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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. Haas, 373
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
[373
John C. Doherty, Asst. Dist. Atty., for the Com.
Before [373
[373
Convicted
of murder in the first degree of his pregnant wife and two young children,
Gordon F. Haas (Haas) appeals to this court pursuant to G.L. c. 278, ss 33A‑33H. Although Haas argues numerous assignments of
error, we concern ourselves primarily with two of the grounds asserted as
error: (1) the denial of three motions to suppress evidence, and (2) prosecutorial
comment on Haas' failure to deny committing the crimes. We reverse the convictions and remand for a
new trial. We also consider those
evidentiary issues likely to recur in a new trial.
The basic
facts, which are not in dispute, may be summarized as follows. Gordon F. Haas, a
On
About
10:15 A.M., Robert Christensen, a friend and coworker, entered the defendant's
office and observed the defendant hanging up the telephone. The defendant then called the Ipswich police
station and spoke to the desk officer.
He stated that he had just received an anonymous telephone call to the
effect that "black and white don't mix" and that his family had just
been "taken care of."
(FN1) He requested that an
officer check on the welfare of his family and left a telephone number at which
he could be reached.
An Ipswich
police officer was dispatched to the Haas home to investigate. He found the front door ajar with a key in
the lock. After calling out and
receiving no response, the officer entered the house and discovered the bodies
of Mrs. Haas and the children in their beds in separate bedrooms. Each victim's head was covered with a white
plastic bag tightly secured with adhesive tape.
(FN2)
The investigating
officer radioed for an ambulance and for additional assistance. State and local police officers, including
the Ipswich chief of police and a medical examiner, converged on the scene. An investigation commenced. The house was observed to be in order, the
windows appeared to be secure, and the backyard, which was muddy, contained no
footprints. The only sign of any
physical disturbance was in the master bedroom (the location of Mrs. Haas'
body) where the sheets were off the bed.
In that room a sign which read "(b)lack and white don't mix"
was found.
The
medical examiner examined the bodies and informed [373 Mass. 548] the
chief of police that each victim died between 3 and 5 A.M. He also noted that the fingernail on the
middle finger of Mrs. Haas' right hand was broken.
The police
did not return Haas' call, and sometime after the discovery, Haas again called
the police station. Haas was told to
come home but was not told what the police had found.
After
learning of the medical examiner's opinion as to the estimated time of death,
the chief instructed his men not to let the defendant in the house when he arrived
home; instead, they were told to take the defendant to the police station,
inform him of the deaths, and ask him what time he left for work that
morning. Approximately thirty to forty‑five
minutes later, the defendant arrived at his house in a car driven by
Christensen. After Haas got out of the
car, he was met by one of the members of the Ipswich police, Officer Rauscher,
with whom he had a brief conversation.
(FN3) Haas then got in the back
seat of a police car. Christensen,
Officer Rauscher, and Officer Surpitski, an inspector for the Ipswich police
department, also got in the car. The
defendant was driven to the police station, where the four men went into the
inspector's room. At this time, Haas was
first advised of the deaths of his entire family. Moments thereafter, Haas was asked what time
he left for work. Haas replied, "I
want to be helpful. I left between 6:15
and 6:30."
After
calling the chief, the officers placed the defendant under arrest and read him
his Miranda rights. Haas signed a waiver
of rights form, and then responded to further questions. Haas told the officers he arrived home at
approximately 11:15 the previous evening.
His wife arrived home at approximately the same time, and that after
chatting they went to bed. Haas said he
and his wife had slept in the master bedroom that night, and that he left home
at approximately 6:30 A.M. on June 26.
At the
conclusion of the interrogation, the defendant was booked and certain
belongings were removed from his [373
Mass. 549] person and
inventoried. Among the items were four
handwritten notes. One, which was
especially incriminating, appeared to be a list, including the words
"gloves, overalls, tape, bags, ether, mask."
At trial,
the Commonwealth's evidence was circumstantial.
The prearrest, pre‑Miranda warning statement made by the defendant
at the station, and the four notes were introduced in evidence.
1. Motions
to Suppress. Prior to trial, defense
counsel filed three separate motions seeking to suppress (1) the oral
statements made by the defendant at the Ipswich police station; (2) the four
notes seized during the booking procedure; and (3) photographs showing
scratches on the defendant's face, taken after his arrest. Haas claimed that his statement that he left
his home at 6:30 A.M. on the day of the crimes was obtained in violation of his
rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966). He also alleged that, as a
consequence, his subsequent arrest was illegal and the fruits of the arrest his
further statements, the notes and the photographs were tainted by the primary
illegality. Haas argues that the Superior
Court judge erred when he denied these motions.
It is
undisputed that Haas made the critical statement prior to his having been
advised of his Miranda rights. The
crucial question is whether warnings were required at that time. The determination hinges on whether the
police officers were conducting a "custodial interrogation." See Miranda v. Arizona, supra at 444, 86
S.Ct. 1602.
After voir
dire, the judge found that "(t)here was no police interrogation of the
defendant prior to his arrest, either at the defendant's property, in the
police cruiser, or at the police station," and that the defendant
"was under no restraint, and not held in custody" when he accompanied
the police to the inspector's office. It
is this conclusion of law which we review.
(FN4)
[373 Mass. 550] [1] We are mindful that the responsibility of weighing
credibility and finding fact is reposed in the trial court. In reviewing the testimony adduced at voir
dire, we do not attempt to usurp that authority nor
do we seek to exceed the limitations traditionally placed on us as an appellate
court. Nevertheless, where the ultimate
findings and rulings bear on issues of constitutional dimension, they are open
for review. Our appellate function
requires that we make our own independent determination on the correctness of
the judge's "application of constitutional principles to the facts as
found . . . ." Brewer v. Williams,
430 U.S. 387, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977), quoting from the
separate opinion of Mr. Justice Frankfurter in Brown v. Allen, 344 U.S. 443,
507, 73 S.Ct. 397, 446, 97 L.Ed. 469 (1953).
