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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. Look, 379
Supreme Judicial Court of Massachusetts,
Argued
Decided
Melvin S. Louison,
John P. Corbett, Asst. Dist. Atty., for the
Commonwealth.
Before HENNESSEY,
C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.
QUIRICO, Justice.
On
[379
Two State
police officers, Lieutenants Masuret and Carr, arrived shortly thereafter, and
the desk officers told them of [379
Mass. 896] the overheard
conversation. The two lieutenants went
into the room alone with Look, gave him his Miranda warnings again, and
questioned him for more than two hours.
Look repeated several times that he had shot his wife accidentally,
while cleaning his gun to go hunting. He
was formally booked at 5 A. M. on January 29.
Pierce, Masuret and Carr all testified at trial that Look seemed
emotionally upset during many parts of the two interrogation periods.
Look was
indicted on May 29, 1974, after a probable cause hearing on May 17 in a
District Court. Numerous pretrial
motions occupied the parties' time from June, 1974, to March, 1975, and the
following occurred thereafter:
(1) On
March 17, 1975, a Superior Court judge granted a pretrial motion to suppress
certain statements of the victim.
(2) On
March 26, 1975, the Commonwealth filed an application in this court for an
interlocutory appeal of the suppression order, pursuant to G.L. c. 278, s
28E. A single justice of this court
dismissed the application on November 22, 1975, for lack of prosecution, and
the Commonwealth did nothing further until November 2, 1977, when it filed a
motion to vacate the dismissal. This
motion was denied on November 22, 1977.
(3) On
March 27, 1978, the Commonwealth filed a request in the Superior Court for a
trial assignment. On April 5, 1978, Look
filed a motion to dismiss for lack of a speedy trial, the first such action
Look took to assert his Sixth and Fourteenth Amendment right to a speedy
trial. After a hearing, the trial judge
filed findings and rulings denying the motion to dismiss.
Look's
trial commenced on October 19, 1978, and about that time Look filed the
following three pretrial motions to suppress:
(1) The
first such motion sought to suppress the statements Look gave Masuret and Carr,
and was based on the grounds of inadequate Miranda warnings and incapacity to
waive Miranda rights due to "a highly emotional state."
(2) The
second motion was to suppress the testimony of one Vivian Ivers, the victim's
stepmother. The defense had [379 Mass. 897] called Ivers at the 1974 probable cause hearing. Ivers had begun to testify about a telephone
call she received from the victim on the night the victim died. The Commonwealth objected and defense
counsel, while first arguing against admissibility of the victim's statements
to Ivers, said, "(I)f there is going to be some evidence that it is
admissible . . . then I think the whole picture should be before the
Court." The judge sustained the
Commonwealth's objection. At the trial,
however, the Commonwealth sought to introduce Ivers' testimony about the
substance of the telephone conversation.
(3) The
third motion to suppress involved the conversation between Pierce and Look, and
"evidence derived therefrom," on the grounds that the desk officers
electronically intercepted the conversation in violation of State and Federal
wiretap statutes. G.L. c. 272, s 99, and
18 U.S.C. ss 2510 et seq. (1976).
The judge,
after hearings, denied all three motions.
At trial, Ivers testified that at approximately 10:30 P. M. on January
28, 1974, she received a call from the victim, who said, "Why did you tell
Donald that I had a baby at Tobey Hospital," and, "I don't think it's
fair(;) I'm getting out of here."
([FN1]) She also testified (with corroboration from another witness)
that the victim, shortly before her death, had talked of divorcing Look.
[1] 1.
Look asserts that he was denied his Sixth Amendment right to a speedy trial, as
applied to the States through the Fourteenth Amendment, Klopfer v. North
Carolina, 386 U.S. 213, 222‑223, 87 S.Ct. 988, 993‑994, 18 L.Ed.2d
1 (1967), and his analogous right under art. 11 of the Massachusetts
Declaration of Rights. Commonwealth v.
Green, 353 Mass. 687, 690, 234 N.E.2d 534 (1968). The analysis of this claim necessitates a
balancing of four factors: [379
Mass. 898] (1) length of the delay,
(2) reasons for the delay, (3) assertion of the right, and (4) prejudice to the
defendant. Barker v. Wingo, 407 U.S.
