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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. Lanigan, 12 Mass.App.Ct.
913 (1981)
Appeals Court of Massachusetts, Worcester.
Argued
Decided
Further Appellate Review Denied
Stephen
Gordon, Worcester, for defendant.
Paul F. Bolton, Asst. Dist. Atty., for the
Commonwealth.
Before ARMSTRONG, ROSE and DREBEN,
JJ.
RESCRIPT.
The
defendant was convicted of armed robbery, assault with intent to murder,
assault and battery with a dangerous weapon, and kidnapping on the basis of
testimony by the victim that he had been waylaid by the defendant and a
companion, forced into an apartment at knifepoint, robbed, cut with a knife,
stripped, tied with an electrical cord, and stabbed several times during a
fight before he made his escape. A police
officer took him to a hospital. Another
officer, acting on the victim's description, went to the apartment, found blood
in the hall and on the door, gained entrance through the manager, and found
neither the defendant nor his companion within.
The police then padlocked the apartment and returned at an unspecified
later time to search the apartment without a warrant. They found and seized several items which
tended to corroborate the victim's story.
These were introduced in evidence over the defendant's objection.
[1][2][3]
The evidence on the motion to suppress was such that the judge could properly
find that the defendant had no legitimate expectation of privacy that was
violated by the search of the apartment and the seizure of the incriminating items
because he had previously abandoned the apartment. See generally Abel v. United States,
362 U.S. 217, 241, 80 S.Ct. 683, 698, 4 L.Ed.2d 668
(1960); Feguer v. United States, 302 F.2d 214, 248‑250
(8th Cir.), cert. denied, 371 U.S. 872, 83 S.Ct. 123,
9 L.Ed.2d 110 (1962); Parman v. United States, 399
F.2d 559, 564‑565 (D.C.Cir.), cert. denied, 393
U.S. 858, 89 S.Ct. 109, 21 L.Ed.2d 126 (1968). The original entry was lawful, as was the
padlocking of the apartment. The police
were justified in trying to apprehend the defendant and his companion without
delay and to prevent the destruction of evidence at the scene of the several
crimes. The only question of arguable
impropriety arose from their reentry without a [12 Mass.App.Ct. 914] warrant. See Mincey v. Arizona, 437 U.S. 385, 392‑394, 98 S.Ct. 2408, 2413‑2414, 57 L.Ed.2d 290 (1978). Prior to that time the defendant had returned
to the building, found the apartment padlocked, learned from the manager that
it had been locked by the police, and left the building not to return,
traveling (apparently the same day) to Arizona.
There was no evidence as to how long the defendant stayed in Arizona,
but another pretrial motion filed by the defendant indicates that he did not
return to Massachusetts for many months.
The apartment had been rented for a two‑week period, and, while
the evidence did not indicate precisely when the two‑week period expired,
the defendant testified that he had lived in the apartment for about two
weeks. From this evidence the judge could
properly infer that the defendant, immediately on learning that the police were
investigating him, fled from the Commonwealth with the intention of not
returning to the apartment during the short period, if any, which remained of
his rental period. It is clear from the
cases on the subject that abandonment can be found to have taken place before
the end of the rental period (Feguer v. United
States, 302 F.2d at 249; United States v. Wilson, 472 F.2d 901, 902‑903
(9th Cir. 1972), cert. denied, 414 U.S. 868, 94 S.Ct.
176, 38 L.Ed.2d 116 (1973); United States v. Hunter, 647 F.2d 566, 568 (5th
Cir. 1981); State v. Chiles, 226 Kan. 140, 147, 595 P.2d 1130 (1979)), the
essence of abandonment being the act of leaving coupled with the intention of
not returning (Abel v. United States, 362 U.S. at 241, 80 S.Ct.
at 698; Friedman v. United States, 347 F.2d 697, 704 (8th Cir.), cert. denied
382 U.S. 946, 86 S.Ct. 407, 15 L.Ed.2d 354 (1965);
United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973)). A relinquishment of rights by abandonment
does not depend on knowledge by the police that the abandonment has
occurred. Feguer
v. United States, 302 F.2d at 250; Parman v. United
States, 399 F.2d at 564‑565; State v. LeDuc, 48
N.C.App. 227, 241 n.1, 269 S.E.2d 220 (1980). It is not, in our view, relevant that the
abandonment may have been induced by the defendant's fear of apprehension upon
seeing that the police had entered and secured the apartment, so long as the
entry and securing of the apartment were themselves lawful. Compare Commonwealth v. Battle, 1 Mass.App. 579, 582‑583 and n.7, 304 N.E.2d 202
(1973), 365 Mass. 472, 313 N.E.2d 554 (1974); Commonwealth v. Fox, 3 Mass.App. 123, 125, 323 N.E.2d 917 (1975).
[4]
Although the judge failed to make findings, it seems clear that he found an
abandonment, that having been the Commonwealth's principal argument at the
close of the hearing on the motion to suppress.
No purpose would be served by requiring express findings at this late
date. There was no conflicting testimony
to resolve. The source of all the facts
bearing on abandonment was the defendant's own testimony on the motion to
suppress, and the abandonment seems an almost inescapable conclusion if his
testimony is credited.
[5] The
judge, in his charge, differentiated between the preponderance‑of‑the‑evidence
test applicable to civil cases and the proof‑beyond‑a‑reasonable‑doubt
test applicable to criminal cases, emphasized twice that the latter test
required that the jury be satisfied of the defendant's guilt to [12 Mass.App.Ct.
915] a moral certainty, and
cautioned against speculation, guesswork, or surmise. We think that the charge passed muster in
this respect, although the question is close.
We emphasize, as has the Supreme Judicial Court (Commonwealth v. Therrien, 371 Mass. 203, 208‑209, 355 N.E.2d 913
(1976);
Commonwealth v. Wood, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑), ([FNA])
404 N.E.2d 1223 (1980) that improvisation is generally not desirable in
defining the concept of reasonable doubt and that reliance is better put on the
time‑tested language of Commonwealth v. Webster, 5 Cush.
295, 320 (1850).
The
defendant's contentions with respect to other objections raised at the trial
have been considered and are without merit.
Although no appropriate objection was taken at trial, the panel are of
the opinion that the judge's charge with respect to the indictments for assault
and battery with a dangerous weapon and assault with intent to murder was so
deficient that there exists a likelihood of a miscarriage of justice if those
convictions are allowed to stand. See
Commonwealth v. Freeman, 352 Mass. 556, 563‑564, 227 N.E.2d 3
(1967). Accordingly, the judgments on
indictment nos. 90642 (assault and battery by means of a dangerous weapon) and
90643 (assault with intent to murder) are reversed, and the verdicts thereon
are set aside. The judgments on
indictment nos. 90641 (armed robbery) and 90644 (kidnapping) are affirmed.
So
ordered.
(FNA.) Mass.Adv.Sh. (1980)
1123, 1129‑1130.