Commonwealth v. Murphy, 362 Mass. 542, 551, 289 N.E.2d 571 (1972)
(Hennessey, J., concurring). See
Commonwealth v. Mahnke, 368 Mass. ‑‑‑, ‑‑‑
(FNa), 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48
L.Ed.2d 204 (1976). After careful review
of the evidence presented at voir dire, we hold that the denial of the motions
to suppress the oral statements and the four notes was error.
We recount
the evidence. On Haas' second call to
the police station, he was told to come home but he was not told what the
police had found at his home. At the
time Haas arrived home, there were some people, mostly neighbors, milling about
the area. The police were inside and
outside the house.
The Haas
home had been closed to all but police personnel in order to preserve the crime
scene and to secure whatever evidence was available. The chief of police knew that murder‑suicide
had been virtually ruled out by the medical examiner; further he knew that it
was the medical examiner's opinion that the three victims had died at
approximately eight hours earlier at 3 A.M.
When the chief talked with Officer Rauscher and Inspector Surpitski, the
chief told one of them not to let Haas into the house but to take Haas to the
station, tell Haas what happened to his family and then ask Haas what time he
left for work that morning.
While the
chief was in the house, Haas, accompanied by [373 Mass. 551]
Christensen, arrived home. As Haas ran
up the driveway, Officer Rauscher put his hand around Haas' back and motioned
him to get into the police cruiser. Haas
asked if his companion could go along, and the officer said,
"Yes." (FN5) On the way to the station Haas asked if
someone would "please tell (me) what's going on?" Officer Rauscher replied, "We will only
be a few more minutes, we will be at the police station, we will talk to you
there."
At the
station, the four men went into the inspector's room where the defendant was told
his family had "expired."
Almost immediately thereafter, Officer Surpitski asked the defendant
what time he left for work, and the defendant said 6:30 A.M. This officer then called the chief of police
and informed him of the defendant's statement and of the scratches which had
been observed on the defendant's neck.
The chief ordered the defendant's arrest.
[2] Haas
argues that his encounter with the officers and his subsequent journey with
them to the Ipswich police station constituted an arrest without probable
cause, illegal under the Fourth Amendment to the United States Constitution,
and that illegal arrest "tainted" the subsequent taking of his
statements, notes and photographs. See
Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Wong Sun
v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The Commonwealth, conceding in our view
correctly so that the police did not have probable cause to arrest Haas at his
house, argues that Haas was not arrested at all, but voluntarily accompanied
police to the station. The Commonwealth
argues that there was no "custodial interrogation" of Haas until
after his arrest. We disagree. We need not attempt to pinpoint the precise
time at which the defendant was placed under arrest. A person's right to Miranda warnings depends
on whether there is a "custodial interrogation" and whether, during
the course of that interrogation, the person has been "deprived of his
freedom of action in any significant way."
Miranda v. Arizona, supra 384 U.S. at 444, 86 S.Ct. at 1612.
[373 Mass. 552] There is little doubt that Haas' incriminating statement was made
in response to an interrogation, which has been defined as "questioning
initiated by law enforcement officers," Miranda v. Arizona, supra 384 U.S.
at 444, 86 S.Ct. at 1612. Any suggestion
that it was offered spontaneously is not supported by the record. Cf. Hicks v. United States, 127 U.S.App.D.C.
209, 382 F.2d 158 (1967). Whether the
questioning constituted a "custodial interrogation" presents a much
closer question, but, considering the evidence in a light most favorable to the
Commonwealth, we conclude that it did.
[3]
Miranda warnings must precede police questioning whenever that person is
"deprived of his freedom of action in any significant way." Miranda v. Arizona, supra 384 U.S. at 444, 86
S.Ct. at 1612. See Orozco v. Texas, 394
U.S. 324, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969); Mathis v. United States, 391
U.S. 1, 88 S.Ct. 1503, 20 L.Ed.2d 381 (1968).
There is no specific formulation on which we can rely as an aid in
determining whether a person's freedom of action is sufficiently curtailed so
as to require the so called Miranda warnings.
[4] Courts
have emphasized various factors critical to our inquiry. One factor always considered particularly
relevant is the place at which a suspect is questioned. See generally Annot., 31 A.L.R.3d 565, 583‑646
(1970). In the present case, Haas was
not questioned on his arrival home. He
was not questioned outside of the home nor was he escorted to any one of the
several adjacent homes in the neighborhood.
(FN6) The officers who initially
blocked Haas' entry into his home were directed specifically to take him to the
police station, to advise him of the deaths, and to ask him what time he
departed from home that day. During the
ride from his home to the station, Haas made inquiry as to what was
transpiring, and one officer, according to the testimony at the suppression
hearing, told him to wait until they arrived at the station house. Thus, the questioning took place in the
environs of the Ipswich police[373
Mass. 553] station by conscious decision of the
police. See, e. g., Proctor v. United
States, 131 U.S.App.D.C. 241, 404 F.2d 819 (1968). The station house atmosphere is generally
most conducive to successful interrogation because the investigator
"possess(es) all the advantages."
Miranda, supra 384 U.S. at 450, 86 S.Ct. 1602. Cf. Beckwith v. United States, 425 U.S. 341,
96 S.Ct. 1612, 48 L.Ed.2d 1 (1976); Commonwealth v. Johnson, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNb), 361 N.E.2d 212
(1977); Commonwealth v. Borodine, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNc), 353 N.E.2d 649 (1976), cert. denied, 429 U.S.
1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977).
A humane attitude assumed by the police is a recognized means of
leverage. Miranda, supra 384 U.S. at
451, 86 S.Ct. 1602. Thus, the
Commonwealth's argument that the police were motivated by humanitarian concerns
does not detract from the atmosphere which the law often recognizes as coercive
nor does it obviate the need for Miranda warnings.
Another
pertinent fact is whether the investigation had begun to focus on the
defendant. United States v. Carollo, 507
F.2d 50 (5th Cir. 1975). See Miranda v.