514, 530‑533, 92 S.Ct. 2182, 2191‑2193, 33 L.Ed.2d 101 (1972). Commonwealth v. Dabrieo, 370 Mass. 728, 735,
352 N.E.2d 186 (1976). Commonwealth v.
Gove, 366 Mass. 351, 361‑365, 320 N.E.2d 900 (1974).
[2][3][4]
a. Length of delay. In the present case
the right to a speedy trial attached at the time Look was indicted, since he
was not in custody prior thereto. United
States v. Marion, 404 U.S. 307, 320‑321, 92 S.Ct. 455, 463‑464, 30
L.Ed.2d 468 (1971). Gove, supra, 366
Mass. at 357, 320 N.E.2d 900.
Commonwealth v. Campbell, 5 Mass.App. 571, ‑‑‑‑,
‑‑‑‑, 366 N.E.2d 44 (1977). ([FNA]) The length of delay from that date,
May 29, 1974, to the commencement of trial on October 19, 1978, is
unquestionably sufficient to "trigger" further inquiry into whether
Look was denied a speedy trial in violation of his constitutional rights. See Commonwealth v. Beckett, 373 Mass. 329, ‑‑‑
([FNB]), 366 N.E.2d 1252 (1977) (fifty‑five month delay); Commonwealth v.
Boyd, 367 Mass. 169, 179‑180, 326 N.E.2d 320 (1975) (fourteen month
delay); Commonwealth v. Horne, 362 Mass. 738, 739, 743, 291 N.E.2d 629 (1973)
(forty‑eight month delay). In
looking to the other three factors delineated in Barker, supra, we weigh each
in the circumstances of this case, keeping in mind that the defendant bears the
burden of showing prejudicial delay sufficient to warrant dismissal of the
indictment against him. Commonwealth v.
Gilbert, 366 Mass. 18, 22, 314 N.E.2d 111 (1974). Commonwealth v. Jones, 360 Mass. 498, 502,
275 N.E.2d 143 (1971). The length of
delay here is clearly to be weighed against the Commonwealth, absent an
adequate explanation for that delay.
[5] b. Reasons for delay. The Commonwealth has offered no reasons
whatsoever for the inordinate delay in this case, and thus the defendant was
apparently forced to resort to speculation in order to meet his burden on this
question. ([FN2])
[379 Mass. 899] [6] The judge found that "(t)he Commonwealth, through the
Plymouth County District Attorney's Office . . . was responsible for the delay
in bringing the defendant to trial.
There is no explanation of the delay in the record." ([FN3]) Accordingly, he concluded that, in
the absence of evidence of intentional or wilful action, the delay "fits
into the category of negligence on the part of the prosecution." Although weighing this factor against the
Commonwealth, the judge concluded that such negligent delays "are neutral
and are weighted less heavily" than intentional delays.
[7] We
agree with the judge that the failure to prosecute the application for
interlocutory appeal, and the subsequent delay of two years in bringing a
motion to vacate the dismissal of that application, constituted negligence in
the handling of this case. While we
agree with the judge that this delay is to be weighed less heavily than one
calculated to frustrate the defense of an accused, see Barker, supra, 407 U.S.
at 531, 92 S.Ct. at 2192, we believe, nevertheless, that it should be weighed
quite heavily[379 Mass. 900]
against the Commonwealth. ([FN4])
Commonwealth v. Blaney, 5 Mass.App. 96, ‑‑‑‑ ([FNC]),
359 N.E.2d 958 (1977).
[8] c.
Assertion of the right. The United
States Supreme Court expressly rejected a demand‑waiver rule in the
context of the speedy trial right.
Barker, supra, 407 U.S. at 528, 92 S.Ct. at 2191. The defendant does have a responsibility to
assert his right, however, and timely assertion is to be given "strong
evidentiary weight." Id. at 529,
531, 92 S.Ct. at 2191, 2192. Look did
nothing whatsoever to assert his right to a prompt trial until April 5, 1978,
ten days after the Commonwealth requested a trial date and nearly four years
after his indictment. It appears
reasonable to speculate (and the defendant has suggested in his brief before
this court) that Look was "gambling" that the Commonwealth had forgotten about him or decided not to pursue
his case.
