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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. Galford, 413
Supreme Judicial Court of Massachusetts,
Argued
Decided
Charles W. Rankin,
Russel J. Wilson, Asst. Dist.
Atty., for Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY,
JJ.
ABRAMS, Justice.
Convicted
of murder in the first degree on the ground of extreme atrocity or cruelty, the
defendant, Kevin Galford, appeals. The defendant also appeals from his
convictions of kidnapping and unarmed robbery.
The defendant alleges error in the denial of his motion to
suppress. The defendantalso [413
[1][2] Facts.
We summarize the facts that the jury could have found. (FN1)
On the morning of
The
autopsy revealed that the cause of death was drowning associated with blunt
impact trauma or blunt impact injury.
The victim suffered numerous bruises and abrasions on his head, face and
body, including a black eye and a broken nose.
In the opinion of the medical examiner for the Commonwealth, there was
no evidence of strangulation, and the victim was alive and conscious until the
time of drowning.
The police
learned that the victim's BayBank automatic teller
machine (ATM) card had been used in the early morning hours of June 2 to
withdraw money from an ATM machine.
Photographs taken by a surveillance camera at the ATM machine were
developed. The man in the photographs
was identified as one Robert Ferreira.
(FN2)
[413 Mass. 366] In a conversation two or three weeks prior to June 1, the
defendant told Ferreira "about a scam at a gay rest area where they could
beat up the gay men and take their money." On the night of June 1, friends of the
defendant and Ferreira drove the two men to the Route 140 rest area in
Taunton. The defendant and Ferreira told their
friends that they were going to the rest stop to collect money owed them and
that the person from whom they were going to collect would drive them
home. The defendant and Ferreira went
there with the expressed intention of robbing homosexuals, who, according to
the testimony, used the rest area as a place to meet. The defendant's friends saw the defendant and
Ferreira walk into the woods. The
defendant sat on a bench in the woods near the rest area while Ferreira hid
behind some trees. The victim approached
the defendant, and they talked for several minutes. At that point, Ferreira came up from behind
the victim, put an electrical cord around the victim's neck, and pulled him to
the ground.
On the
morning of June 2, the defendant and Ferreira were driving together in an
automobile that matched the description of the victim's automobile. Both the defendant and Ferreira stated to
friends that the automobile's owner had given them $200 to burn it. The defendant said that he had "paid
some bills" with his half of the $200, that he and Ferreira had driven the
automobile to Cape Code, (FN3) that he and Ferreira had used cocaine and
"had been partying all night," and that they had thrown the automobile's
registration and other papers out the window as they drove. (FN4)
Both front seats of the automobile were soaking wet on the morning of
June 2.
[413 Mass. 367] After the murder, the defendant admitted to a friend that he had
"beaten somebody up very badly," but he denied killing anyone. Sometime after June 2, the defendant saw
Ferreira driving an automobile similar to the victim's automobile. There was a brief argument, during which the
defendant told Ferreira to "get rid of the car[;] [b]urn it." Also sometime after June 2, the defendant
asked an acquaintance to aid him in locating someone to beat up Ferreira.
According
to police officers, the defendant, when questioned, first stated that he
learned that Ferreira had stolen a car only when, days after June 2, he and
Ferreira had gone swimming together in a pond.
It was then, the defendant originally claimed, that Ferreira first told
the defendant that he had stolen the automobile in which they had driven to the
pond. As a result of this disclosure,
the defendant explained, he walked home from the pond. In a later interview, however, the defendant
admitted to having gone with Ferreira to the rest stop on Route 140 to rob men. According to the defendant, when Ferreira
began beating and strangling the victim, the defendant told Ferreira to stop
and then left the scene and walked home to Taunton. According to a fellow inmate of the
defendant's at the New Bedford house of correction, whose girlfriend was a
witness in the case, the defendant told the inmate to prevent his girlfriend
from testifying or else the defendant would "have her bumped off."