Arizona, supra 384 U.S. at 444 n. 4, 86 S.Ct. 1602. The chief of police knew that the deaths had
occurred eight hours earlier, and that murder‑suicide had been ruled out
by the medical examiner. The chief
instructed his men to take Haas to the police station, tell him what happened,
and to ask Haas what time he left in the morning. The question was prefaced by a statement,
"Now, this is important." A
few minutes after answering this question Haas was arrested.
Additionally,
Haas was deprived of his freedom to enter his own home. While we need not decide whether the police's
action in refusing Haas entrance into his own home in the interest of
preserving the crime scene deprived Haas of his freedom of action in a
significant way so as to require Miranda warnings, we think that, in light of
the chief's knowledge and instructions, it is a factor to be considered in this
case.
Further,
the fact that the officers refused to answer Haas' question in the cruiser, and
deferred all conversation until they arrived at the police station, tends to
support our conclusion that the questioning of Haas as to the time he left home
on June 26 was a "custodial interrogation"[373 Mass. 554] which should have been preceded by Miranda
warnings. (FN7)
[5] Haas
next claims that his subsequent custodial statements are tainted by the initial
illegality, cf. Brown v. Illinois 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416
(1975); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441
(1963), and therefore they must be suppressed on retrial, notwithstanding the
fact that those statements were preceded by full Miranda warnings and by Haas'
knowing and intelligent waiver of rights.
(FN8) Since the proper police
questioning followed so closely their illegal interrogation, we cannot discern
a break in time or the stream of events sufficient to insulate the latter
statements from the events which went before.
See Darwin v. Connecticut, 391 U.S. 346, 349, 88 S.Ct. 1488, 20 L.Ed.2d
630 (1968); Gilpin v. United States, 415 F.2d 638 (5th Cir. 1969). "Warning after the admission is too
late, and the bare fact of subsequent repetition . . . cannot make the admission
admissible." United States v.
Pierce, 397 F.2d 128, 131 (4th Cir. 1968).
" '(T)he cat was out of the bag'.
One confession led to another.
The effect of the tainted confession was not dissipated by the time of
the next confession. A belated adequate
warning could not put the cat back in the bag." Gilpin v. United States, supra at 642. Accordingly, Haas' statement subsequent to
his receipt of the Miranda warnings, especially in light of its "temporal
proximity" to the illegally obtained statement and without the
"presence of intervening circumstances," Commonwealth v. Fielding, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNd), 353 N.E.2d 719 (1976), quoting from Brown v. Illinois, 422 U.S. 590, 603‑604,
95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), must also be suppressed. [373 Mass. 555] See Commonwealth v.
Mahnke, 368 Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNe), 335 N.E.2d 660 (1975), cert. denied 425 U.S. 959, 96 S.Ct. 1740, 48
L.Ed.2d 204 (1976); Commonwealth v. Tatro, ‑‑‑ Mass.App. ‑‑‑,
‑‑‑ (FNf), 346 N.E.2d 724 (1976). But see Commonwealth v. Harris, 364 Mass.
236, 238‑241, 303 N.E.2d 115 (1973); Oregon v. Hass, 420 U.S. 714, 95
S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 91 S.Ct.
643, 28 L.Ed.2d 1 (1971).
Haas
argues that since the police did not have probable cause to arrest him until
after he told them what time he left for work, his arrest was effected without
probable cause and that, therefore, the evidence produced when his personal
effects were inventoried and the photographs
reflecting scratches about his face must also be suppressed.
[6] [7]
Probable cause exists where, at the moment of arrest, the facts and
circumstances within the knowledge of police officers were sufficient to
warrant a prudent person in believing that the person arrested had committed or
was committing an offense. Beck v. Ohio,
379 U.S. 89, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Commonwealth v. Snow, 363 Mass. 778, 788, 298
N.E.2d 804 (1973). Commonwealth v.
Andrews, 358 Mass. 721, 723, 267 N.E.2d 233 (1971). Absent the information obtained in violation
of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we
believed that the police did not have knowledge of sufficient facts and
circumstances reasonably to conclude that Haas was the murderer. Indeed, the Commonwealth so conceded at
argument. The police knew that Haas'
wife and two children had been killed; that the defendant was their husband and
father and that the house was in good order with a key in the front door
lock. There were scratches on Haas' face
which arguably were visible prior to the eliciting of Haas' statement. (FN9)
However, these facts do not place Haas in the house at the time of the
crimes directly or circumstantially. In
our view, therefore, the evidence is insufficient to constitute probable
cause. (FN10)
[373 Mass. 556] [8] Where probable cause is established pursuant to a violation
of Miranda, the arrest is invalid. Cf.
Parker v. Estelle, 498 F.2d 625 (5th Cir. 1974); United States v. Cassell, 452
F.2d 533, 541 (7th Cir. 1971); In re Appeal No. 245, 29 Md.App. 131, 151, 349
A.2d 434 (1975); People v. Paulin, 25 N.Y.2d 445, 451, 306 N.Y.S.2d 929, 255
N.E.2d 164 (1969); State v. Mitchell, 270 N.C. 753, 757, 155 S.E.2d 96 (1967);
Commonwealth v. Leaming, 432 Pa. 326, 247 A.2d 590 (1968); Noble v. State, 478
S.W.2d 83 (Tex.Cr.App.1972).
[9] [10]
Since we conclude that the arrest of Haas was not based on probable cause, it
follows that the four notes seized at the station house must also be
suppressed; it is black letter law that the fruits of a search conducted
pursuant to an invalid arrest are inadmissible as substantive evidence at
trial. Beck v. Ohio, 379 U.S. 89, 85
S.Ct. 223, 13 L.Ed.2d 142 (1964). Cf.
Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954).