[9][10]
The Commonwealth's application for interlocutory appeal was dismissed on
November 22, 1975, and the Commonwealth filed a motion to vacate that dismissal
nearly two years later on November 2, 1977.
During that time, if Look believed that the Commonwealth considered its
case too weak to pursue because of the allowance of Look's motion to suppress
the victim's statements (a judgment which might have been quite inaccurate,
based on the evidence eventually presented at the trial), he could have filed a
motion for trial or a motion to dismiss at any time. He would then have been relieved of any
anxiety over whether he would eventually be tried. When the Commonwealth did file its motion to
vacate on November 2, 1977, thus signaling Look that it intended to pursue his
case, Look still allowed five months to pass before filing his first claim
regarding a speedy trial. This inaction
on his part must be weighed [379
Mass. 901] heavily against him. Dabrieo, supra, 370 Mass. at 737, 352 N.E.2d
186. The speedy trial right is not one
which may be kept in reserve in the event that one's belief that the
prosecution has overlooked or decided not to pursue his case proves to be
erroneous.
d.
Prejudice. Look claims prejudice
resulting from the delay in three respects: unavailability of a potential
defense witness, failure of memory of all witnesses, and "anxiety and
concern" on Look's part.
The
unavailable witness, one Betty Roy, was alleged to have stayed at the Looks'
campground in 1972, to have visited with them briefly in November of 1973, to
have become friendly with the victim and to have spoken with the victim
frequently thereafter. The testimony
that Ms. Roy allegedly would have provided is that the marital relationship
between Look and the victim was happy and harmonious. The trial judge found that "(h)er
testimony may well have been excluded completely because of the remoteness in
time (eight months and two months before January 28, 1974) and the brief
duration of her observations during the 15 months preceding the death of Ms. Look. As Ms. Roy did not observe any of the factors
or circumstances directly surrounding the alleged shooting, her testimony would
be relevant, if admissible, only to the general issue of motive." The judge apparently relied on Campbell,
supra, and Dabrieo, supra, for the principle that to demonstrate prejudice a
defendant must show "that the unavailable witness would have produced
direct evidence of innocence."
[11]
Campbell and Dabrieo must be limited to their facts, ([FN5]) however, and there
is not necessarily a requirement that a
[379 Mass. 902] defendant show
that a missing witness might have produced direct (in the sense of eyewitness)
evidence of innocence. The speedy trial
right is primarily designed to ensure that an accused shall enjoy a full and
fair trial, including the right to present witnesses of his choice for any
potential effect they might have on the deliberative process of the jury,
assuming that the intended testimony is admissible. Testimony about the marital relationship in
the present case would have been extremely relevant (assuming that there had
been a proper foundation laid), especially in light of the testimony of one
Paul Dockham, which was admitted over Look's objection. Dockham testified that, three or four weeks
prior to her death, the victim had told him she was unhappy and wanted to
divorce Look.
[12][13]
The trial judge correctly found, however, that contrary testimony on this subject would be available. In fact, several other witnesses testified
that Look and the victim were, in their estimation, happily married. One of these witnesses, Robert Ferreira, had
lived with Look and his wife for some time.
Look has not demonstrated in any but the most speculative way that Roy
would have offered testimony adding anything significant to that of these
witnesses. ([FN6]) Therefore, we believe
the trial judge ruled correctly that Look did not show prejudice with regard to
the missing witness. Cf. Commonwealth v.
Boyd, supra, 367 Mass. at 180‑181, 326 N.E.2d 320 (death of one of [379 Mass. 903] the defendant's psychiatrists not prejudicial to insanity defense
when two of his other psychiatrists testified).
[14][15]
Look's second allegation of prejudice, failure of memory of many if not all
witnesses, is similarly without foundation.
We have reviewed the transcript, and find no significant failure of
memory on crucial issues. In so
reviewing the transcript, we were mindful of the fact that "(l)oss of
memory . . . is not always reflected in the record because what has been
forgotten can rarely be shown."
Barker, supra, 407 U.S. at 532, 92 S.Ct. at 2193.
[16]
Regarding the "anxiety and concern" part of the test for prejudice,
see id., Look presents a weak claim. As
the trial judge found, Look was not incarcerated pending trial, and his failure
to assert his right for over four years belies any present assertion that the
delay caused him undue anxiety.
