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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. King, 17 Mass.App.Ct.
602 (1984)
Appeals Court of Massachusetts,
Argued
Decided
Further Appellate Review Denied
Susan G. Kauffman,
Robert S. Sinsheimer,
Asst. Dist. Atty., for the Commonwealth.
Before GREANEY, CUTTER and
WARNER, JJ.
GREANEY, Justice.
In the
early morning hours of
1. The transfer decision. In deciding that the defendant should be
treated as an adult through transfer of his case to the Superior Court, the
District Court judge reached the following conclusions. "[The defendant] is before the court
charged with a very vicious and brutal rape of a young woman; a woman who was continuously beaten and kept
in a state of absolute terror for nearly two hours in an isolated area of
Hull. [The defendant] has been involved
with this court since he was 11 1/2 and despite extensive efforts by the
court's juvenile probation staff, the Office of Social Services to which he was
committed as a truant, Longview Farms and the Reach School, he has failed to
meet any of the goals set for him solely
due to his own lack of cooperation. He
has had CORE evaluations, psychiatric counseling, resident and non‑resident
school placements, all for naught. When
asked if he would do it again (rape a woman) if he were drunk, he admitted that
he probably would and volunteered that he might even kill someone. Hence, there is a real danger to the public
if [the defendant] were released. At age
17, 3 months there is less than a year as a practical matter before [the
defendant] would be released from the juvenile system. Indications are that if retained in the
juvenile system it would probably be a month or more before his trial could be
completed and if committed to DYS it could take up to
nine months before he could be placed in a secure setting. The minimum residential[17 Mass.App.Ct. 604] plan proposed for [the
defendant] is four additional months. It
should be added that at [the defendant's] age there is absolutely no guarantee
that he would be placed at Westborough or any other secure DYS
setting. Others have been rejected. The overriding factor, however, is that [the
defendant] has never cooperated with any programs previously set up for him and
there is absolutely no reason to believe that he would cooperate now. He remains hostile and rejects all
authority. Therefore, I find that
realistically speaking, there is little, if any, likelihood of his
rehabilitation. While I regard the
transfer of a juvenile to the adult system as a drastic course of action to be
chosen reluctantly and only under exceptional circumstances, I find that these
circumstances exist in this case and that adequate protection of the public
requires that he be treated as an adult."
The
defendant makes various arguments that the findings that led to these
conclusions are not supported by the evidence.
He claims in particular that the judge erred by finding it likely that
he would be released from the juvenile system within a year, referring to
evidence that he could have been admitted to the Intensive Care Unit of the
Division of Youth Services at Westborough within four months, and that he could
be kept at that facility for treatment, by court order if necessary, beyond his
eighteenth birthday.
[1] We are
not persuaded that the judge erred. The
seriousness of the offense is admitted, and the judge could well find that the
defendant posed a very serious danger to the public in view of his statements
that he would probably commit another rape and that "he might even kill
someone." The material summarized
in
the margin (FN2) indicates
that the judge focused his attention on the central [17 Mass.App.Ct. 605] concern in any of these cases:
whether the juvenile is a likely candidate for rehabilitation on the
basis of the statutory factors set forth in G.L. c.
119, § 61. We think that the judge's
findings are expressed "in fair detail and with logical cohesion," A Juvenile v. Commonwealth, 380 Mass.
552, 563, 405 N.E.2d 143 (1980), and comply with the statute. See A Juvenile v. Commonwealth, 370 Mass.
272, 282 n. 14, 347 N.E.2d 677 (1976); Two Juveniles v. Commonwealth, 381 Mass.
736, 744, 412 N.E.2d 344 (1981). Any
errors in the findings are inconsequential and do not affect the ultimate
determination that the Commonwealth satisfied its burden by proving clearly and
convincingly that the defendant was not amenable to rehabilitation as a
juvenile. See Commonwealth v. Hill, 387 Mass. 619, 622, 442 N.E.2d 24 (1982).
2. The defendant's statements. We summarize the Superior Court judge's
findings of fact (with some supplementation from the record) in connection with
the defendant's motion to suppress.