[11] [12]
The defendant's final contention on his motions relates to the admissibility of
the photographs made after his arrest illustrating the scratch marks which were
visible on his face. He claims that
they, too, would not have been obtained had not the illegal arrest been
made. However, the scratches were
plainly visible to a number of observers both before and after arrest. Thus the evidence would have been discovered
without exploitation of the "primary illegality." Wong Sun v. United States, supra 371 U.S. at
488, 83 S.Ct. 407. Where the nexus
between the conduct of the police deemed illegal and the discovery of the
challenged evidence is so attenuated as to dissipate the taint, such evidence
is admissible. Id. at 487, 83 S.Ct.
407. Commonwealth v. White (No. 3), 365
Mass. 312, 315, 311 N.E.2d 550 (1974), cert. denied, 419 U.S. 1111, 95 S.Ct. 785, 42 L.Ed.2d 808
(1975).
2. Final
Arguments to the Jury. Once again we are
confronted with charges and countercharges concerning the summations of
counsel. Haas claims that the prosecutor
impermissibly encroached on the right to remain silent. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240,
49 L.Ed.2d 91 (1976). The Commonwealth's
response is that Haas failed to object; that its remarks were provoked by defense counsel, and lastly that
its comments[373 Mass. 557]
were appropriate and related solely to precustodial silence. Both final summations were improper.
[13] We
recognize that it is essential to our present day adversary system that trials
be vigorously prosecuted and vigorously defended. We are aware that trials take place neither
in academic halls nor under laboratory conditions and that "(g)reat
latitude should be permitted to counsel in argument." Commonwealth v. Pettie, 363 Mass. 836, 840,
298 N.E.2d 836, 839 (1973).
Nevertheless, final arguments cannot be freewheeling, extemporaneous
verbal slugfests. Lawyers shall not and
must not misstate principles of law nor may their summations infringe or
denigrate constitutional rights. Advance
preparation would eliminate from our consideration most aspects of closing
arguments constantly being urged as improper.
(FN11) We remind counsel that we
shall not tolerate misconduct by lawyers during the persuasion phase of a
criminal trial.
[373 Mass. 558] We turn now to consideration of the final arguments in this case.
In his
closing argument, the assistant district attorney emphasized to the jury that
at no time did Haas say that he did not kill his wife and children. (FN12)
Though defense counsel did not object to this line of argument, he did
request instructions directing the jury to disregard for all purposes the
defendant's failure explicitly to deny his guilt during the interrogation. (FN13) The judge declined to give these
requested instructions, and exceptions were duly noted.
[14] As a
preliminary matter, the Commonwealth urges that Haas has waived his right to
raise this issue on appeal because his trial counsel failed to object during
the course [373 Mass. 559] of the prosecutor's allegedly
improper closing argument. We have held,
however, that failure to object during that phase of trial does not preclude
appellate consideration of the claimed error where defense counsel requests a
curative instruction at the conclusion of closing argument. Commonwealth v. Gouveia, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNg), 358 N.E.2d 1001
(1976). Commonwealth v. Killelea, ‑‑‑
Mass. ‑‑‑ (FNh), 351 N.E.2d 509 (1976). Commonwealth v. Nordstrom, 364 Mass. 310, 303
N.E.2d 711 (1973). In the instant case,
defense counsel brought the alleged error to the judge's attention, and thus
preserved the point for appellate review.
Therefore, we shall address the merits of the claim.
[15] In
stating to the jury during the course of closing argument, "And don't you
recall that at no time did he ever say, 'I didn't do it. I didn't do it,' " the prosecutor
invited the jurors to draw an adverse inference from Haas' failure to deny his
guilt. Had the question been put to Haas
directly, he obviously could have declined to answer, Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and this refusal to answer
could not have been used inferentially at trial either for impeachment
purposes, Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976), or
as substantive proof of guilt. Id. at
634, 96 S.Ct. 2240 (Stevens, J., dissenting).
[16] [17]
However, at no time was Haas asked directly whether he committed these crimes. Thus, the Commonwealth asked the jury to
infer guilt from the mere fact that Haas did not spontaneously volunteer that
he was innocent. It hardly need be said
that no person being interrogated bears this burden. To hold otherwise would be to derogate
substantially from the rights guaranteed by the Fifth Amendment to the United
States Constitution, by our Declaration of Rights, art. 12, and by the decision
in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
[18] The
judge appears to have ruled the requests inapplicable on the ground that Haas
did not remain silent but instead chose to speak with police. Inconsistencies between what the defendant
told the police and what he testified to at trial might have been brought out
by cross‑examination. Comment on
such inconsistencies is appropriate. See [373 Mass. 560] Commonwealth v. Belton, 352 Mass. 263, 270, 225 N.E.2d 53, cert.
denied, 389 U.S. 872, 88 S.Ct. 159, 19 L.Ed.2d 153 (1967). However, the thrust of the argument made in this
case clearly requested the jury to draw an inference adverse to Haas from his
failure to deny his guilt voluntarily.
[19] The
Commonwealth contends that this particular comment was restricted to
underscoring the inferential effect of Haas' failure to deny his guilt prior to
his actual arrest and receipt of Miranda warnings. The relevant portion of the closing argument
indicates that the prosecutor did not so confine his remarks. Even if the argument were limited to Haas'
prearrest failure to proclaim his innocence, we note that not until Haas and
the officers arrived at the police station was Haas told of what the police had
found. Thus, it is sheer nonsense to say
that prior to that time, Haas had to proclaim his innocence. To reach this conclusion, we would have to
find that it is natural for one not accused of the commission of a particular
crime to deny complicity in the crime.
We decline to do so. After Haas
was told his family had expired and he regained some composure he was
interrogated. At the time of the interrogation Haas had
the right to remain silent (see part 1, supra ), and he was under no obligation
to say anything, nor did he have an affirmative duty to deny his guilt. The record does not support the
Commonwealth's contention that failure to deny guilt in this case amounted to a
tacit admission by Haas. "This is
not a case where a criminal defendant . . .
remained completely silent in the presence of a person making
accusations against the defendant, concerning matters within the defendant's
knowledge, which the defendant heard and understood and which it would have
been natural for him to deny " (emphasis added). Commonwealth v. Sazama, 339 Mass. 154, 156,
158 N.E.2d 313, 315 (1959). Cf.
Commonwealth v. Boris, 317 Mass. 309, 317‑318, 58 N.E.2d 8 (1944);
Commonwealth v. Kenney, 12 Met. 235, 237 (1847).
