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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. Forde, 392
Supreme Judicial Court of Massachusetts,
Argued
Decided
[392 Mass. 454] Roger Witkin,
Boston, for defendant.
Leonard J. Henson, Asst. Dist. Atty. (Paul J. McCallum, Asst. Dist. Atty. with
him), for the Commonwealth.
Before [392
Mass. 453] HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH
and O'CONNOR, JJ.
[392
The
defendant was indicted for the murder of his wife. His motions to suppress evidence and for a
required finding of not guilty were denied.
The jury returned a verdict of murder in the second degree. The defendant appealed, and we transferred the
case here on our own motion. We affirm.
On
On July
22, Sergeant Detective John Doris and Detective Emmanuel Dambreville
came to the defendant's apartment. The defendant
accompanied them to the police station, where he signed an incriminating
statement. The defendant testified, at a
hearing on his motion to suppress the statement, that noMiranda warnings had been given,
that he had maintained his innocence, and that he had signed the statement at
gunpoint. Doris and Dambreville
testified thatMiranda
warnings had been given, that the defendant had made his statement after being
told that fingerprints can be taken from a corpse, and that the defendant had
not been threatened or coerced. The
judge found that Miranda warnings had
been given, that the defendant had knowingly, voluntarily, and intelligently
waived his Miranda rights, and that
the statement was voluntary.
1. Admissibility
of Defendant's Statement.
The
defendant argues that the Commonwealth has failed to sustain its burden of
proving beyond a reasonable doubt that the defendant's waiver of his Miranda rights was knowing,
intelligent, and voluntary. See Commonwealth v. Day, 387 [392 Mass. 455] Mass. 915, 920‑921, 444 N.E.2d 384 (1983). As a necessary premise to his argument, the
defendant challenges as clearly erroneous the judge's subsidiary finding that
the defendant initiated the conversation as to whether fingerprints can be
taken from a corpse. We assume for
purposes of discussion that the finding was erroneous and that Sergeant Doris
initiated the conversation which precipitated the defendant's statement. (FN1)
[1][2][3]
The defendant argues that Sergeant Doris's question implied that the defendant's
fingerprints had been found on the body when in fact no fingerprint analysis
had been, or ever was, done on the body, and that the defendant was thus
tricked into waiving his right to remain silent. The cases cited by the defendant, however, do
not support his conclusion. In Commonwealth v. Jackson, 377 Mass. 319,
325‑329, 386 N.E.2d 15 (1979), the false statement made to the defendant
was a form of interrogation used to induce the defendant to relinquish his
right to remain silent after he had clearly asserted that right. The fact that the police used any form of
interrogation after the assertion of the right to remain silent would itself
have required suppression of the resulting statement. Commonwealth v. Harvey, 390
Mass. 203, 454 N.E.2d 105 (1983). Commonwealth v. Brant, 380 Mass. 876, 406
N.E.2d 1021, cert. denied, 449 U.S. 1004, 101 S.Ct.
545, 66 L.Ed.2d 301 (1980). See Rhode Island v. Innis,
446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980);
Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321,
46 L.Ed.2d 313 (1975). The fact that the
statement was educed by trickery was "relevant but not conclusive."
Commonwealth v. Jackson, supra, 377 Mass. at 328 n. 8, 386 N.E.2d
15. See also Commonwealth v. Meehan, 377 Mass. 552, 562‑563, 387 N.E.2d 527
(1979), cert. dismissed as improvidently granted, 445 U.S. 39, 100 S.Ct. 1092, 63 L.Ed.2d 185 (1980). In the instant case, the defendant had not
asserted his right to remain silent, and thus he is not necessarily entitled to
suppression. See Commonwealth v. Doucette, 391 Mass. 443, 448‑449, 462 N.E.2d
1084 (1984). Nor do the characteristics
of the [392 Mass. 456] accused or the circumstances of the
interrogation suggest that the defendant's waiver of his Miranda rights was anything but voluntary, knowing, and
intelligent. The use of misinformation
by the police does not in itself defeat a showing of voluntary waiver of
rights. See Commonwealth v. Meehan, supra, 377 Mass. at 563, 387 N.E.2d
527. Having considered the totality of
the circumstances, we conclude that the waiver was valid and that the
defendant's statements to the police were admissible. (FN2)
2. Evidence of
Malice.
[4][5] The
defendant moved for a required finding of not guilty at the conclusion of the
Commonwealth's case in chief and again at disposition. He now claims that it was error for the judge
to disallow this motion, as to so much of the indictment as charged murder,
because there was insufficient evidence of malice. This contention is without merit. An inference of malice arises from the
intentional doing of an act likely to cause death or grievous harm.