[17] In
conclusion, we do not believe that Look's constitutional right to a speedy
trial was violated. The delay, while
lengthy, and the absence of reasons therefor, were not sufficient to warrant
dismissal without a showing of prejudice.
Cf. Moore v. Arizona, 414 U.S. 25, 26, 94 S.Ct. 188, 189, 38 L.Ed.2d 183
(1973). Look's failure to assert his
right during most of the delay, and his failure to demonstrate prejudice, tip
the scales against him.
2. Look
next argues that the trial judge erred in admitting the testimony of Vivian
Ivers regarding telephone conversations she claimed to have had with the victim
on the night of the homicide, and with Look a few days after the incident. The ground of his objection is that he was
unfairly deprived of discovery during the probable cause hearing in the
District Court because the judge sustained the objection of the Commonwealth as
Ivers was about to testify about the substance of at least one of these
conversations. He relies for this claim
on Myers v. Commonwealth, 363 Mass. 843, 298 N.E.2d 819 (1973).
[18] The
import of our analysis and holding in Myers is that a defendant who stands
accused of a crime has the right to confront and cross‑examine witnesses
of the Commonwealth, and to present his own witnesses by way of affirmative
defense. Myers, supra at 852, 856, 298
N.E.2d 819. This is because the [379 Mass. 904] accused, before being bound over to the grand jury or tried in
the District Court, is entitled under G.L. c. 276, s 38, to a preliminary
determination that "the Commonwealth has sufficient competent legal
evidence to justify . . . a full trial," id. at 849, 298 N.E.2d at 824, a
hearing which "distinguishes between groundless or unsupported charges and
meritorious prosecutions," id. at 847, 298 N.E.2d at 822. Stefanik v. State Bd. of Parole, 372 Mass.
726, 731, 363 N.E.2d 1099 (1977). Corey
v. Commonwealth, 364 Mass. 137, 138, 301 N.E.2d 450 (1973).
We noted in Myers that a common utilization
of the probable cause hearing is discovery by the defense, and that the judge
should not unduly limit the defendant's cross‑examination of prosecution
witnesses "in order to effectuate the ancillary discovery and impeachment
functions of the hearing . . . ." Id. 363 Mass. at 857, 298 N.E.2d at
828. See also Commonwealth v. Britt, 362
Mass. 325, 330‑331, 285 N.E.2d 780 (1972).
[19] The
Commonwealth has no duty to present its entire case at the hearing, however,
but simply enough to allow a reliable determination of probable cause. We held in Lataille v. District Court, 366
Mass 525, 320 N.E.2d 877 (1974), that a defendant is not entitled by right to a
probable cause hearing when a grand jury has indicted him, thereby providing a
probable cause finding. Id. at 529‑531,
320 N.E.2d 877. In response to the
defendant's assertion that he had been denied discovery and impeachment, we
stated in Lataille : "We held (in Myers, supra ) that complete cross‑examination
and the opportunity to present affirmative defenses were crucial and necessary
to effectuate a true probable cause standard.
We did not hold then, nor do we hold now, that the discovery and
impeachment functions are ends in themselves to be asserted apart from their
evidentiary role in ascertaining probable cause where a preliminary hearing is
held" (emphasis supplied). Id. at
530, 320 N.E.2d at 881.
[20] In
this case, Look's counsel, not the Commonwealth, called Ivers at the probable
cause hearing. Presumably Look was able
to interview his witness prior to the hearing, ([FN7]) [379 Mass. 905] but
even if he did not, Ivers testified at the hearing that she had had a
conversation with the victim, but not to its substance. The Commonwealth notified Look's counsel
approximately two months prior to trial that it intended to call Ivers. Look therefore had ample time to utilize
discovery procedures if he so chose.
We do not
construe Look's present claim to be that he was deprived of a valid probable
cause determination by reason of the exclusion of direct testimony of his own
witness. Although in his brief Look
suggests that Ivers might have produced testimony favorable enough to prevent
bind‑over on a murder charge, he offers nothing to substantiate this
claim. Full cross‑examination at
trial failed to produce any such evidence.