The
Commonwealth contends that the comment was permissible because defense counsel
put Haas' conduct during the interrogation in issue by urging, in his closing
argument, that the jury draw favorable inference from the [373 Mass. 561]
defendant's failure to request an attorney after being informed of his right to
do so. Accordingly, the Commonwealth
argues, the prosecutor was entitled to "fight fire with fire." (FN14)
Commonwealth v. Smith, 342 Mass. 180, 186, 172 N.E.2d 597 (1961).
[20] We
have stated that the Commonwealth may not attempt to have the jury draw
inferences from the accused's decision to exercise his right to counsel. Commonwealth v. Sazama, 339 Mass. 154, 158
N.E.2d 313 (1959). "It . . . is not an admission . . . but an attempt to assert to assert a
constitutional right, which negates any inference of an admission. Such assertions by criminal defendants during
police interrogations are not competent testimony against such
defendants." Id. at 158, 158 N.E.2d
at 316. We deem it is similarly
inappropriate for defense attorneys to attempt to draw inferences from a
client's decision to submit to interrogation without the presence of counsel.
[21] [22]
While we recognize the gross impropriety of defense counsel's closing argument,
we do not believe that the transgressions of the prosecutor were thereby
warranted. The Commonwealth's right to
"fight fire with fire" is aimed at answering "prejudicial
irrelevancy argued by opposing counsel," Salter v. Leventhal, 337 Mass.
679, 698, 151 N.E.2d 275, 286 (1958), it is limited to "correct(ing) the
erroneous impression for which the defendant himself was
responsible." Commonwealth v.
Smith, supra, 342 Mass. at 186, 172 N.E.2d at 601‑02.
In the
instant case, the prosecutor did not object to the impermissible argument of
opposing counsel. He did not seek to
negate the inferential effect of that argument by reminding the jury that Haas
did seek the representation [373
Mass. 562] of counsel. He did not request correction from the trial
judge. See Commonwealth v. Earltop, ‑‑‑
Mass. ‑‑‑, ‑‑‑, ‑‑‑
(FNi), 361 N.E.2d 220 (1977) (Hennessey, C. J., concurring). In our view, the remarks in this case invited
the jury to draw an unwarranted inference without correcting the erroneous
impression created by defense counsel.
Under such circumstances the right of retaliatory reply is inapplicable.
3. Other
Exceptions. We proceed to examine those
remaining assignments of error which raise significant issues that might
reappear at Haas' retrial.
a.
Bifurcated trial. Although Haas
contemplated interposition of an insanity defense, he feared that evidence
introduced for that purpose would be used to establish guilt in the event that
he was found to have possessed the requisite criminal capacity. Accordingly, he moved for a bifurcated trial,
requesting an initial trial on the merits, and, if found guilty, an additional
hearing on the issue of criminal responsibility. His motion was denied.
[23] We do
not address the question whether this issue was adequately preserved for
appellate review. We do note, however,
that the trial judge acted properly in denying the motion in this case. See Commonwealth v. Bumpus, 362 Mass. 672,
290 N.E.2d 167 (1972), judgment vacated and remanded on other grounds, 411 U.S.
945, 93 S.Ct. 1941, 36 L.Ed.2d 407 (1973), aff'd on rehearing, 365 Mass. 66,
309 N.E.2d 491 (1974). Moreover, we
believe that resort to the procedure established by G.L. c. 123, s 15, and
clarified by the guidelines set out in Blaisdell v. Commonwealth, ‑‑‑
Mass. ‑‑‑ (FNj), 364 N.E.2d 191 (1977), will adequately
protect Haas' rights if he chooses at retrial to assert the defense of
insanity.
b. Expert
testimony. Haas attacks on several
grounds the admission of the expert testimony of the Essex County medical
examiner regarding the victims' time of death.
First, he urges that the Commonwealth failed to establish that the
witness possessed sufficient background, training and experience to qualify as
an expert within his field. Second, he
claims that the Commonwealth failed to demonstrate that there exists a
developed and reliable field of knowledge on which the witness could draw in
order to assist in the factfinding process.
Finally, he argues that [373
Mass. 563] the testimony was
incompetent because it was formulated without the benefit of scientific theory
or examination.
[24]
Qualification of a witness to offer an expert opinion on a given question is
for determination of the judge as a preliminary issue of fact. Commonwealth v. Seit, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNk), 364 N.E.2d 1243
(1977). DeJesus v. Hamel, 349 Mass. 764,
208 N.E.2d 246 (1965). W. B. Leach &
P. J. Liacos, Massachusetts Evidence 99‑100 (4th ed.1967). Such decisions are rarely reversed on
appellate review. Commonwealth v. Seit,
supra, and cases cited. The findings of
the judge will stand unless the record contains no evidence which supports his
conclusion. Commonwealth v. Banuchi, 335
Mass. 649, 655, 141 N.E.2d 835 (1957).
In this case the judge's ruling is amply supported by the record. We perceive no error in permitting the
medical examiner to testify.
[25] In
the instant case, the expert witness, who in the course of his duty had
occasion to examine the bodies at 10:45‑10:48 A. M. on the day of the
crimes, testified at trial that he had estimated death to have occurred
"(s)ix to eight hours" earlier.
Haas claims that this field of knowledge has not been developed to such
an extent as to enable an expert to estimate so precisely the time of death;
thus, reasons Haas, the expert's opinion on the issue was conjectural and
speculative and should have been excluded.