Commonwealth v. Palmariello, 392 Mass.
126, 142‑143 (1984). Commonwealth v. Casale,
381 Mass. 167, 171‑172, 408 N.E.2d 841 (1980). Commonwealth v. McInerney, 373 Mass. 136, 140‑141, 365 N.E.2d 815
(1977). There was evidence that the
victim died as a result of manual strangulation lasting a minimum of one to two
minutes. This evidence alone was sufficient
to raise an inference of malice.
3. Evidence of
Premeditation.
[6][7] The
defendant asserts that it was error for the judge to charge the jury on murder
in the first degree. Even if there were
insufficient evidence of premeditation, the error would be rendered harmless
beyond a reasonable doubt by the jury's verdict of murder in the second degree.
Commonwealth v. Benoit, 389 Mass. 411, 429, 451 N.E.2d 101 (1983).
Commonwealth v. Richard, 377
[392 Mass. 457] Mass. 64, 65‑66,
384 N.E.2d 636 (1979). There was,
however, adequate evidence of premeditation.
In addition to evidence of the manner of death, there was evidence that
the victim and the defendant had been quarreling, and that when the defendant saw
the victim approaching with a pot of boiling water, he stepped into the
bathroom, then stepped out, knocked the pot from her hand, and began choking
her. The jury would have been warranted
in finding that, despite the relatively short time that had elapsed, "a
plan to murder was formed after the matter had been made a subject of
deliberation and reflection." Commonwealth v. Tucker, 189 Mass. 457,
494, 76 N.E. 127 (1905). See Commonwealth v. Palmariello,
supra at 143‑144; Commonwealth v. McInerney,
supra, 373 Mass. at 153‑154, 365 N.E.2d 815.
4. Corroboration
of the Confession.
[8] The
defendant urges that we overrule our decisions that a conviction can be based
solely on evidence of an extrajudicial confession by the accused.
Commonwealth v. Kimball, 321 Mass. 290, 73 N.E.2d 468 (1947). See
Commonwealth v. Fiore, 364 Mass. 819, 822, 308 N.E.2d 902 (1974);
Commonwealth v. Machado, 339 Mass. 713, 716, 162 N.E.2d 71 (1959);
Commonwealth v. DiStasio, 294 Mass. 273,
286, 1 N.E.2d 189 (1936), cert. denied, 302 U.S. 683, 58 S.Ct.
50, 82 L.Ed. 527 (1937); Commonwealth v. Zelenski, 287 Mass. 125, 129‑130, 191 N.E. 355
(1934);
Commonwealth v. Killion, 194 Mass. 153, 80
N.E. 222 (1907); Commonwealth v. Williams, 171 Mass. 461,
465 (1898); Commonwealth v. Shaheen,
15 Mass.App. 302, 307, 445 N.E.2d 619 (1983). In support of his argument the defendant
asserts that the rule in all of the forty‑nine other States is that an
uncorroborated confession is insufficient to prove guilt. See
State v. Curlew, 459 A.2d 160, 164 (Me.1983); Annot., 45 A.L.R.2d
1316 (1956). We note that, despite the
impressive numbers, the majority rule has been criticized, and diluted, and the
advantages of our flexible rule have been acknowledged. See, e.g.,
State v. Tillman, 152 Conn. 15, 18‑20 & n. 2, 202 A.2d 494
(1964);
State v. Pickard, 104 N.H. 11, 13, 177
A.2d 401 (1962); 7 J. Wigmore, Evidence § 2070, at 510 (Chadbourn rev. ed.
1978). Nonetheless, the majority rule
has much to commend it, in that it precludes the possibility of conviction of
crime based solely on statements made by a person suffering a mental or
emotional disturbance or some other aberration. [392 Mass. 458] We therefore agree with the
defendant, and we hereby adopt the corroboration rule.
[9][10]
Although we have accepted his argument, the rule we have adopted is of no
assistance to the defendant. The
corroboration rule requires only that there be some evidence, besides the
confession, that the criminal act was committed by someone, that is, that the
crime was real and not imaginary. State v. Curlew, supra, 459 A.2d at 165.
State v. Jones, 150 Me. 242, 246, 108 A.2d 261 (1954). The corroborating evidence need not point to
the accused's identity as the doer of the crime. R. Perkins, Criminal Law 97‑100 (2d ed.
