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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. Ghee, 414
Supreme Judicial Court of Massachusetts,
Argued
Decided
[414
Roger L. Michel, Jr., Asst. Dist. Atty., for Com.
Before [414
[414
A jury
convicted the defendant of murder in the first degree, unlawful possession of a
sawed‑off shotgun, and use of a shotgun while committing a felony. On the defendant's motion, the judge reduced
the murder verdict to murder in the second degree, and sentenced the defendant
to a mandatory term of life imprisonment.
See Mass.R.Crim.P. 25(b)(2), 378
On the
Fourth of July, 1989, a
The
defendant also challenges the admission of expert testimony that tended to
prove that he had shot the victim, his former [414
1. Relying
exclusively on art. 14 of the Massachusetts Declaration of Rights, the
defendant argues that the warrantless search of the trunk of his motor vehicle
by police officers in Connecticut violated his constitutional right to be free
from an unreasonable search. The
Commonwealth does not argue that we should not apply art. 14 principles to a
Connecticut police search. We shall
assume, without deciding, that the same art. 14 principles apply in deciding a
motion to suppress evidence obtained in the Connecticut search as would apply
if the search had been conducted in Massachusetts. (FN2)
There was
evidence at the hearing on the motion to suppress that, shortly before seven
o'clock in the morning of July 4, 1989, a Connecticut State trooper was on duty
on Interstate Route 95 in East Lyme. He
saw a motor vehicle partly on the median strip and the defendant apparently
trying to restart it and push it off the median strip. The trooper approached the defendant. The trooper determined that the defendant,
alone in the vehicle, was under the influence of alcohol and arrested him. The trooper then called for a tow truck, and
Louis Morgillo, an employee of Niantic River Transmission Company, towed the
vehicle to his employer's [414 Mass.
316] garage. (FN3)
There Morgillo noticed an odor, apparently coming from the vehicle's
trunk, that another State trooper had mentioned to him when they were near the
vehicle on Route 95. Morgillo opened the
trunk, thought that he saw a body, and immediately slammed the trunk shut. He called the police. An East Lyme police officer arrived, opened
the trunk briefly, saw the body of a black female, closed the trunk, and then
called the State police. Two State
police officers arrived, looked in the trunk, and took Polaroid pictures of the
body in the trunk. Thereafter a warrant
was obtained to conduct a search of the vehicle.
[1][2] The
defendant moved to suppress evidence subsequently seized, including evidence
obtained pursuant to search warrants. He
also moved to suppress statements that he made following the warrantless
search. These motions to suppress were
based on asserted violations of his rights because of the warrantless search of
the trunk. The motion judge ruled that
the police had probable cause to search the vehicle and that exigent
circumstances justified conducting that search without a warrant. The exigency, as the judge saw it, was that
the defendant or someone on his behalf might at any time come to retrieve the
vehicle. The judge denied the
defendant's motions to suppress. (FN4)
The
defendant makes no claim that Morgillo, the tow truck operator, was acting on
direction of the police or was an agent of the State when he opened the
vehicle's trunk. Therefore, Morgillo's
brief search of the trunk presents no basis for an art. 14 challenge to the
search of the trunk. The defendant's
argument thus comes down to whether an unreasonable[414 Mass. 317] search occurred when, having probable cause
to believe that a human body was in the trunk of a motor vehicle to which they
had lawful access, the police should have obtained a search warrant before
opening the trunk and taking pictures of its contents. We think not.
The circumstances were exigent because prompt investigation of the
report of a dead body in the vehicle's trunk was warranted. This search did not involve the kind of
police conduct that we would hope to deter by suppressing evidence found in the
trunk, found as a result of subsequently issued search warrants, or obtained
from the defendant in the course of police interviews.
[3] 2. The
defendant argues that statements that he gave to Connecticut State police
detectives should have been suppressed because he was not given proper warnings
under Miranda v. Arizona, 384 U.S.