Indeed, Invers' testimony at trial was entirely inculpatory, and it is
difficult to fathom how full exploration of her testimony could have helped
Look at the probable cause stage. Look
may have relied on the District Court judge's determination that the substance
of the conversation was inadmissible, but the argument that the Commonwealth is
somehow estopped from presenting at trial testimony it did not present at the
probable cause hearing is groundless.
3. Look
next argues that his statements at the Wareham police station should have been
suppressed on three separate grounds.
a.
Lieutenant Masuret, when testifying at the probable cause hearing as to
warnings given prior to interrogation of Look by Lieutenant Carr and himself,
omitted the right to remain silent. At a
hearing on a pretrial motion to suppress, Lieutenant Masuret testified that he
remembered a conversation with Look's counsel following the probable cause
hearing, in which Look's counsel told Masuret he had forgotten to give Look the
warning, but Masuret responded that regardless of what he testified, he was
sure he had [379 Mass. 906] given all the warnings. ([FN8]) He and Carr both testified to that
effect at trial. Furthermore, they both
testified that Look told them he had previously been advised of his rights by
Pierce and another officer and was well aware of them.
[21][22] As we have stated before, "(n)o
useful purpose is served by testing on the witness stand the officer's ability
to recite accurately from memory the Miranda warnings he read." Commonwealth v. Lewis, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ([FND]), 371 N.E.2d 775, 776
(1978). Even if Carr and Masuret did
omit one warning, however, the original warnings given at the hospital were
sufficient to carry over into the interrogation by Pierce, Carr and
Masuret. See Commonwealth v. Alicea, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNE]), 381 N.E.2d 144 (1978) and cases cited therein. There is no evidence of a break in the chain
of events, such as an exercise of the right to remain silent, which might have
necessitated new warnings. See Michigan
v. Mosley, 423 U.S. 96, 102‑105, 96 S.Ct. 321, 325‑327, 46 L.Ed.2d
313 (1975). Look talked freely and
continuously to Pierce, and then to Carr and Masuret. Furthermore, he indicated to Carr and Masuret
that he still understood his rights as earlier stated to him, and that he
wished to waive them. There was no error
in the judge's finding that "at the time of all of the Look statements in
question he was well aware of his Miranda rights and in giving such statements
he had voluntarily and knowingly waived such rights."
[23][24][25]
b. Look next argues that his highly upset emotional state precluded valid
waiver of his Miranda rights and therefore rendered his statements
involuntary. The judge found that
"though he was obviously and for very good reason upset and filled with
remorse, this did not reach the level where his statements should be described
as anything but voluntary. He spoke
freely and without any compulsion."
This finding was supported by the evidence. The courts must indulge every reasonable
presumption against waiver of the fundamental constitutional rights embodied in
the Miranda warnings. Johnson v. Zerbst,
304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). [379
Mass. 907] The Commonwealth must
meet a "heavy burden" of proof that a suspect waived those
rights. Commonwealth v. Dustin, 373
Mass. 612, ‑‑‑ ‑ ‑‑‑ ([FNF]), 368
N.E.2d 1388 (1977). Commonwealth v.
Hosey, 368 Mass. 571, 577, 334 N.E.2d 44 (1975). While Look was "upset" about the
death of his wife, the Commonwealth has met its burden in this case of showing
that Look's emotional condition did not rise to the level at which his waiver
was invalid. See Hosey, supra at 577,
334 N.E.2d 44 ("extremely emotional . . . detached from reality").
c. Look
contends that all of his statements made to Pierce should have been suppressed
by virtue of the intercom interception of the conversation by desk officers,
and that all statements made to Carr and Masuret were likewise suppressible
because they were obtained as a result of the overheard statements. He relies for this contention on G.L. c. 272,
s 99, and 18 U.S.C. ss 2510 et seq.
(1976), the State and Federal eavesdropping statutes.
General
Laws c. 272, s 99, as appearing in St.1968, c. 738, s 1, is a comprehensive
statute prohibiting almost all forms of warrantless electronic interceptions of
oral or wire communications and the disclosure or use of any communication
obtained in violation of the statute.
The statute defines "intercepting device" as any device
"which is capable of transmitting, receiving, amplifying, or recording a
wire or oral communication . . . ," and defines "oral
communication" as "speech, except such speech as is transmitted over
the public air waves by radio or other similar device." Id. s 99 B 2, 3.