1969). In its typical form, the
corroboration rule requires that there be some evidence tending to establish
the "corpus delicti," the strictness or
liberality of the rule depending upon how "corpus delicti"
is defined. It is usually defined to
include not only the specific kind of loss or injury embraced in the crime
charged (as death in a murder case), but also a criminal agency as the source
of that loss or injury. (FN3) See, e.g., 7 J. Wigmore, supra § 2072, at 526, quoting Chief
Justice Shaw's instructions in the
Webster case (Commonwealth v.
Webster, 5 Cush. 295 [1850] ), as reported by G.
Bemis. However, according to Wigmore, the orthodox meaning of "corpus delicti" is merely the fact of the loss or injury
sustained. Id. at 524. We think that, in light of the purpose of
the corroboration rule, i.e., to guard against conviction for imaginary crimes,
this is the better definition. See State v. Tillman, supra, 152 Conn. at
20, 202 A.2d 494. Thus, in a homicide
case, the corroborating evidence need only tend to show that the alleged
victim is dead. The fact of the death of
the victim is not disputed in this case.
5. Suspension of
the Sentence.
The judge
ruled that he had no discretion to suspend part of a life sentence for murder
in the second degree. See G.L. c. 279, § 1.
There was no error.
[392 Mass. 459] [11] General Laws c. 279, § 1, as amended through St.1975, c.
347, permits judges to suspend all sentences except those of persons convicted
of crimes "punishable by death or imprisonment for life." The statute obviously prohibits suspension
of sentences for murder in the first degree, which is punishable by death or
life imprisonment. In Aldoupolis v.
Commonwealth, 386 Mass. 260, 263‑267, 435 N.E.2d 330 (1982), we
determined that the statute does not forbid suspension of sentences for crimes
punishable by imprisonment for life or a term of years. This case presents the question whether a
crime which carries the penalty of a mandatory life sentence, but no
possibility of a death sentence, is within the statutory prohibition of
suspension. We conclude that it is.
To resolve
the question posed we must decide whether the Legislature intended that the
statutory exception apply only to such crimes as carry both the possibility of
a death sentence and a mandatory life sentence, or also to crimes which carry
either one. We think the statutory
language is more nearly consistent with an intent that the exception apply to
crimes which carry either penalty. No
statute, not even the statutes providing for the punishment of murder in the
first degree (see G.L. c. 265, § 2; c. 279, §§ 68‑71), declares the penalty
for a crime using the precise phrase "death or imprisonment for
life." Thus the Legislature could
not have intended that the quoted language be read as a phrase, but rather must
have intended that it be read as an alternative. In Aldoupolis v.
Commonwealth, supra at 267, 435 N.E.2d 330, we decided that a crime is not
within the exception of G.L. c. 279, § 1, if it
provides for an alternative lesser penalty not mentioned in the exception. That decision does not require that a crime
provide alternatively for both penalties mentioned in the exception in order to
fall within it. We conclude that G.L. c. 279, § 1, forbids the suspension of a mandatory
life sentence.
Judgment affirmed.
(FN1.) At the hearing on the motion to suppress,
Sergeant Doris testified as follows:
"[A]t some point in time I told him that fingerprints could be
taken off of a body, and I asked him if he could explain fingerprints‑‑his
fingerprints being on the body. And it
was at this point in time that he decided that he would tell us what actually
happened." On cross‑examination
defense counsel asked: "Was it Mr. Forde or one of you who initiated the inquiry about
fingerprints off of dead bodies?"
Sergeant Doris replied: "I
believe I did."
(FN2.)
The defendant relies heavily on
Commonwealth v. Nott, 135 Mass. 269 (1883).
However, even assuming that that case is relevant, vis
à vis Miranda, it is distinguishable.
In Nott, the police officer's
statement to the defendant implied "that it would be better to say
something," and thus amounted to "an inducement to make a confession
of guilt." Id. at 272. But see
Commonwealth v. Meehan, supra, 377 Mass. at 564, 387 N.E.2d 527. Without an inducement, a mere statement that
denial is useless because the crime can be proven anyway does not render a
subsequent confession inadmissible. See The Queen v. Jarvis, 1 L.R.‑Cr.Cas.Res. 96 (1867), cited in Nott, supra at 272.
(FN3.)
Adoption of this stricter definition of "corpus delicti"
would not benefit the defendant. Expert
medical testimony established death of the victim by manual strangulation. This manner of death is inconsistent with
accident, suicide, or natural causes, and thus points strongly, if not
conclusively, to criminal agency as the cause of death.