Closely related to this argument is Haas' assertion that, even were this
field of knowledge sufficiently developed, the medical examiner's opinion
should not have been admitted because it was formulated at the scene without
benefit of any scientific testing. We do
not believe that either of these grounds mandated the exclusion of the
testimony. Though the defendant
presented us with documentation to the contrary, there is substantial authority
establishing the reliability of estimations of time of death, and recognition
of the procedure need not be universal, nor must it be proved infallible. Commonwealth v. Fatalo, 346 Mass. 266, 270,
191 N.E.2d 479 (1963). Criticisms of the
procedure and the manner in which the expert's opinion was formulated were
proper subjects of cross‑examination, but criticism of techniques
followed does not mean that the judge erred in
[373 Mass. 564] admitting the
testimony. Differences of opinion among
expert witnesses merely create a jury question.
Commonwealth v. Montecalvo, 367 Mass. 46, 54, 323 N.E.2d 888 (1975).
[26] c.
Other rulings. Haas claims that the trial
judge committed numerous other errors, either by admitting evidence which Haas
thought objectionable or by excluding evidence proffered by the defendant. Because none of these evidentiary issues is
likely at retrial to reappear in the same context, we need not discuss at
length the propriety of their disposition by the trial judge. Suffice it to say that we perceive no abuse
of discretion in any of these rulings.
Accordingly,
the judgments of the Superior Court are reversed, the verdicts set aside and
the cases remanded for a new trial.
So
ordered.
BRAUCHER,
Justice (concurring).
I agree
with all that is said in the opinion of the court. We are bound by decisions of the Supreme
Court of the United States to hold that there was error both as to the motions
to suppress and as to the improper argument of the prosecutor. As to the improper argument, I have nothing
to add. But the rulings we are required
to make under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), are unjust, and I think some comment on their practical effect is
appropriate.
I assume,
as apparently the court does, that there is sufficient evidence, apart from the
suppressed evidence, to present a jury question as to the defendant's
guilt. The defendant's statements, which
we are required to suppress, were voluntarily made, and they bore significant
indicia of reliability. If the defendant
testifies at his new trial, they will be admissible to impeach his credibility. Commonwealth v. Mahnke, 368 Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNa), 335 N.E.2d 660
(1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). Commonwealth v. Harris, 364 Mass. 236, 238‑242,
303 N.E.2d 115 (1973). Oregon v. Hass,
420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975). Harris v. New York, 401 U.S. 222, 91 S.Ct.
643, 28 L.Ed.2d 1 (1971). Walder v.
United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). Thus it is [373 Mass. 565] highly
probable that the jury at a new trial will not hear either the defendant's own
testimony or his out‑of‑court statements. Although he testified in his own defense at
the trial now under review, the prospect of impeachment will be a powerful
deterrent at the new trial.
Thus to
curtail the evidence to be heard by the jury is not to improve the reliability
of the jury's verdict. The justification
for the exclusion of reliable evidence is said to be the deterrence of improper
police conduct. But here the police officers
acted in good faith, attempting to observe proper legal standards. Their violation of those standards was not
gross or wilful, was not of a kind likely to mislead the defendant, and did not
create a significant risk that his statement that he left home at 6:30 A. M.
may have been untrue. See Model Code of
Pre‑Arraignment Procedure s 150.3 (1975).
In these
circumstances, I should ordinarily hope that an application for review by the
Supreme Court might result in a refinement of that Court's pronouncements. If the objective is to communicate a message
to the police, it is highly desirable that the message communicated be
comprehensible and rational rather than confused and arbitrary. Only the Supreme Court can clarify the
message authoritatively.
Unfortunately,
in the present posture of this case, review by the Supreme Court seems quite
unlikely. We order a new trial, and we
do so under Federal compulsion, by reason of improper argument by the
prosecutor. There is no likelihood that
we are in error on this point. But we
are also in the interest of good judicial administration, giving final
directions that reliable evidence must be excluded at the new trial. It would be highly desirable that the latter ruling
be reviewed, and the Supreme Court appears to have jurisdiction to review such
cases. Miranda v. Arizona, 384 U.S. 436,
498 n.71, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
But the posture of the case makes it unlikely that the Supreme Court
will review a ruling that appears to be interlocutory. Hence this lament.
[373 Mass. 566] HENNESSEY, Chief Justice (dissenting in part).
I concur
in the majority's decision that there must be a new trial here, but I disagree
with the majority's conclusion that there was not probable cause to arrest the
defendant on the morning of June 26, 1976.
The
practical effect, if my view as to probable cause were to prevail here, would
be that the four handwritten notes seized from the defendant in the police
search of his person would be admissible in evidence in the Commonwealth's case
in chief at the new trial of the case.
This evidence would include the note, properly described by the majority
as "especially incriminating," which listed "gloves, overalls,
tape, bags, ether, mask." This
result would follow from reasoning that the search of the defendant was valid
as pursuant to a lawful arrest on probable cause to believe that the defendant
had committed a felony.
However,
even if my view as to probable cause were to prevail, I would agree that the
defendant's statements at the police station should be excluded at the new
trial, for failure of the police to comply with Miranda requirements. Indeed, that failure, together with the
improper argument of the prosecutor, are the reasons why I agree that a new
trial must be ordered.
In
appraising whether probable cause existed, I, of course, consider only the
information available to the arresting and investigating officers at the time
the defendant was taken to the police station.
This was as follows. In his
telephone call to the Ipswich police on that morning, the defendant stated that
he had just received an anonymous telephone call to the effect that "black
and white don't mix" and that his family had just been "taken care
of." Thereafter, the Ipswich police
officer who was dispatched to the Haas home to investigate found the front door
ajar with a key in the lock. The officer
then entered the house and discovered the bodies of Mrs. Haas and the
children. The words "(b)lack and
white don't mix," the same words which the defendant had previously
related in his telephone call to the police, were written on [373 Mass. 567] a sign in the bedroom. The
house was observed to be in order, the windows appeared to be secure, and the
back yard, which was muddy, contained no footprints. The medical examiner examined the bodies and
informed the chief of police that each victim died between 3 and 5 A. M. He also noted that the fingernail on the
middle finger of Mrs. Haas' right hand was broken. There were scratches on the right side of the
defendant's face which were observed by the police at the police station that
morning.
