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Commonwealth v. Egan, 12 Mass.App.Ct.
658 (1981)
Appeals Court of Massachusetts,
Argued
Decided
[12 Mass.App.Ct.
659] Sherrill P. Cline,
Charles J. Hely, Asst.
Dist. Atty., for the Commonwealth.
Before [12
Mass.App.Ct. 658]
BROWN, DREBEN and KASS, JJ.
[12 Mass.App.Ct. 659]
KASS, Justice.
After
convictions on indictments for attempted burning of a motor vehicle, malicious
injury to a motor vehicle, and larceny of a motor vehicle, the defendant has
raised three claims of error regarding fruits of a search and pretrial
interrogation which he thinks ought to have been suppressed. He also raises four claims of error in the
conduct of the trial. We affirm.
1. The
propriety of the investigatory stop.
At the
outset we are asked to consider whether justification existed for an
investigatory stop of an automobile and interrogation of its occupants. The applicable principles have been much
discussed. See Commonwealth v. Riggins,
366 Mass. 81, 86‑87, 315 N.E.2d 525 (1974); Commonwealth v. Silva, 366
Mass. 402, 406‑407, 318 N.E.2d 895 (1974); Commonwealth v. Ling, 370
Mass. 238, 240‑241, 346 N.E.2d 703 (1976); Commonwealth v. Almeida, 373
Mass. 266, 270‑272, 366 N.E.2d 756 (1977); Commonwealth v. Ferrara, 376
Mass. 502, 504, 381 N.E.2d 141 (1978); Commonwealth v. Ferrioli,
Mass.App.Ct.Adv.Sh.
(1980) 1703, 1705, 409 N.E.2d 244; Commonwealth v. Ellis, ‑‑‑
Mass.App. ‑‑‑, Mass.App.Ct.Adv.Sh. (1981) 1680, 426 N.E.2d 172.
[1] [12 Mass.App.Ct.
660] In United States v. Cortez, 449
We now
apply these principles to the facts found by the trial judge in the case at
hand when he acted on a suppression motion.
See Commonwealth v. Moon, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑, Mass.Adv.Sh. (1980) 1337, 1341‑1342, 405 N.E.2d
947. While investigating an icy street
condition at 12:45 A.M., Daniel Sullivan, a Canton police officer, noticed red
lights reflected in trees. He deduced
that these were car lights and, as no car had passed him on Elm Street, the
street he was checking, Sullivan got into his police cruiser to investigate the
source of the lights. What he found
about a quarter mile up the road was a parked 1969 Pontiac with no one in
it. Elm Street is heavily wooded, with
houses along one side. Sullivan found
that the Pontiac was doused with gasoline, inside and out. Supposing that he had interrupted a burning
in progress, Sullivan radioed the other officer who was patrolling the area and
asked him to stop any vehicle coming out of Greenlodge
Street onto Route 138. If, as Sullivan
suspected, a car was fleeing the scene, that was the route it was likely to
take. After making a sweep of Greenlodge Street to Route 138 and back, Sullivan returned
to the intersection of Greenlodge and Elm Streets and
explored a dead end portion of [12 Mass.App.Ct. 661]
Greenlodge Street which extended beyond the
intersection with Elm. At this point he
was joined by a second police officer, Kelliher, who
arrived in another cruiser. Finding
nothing in the dead end portion of Greenlodge Street
the two officers, each in his police cruiser, turned around and drove back to
the Elm Street intersection. Before they
got there, a car came toward them; they had seen no other cars in the
intervening time. That encounter
occurred about five minutes after Sullivan had spotted the gasoline‑doused
Pontiac and at a point approximately one quarter mile from where that car
stood.
Both police
officers turned on their blue flashing lights, but the oncoming car failed to
stop and proceeded down the dead end portion of Greenlodge
Street. The police made a U‑turn,
gave chase and, after about a quarter of a mile, the car stopped.
[2] What,
if any, particularized suspicion may be deduced from these facts? First, a serious crime was apparently in
progress. See Commonwealth v. Breen, 357
Mass. 441, 446, 258 N.E.2d 543 (1970) (armed robbery had occurred);
Commonwealth v. Ling, 370 Mass. at 240‑241, 346 N.E.2d 703 (suspected
burglary); and Commonwealth v. Johnson, 6 Mass.App.
