the jury that "a person has every right to remain silent." Defense
counsel did not object to the ruling, and agreed that the judge should give
such an instruction, but at a later point in time. See note 16, infra.
[15] In his opening statement, defense counsel made
no mention of the defendant's invocation of his right to remain silent, but
defense counsel did emphasize the "coercive" tactics of the police
force when the two sergeants and four patrolmen arrived at the defendant's
home.
[16] The judge earlier had informed defense counsel
that he would explicitly instruct the jury that the defendant had "an
absolute right to remain silent" and that they were to draw "no
inference from the fact that a defendant elects to exercise that right."
During the trial the judge twice offered to give that instruction. Defense
counsel twice declined the judge's offer, and the judge informed the defense
counsel to alert him if defense counsel later sought the instruction. He never
did.
[17]
[18] The defendant also
challenges the admissibility of
instructions.
[19] The grand jury testimony, which satisfied the
requirements of Commonwealth v. Daye, 393
[20] Rule 28 (b) of the Massachusetts Rules of
Criminal Procedure, 378 Mass. 898 (1979), provides, in pertinent part:
"Before imposing sentence the court shall afford the defendant or his
counsel an opportunity to speak on behalf of the defendant and to present any
information in mitigation of punishment."
[21] It is apparent from the transcript that the
defendant was upset, unruly, and prone to outbursts in the court room. As the verdicts
were handed down, the defendant interrupted the proceedings, saying, "The
system is guilty. . . . The system is guilty of raping me." Throughout the
trial and pretrial hearings, despite the defendant's numerous outbursts, his
counsel was effective in controlling him. The judge could not have been unaware
of this behavior.