Testifying
for the defense, Ferreira outlined the following series of events. As Ferreira started to hit the victim, the
defendant told Ferreira "not to hurt him." Ferreira said he continued to "rough[ ]
[the victim] up and knocked him out";
"[b]y the time [he] stopped, [the defendant] was gone." According to Ferreira, he alone located the
victim's automobile and, after tying the victim up with a cord, locked him in
the trunk. Ferreira next drove the
automobile to purchase some cocaine, went to an ATM and withdrew $200 from the
victim's bank account, purchased more cocaine, and then decided to kill the
victim. Ferreira drove to the Cape Cod
Canal and threw the victim into the canal.
Ferreira said that he drove the victim's automobile to the house where
the [413 Mass. 368] defendant was staying and picked him
up. The two men ingested some of the
cocaine Ferreira had purchased earlier, and then, the next
morning, visited friends together. (FN5)
[3][4][5]
1. The motion to suppress. We summarize the motion judge's findings of
fact with regard to the motion to suppress.
On Friday, June 12, 1987, the State police enlisted the assistance of
the Taunton police in locating the defendant and bringing him in for
questioning. When a Taunton police
officer approached the defendant in a shopping mall and identified himself as a
police officer, the defendant dropped a plastic bag to the ground. Believing the bag to contain marihuana, the
police officer arrested the defendant for possession of a class D substance and
brought him to the Taunton police station.
A State
police corporal arrived at the station to question the defendant about the
murder. After reading the defendant the
warnings required by Miranda v. Arizona,
384 U.S. 436, 478, 86 S.Ct. 1602, 1629‑30, 16
L.Ed.2d 694 (1966), and assuring himself that the defendant understood them,
the corporal questioned the defendant about Ferreira. The defendant explained that he had been at a
cookout with Ferreira when Ferreira told the defendant that he had stolen a car
and killed a man. When the corporal
asked the defendant to turn over his shoes, the defendant was "reluctant
to" do so. At that point, the
defendant requested a lawyer, the questioning ceased, and the defendant was
returned to a cell at the station.
Efforts were made to locate a public defender.
Also at
this time, Ferreira was brought to the station.
As Ferreira was being put in a cell, the defendant asked to speak with
police again. The police repeated the
Miranda warnings, and the defendant executed a waiver form. The police told the defendant that Ferreira
had told them that the defendant had paid Ferreira $200 to burn the stolen
car. The defendant denied this and
offered to return the next day for a [413
Mass. 369] polygraph test. The defendant stated that he was afraid of
Ferreira and wanted to consult an attorney.
The defendant then left the station.
Based on
subsequent statements by Ferreira, the police obtained an arrest warrant for
the defendant charging him with murder.
On Monday, June 15, (FN6) the defendant was arrested by the Taunton
police as he walked to the Taunton District Court to be arraigned on the possession
of marihuana charge. He was brought to
the station, read the warnings required by
Miranda v. Arizona, supra, and again presented with a Miranda waiver form,
which he executed. The defendant then
made the statements that he sought to suppress:
"I'll probably get blamed for the whole thing. I didn't do it. I went with Ferreira from Store 24 to the
Route 140 rest area to rob queers. I saw
him (Ferreira) pull a white cord around [the victim's] neck, kick and hit
him. I left and didn't want any part of
it. I didn't go there to kill
anyone."
Relying on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), (FN7) the defendant
asserts that the judge erred in refusing to suppress his June 15 statement to
the Taunton police because the questioning took place without counsel being
present and after the defendant had invoked his right to have counsel present
during the June 12 interview. In Edwards, the United States Supreme
Court held that, when an accused has invoked his right to have counsel present
during police questioning, "a valid waiver of that right cannot be
established by showing only that he responded to further police‑initiated
custodial interrogation even if he has been advised of his rights." Id.
at 484, 101 S.Ct. at 1885. In
Commonwealth v. Perez, 411 Mass. 249, 581 N.E.2d 1010 (1991), we took note
of the "observation[ ]" of the District[413 Mass. 370] of Columbia Court of Appeals that the Edwards rule applies "so long as
the defendant remains in custody." Id. at 259 n. 6, 581 N.E.2d 1010, quoting United States v. Green, 592 A.2d 985
(D.C.1991).