436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
We reject his claim that the warnings that one State trooper gave at
7:23
A.M. on July 4, 1989, assuming they were adequate at that time, were
not sufficient to advise the defendant of his rights when other officers began
questioning him at 9:00 A.M., at which time he told the two detectives that he
had already been advised of his rights.
See State v. Usry, 205 Conn.
298, 307, 533 A.2d 212 (1987). The
defendant does not argue that, solely because the interviewing officers did not
advise him that they were investigating a murder, his rights were not
adequately protected. See Colorado v. Spring, 479 U.S. 564, 577,
107 S.Ct. 851, 859, 93 L.Ed.2d 954 (1987).
Nor does the defendant seriously argue that, apart from the asserted
Miranda violation, on the facts the motion judge found, he did not knowingly,
intelligently, and voluntarily agree to talk to the Connecticut detectives. There is no basis for any claim that the
Connecticut detectives tricked the defendant into talking to them about the
body in his vehicle.
The
problem concerning the Miranda warnings is that the rights given to the
defendant, set forth on a form used for certain purposes in Connecticut,
included the warning that "[y]ou are not obligated to say anything, in regard to this offense you are charged
with but may remain silent" (emphasis supplied). In all other respects the warnings were
adequate. The form, which the defendant
signed, indicated that [414 Mass.
318] the offenses charged were (a)
driving under the influence and (b) operating a motor vehicle without a
license. We are concerned here solely
with the asserted failure to comply with the requirements of the United States
Supreme Court concerning Miranda warnings and the consequences of a failure to
give an adequate warning. (FN5)
No
prescribed set of words must be used to provide the warnings required by the Miranda case. See
Duckworth v. Eagan, 492 U.S. 195, 202‑203, 109 S.Ct. 2875, 2879, 106
L.Ed.2d 166 (1989) (inquiry is whether warnings reasonably convey rights to a
person);
California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 2809, 69
L.Ed.2d 696 (1981) (no "talismanic incantation" required). Here, the warning arguably implied that,
although he did not have to talk about offenses with which he was charged, the
defendant did have to talk about offenses with which he was not charged. If the defendant reasonably could have concluded
that the warning had that implication, he may have spoken about certain
subjects believing that he was compelled to do so. (FN6)
There was evidence, but no finding by the judge, that the defendant said
that he was aware that he did not have to speak with the detectives.
[4][5]
Because there are no findings bearing on whether the warnings given reasonably
conveyed his rights to the defendant, we are not willing to conclude that the
Commonwealth met its burden of showing that the defendant received adequate
warnings. We are, however, persuaded
that any error was harmless beyond a reasonable doubt. A harmless error [414 Mass. 319]
analysis is appropriate as to the admission in evidence of statements obtained
in violation of the Miranda rule. See Commonwealth v. Perez, 411 Mass. 249,
259‑260 n. 7, 581 N.E.2d 1010 (1991); United States v. Batista‑Polanco,
927 F.2d 14, 21 (1st Cir.1991).
The
defendant's statement to the Connecticut detectives could not have been a
significant factor in his conviction. He
argues that his statement that no one else was allowed to use his car and that
he had
only one set of keys undercut his defense that the victim's husband
had killed her and placed her body in the defendant's car. He also claims that the Commonwealth was able
to rely on certain allegedly false exculpatory statements he made to the
Connecticut detectives to the effect that he lived in Florida, had no permanent
Boston address, and had not lived with, nor seen, the victim for a long time. There is no doubt that the allegedly false
statements could be recognized as evidence of consciousness of guilt, and the
Commonwealth so argued. In other
circumstances, such an error in Miranda warnings might well not be harmless
beyond a reasonable doubt.
There was
in this case, however, such overwhelming evidence of guilt, independent of the
content of the defendant's statements to the police, that any error was
harmless beyond a reasonable doubt. The
victim's body was found in the trunk of the defendant's motor vehicle in which
he was traveling alone. The body was
decomposing, and the defendant's clothing smelled strongly of
putrefaction. Human blood was found on
his clothing and on gloves in his vehicle.