944, 945‑946, 382 N.E.2d 1124 (1978) (robbery had occurred). Second, the area was remote, relatively
isolated and untravelled and the hour was late. Third, it was at least likely that the
arsonist would return to finish his job.
Fourth, the location of the encounter was proximate in place and time to
the discovery of the Pontiac. See
Commonwealth v. Johnson, supra at 945‑946, 382 N.E.2d 1124. Fifth, the car did not stop when signalled so to do.
In light of all the circumstances, it would be an inattentive officer
who did not make an investigatory stop.
See Commonwealth v. Ferrioli, ‑‑‑
Mass. at ‑‑‑ ‑ ‑‑‑, Mass.Adv.Sh. (1980)
at 1705‑1706, 409 N.E.2d 244. See
also G.L. c. 41, s 98, as amended by St. 1967, c.
368, s 1. Compare Commonwealth v. Corridori, ‑‑‑ Mass.App.
‑‑‑, ‑‑‑ ‑ ‑‑‑, Mass.App.Ct.Adv.Sh.
(1981) 468, 476‑477, 417 N.E.2d 969, involving a combination of
facts which added up to a suspicious picture.
Contrast Commonwealth v. Bacon, ‑‑‑ Mass. ‑‑‑,
Mass.Adv.Sh.
(1980) 2223, 411 N.E.2d 772; Commonwealth v. Ellis, ‑‑‑
Mass.App. ‑‑‑ Mass.App.Ct.Adv.Sh. (1981) 1680, 426 N.E.2d 172.
[12 Mass.App.Ct.
662] 2. The search of the trunk of
Egan's car.
When they
first approached Egan's car, the police officers did so with guns drawn. They noticed a Brookline police sticker on
the car and inquired if Egan was a police officer. Egan established that he was a member of the
Brookline force and the Canton policemen, having also checked the glove
compartment of Egan's car for weapons, holstered their own. When asked about the gas‑soaked car on
Elm Street, Egan and his passenger professed ignorance. Sullivan asked to have a look at the trunk of
Egan's car; the latter said he did not have a key. A registration check of both vehicles, the
one Egan was driving and the abandoned Pontiac, ensued and established that the
owner of each lived in Brookline. That
coincidence reasonably excited the suspicions of the Canton police officers
that Egan might be connected with the incipient burning.
By this
time about five minutes had elapsed and a third member of the Canton police,
Sergeant Lenhart, arrived on the scene. Lenhart repeated
the request to examine the trunk of Egan's car.
This time the defendant did not protest that he lacked a key. The trial judge, who also heard the
suppression motion, found that Egan consented to a search of the trunk and
that, indeed, Egan himself opened the trunk lid. In the trunk Lenhart
found a red cannister; it smelled of gasoline and
felt, Lenhart said, "approximately a quarter
full."
Egan
attacks the search and the finding that it was consented to on the grounds that
the circumstances were inherently coercive and that he and his companion were
detained beyond the scope of a threshold inquiry. Contrast Dunaway v. New York, 442 U.S. 200,
208‑216, 99 S.Ct. 2248, 2254‑2258, 60
L.Ed.2d 824 (1979), involving removal of a suspect to a police station for
further "threshold questioning."
We need not decide if the presence of Egan past midnight in this
relatively remote area of Canton, his initial refusal to stop when the police signalled him, the coincidence of the Brookline
registrations, and the claim not to have a key for the trunk of his car provided
probable cause for an arrest. It was
sufficient to warrant further [12 Mass.App.Ct. 663]
questioning. See Commonwealth v.
Salerno, 356 Mass. 642, 646‑647, 255 N.E.2d 318 (1970), and cases
cited. When Lenhart
repeated his colleague's request to examine the car trunk, about five minutes
had elapsed since the initial stop.
[3]
Whatever intimidating‑and hence overpowering‑effect questioning by
police
may have in some circumstances, the judge could find, as he did,
that this was not the case with Egan, who was a sergeant in the Brookline
police, with twenty‑one years of experience. The judge found him to be "strong‑minded
and intelligent" and could conclude that it was not plausible that Egan's
consent to an examination of the trunk of his car was compelled. His personal characteristics could be taken
into account by the judge in assessing whether, in the circumstances, the
consent was voluntary. Schneckloth v. Bustamonte, 412
U.S. 218, 226‑227, 93 S.Ct. 2041, 2047, 36
L.Ed.2d 854 (1973). See Hoover v. Beto, 467 F.2d 516, 521 (5th Cir.), cert. denied, 409 U.S.