We now are
confronted with the question of what effect the defendant's release from
custody has on the application of the
Edwards holding. Other courts have
concluded that, where there is a break in custody, Edwards does not require that a subsequent statement be
excluded. See Dunkins v. Thigpen, 854 F.2d 394 (11th
Cir.1988), cert. denied, 489 U.S. 1059, 109 S.Ct.
1329, 103 L.Ed.2d 597 (1989); McFadden v. Garraghty,
820 F.2d 654, 661 (4th Cir.1987); United States ex rel.
Espinoza v. Fairman, 813 F.2d 117, 125 (7th
Cir.), cert. denied, 483 U.S. 1010, 107 S.Ct. 3240,
97 L.Ed.2d 745 (1987); United States v. Skinner, 667 F.2d 1306,
1309 (9th Cir.1982), cert. denied, 463 U.S. 1229, 103 S.Ct.
3569, 77 L.Ed.2d 1410 (1983). Accord People v. Trujillo, 773 P.2d 1086, 1092
(Colo.1989); Wilson v. State, 573 So.2d 77, 79
(Fla.Dist.Ct.App.1990); State v. Bymes,
258 Ga. 813, 814, 375 S.E.2d 41 (1989); State v. Norris, 244 Kan. 326, 336, 768
P.2d 296 (1989); State in the Interest of Wells, 532 So.2d
191, 196 (La.Ct.App.1988); State v. Furlough, 797 S.W.2d 631, 640
(Tenn.Crim.App.1990); State v. Stewart, 113 Wash.2d 462, 478‑479,
780 P.2d 844 (1989), cert. denied, 494 U.S. 1020, 110 S.Ct.
1327, 108 L.Ed.2d 502 (1990); Brown v. State, 661 P.2d 1024, 1029
(Wyo.1983). We have found no authority
to the contrary. (FN8)
We also
conclude that, under Federal law, the application of the Edwards rule requires continuous custody. When a defendant is released from custody,
the coercive effect of custody disappears.
(FN9) Thus, once a defendant is
freed, "the heightened potential for state‑coerced self‑incrimination [413 Mass. 371] ends" and the Fifth Amendment right to counsel ends.
United States ex rel. Espinoza v. Fairman, supra at 125, citing United States v. Geittmann, 733 F.2d
1419, 1429 (10th Cir.1984); United States v. Skinner, supra at
1309. (FN10) The judge correctly denied the defendant's
motion to suppress.
2. The jury instructions. The defendant challenges the judge's
instructions on two grounds. The
defendant first claims that the instruction on withdrawal from a joint venture
impermissibly shifted to the defendant the burden to prove withdrawal. Second, the defendant maintains that the
judge's instructions on joint venture gave the jury the erroneous impression
that, if it found the defendant guilty of robbery, (FN11) it would
be required also to find him guilty of kidnapping and murder.
[6] The
defendant did not object at the conclusion of the instructions. We therefore review the challenged
instructions to determine whether the instructions, read as a whole, created a
"substantial likelihood of a miscarriage of justice." G.L. c. 278, §
33E. (FN12) See
Commonwealth v. Gilchrist, 413 Mass. 216, 223, 597 N.E.2d 32 [413 Mass. 372] 1992), citing Commonwealth
v. Dias, 405 Mass. 131, 137, 539 N.E.2d 59 (1989). In support of his arguments, the defendant
"parses the charge and attacks it piecemeal. We, however, view the charge in its entirety
since the adequacy of instructions must be determined in light of their over‑all
impact on the jury." Commonwealth v. Sellon,
380 Mass. 220, 231‑232, 402 N.E.2d 1329 (1980). We conclude that the instructions, viewed as
a whole, were substantially correct and do not require that the convictions be
reversed.
[7] A. The instruction on withdrawal from a joint
venture. The instruction on
withdrawal is set forth in the margin.
(FN13) The defendant alleges that
the judge erroneously shifted to the defendant the burden of proving
withdrawal. The Commonwealth concedes
that, in a case in which the evidence raises a question whether a defendant
continued to be part of a joint venture, the Commonwealth has the burden of
proving beyond a reasonable doubt the absence of abandonment.