There was bloody clothing of the victim in the apartment the defendant
and the victim had shared. A sawed‑off
16 gauge shotgun with the defendant's fingerprint on it was found in the
apartment next to a blood‑stained bed.
A spent 16 gauge shotgun shell that normally contains twelve pellets,
the number of pellets found in the victim's body, was found on a mantel in the
apartment. The plastic bag in which the
victim's body was found came from the same day's production run of bags as two
similar plastic bags found in the defendant's apartment. Additionally, there was evidence that, three
weeks before her [414 Mass. 320] murder, the victim had suffered a
vicious beating. The defendant testified
as to the incident that he had accidently hit the victim with a baseball bat.
[6] 3. The
judge properly admitted the testimony of two expert witnesses for the
Commonwealth. One testified that, using
photographic techniques that he had recently learned, he was able to identify a
latent fingerprint of the defendant on the sawed‑off shotgun found in his
apartment. The other testified that, by
comparing stripes or bands running lengthwise in plastic bags, known as die
lines, he concluded that the plastic bag in which the victim's body was found
had been made on the same day by the same piece of equipment that had made two plastic
bags found in the defendant's home.
Neither of
the techniques used by the Commonwealth's experts required a showing under the Frye test that the technique had gained
general acceptance in the field in which it belonged. See
Commonwealth v. Fatalo, 346 Mass. 266, 268‑270, 191 N.E.2d 479
(1963), citing Frye v. United States,
293 F. 1013, 1014 (D.C.Cir.1923). Here
the experts presented information based on physical comparisons that they had
made using their knowledge of particular techniques (fingerprint testing by a
photographic process, and the matching of die lines created in the manufacture
of plastic bags). The Frye test does not apply in such
circumstances. See Commonwealth v. Cifizzari, 397 Mass. 560, 569‑573, 492
N.E.2d 357 (1986); Commonwealth v. Beausoleil, 397 Mass.
206, 215 n. 11, 490 N.E.2d 788 (1986); Commonwealth v. Devlin, 365 Mass. 149,
154‑155, 310 N.E.2d 353 (1974).
[7][8] 4.
There is no merit in the defendant's argument that the imposition of
consecutive sentences for murder and for the unlawful possession of a sawed‑off
shotgun violated his constitutional rights.
He claims that the consecutive sentences denied him his right not to be
subject to multiple punishments for the same offense, arguing that the eighteen
to twenty year sentence from and after his life sentence was so long as to show
that the judge in effect unlawfully punished him twice for the murder. The premise of the defendant's contention,
the judge's allegedly punitive state of mind in sentencing him, is most doubtful
in view of the fact that the [414
Mass. 321] judge reduced the verdict
to murder in the second degree. In any
event, the defendant, who has a heavy burden on the issue, does not even make a
reasoned argument that the sentence on the shotgun conviction was
disproportionate to the offense for which he was convicted. See
Commonwealth v. Alvarez, 413 Mass. 224, 233‑234, 596 N.E.2d 325
(1992);
Cepulonis v. Commonwealth, 384 Mass. 495, 497‑499, 427 N.E.2d
17 (1981), appeal dismissed, 455 U.S. 931 (1982). Conviction of that offense can result in a
sentence of life imprisonment. G.L. c.
269, § 10 (c) (1990 ed.). The consecutive sentences, viewed together,
did not, as the defendant argues additionally, amount to unconstitutionally
cruel and unusual punishment.
[9] 5. The
Commonwealth's appeal is meritless. The
judge reduced the murder verdict to murder in the second degree, in the
exercise of his discretion under Mass.R.Crim.P. 25 (b) (2), when he allowed the defendant's motion for a reduction in
sentence based on that rule. The judge
explicitly took no action on a defense motion, filed the same day, seeking a
post‑verdict required finding of not guilty of murder in the first
degree.