1086, 93 S.Ct. 703, 34 L.Ed.2d 673 (1972) (lawyer
consented to search); United States v. Bailey, 468 F.2d 652, 658, 672 (5th Cir.
1972) (highway patrol officer made a statement); United States v. Juarez, 573
F.2d 267, 274 (5th Cir.), cert. denied, 439 U.S. 915, 99 S.Ct.
289, 58 L.Ed.2d 262 (1978) (lawyer consented to search). A law enforcement officer of Egan's
experience would have known that he could choose to resist Lenhart's
request to search his car trunk. His
cooperative conduct obviated the need for a search warrant. Commonwealth v. Aguiar,
370 Mass. 490, 496‑497, 350 N.E.2d 436 (1976).
3.
Admissibility of the stationhouse statements.
After he
discovered the gas can, Lenhart told Egan and his
companion, Mellen, that they were suspects in an
attempted burning and that there was probable cause to arrest them. No formal arrest was made, but Egan and Mellen were asked to accompany the police to the station
for questioning. Egan and Mellen proceeded there in Egan's car. We may assume that, notwithstanding the
absence of a formal arrest, Egan was in a custodial situation. The episode had begun with drawn guns, his
car had been searched, he was told he was a suspect. See Commonwealth v. Wallace, 346 Mass. 9, 16,
190 N.E.2d 224 (1963). Compare
Commonwealth v. Cruz, [12 Mass.App.Ct. 664]
373 Mass. 676, 683, 369 N.E.2d 996 (1977).
At the police station, Lenhart advised Egan of
his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966)). (FN2) Only two questions were answered before Egan
ended the stationhouse interview by saying he refused to say more without an
attorney present. One had to do with
whether he knew the area in which he was stopped, to which he answered,
"No, I don't." The second was
whether he knew a Leslie Brill (Rotman). The answer was: "Yes, I go out with her
sister. She has been trying to break us
up because I am not Jewish." Rotman was the owner of the gasoline‑soaked car. (FN3)
Both statements were used as prior inconsistent statements against Egan
at his trial.
[4] The
defendant raises no issue of the voluntariness of the
statements. Manifestly a police officer
of Egan's experience understood the Miranda warning and his right to remain
silent. It is a right which, indeed,
Egan asserted after the first two questions.
He was then permitted to leave the police station. The basis for suppression is that he was
improperly detained. Cf. Brown v.
Illinois, 422 U.S. 590, 600, 95 S.Ct. 2254, 2260, 45
L.Ed.2d 416 (1975). At the time Egan was
asked to the police station the police had discovered the quarter‑full
gas can in his car. That fact, tied
together with the defendant's presence near the apparent crime, the lack of
explanation of his presence there, the failure to stop, and the Brookline
connection, gave the police reason to think that Egan had committed or was
committing an offense. Commonwealth v.
Storey, 378 Mass. 312, ‑‑‑ ‑ ‑‑‑, Mass.Adv.Sh. (1979)
1546, 1558‑1559, 391 N.E.2d 898, cert. denied, 446 U.S.
955, 100 S.Ct. 2924, 64 L.Ed.2d 813 (1980), and cases
cited. To the extent, therefore, that
Egan was in the police station under arrest (rather than on his own volition),
probable cause existed to arrest him.
[12 Mass.App.Ct.
665] 4. Joinder
of the indictments.
Nine
months after Egan was indicted for attempted burning and malicious injury to
and theft of a motor vehicle, he was indicted for attempted intimidation of two
witnesses in those pending cases. The
intimidation charges arose out of complaints by Sheryl Brill, who had for a
time lived with Egan, and Leslie Brill Rotman, who
was Sheryl's sister and the owner of the car which Egan was charged with having
stolen and attempted to burn. (FN4)
[5][6] The
Commonwealth, pursuant to Mass.R.Crim.P. 9(a)(3), 378
Mass. ‑‑‑ (1979), moved for joinder
of the intimidation indictments with the burning related indictments for
purposes of trial. (FN5) Whether two or more indictments shall be
tried together rests in the sound discretion of the trial judge. Commonwealth v. Jervis, 368 Mass. 638, 645,
335 N.E.2d 356 (1975). Commonwealth v.
Cruz, 373 Mass. 676, 690, 369 N.E.2d 996 (1977). Evidence as to each of the offenses was
connected with a single line of conduct.