In my
opinion this knowledge in the aggregate reached the level of probable
cause. It is perhaps fair to say that
the evidence is minimally adequate, and that judges might reasonably differ as
to whether it is sufficient. Perhaps,
too, an underlying difficulty is that the definition of "probable
cause" has not previously been stressed in our cases. It may be that the appraisal by the judges
tends to be subjective, rather than by objective standards. If this is true, it is an important
deficiency in our administration of criminal justice, because few concepts are
more important or have more frequent application than that of probable cause.
The usual
language of definition is acceptable, but unsatisfactorily general. I accept the definition offered by the
majority opinion, as far as it goes, viz.: "Probable cause exists where,
at the moment of arrest, the facts and circumstances within the knowledge of
the police officers were sufficient to warrant a prudent person in believing
that the person arrested had committed or was committing an offense. Beck v. Ohio, 379 U.S. 89, 85 S.Ct. 223, 13
L.Ed.2d 142 (1964). Commonwealth v.
Snow, 363 Mass. 778, 788, 298 N.E.2d 804 (1973). Commonwealth v. Andrews, 358 Mass. 721, 723, 267
N.E.2d 233 (1971)." This broad
language, without more, leaves unanswered the vital question as to the degree or
strength of the required belief. The
vagueness of the language of definition would even permit an inference that
proof beyond a reasonable doubt is necessary.
For that reason I think it is useful here to articulate as specific a
definition as possible.
In my view
probable cause should be held to mean simply "more probable than not"
or "more likely than [373 Mass.
568] not." (FN1)
The substance of probable cause is a reasonable ground for belief of
guilt, and this means less than evidence which would justify condemnation or
conviction, but more than bare suspicion.
See Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed.
1879 (1949); (FN2) as to cases of
"suspicion," see Henry v. United States, 361 U.S. 98, 80 S.Ct. 168, 4
L.Ed.2d 134 (1959); (FN3) Terry v. Ohio,
392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Commonwealth v. Almeida, ‑‑‑
Mass. ‑‑‑ (FNa), 366 N.E.2d 756 (1977); Commonwealth v.
Silva, 366 Mass. 402, 318 N.E.2d 895 (1974).
I believe
that most judges, experienced policemen, and lawyers concerned with the
criminal process customarily apply the foregoing definition in practice,
although they may not articulate it.
Analysis in any given case probably consists for the most part of an
empirical comparison with other known cases where probable cause was or was not
found by a court to exist. This is the
same practical approach which judges often take on the issue of directed
verdicts. Articulating a definition of
probable cause, in the words I have suggested, may serve to avoid differences
of judicial opinion in some cases.
As to the
case before us, I think the police were warranted in concluding, on the facts
known to them, that it [373 Mass.
569] was "more likely" or
"more probable" than not that Haas had committed the crimes. The probability that Haas, rather than an
intruder, was the criminal arose from several facts: in the state of the
security of the house, with the key in the front door lock; the scratches on
Haas' face and the broken fingernail of Mrs. Haas; the estimated time of death
at between 3 and 5 A. M., together with the probability that a husband and
father would have been at home during those hours; and Haas' early awareness of
the wording of the sign in the bedroom, which was guilty knowledge, if the fact
of the anonymous telephone call were disbelieved.
FN1. The
Haases were an interracial couple; he was white; she was black.
FN2. There was conflicting testimony by
medical experts as to the exact time of death.
However, it is undisputed that the deaths occurred in the morning hours
of June 26.
FN3. There was conflicting testimony as to
the events subsequent to the defendant's arrival home. These events will be covered more fully in
the discussion of the motions to suppress.
FN4. The defendant also attacks the judge's
findings on knowing and intelligent waiver of the Miranda warnings when given,
and the voluntariness of Haas' statements.
These findings are amply supported by the record, and thus we concern
ourselves only with the initial interrogation and the requirement of Miranda
warnings.
FNa. Mass.Adv.Sh. (1975) 2897, 2901.
FN5. The Commonwealth's account of what
transpired is accepted by us, as it is the version found credible by the trial
judge.
FN6. Thus, the interrogation could not
properly be characterized as "on‑the‑scene
questioning." Cf. Sciberras v.
United States, 380 F.2d 732, 733 (10th Cir. 1967). Such questioning does not require prefatory
warnings. See Miranda v. Arizona, 384
U.S. at 477, 86 S.Ct. 1602; Annot., 10 A.L.R.3d 1054 (1966).
FNb. Mass.Adv.Sh. (1977) 516, 526.
FNc. Mass.Adv.Sh. (1976) 2153, 2156.
FN7. The Commonwealth relies on Oregon v.
Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). That case is distinguishable by the fact that
Mathiason came and left by his own choice.
He arrived unaccompanied by anyone, and after the interrogation he was
free to leave. To the same effect see
Commonwealth v. Simpson, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
345 N.E.2d 899 (1976) (Mass.Adv.Sh.
(1976) 981, 989).
FN8. The judge found that Haas' statements
were made voluntarily after a knowing and intelligent waiver of Miranda
rights. These findings are fully
supported by the record which shows that Haas (1) indicated that he understood
his rights and (2) stated unequivocally that he desired to be
"helpful." See Commonwealth v.
Borodine, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
353 N.E.2d 649 (1976) (Mass.Adv.Sh.
(1976) 2153, 2159), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50
L.Ed.2d 765 (1977).
FNd.
Mass.Adv.Sh. (1976) 2290, 2311‑2313.
FNe. Mass.Adv.Sh. (1975) 2897, 2926‑2930.
FNf.
Mass.App.Ct.Adv.Sh. (1976) 568, 577.