On May 21,
1980, about 2:00 P.M. Detective Yanizzi and Officer
Borland of the Hull police went to the defendant's home with a warrant for his
arrest. (FN3) The defendant, who was known to the police
from previous encounters, answered the door.
He was shown the warrant, immediately placed under arrest, and given
Miranda warnings. The defendant stated
that he understood his rights. His
widowed mother was not at home. The
defendant after a permitted change of clothes was transported by police cruiser
to the Hull police station. On the way
to the station no inquiry was made about the incident.
When the
defendant arrived at the station about 2:15 P.M. he was taken to an office
shared by Detective Yanizzi and Officer Borland. Detective Yanizzi
stayed with the defendant for about five minutes before Captain Card entered
the room to complete booking[17 Mass.App.Ct. 606] procedures.
Captain Card again furnished the defendant with Miranda warnings. Upon
completion of the booking procedures the defendant asked Detective Yanizzi to see the arrest warrant again. After examining the warrant for several
seconds the defendant exclaimed, "I did it. I did it.
I raped that girl and I need help." The judge found no evidence that the police
had said anything prior to this time which would have elicited these
statements. Detective Yanizzi immediately instructed the defendant to say nothing
further until his mother arrived. (FN4) While
awaiting the arrival of the defendant's mother, the police provided the
defendant with a soft drink and a cigarette.
He was allowed the use of the telephone and made two or three telephone
calls. In this interim period, the
incident was not discussed.
The
defendant's mother arrived at the station between 3:15 and 3:30 P.M. She was advised by Detective Yanizzi that her son had been arrested for rape and that he
had admitted committing the offense. She
was promptly taken to the room where the defendant was being held, where
Detective Yanizzi advised the defendant, in his
mother's presence, of his Miranda
rights for a third time and asked the defendant if he had anything to say. The defendant stated that he "wanted to
clear up this matter and he wanted some help from the courts before he killed
somebody." Detective Yanizzi asked the defendant if he had assaulted and raped a
woman on May 18, 1980, after 1:00 A.M.
The defendant replied, "Yes, I did it. I was at a party that night and I got
drunk. I was at Anastos
Corner at about 1:00 A.M., and I grabbed that girl and dragged her up onto the
hill and raped her." Yanizzi next asked why he committed the crime and beat the
victim so badly, and the defendant replied, "I don't know. I just did it." The defendant was then asked if he thought
he might kill a girl sometime and he answered, "Yes." The defendant's mother asked her son what
was wrong with him and he said, "I don't know. I was drunk." She then
[17 Mass.App.Ct. 607] asked him where he got the liquor, and he answered, "Come
on, Ma." (FN5) The defendant declined to discuss the matter
further. While the defendant was at the
station, he was not handcuffed or otherwise restrained except for being
confined to Detective Yanizzi's office.
The judge
found that the defendant was familiar with his constitutional rights as a
result of other contacts with the police and his representation by a lawyer on
another charge brought about two weeks prior to this arrest. The judge expressly rejected the testimony of
the defendant and his mother claiming a denial of his rights as either not
credible or the product of "a selective memory." The judge also found that the police had not
engaged in any coercive conduct, either physical or psychological; that the atmosphere in Detective Yanizzi's office was not imposing; that the police conscientiously sought to
protect the defendant's rights; and that,
although the defendant appeared at times to be emotional and nervous, he was
able to make intelligent, voluntary, and rational decisions. After considering the facts in light of the
legal principles applicable to the waiver of
Miranda rights in general and the then prevailing standards on that subject
relating to juveniles, see Commonwealth
v. Cain, 361 Mass. 224, 228, 279 N.E.2d 706 (1972); Commonwealth v. Andrade, 8 Mass.App.Ct. 653, 655‑656, 396 N.E.2d 713 (1979), the
judge concluded that the defendant's statements should, with certain
exceptions, be admitted at the trial.
(FN6)
[2] (a)
The defendant's first statements ("I did it. I did it.