Commonwealth v. Fickett, 403 Mass. 194,
201 n. 7, 526 N.E.2d 1064 (1988). The
Commonwealth maintains, however, that the judge's charge, read in its entirety,
made clear that the Commonwealth bore the burden of proving beyond a reasonable
doubt that the defendant did not withdraw from the joint venture. We agree.
The
defendant objects specifically to the judge's discussion of the conditions
necessary "[f]or one to ... escape liability for subsequent crimes." The defendant argues that the [413 Mass. 373] phrase "escape liability" shifted the burden of proof
on the issue of withdrawal to the defendant.
In support of his argument, the defendant relies on Connolly v. Commonwealth, 377 Mass. 527, 387 N.E.2d 519
(1979). That reliance is misplaced. In that case, we reversed a conviction based
on a judge's instruction on self‑defense.
We concluded that the judge's use of the terms "find" and
"finding," "especially when taken in relation to the judge's
assertion that the defendant 'claims' self‑defense as a 'ground of
defense,' " id. at 533, 387
N.E.2d 519, impermissibly shifted the burden of proof to the defendant. No such language was used in the present
case.
The judge
in this case explained that "[t]he burden of proof is on the
prosecutor. All presumptions of law,
independent of evidence[, are] in favor of innocence.... If upon such proof presented here ... there
is reasonable doubt remaining, the accused is entitled to the benefit of it by
acquittal.... The rule requires proof of
guilt beyond a reasonable doubt and must be applied to every element of the
separate crimes that are charged...."
Throughout the instructions, the judge repeatedly referred to the Commonwealth's
burden of proof. In the joint venture
instruction itself, the judge twice cautioned the jury that the Commonwealth was required to prove the joint venture
beyond a reasonable doubt. Although we
view the phrase used by the judge as ill‑chosen, in view of the judge's
thorough and correct instructions on the Commonwealth's burden of proof
throughout the charge, we conclude that there is no substantial likelihood of a
miscarriage of justice.
[8] B. The instruction on joint venture. We set out the judge's instruction with
respect to joint venture in the margin.
(FN14) The [413 Mass. 374]
defendant argues that the judge's description of the joint venture as "a
common enterprise to commit the particular crime that he's charged with, that
includes the murder, the robbery and the kidnapping" does not
differentiate clearly between the three crimes.
Thus, according to the defendant, a jury could conclude that, if the
defendant participated "in the commission of any one of [the] three
crimes" with which he was charged, the jury was bound to find him guilty
of all three crimes that made up the joint venture. (FN15)
The defendant asserts that the judge's explanation that "[t]he
Commonwealth is not required to show that the defendant physically participated
in the actual crime [,] but it must show that the defendant somehow
participated in the venture to the extent
[413 Mass. 375] that he sought
to have it succeed" exacerbated the original error. The defendant claims that, taken together,
the instructions permitted the jurors to convict the defendant of all three
crimes if they found that the defendant was a joint venturer
in any one of the crimes. We do not
agree. (FN16)
The
defendant's reading of the instruction on joint venture omits critical passages
of the charge. At the conclusion of his
charge, the judge told the jury to notify the court officer in attendance
when it had "reached [its] verdict on all these three matters." Then the judge said to the jury: "I call upon you to consider each [matter]
separately" (emphasis added).
That instruction was clear and unambiguous.
We note
that, throughout the instructions, the judge repeatedly told the jurors that
the defendant was "separately
indicted" (emphasis added) for each crime.
In discussing verdict slips, the judge again emphasized that the jury
would have "separate verdict slips because there are three separate indictments" (emphasis
added). Moreover, the withdrawal
instruction clearly stated that a defendant may "abandon a criminal joint
enterprise and thereby escape liability for subsequent crimes." Thus, the jurors could not have concluded
that the defendant's complicity in the robbery required convictions on the
kidnapping and murder charges. Reading
the instructions as a whole, we conclude that there is very little, if any, risk
that the jurors did not understand that they should assess guilt for each crime
separately. Cf. Commonwealth v. Albert, 391 Mass. 853, 858, 466 N.E.2d 78 (1984)
("whether a defendant has been accorded his constitutional rights depends
upon the way in which a reasonable juror could have interpreted the
instruction"), quoting Sandstrom v. Montana,[413 Mass. 376] 442 U.S. 510, 514, 99 S.Ct.