The
Commonwealth claims that the judge erred in allowing the reduction in the
verdict because there was evidence supporting a finding of deliberate
premeditation and, hence, a verdict of murder in the first degree. The Commonwealth's argument misses the point. The reduction in the verdict was not based on
the absence of evidence warranting a finding of deliberate premeditation but
rather was based on the judge's discretionary conclusion that a verdict of
murder in the second degree was more consonant with justice than a verdict of
murder in the first degree. See Commonwealth v. Millyan, 399 Mass. 171,
189, 503 N.E.2d 934 (1987); Commonwealth v. Gaulden, 383 Mass. 543,
555‑558, 420 N.E.2d 905 (1981). We
have recognized the propriety of a discretionary reduction of a verdict of
murder in the first degree when the evidence of premeditation was slim. See
Commonwealth v. Millyan, supra. Cf. Commonwealth v. Cobb, 399 Mass. 191,
192, 503 N.E.2d 945 (1987) (reduction from murder in the second degree to
manslaughter); Commonwealth v. Keough, 385 Mass. 314,
318‑321, 431 N.E.2d 915 (1982) [414
Mass. 322] same). Here the evidence of premeditation was
slim. The Commonwealth points only to
the physical abuse that the victim had received two months before the killing
and to certain of the defendant's post‑killing conduct (whose relevancy
to the premeditation issue is at least suspect). That evidence may support the verdict (and
the defendant does not argue otherwise), but it does not demonstrate that the
judge abused his discretion in reducing the verdict. See
Commonwealth v. Gaulden, supra, 383 Mass. at 557, 420 N.E.2d 905.
The order
allowing the motion to reduce the verdict from murder in the first degree to
murder in the second degree is affirmed.
The judgments of conviction are confirmed.
So ordered.
(FN1.) The judge sentenced the defendant to a
consecutive term of eighteen to twenty years on the conviction for unlawful
possession of a sawed‑off shotgun.
The other conviction was placed on file.
The defendant challenges the imposition of the "from‑and‑after"
sentence.
(FN2.)
One obvious problem concerns the merits of applying an exclusionary rule
designed to deter police misconduct when the search occurred in another
State. Neither party has presented any
argument as to whether the search was constitutionally proper under the
Connecticut Constitution.
The
defendant, by not arguing the point, implicitly acknowledges that the search
did not violate the Fourth Amendment to the United States Constitution.
(FN3.) There was no evidence that the
Connecticut State police had any inventory procedure that applied to a seized
motor vehicle.
(FN4.) The judge also ruled that the discovery
of the body was inevitable because, based on probable cause, a search warrant
could have been obtained and the body would have been discovered. The inevitable discovery rule has no
application in this case. In this State
that rule does not apply where a search warrant should have been obtained but
was not, even if it appears that inevitably a search warrant would have been
issued if it had been sought. See Commonwealth v. O'Connor, 406 Mass.
112, 117‑119, 546 N.E.2d 336 (1989).
Cf. Commonwealth v. Benoit,
382 Mass. 210, 215‑219, 415 N.E.2d 818 (1981).
(FN5.) We need not consider any State law
question. The defendant makes no
meaningful argument under the Constitution of the Commonwealth. This court has not adopted Miranda or some
similar warnings as a means of protecting State constitutional rights, but has
established certain State law principles as adjuncts to the Miranda rule. See Commonwealth
v. Snyder, 413 Mass. 521, 531, 597 N.E.2d 1363 (1992).
(FN6.)
In his memorandum of decision, the motion judge recited warnings that were
given without including the suspect portion with which we are concerned. The special quality of this suspect portion
of the warnings was made apparent by defense counsel's questioning of the
police witness who gave the warnings and by counsel's oral argument to the
judge. The defendant's motion to
suppress his statements and its accompanying affidavit do not rely on any
misleading quality of the warnings given.