I raped that girl and I need help") were made shortly after the
completion of the booking procedure. With
respect to these statements, the defendant argues that there is no evidentiary
support for a conclusion that he had voluntarily and intelligently waived his
constitutional rights and urges that the statements should have been
suppressed. [17 Mass.App.Ct.
608]
We need not address the point, however, because we are satisfied that
the statements were not the product of police interrogation but rather were
volunteered by the defendant.
The
protections of the Miranda decision
are designed to ensure that an accused will make a willing and intelligent
choice to submit to police interrogation about the details of a crime. However, "[v]olunteered
statements ... are not barred by the Fifth Amendment and their admissibility is
not affected by our holding today." Miranda v. Arizona, 384 U.S. 436, 478, 86
S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). See
Commonwealth v. Curtis, 388 Mass. 637, 650, 448 N.E.2d 345 (1983);
Commonwealth v. Ryan, 11 Mass.App. 906, ‑‑‑,
Mass.App.Ct.Adv.Sh.
(1981) 98, 99, 414 N.E.2d 1020.
To ascertain whether a statement is voluntary or the result of police
interrogation the United States Supreme Court has fashioned the following
test: "[T]he term 'interrogation'
under Miranda refers not only to express questioning, but also to any words or
actions on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to elicit
an incriminating response from the suspect [looked upon from the perspective of
the suspect].... A practice that police
should know is reasonably likely to evoke an incriminating response from a
suspect, thus amounts to interrogation.
But since police surely cannot be held accountable for the unforeseeable
results of their words or actions, the definition of interrogation can extend
only to words or actions in the part of police officers that they should have known were reasonably
likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 301‑302, 100 S.Ct. 1682, 1689‑1690, 64 L.Ed.2d 297 (1980)
(emphasis original).
The judge
found no evidence that the defendant's inculpatory
statements were the product of any police interrogation. The record supports this finding and
indicates that the police scrupulously avoided questioning the defendant until
his mother arrived. The event triggering
the statements was the defendant's request to see the warrant again, a request
which in essence asked the officers to perform a function normally attendant to
arrest and custody. There was nothing in
Detective Yanizzi's response to that request which
should have alerted him to the fact that the defendant might make an
incriminating statement. We think it
would be unreasonable in [17 Mass.App.Ct. 609]
these circumstances to have expected the police to be clairvoyant. (FN7)
We see nothing in the recent decision in Commonwealth v. A Juvenile (No. 1), 389 Mass. 128, 134, 449 N.E.2d
654 (1983) (Juvenile), which would
require the suppression of volunteered statements by a mature (see 389 Mass. at
134, 449 N.E.2d 654) juvenile. In light
of these circumstances and the defendant's experience with the law (as will be
outlined in 2[b] of this opinion infra),
we conclude that the initial incriminating statements were admissible.
(b) The
incriminating statements made after the defendant's mother arrived at the
station were the product of police interrogation. As to these statements, the defendant renews
his argument that the Commonwealth failed to meet the burden imposed on it to
demonstrate that he voluntarily and intelligently waived his rights.
[3][4][5]
Special caution, of course, must be exercised in examining the validity of inculpatory statements made by juveniles.
Commonwealth v. Cain, 361 Mass. at 228, 279 N.E.2d 706;
Commonwealth v. Andrade, 8 Mass.App.Ct. at
655, 396 N.E.2d 713. Nevertheless,
"[a] minor may waive constitutional rights and make a confession which is
admissible against him." Commonwealth v. Daniels, 366 Mass. 601,
605,
321 N.E.2d 822 (1975), and cases cited. The decision whether to admit statements made
by a minor "must be determined by an examination of 'the totality of all
the ... circumstances‑‑both the characteristics of the accused and
the details of the interrogation.' Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct.