2450, 2454, 61 L.Ed.2d 39 (1979). There
is no substantial likelihood of a miscarriage of justice.
3. Relief under G.L.
c. 278, § 33E. We have reviewed the
entire record pursuant to G.L. c. 278, § 33E. We conclude that justice does not require us
to reduce the verdict of murder in the first degree to a lesser degree of guilt
or to order a new trial.
Judgments affirmed.
(FN1.) The defendant has not argued that the
evidence was insufficient to support the convictions. That issue therefore is waived. Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 921 (1975). Commonwealth v. Wilson, 381 Mass. 90, 92
n. 3, 407 N.E.2d 1229 (1980). Pursuant
to G.L. c. 278, § 33E (1990 ed.), we have reviewed
the evidence on the conviction of murder in the first degree. The Commonwealth presented a strong and
compelling circumstantial case against the defendant. The evidence was more than sufficient to
support the conviction.
(FN2.)
Ferreira was charged with the same crimes.
The two men were tried separately.
(FN3.)
A State chemist testified that a pair of the defendant's socks showed evidence
of color transference consistent with immersion in sea water rather than fresh
water. The color on the socks also was
consistent with the blue dye on a pair of the defendant's sneakers. Residue on both the socks and the sneakers
also was consistent with immersion in sea water.
(FN4.)
A woman found the registration and other papers by the side of a road near the
Route 140 rest stop and gave them to the police.
(FN5.)
Ferreira's testimony was impeached by the testimony of a number of witnesses,
including Ferreira's mother. These
witnesses testified that, in conversations with them after the crime, Ferreira
inculpated the defendant in the kidnapping and the murder.
(FN6.)
The motion judge found that the second arrest took place on August 15,
1987. This appears to be an error. We conclude that the second arrest took place
on June 15, not August 15, because of the motion judge's subsequent statement
that "[t]he second police interview was three days" after the first
interview, which took place on June 12.
Neither party suggests that the August 15 date has any relevance in this
matter.
(FN7.)
The defendant relies entirely on the Fifth and Fourteenth Amendments to the
United States Constitution. Therefore,
we do not discuss State constitutional law.
(FN8.)
The defendant's reliance on Minnick v.
Mississippi, 498 U.S. 146, 111 S.Ct. 486, 112
L.Ed.2d 489 (1990), is misplaced. Minnick establishes that the defendant's
actual consultation with counsel after invoking the right to do so will not
prevent application of the Edwards
rule.
Id. 498 U.S. 146 at ‑‑‑‑, 111 S.Ct. at 491. In Minnick, the defendant never was
released from custody. The case,
therefore, does not address the issue presented here. Accord
Willie v. State, 585 So.2d 660, 667 (Miss.1991) (distinguishing Minnick on grounds of continuous
custody).
(FN9.)
As in Dunkins
v. Thigpen, 854 F.2d 394, 397 n. 6 (11th Cir.1988), there is here "no
contention that the break in custody was contrived or pretextual." We therefore express no opinion as to the
result in a similar case in which there was shown to be "a contrived or pretextual break in custody." Id.
(FN10.) The defendant asks us to reject the
judge's finding that the defendant left the police station on Friday, June 12,
1987. "In reviewing the denial of a
motion to suppress, we accept the motion judge's subsidiary findings of fact
absent clear error." Commonwealth v. Yesilciman,
406 Mass. 736, 743, 550 N.E.2d 378 (1990), citing Commonwealth v. Cunningham, 405 Mass. 646, 655, 543 N.E.2d 12
(1989);
Commonwealth v. Melvin, 399 Mass. 201, 204, 503 N.E.2d 649 (1987);
Commonwealth v. Jones, 375 Mass. 349, 354, 377 N.E.2d 903
(1978). On appeal, the defendant
concedes that "it appears obvious that [the defendant] was released at
some time before his arrest on the way to the Taunton District Court on Monday
morning." The judge's finding that
the defendant was released prior to the interrogation on Monday thus is
supported by the evidence. Therefore,
there is no "clear error" in the judge's finding.
