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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. Fournier, 372
Supreme Judicial Court of Massachusetts,
Argued
Decided
Cortland A. Mathers,
Helen M. Doona, Asst.
Dist. Atty., for the Com.
Before HENNESSEY, C.J.,
and BRAUCHER, WILKINS, LIACOS
and ABRAMS, JJ.
BRAUCHER, Justice.
The
defendant was indicted for murder, armed robbery, and unlawfully carrying a
firearm, and was convicted of murder in the second degree, larceny, and
unlawfully carrying a firearm. He was
sentenced to life imprisonment for murder, the other charges were placed on
file with his consent, and he appeals under G.L. c.
278, ss 33A‑‑33G, arguing two assignments
of error. We affirm the murder
conviction. We hold that his statement
to the police was voluntarily given and was admissible in evidence,
notwithstanding the promise of the police that it would not be disclosed to a
particular police officer. We further
hold that a forensic pathologist was properly allowed to testify to his opinion
as to the position of the victim's arm when he was shot.
There was
evidence of the following facts, among others.
On
1. The defendant's statement. The defendant was given Miranda warnings on
the way to the police station and said, 'I didn't do nothing.' On arrival he was given Miranda warnings a
second and third time. He then said he
didn't know what the police would be talking to him about, that he had arrived
in Middleborough about 5:30 P.M., and that he did not
know the victim. About 8 P.M. he made a
telephone call to his home, and his mother came to the station. After speaking to her alone, he made a statement
which was later admitted in evidence at the trial without objection. He said that the victim tried to rob him at
gunpoint, that a struggle ensued and the gun went off, and that he must have
run with the gun toward his home.
Later the
chief of police arrived, gave Miranda warnings to the defendant for the fourth
time, obtained his signature on a waiver form and his consent to the tape
recording of the statement now in issue, and recorded the statement in the
presence of the defendant's mother. At
trial the defendant objected that the statement was induced by promises that it
would not become public and that those promises could not be kept, and a voir dire hearing was held.
A police officer testified that the defendant requested and was told
that the statement would not be made available to a particular patrolman,
Officer Shanks. Apparently the defendant
feared, on the basis of a prior incident, that Officer Shanks might disclose
what he learned to others who might harm the defendant. The judge found that the police, when they
gave the assurance, intended in good faith that information disclosed would not
be given to Officer Shanks. He further
found that 'as far as the evidence discloses, up to now that assurance has been
kept,' and that the defendant understood that whatever statement he gave could
and would be introduced at trial. The
motion to suppress the statement was denied, and a transcript of the tape
recording was read before the jury.
Later in
the trial the defendant gave testimony generally consistent with the first pre‑trial
statement made in the presence of his mother: the victim trief
to rob him at gunpoint; a struggle ensued and the gun went off; and he ran away
with the gun, smashed it against trees, and hid the pieces. On cross‑examination he was thoroughly
impeached by his earlier denials. The
tape‑recorded statement conflicted with his testimony in at least two
significant respects: (1) in the statement he denied buying a bottle of wine
and taking it into the woods, and (2) in the statement he said he left the gun
where it fell.
[1] [2]
[3] [4] 'It is established that a confession of guilt drawn from a defendant
through threat or by promise of favor is not admissible because not voluntarily
made, but induced by coercion or promise of benefit.' Commonwealth v. Sheppard, 313 Mass. 590, 603‑‑604,
48 N.E.2d 630, 639, cert. denied, 320 U.S. 213, 63 S.Ct.
1450, 87 L.Ed. 1850 (1943). 'The real question raised' in such a case 'is
whether the circumstances leading to the confession were so coercive as to
render it inadmissible.' Commonwealth v.
Makarewicz, 333 Mass. 575, 587, 132 N.E.2d 294, 301
(1956). For present purposes we assume
that we would apply the same standard to admissions as to confessions, even
though the admissions on their face are exculpatory rather than inculpatory. See
Miranda v. Arizona, 384 U.S. 436, 476‑‑477, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Mahnke, ‑‑‑
Mass. ‑‑‑, ‑‑‑ n. 24, (FNa)
335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959 (1976). But the fact that a statement is exculpatory
may be taken into account in determining whether it is voluntary. Commonwealth v. Harris, 364 Mass. 236, 241,
303 N.E.2d 115 (1973) (false alibi). The
burden is on the government to show voluntariness by
a preponderance of the evidence. See
COMMONWEALTH V. MAHNKE, SUPRA AT ‑‑‑, 335 N.E.2D 660(FNB)
and cases cited. The determination is
based on the totality of the circumstances.
Commonwealth v. Cain, 361 Mass. 224, 228, 279 N.E.2d 706 (1972).
[5] The
judge's findings in the present case are not explicit on the issue of voluntariness, probably because the defendant limited his
objection to a claim that his tape‑recorded statement was induced by a
false promise, and 'is not voluntary to that extent.' In that setting we think the findings that
the promise was made in good faith and was kept, and that use of the statement
at trial was not a violation of the promise, fairly implied a finding that the
statement was voluntary. We think the
evidence sufficiently supported such a finding.
Cf. Commonwealth v. Harris, 364 Mass. 236, 238, 303 N.E.2d 115 (1973)
(finding that promise of prosecutor not to use statement did not extend to use
in cross‑examination).
[6] Not
every inducement renders a statement involuntary. In Stein v. New York, 346 U.S. 156, 185‑‑186, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953),
one of the accused bargained actively with the police over terms, and refused
to confess until the police agreed to release his father and the parole board
agreed to release his brother; yet the confession was held voluntary. The promise in the present case did not hold
out such inducements; it merely limited the use to be made of the statement the
defendant was ready to make. He had
consulted privately with his mother, and made the statement in her
presence. Contrast Commonwealth v. Cain,
361 Mass. 224, 229 n. 3, 279 N.E.2d 706 (1972) (father not allowed to be
present). We think the judge could
properly find that in the totality of the circumstances the defendant's will
was not overborne.
[7] [8]
2. The pathologist's testimony. A forensic pathologist testified that there
were three wounds on the victim's body: two on his left arm, and one on the
left side of his head. The judge allowed
the witness to testify that the victim's arm 'must have been extended
laterally' at about the level of the entrance wound to the head. This testimony was damaging to the
defendant's theory of a struggle in which the gun was fired accidentally at
close range. The defendant argues that
the witness was not an expert in this 'highly technical area' and that his
opinion was 'the wildest speculation.'
We disagree. The admission of
expert testimony lies largely in the discretion of the trial judge. Commonwealth v. Devlin, 365 Mass. 149, 152,
310 N.E.2d 353 (1974). The testimony
gave the jury 'appreciable assistance' in determining the position of
the arm most consistent with the nature and location of the wounds. Commonwealth v. Boyd, ‑‑‑
Mass. ‑‑‑, ‑‑‑, (FNc)
326 N.E.2d 320 (1975). There was no
abuse of discretion.
[9]
3. Section 33E. We have reviewed the entire record and find
no basis to exercise our powers under G.L. c. 278, s
33E, to order a new trial or to alter the jury's verdict, which was fully
supported by the evidence before them.
Judgment
affirmed.
FNa. Mass.Adv.Sh. (1975) 2897, 2916 n. 24.
FNb. Mass.Adv.Sh. (1975)
at 2918.
FNc. Mass.Adv.Sh. (1975)
687, 703.