2041, 2047, 36 L.Ed.2d 854 (1973)." Commonwealth v. Daniels, 366 Mass. at
606, 321 N.E.2d 822. In addition, even
if the statements are made by a juvenile over age fourteen, a valid waiver will
not ordinarily occur in the absence of "a meaningful consultation with the
parent, adult, or attorney" unless the circumstances "demonstrate a
high degree of intelligence, experience, knowledge or sophistication on the
part of the juvenile." Commonwealth v. A Juvenile (No. 1), 389
Mass. at 134, 449 N.E.2d 654.
[6] The
facts found by the judge indicate that the defendant did not have an
opportunity to consult with his mother prior to Detective Yanizzi's
questioning. We therefore must consider
the case in [17 Mass.App.Ct.
610] light of the special requirements
of the Juvenile decision. The judge was unable to weigh these
requirements fully because the Juvenile
case had not been decided when the defendant's motion to suppress was
heard. (FN8) Nevertheless the record supports the
conclusion that the statements were admissible under the Juvenile standards.
There was
no evidence that the defendant had been drinking prior to his arrest. Nor was there any evidence of mental
impairment or the use of drugs. See Commonwealth v. Wilborne,
382 Mass. 241, 251‑252, 415 N.E.2d 192 (1981). Despite a learning disability, (FN9) the
defendant had reached the tenth grade at school (FN10) and he was able to hold
down a job. The defendant was furnished
Miranda warnings three times before he made the statements now under
consideration. He stated that he
understood these rights and he further admitted in cross‑examination that
he was especially aware of his right to have the advice of counsel. The defendant's criminal record indicates a
level of experience well beyond his years, (FN11) and suggests the fact that
the defendant was thoroughly schooled in police procedures. Indeed, the judge found, based upon the
evidence presented, that the defendant had two weeks before this arrest
exercised his right to consult with counsel and after consultation had decided
to remain silent. The judge also
personally observed[17 Mass.App.Ct. 611] that "[d]uring
his testimony, the defendant appeared to be mature and capable and showed no
discernible difficulty understanding questions or reading from portions of a
transcript related to District Court testimony." There was ample evidence to support the
judge's findings that the defendant was treated well at the police station,
kept in a non‑coercive environment, and not subjected to physical or
psychological pressures. The defendant's
argument that the police purposely misled his mother in order to confuse
him receives no support in the record.
And, of course, the judge (as he had every right to do) rejected as
untruthful the defendant's testimony that he had been denied his rights.
The judge
considered the totality of the circumstances, carefully weighed the conflicting
evidence, and made findings on the basis of a record which discloses that the
defendant is experienced in police procedures.
We will not lightly disturb a judge's determination which has such
evidentiary support and which is also based on an assessment of the witnesses
brought before the court. Commonwealth v. Hooks, 375 Mass. 284,
289, 376 N.E.2d 857 (1978). We conclude
that a valid waiver has been shown despite the lack of parental
consultation. None of the defendant's
other arguments persuades us to the contrary.
(FN12) The judgments of
conviction on indictment nos. 74684 and 74685 are affirmed.
So ordered.
(FN1.) The defendant received concurrent State
prison sentences on the rape and unnatural acts convictions. The assault and battery conviction was placed
on file with the defendant's consent and is, therefore, not before us.
Commonwealth v. Hoffer, 375 Mass. 369, 370
n. 1, 377 N.E.2d 685 (1978).
(FN2.)
The judge took the defendant's lengthy delinquency record at face value and
chose not to minimize its seriousness by attributing it to truancy or other
school problems. Prior efforts at
rehabilitating the defendant were shown to have been failures and his
educational history was characterized by apathy, truancy, and absenteeism. Any miscalculation by the judge of the length
of time it would have taken to admit the defendant to the DYS
Westborough facility is not fatal. The
judge rejected the testimony of the defendant's expert (who was neither a
medical doctor nor board certified in his specialty) on the likelihood of
rehabilitation at that facility, see
Commonwealth v. Watson, 388 Mass. 536, 539, 447 N.E.2d 1182 (1983), and
placed "considerable significance and weight" on a detailed report
from the Judge Baker Guidance Center and the testimony of a physician from that
facility. This physician found that the
defendant showed "poor compliance [with] a variety of rehabilitative
programs [and] his prognosis was guarded." These conclusions were further supported by
the report of a doctor on the staff of the Youth Service Center and the
testimony of a probation officer who had supervised the defendant's past
probations, both of whom recommended transfer.
