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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Hunt, 12 Mass.App.Ct.
841 (1981)
Appeals Court of Massachusetts, Middlesex.
Argued
Decided
Peter W. Agnes, Jr., Asst. Dist. Atty., for the
Commonwealth.
Robert J. Barker, II, Wellesley, for defendant.
Before BROWN, DREBEN and KASS, JJ.
DREBEN, Justice.
The
Commonwealth, having obtained leave to appeal from a single justice of the
Supreme Judicial Court (G.L. c. 278, s 28E, and Mass.R.Crim.P. 15(b)(2), 378 Mass. 884 (1979)), claims
error in the order of a judge of the Superior Court which allowed the
defendant's motion to suppress a confession made by him while in police
custody. ([FN1]) We affirm.
[12 Mass.App.Ct.
842] The following facts were found
by the trial judge. In the early hours
of
Various
tips led Officer Bartlett of the Marlborough police department, the officer
investigating the shooting, to the defendant's home. Bartlett and two other officers were allowed
to enter. The defendant and his wife
were given Miranda warnings. Both the
defendant and his wife told the police that they had been at "The
Ranch," but that they did not know anything about the shooting. Both were arrested. They were taken in separate cars to the
police station where they were kept apart.
While at
the police station, the defendant was questioned by Bartlett after having again
been advised of his Miranda rights. He
understood those rights. Bartlett took
the defendant's photograph which he carried to the hospital with eight other
pictures of males of similar appearance.
The victim made a photographic identification of the defendant. Bartlett returned from the hospital and
informed the defendant of the positive identification. The defendant expressed concern about his
wife.
The judge
found that:
"Bartlett told the
defendant that if he confessed to the shooting and said Mrs. Hunt was not
involved she would be released.
Otherwise, because the couple had come recently from Florida, high bail
would be sought and Mrs. Hunt would probably be sent to Framingham. Mrs. Hunt had been detained in another room
but at one point had been brought in to defendant in tears." ( ([FN2]) )
[12 Mass.App.Ct.
843] The defendant then made
incriminating statements and led Bartlett to the firearm.
The
judge ruled that at the time of the statements by the officer to the defendant
concerning his wife, "Mrs. Hunt was being held with no evidence in the
possession of police even approaching probable cause." ([FN3])
She concluded that the psychological pressure brought to bear on the
defendant was such that the Commonwealth did not meet its "heavy
burden" of establishing that the defendant's confession was
voluntary. Commonwealth v. Meehan, 377
Mass. 552, 563, 387 N.E.2d 527 (1979).
(1)(2)
The standard of review in these cases requires us to accept the subsidiary
findings of fact of the trial judge absent clear error. Commonwealth v. White, 374 Mass. 132, 137,
371 N.E.2d 777 (1977), aff'd, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978). Commonwealth v. Moon, ‑‑‑
Mass. ‑‑‑, ‑‑‑, Mass.Adv.Sh. (1980) 1337, 1342, 405 N.E.2d 947. Also, the judge's ultimate legal conclusions
as to the defendant's intelligent and voluntary waiver of Miranda rights, or
the absence thereof, or as to the voluntariness of
his statements are "entitled to substantial deference." Commonwealth v. White, 374 Mass. at 138, 371
N.E.2d 777. Commonwealth v. Tabor, 376
Mass. 811, 822, 384 N.E.2d 190 (1978).
Commonwealth v. Doyle, ‑‑‑ Mass.App.
‑‑‑, ‑‑‑ n.3, Mass.App.Ct.Adv.Sh. (1981) 2077, 2086 n.3, 429 N.E.2d 346.
(3)
Using that standard of review, we should not interfere with the judge's
conclusions in this case. See
Commonwealth v. Meehan, 377 Mass. at 567‑568, 387 N.E.2d 527. The judge heard [12 Mass.App.Ct. 844] testimony of the defendant, his wife and of police
officers. On the evidence before her,
the judge found an implicit threat or promise that the defendant's wife would
be released if he confessed and did not implicate her; otherwise she would be
sent to jail. Viewing the totality of
the circumstances, the judge could conclude that the statements of the
defendant were not his free and voluntary act.
See Rogers v. Richmond, 365 U.S. 534, 536‑537, 548 n.5, 81 S.Ct. 735, 737‑38, 744 n.5, 5 L.Ed.2d 760 (1961); United
States v. Guaydacan, 470 F.2d 1173, 1173‑1174
(9th Cir. 1972). See also United States
v. McShane, 462 F.2d 5, 7 (9th Cir. 1972), and a
considerably more egregious case, Ferguson v. Boyd, 566 F.2d 873, 879 (4th Cir.