FN9. The record indicates
that, although the scratches were visible and had been observed by a number of
persons, the officers themselves first saw the scratches in the inspector's
room at the police station just prior to or at the time they obtained the
incriminating admission.
FN10. Our view is confirmed
by the fact that the police themselves did not think they had probable cause to
arrest Haas until the incriminating admission was obtained. The Commonwealth did not urge either the
judge or this court to find that the police possessed probable cause at the
house.
FN11. "One of the
first things to be considered in argument is preparation. It is indispensable to good argument that it
be well‑founded, logical, reasonable, and sufficiently interesting to
hold the attention of the jurors. There
are a few geniuses in our profession who can do this on the spur of the moment,
but they are exceedingly rare. For most
of us, the best technique is to make an outline of the argument before the
trial begins, and then as the trial progresses it can be supplemented and
revised so that just before actual presentation of your argument an orderly and
effective arrangement of these points can be made quickly. This practice not only prevents the omission
of a point but also encourages more concise, logical, and interesting
presentation. It is the duty of . .
. (counsel) in (her or) his summation to
fit all the pieces of evidence together so that they form a comprehensive and
comprehensible picture for the jury.
This can not be done effectively without preparation from the beginning of
the trial " (emphasis supplied).
Bowler, Oral Argument in Criminal Prosecution, 52 J.Crim.L. 203 (1961).
"Law
suits are won during the trial, not at the conclusion of it. They are won by the witnesses and the
exhibits and the manner in which the lawyer paces, spaces and handles
them. The likelihood of a lawyer
snatching victory from the jaws of defeat with his or her closing argument is
so slight as to hardly warrant consideration.
. . . On the other hand law suits
are lost by fumbling, stumbling, incoherent, exaggerated, vindictive closing
arguments. This is not intended to
minimize the importance of closing arguments.
It is merely to relegate it to its proper position which is a summation
of the evidence which has preceded it and a relation of that evidence to the
issues in the case." See K. S.
Broun & J. H. Seckinger, Problems in Trial Advocacy 159‑160 (1977‑1978).
FN12.
The full text of these comments is as follows: "And don't you recall that
at no time did he ever say 'I didn't do it.
I didn't do it.' And he never
ever said what happened, specifically what happened. 'I want to know.' In fact, we still don't know how he ever officially
found out what happened to his wife and kids.
He never asked anyone. As soon as
he was told they were dead, bang, the curtain rings down. He knew it already. No need to ask any further questions. And in that particular set of circumstances,
wouldn't it be logical for a person to want to know some details? And I am not talking about the rectal
temperature and liver temperature and things like that. Wouldn't you want to know, 'What do you mean
they are dead? How did it happen?'
"
The
prosecution made an abortive attempt to pursue this line during presentation of
its case in chief. Haas' friend, Christensen,
was asked whether during the station house interrogation the defendant denied
his involvement in the killings. On
objection, the question was struck. When
Haas testified in his own defense, the prosecution attempted to impeach him by
asking, "(D)id you ever tell any of the police officers there that you did
not kill your wife and your two children?"
Again, the question was excluded.
FN13.
The requested instructions were as follows:
"39. In this Commonwealth, a person being
interrogated under circumstances which reveal that he is suspect of crime, may
refuse to make statements and no inferences can be drawn adverse to the
defendant as a result of his failure to make statements. Article 12, Declaration of Rights of the
Constitution of Massachusetts.
"40.
A person being questioned by the Police may reasonably fear (without any
consciousness of guilt whatsoever) that anything he says will be distorted,
misquoted, or used as the basis of argument unfairly and therefore, his failure
to make statements or ask questions in such circumstances cannot be considered
by you as consciousness of guilt or otherwise used as the basis of drawing
adverse inferences against the defendant.
Commonwealth v. Burke, 339 Mass. 521, (159 N.E.2d 856) (1959)."
FNg.
Mass.Adv.Sh. (1976) 2877, 2883.
FNh.
Mass.Adv.Sh. (1976) 1793.
FN14.
In his closing argument, the defense counsel, in pertinent part, stated:
"We also have some other indications of the state of mind of this
defendant. After he has purportedly been
told his rights as we are told and given a chance to call a lawyer, he doesn't
call a lawyer. The first person he
called was his sister‑in‑law.
Now, that is not the act of a man who is trying to protect his
particular rights because of the accusation of a crime. I submit to you the only reasonable inference
that could be drawn from that fact is that Gordon Haas was alone in his grief
and at that moment wanted to share that knowledge and that grief with someone
he loved, someone in his family, his sister‑in‑law. And that's what he did."
FNi.
Mass.Adv.Sh. (1977) 532, 539, 541.
FNj.
Mass.Adv.Sh. (1977) 1307.
FNk.
Mass.Adv.Sh. (1977) 1555, 1565.
FNa.
Mass.Adv.Sh. (1975) 2897, 2935‑2943.
FN1.
However, the American Law Institute's Model Code of Pre‑Arraignment
Procedure rejects the "more probable than not" test as imposing too
onerous a standard on police, stating that the "mathematics" of such
a standard would preclude some arrests as illegal which should not be
precluded. See Model Code of Pre‑Arraignment
Procedure s 120.1 (1975), particularly Commentary at 295. I suggest that the code is itself casting
unnecessary doubt on a difficult concept by rejecting "probable" and
"more probable than not," which are words of common understanding.
FN2.
See also the following language in Brinegar at 175, 69 S.Ct. at 1310: "In
dealing with probable cause, however, as the very name implies, we deal with
probabilities. These are not technical;
they are the factual and practical considerations of everyday life on which reasonable
and prudent men, not legal technicians, act.
The standard of proof is accordingly correlative to what must be
proved."
FN3.
In the Henry case, at 101, 80 S.Ct. at 170, the Court stated: "And as the
early American decisions both before and immediately after its adoption show,
common rumor or report, suspicion, or even 'strong reason to suspect' was not
adequate to support a warrant for arrest.
And that principle has survived to this day."
FNa.
Mass.Adv.Sh. (1977) 1799.