(FN11.) The defendant's trial strategy was not
to contest going to the Route 140 rest area to commit unarmed robbery but,
rather, to deny complicity in the kidnapping and murder.
(FN12.) With respect to the kidnapping and
unarmed robbery indictments, we review the instructions to determine whether
there is "a serious and obvious error creating a substantial risk of a
miscarriage of justice." Commonwealth v. Pares‑Ramirez, 400
Mass. 604, 609, 511 N.E.2d 344 (1987), citing Commonwealth v. Freeman, 352 Mass. 556, 563‑564, 227 N.E.2d
3 (1967).
(FN13.) "Now, the law recognizes once in
a joint venture you may withdraw from it.
A defendant is not guilty of a crime committed by a joint venture [r] if
he timely and [e]ffectively withdrew or abandoned the
joint venture. To be effective, the
withdrawal must have been communicated or brought to the attention of the other
joint venturer and this must have been done early
enough as to give the other party a reasonable opportunity to also
withdraw. For one to abandon a criminal
joint enterprise and thereby escape liability for subsequent crimes committed
later, there must be at least an appreciable interval between the alleged
termination and the subsequent crime. A
detachment from the enterprise must be made before the subsequent crime has become
so probable that it cannot be reasonably stayed and such notice or definite act
of detachment must be made known to the other joint enterpriser so he will also
have the opportunity to withdraw."
(FN14.) "The last matter I want to take
up with you is probably the most important issue in the case. The government has proceeded in this case on
the theory of joint venture, sometimes called joint enterprise. You must determine as an issue of fact in
this case, you the jury must do this, whether or not there was a joint venture
in which the defendant, and in this case, Mr. Ferreira, were engaged in a joint
venture. A defendant is guilty if he
associates himself with a criminal enterprise and participates to some extent
in the commission of the crime. You must
apply this now to all the crimes that this defendant is accused of.
"In
order to find the defendant guilty of a crime committed during a joint venture,
the Commonwealth must prove two things and must prove them, again, beyond a
reasonable doubt to you the jury. The
first one is that this defendant associated himself with a criminal venture and
that this defendant participated in the commission of the crime to some
extent. In order to convict this
defendant, you must find that he was actually engaged in a common enterprise to
commit the particular crime that he's charged with, that includes the murder,
the robbery and the kidnapping. The mere
presence at the commission of a wrongful act and even failure to take
affirmative steps to prevent it, do not render a person liable as a
participant.
"If
the defendant agreed with another person or persons to commit the crime and did
nothing more than that alone, [that] does not make him part of a joint
venture. Some active participation in or
furtherance of the criminal enterprise is required in order to find him guilty
of the crime. A finding of guilty under
a joint venture theory must be based upon proof that the defendant either
commanded, counseled, hired or otherwise procured the actual participation and
rendered aid, assistance or encouragement to him or put himself in the position
to render aid in the commission of the crime.
The defendant's guilt is established when it is shown to you the jury
beyond a reasonable doubt that he intentionally assisted and took part, in this
case with Mr. Ferreira, in the commission of any one of these three crimes he's
charged with; and he did this while
sharing the mental state required for the crime.
"You
may infer the necessary mental state from the defendant's knowledge of the
circumstances and subsequent participation in the crime. The Commonwealth is not required to show that
the defendant physically participated in the actual crime[,] but it must show
that the defendant somehow participated in the venture to the extent that he
sought to have it succeed."
(FN15.)
The Commonwealth did not proceed on a felony‑murder theory.
(FN16.) The defendant's reliance on Commonwealth v. Benders, 361 Mass. 704,
282 N.E.2d 405 (1972), is misplaced. The
judge in the present case instructed the jury that "mere presence at the
commission of a wrongful act and even failure to take affirmative steps to
prevent it, do not render a person liable as a [joint venturer]."
Commonwealth v. McMaster, 21 Mass.App.Ct.
722, 490 N.E.2d 464 (1986), on which the defendant also relies, also is clearly
distinguishable. Unlike the present
case, however, in McMaster, it was
the judge's failure to instruct the jury on the need to consider each crime
separately that required reversal of the conviction. Id. at 731‑732, 490
N.E.2d 464.