1977). Cf. Commonwealth v. Meehan, 377
Mass. at 564‑565, 387 N.E.2d 527.
For cases in other States, see People v. Trout, 54 Cal.2d 576, 583‑584,
6 Cal.Rptr. 759, 354 P.2d 231 (1960) (particularly
the court's comment concerning the testimony of Lieutenant Murray at 583‑584);
Hall v. State, 255 Ind. 606, 610‑611, 266 N.E.2d 16 (1971); State v. Hilpipre, 242 N.W.2d 306, 312 (Iowa 1976). See generally, Annot.,
80 A.L.R.2d 1428 (1961). ([FN4])
(4)
We reject the Commonwealth's suggestion that a threat or promise concerning the
defendant's wife and not the defendant himself, is insufficient to invalidate a
confession. See State v. Gibilterra, 342 Mo. 577, 586, 116 S.W.2d 88 (1938). See also dictum of Morton, J., in
Commonwealth v. Knapp, 9 Pick. 496, 504 (1830).
A concern for one's family may be as significant in inducing an
involuntary confession as concern [12
Mass.App.Ct. 845]
for oneself. People v. Mellis, 134 Cal.App. 219, 225‑226,
25 P.2d 237 (1933). See Rogers v.
Richmond, 365 U.S. at 536‑537, 548 n.5, 81 S.Ct.
at 737, 744 n.5; Lynumn v. Illinois, 372 U.S. 528,
534, 83 S.Ct. 917, 920, 9 L.Ed.2d 922 (1963). Cf. Commonwealth v. DiStasio,
294 Mass. at 284‑285, 1 N.E.2d 189.
Order
affirmed.
(FN1.) The defendant was charged with
unlawfully carrying a firearm, assault with a dangerous weapon, assault with
intent to murder and defacing the serial number of a firearm.
(FN2.) Officer Bartlett's testimony was more
graphic: "I advised him that there is a good chance where they come from
Florida that there would be a bail, we would recommend a high bail because of
no roots, and the seriousness of the crime, and that there is a good chance his
wife might have to go to Framingham in lieu of bail. I says: If you are man enough, if you did it,
if you are man enough to do it, then you are man enough not to let your wife go
to jail, I think you should admit to it."
(FN3.) This conclusion does not appear
erroneous. There was nothing in the
initial police report or any information received subsequent thereto by the
police which indicated anything more than that a woman left the scene of the
shooting with the defendant. Thus, at
the time of the defendant's confession, the officers had no knowledge linking
her to the shooting, and the only evidence against Mrs. Hunt was that she was
present at a shooting and left with the defendant. See Commonwealth v. Haas, 373 Mass. 545, 555,
369 N.E.2d 692 (1977). See also G.L. c. 274, s 4.
See,
in connection with making false statements to a defendant, Commonwealth v.
Meehan, 377 Mass. 552, 563, 387 N.E.2d 527 (1979), and Commonwealth v. Jackson,
377 Mass. 319, 328 n.8, 386 N.E.2d 15 (1979).
(FN4.) The authorities relied on by the
Commonwealth are, for the most part, distinguishable, as in those cases the factfinder did not find the existence of a threat or
promise. This is not a case where the
police, without making any promise to release the defendant's wife if he
confessed, truthfully informed the defendant that his wife would be released if
there appeared to be no evidence to hold her.
State v. Ferguson, 119 Ariz. 55, 60, 579 P.2d 559 (1978). People v. Abbott, 156 Cal.App.2d 601, 605‑606,
319 P.2d 664 (1958). See also
Commonwealth v. DiStasio, 294 Mass. 273, 284‑285,
1 N.E.2d 189 (1936), cert. denied, 302 U.S. 683, 58 S.Ct.
50, 82 L.Ed. 527 (1937). Nor is this a situation governed by the
principle that "where no express or implied promise or threat is made by
the police, a suspect's belief that his cooperation will benefit a relative
will not invalidate an admission."
People v. Steger, 16 Cal.3d 539, 550, 128 Cal.Rptr.
161, 546 P.2d 665 (1976). Jones v.
State, 229 Md. 165, 171‑172, 182 A.2d 784 (1961).