Moreover, the judge stated that the overriding factor for his
determination on the defendant's potential for rehabilitation was the fact that
he "has never cooperated with any programs previously set up for him and
there is absolutely no reason to believe he would cooperate now."
(FN3.)
The warrant had been issued on the strength of the victim's positive
identification of the defendant.
(FN4.)
At this juncture, the defendant was informed that efforts were being made to
locate his mother. She had been
mistakenly directed by the desk officer to meet the defendant at the Hingham
District Court on the incorrect assumption that the defendant would be
immediately arraigned. Upon discovering
the error, the police promptly notified the court to advise the defendant's
mother that her son was being held at the police station.
(FN5.)
Some of these statements appear to go beyond the testimony in the
transcript. No party objects to them as
lacking support in the evidence. We
assume, to the extent that the statements are not covered by the testimony,
that they are contained in police reports placed before the judge.
(FN6.)
The judge wisely suppressed the defendant's statement that "he wanted some
help from the courts before he killed somebody" and the defendant's
affirmative response to Detective Yanizzi's inquiry
whether "he might kill a girl sometime." The judge ruled that the prejudice that
might flow from the admission of these statements outweighed their probative
value.
(FN7.)
Moreover, as soon as the incriminating statements were blurted out, the
defendant was instructed to say nothing further until he had the opportunity to
consult with his mother.
(FN8.)
The verdicts in this case were returned on September 11, 1981. The
Juvenile case was decided on May 10, 1983, but applies to all cases pending
on direct appeal on that date where the issue has been preserved. 389 Mass. at 134 n. 4, 449 N.E.2d 654. This case satisfies those conditions.
(FN9.)
The defendant is dyslexic but was not asked to read anything at the police
station (apart from the warrant which he asked to read). Testing at facilities of the Youth Service
Center found him to be "intellectually functioning in the dull normal
range of intelligence ... [with] a verbal I.Q. score of 85, a performance I.Q.
score of 96 and a full scale I.Q. score of 89."
(FN10.)
The defendant completed the first six grades of public school and completed the
balance of his formal education in special schools or State facilities.
(FN11.) Since 1975, the defendant has been
before the court on charges of arson and attempted arson, larceny, malicious
destruction of property, breaking and entering both in the daytime and the
nighttime, assault and battery, threatening bodily harm, possession of a
controlled substance, and on charges of unlawful possession and transportation
of alcoholic beverages. We also note the
defendant's canny comment to the victim as he left her that she should not
report the crime "because he was a juvenile and nothing would happen to
him anyway."
(FN12.) There is a much overdrawn attempt to
analogize the case to the situation discussed in Commonwealth v. Meehan, 377 Mass. 552, 387 N.E.2d 527 (1979).
Meehan, however, involved a "defendant, eighteen years of age,
with a poor educational background, uninformed of his right to reach his family
or friends, his judgment impaired through intoxication [who] confessed after
being told that the case against him was established and after receiving assurance
that the confession would assist his defense." 377 Mass. at 567‑568, 387 N.E.2d
527. The circumstances found
controlling in Meehan are not present
here. There is also no basis here for
applying any "cat out of the bag" analysis to the second set of
statements since that rule has no application to the statements under
consideration. See 377 Mass. at 569‑570,
387 N.E.2d 527.
The
defendant also argues the application of
Commonwealth v. Sherman, 389 Mass. 287, 450 N.E.2d 566 (1983), to the
waiver issue in this case. The testimony
to support the argument comes from defendant and was expressly rejected by the
judge. The testimony of Detective Yanizzi on the issue makes it clear that the defendant's
lawyer instructed the police not to talk to the defendant with respect to a
different charge arising two weeks before this arrest. The judge could have found that the police
had no knowledge of any lawyer representing the defendant in connection with
this charge.