Commonwealth v. Maloney, 348 Mass. 610, 614, 204 N.E.2d 891 (1965). Commonwealth v. Cullinan,
‑‑‑ Mass.App. ‑‑‑,
Mass.App.Ct.Adv.Sh.
(1980) 751, 402 N.E.2d 1094. The
broken relationship between Sheryl and Egan bore on what motivated Egan to
arson. As to the threats against Sheryl
and Leslie, they would, if proved, exhibit consciousness of guilt, and the same
evidence concerning them would be admissible in the trial of the primary
charges. (FN6) See Commonwealth v. Leo, 379 Mass. 34, ‑‑‑,
Mass.Adv.Sh.
(1979) 2245, 2252, 393 N.E.2d 410.
Commonwealth v. Ellis, ‑‑‑ Mass.App.
‑‑‑, ‑‑‑ ‑ ‑‑‑, 427
N.E.2d 1179, Mass.App.Ct.Adv.Sh. (1981) 1848, 1854‑1857. Contrast Commonwealth v. Blow, 362 Mass. 196,
200, 285 N.E.2d 400 (1972).
[12 Mass.App.Ct.
666] 5. Other assertions of error.
[7] (a) No
objection was made by the defendant's trial counsel to the prosecutor's closing
argument. Improprieties in the
Commonwealth's closing argument have been asserted for the first time on appeal
and the defendant, therefore, is entitled to review only upon a showing that
there is a substantial likelihood that a miscarriage of justice will
occur. Commonwealth v. Roberts, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
Adv.Sh. (1979)
1302, 1309‑1310, 389 N.E.2d 989.
Commonwealth v. Harris, ‑‑‑ Mass.App.
‑‑‑, ‑‑‑ Mass.App.Ct.Adv.Sh. (1981) 77, 89, 415 N.E.2d 216. While the manner in which the prosecutor
characterized the evidence may have been questionable in certain details, we
perceive no gross distortions, and, hence, no substantial likelihood that a
miscarriage of justice will occur.
[8] (b)
Egan argues that the Commonwealth's evidence is so thin (he characterizes it as
a "house of inferences without a firm foundation") that he was
entitled to required findings of not guilty.
We have heretofore reviewed a number of the facts which the jury might
have found and it would serve little purpose to rehearse them further. We are satisfied that the evidence was
sufficient to enable a rational mind to conclude beyond a reasonable doubt that
Egan had committed the crime with which he was charged. Commonwealth v. Latimore,
378 Mass. 671, ‑‑‑, Mass.Adv.Sh. (1979) 2043, 2052, 393 N.E.2d 370.
[9] (c)
Following the return of verdicts of guilty by a jury, the defendant moved
unsuccessfully for a new trial based on newly discovered evidence. The fresh material had to do with the size
and kind of barriers which marked the dead end portion of Greenlodge
Street. It was a peripheral subject in
the context of the trial as a whole and we can hardly say that the judge abused
his discretion in determining that the evidence proferred
"was not crucial to the government's case nor to the defendant's
credibility." The applicable
principles are discussed in Commonwealth v. Markham, ‑‑‑
Mass. ‑‑‑, Mass.App.Ct.Adv.Sh. (1980) 1939, 411 N.E.2d 494.
Judgments
affirmed.
Order
denying motion for a new trial affirmed.
FN1. The
Court observed at p. 417, 101 S.Ct. at 695 that the
quoted phrases are not self‑defining.
FN2. We note that Sergeant Lenhart testified that, after giving them Miranda warnings,
he told Egan and Mellen they were free to leave the
station if they chose not to answer questions.
The judge made no findings as to whether permission to leave was in fact
communicated to Egan and Mellen.
FN3. The former Leslie Brill had married, but
her married name apparently did not appear on motor vehicle registration
records when the police checked the registration of her car.
FN4. Egan had been linked to the Rotman vehicle in other respects. There was evidence that the ignition of the
car had not been tampered with, permitting the jury to infer that whoever drove
the car to the spot where it was found in Canton had keys to it. There was evidence that the Pontiac had been
stolen while outside Leslie's apartment and that, during friendlier times, Egan
had occasion and means to come into possession of a set of keys to Leslie's
car.
FN5. The trial of Egan's companion, Mellen, was severed.
FN6. As things developed, the jury acquitted the
defendant of the intimidation charges.