[26] The
Federal statute defines "oral communication" as "any oral
communication uttered by a person exhibiting an expectation that such
communication is not subject to interception under circumstances justifying
such expectation." 18 U.S.C. s 2510(2) (1976). Like the State statute, the Federal statute
prohibits the disclosure or use of any information obtained through
warrantless eavesdropping. ([FN9])
[379 Mass. 908] The judge, in ruling on the motion to suppress, did not rule on
the legality of the interception, because the Commonwealth had agreed not to
present any evidence of the overheard conversations at the trial (and in fact
did not present any). He found that
Pierce himself had not intercepted any conversation, and that he could testify
as a participant in the conversation. He
further found that Carr and Masuret had obtained information from Look as a
result of regular police procedure, and that therefore any illegality in the
interception had no causal connection with their interrogation of Look. Thus he concluded that any "taint"
which might have arisen from the interception was "purged" or
"attenuated" by the independent interrogation of Look by Carr and
Masuret.
Although
the judge did not rule on the legality of the desk officers' interception of
the Look‑Pierce conversation, the parties are not in dispute as to what
occurred. Therefore, it is open to this
court to pass on the question. Rather
than examining the issue in terms of "taint," which assumes
illegality of the interception, we prefer to examine the legality of the
interception itself.
[27][28]
First, we agree with the judge that Pierce could testify as a participant in
the conversation with Look. Pierce had
already advised Look of his Miranda rights, including the fact that anything he
said could be used against him.
Therefore, Look had no reason to believe Pierce would not reveal his
statements, and we need not even resort to cases which hold that misplaced
confidence by a speaker that a listener will not reveal his words does not
protect those statements. See United States
v. White, 401 U.S. 745, 751, 91 S.Ct. 1122, 1125, 28 L.Ed.2d 453 (1971); Hoffa [379 Mass. 909] v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 413, 17
L.Ed.2d 374 (1966). A participant to a
conversation may testify about it, and the fact that unknown to him others were
listening when the conversation occurred does not alter this.
[29]
Second, the intercom interception by the desk officers was not illegal under
either the State or the Federal statute.
The former contains an exception for "intercom" systems,
installed and used in the ordinary course of business. ([FN10]) The judge found that "(t)he
reason the Wareham police officers listened to the intercom was because of
their concern as to whether the defendant might act in (a) violent manner while
he was with Pierce. This was because of
the problem that (the police) had had with the defendant previously in the
emergency room at the hospital, and, further, because he was alone with Pierce
in the room with the door closed.
(Pierce is an elderly man)."
The testimony at the hearing on the motion to suppress reveals no
indication that anyone asked the officers why they listened to the
conversation, nor did any of them testify about the purpose. The facts found by the judge may fairly be
inferred, however, from a letter signed by the three intercepting officers,
which was before the judge in support of the motion to suppress.
The
judge's findings support the conclusion that the intercom, which obviously was
installed for ordinary business purposes, was being used for one of those purposes on
the night in question. That the officers
failed to inform Pierce they would be listening may have been because it did
not occur to them that Pierce might be in danger until after Look and Pierce
entered the room.
[30] As
discussed above, the Federal statute requires that a speaker have a justifiable
expectation of privacy with regard to oral communications." 18 U.S.C. s
2510(2) (1976). In determining what is a
justified expectation of privacy for purposes of s 2510, we must look to
traditional Fourth [379 Mass. 910] Amendment law. See United States v. Duncan, 598 F.2d 839,
847 (4th Cir.), cert. denied, ‑‑‑ U.S. ‑‑‑‑,
100 S.Ct. 148, 62 L.Ed.2d 96 (1979); United States v. Pui Kan Lam, 483 F.2d
1202, 1205‑1206 (2d Cir. 1973), cert. denied, 415 U.S. 984, 94 S.Ct.
1577, 39 L.Ed.2d 881 (1974); People v. Santos, 26 Cal.App.3d 397, 402, 102
Cal.Rptr. 678 (1972). As stated above, a
person who is talking to a police officer after being told that anything he
says may be used against him in court, cannot justifiably claim to have an
expectation of privacy as to any statements he makes. Duncan, supra at 852. Santos, supra. Therefore we think Look's statements do not
fall within the definition of "oral communications" of s 2510, and
are not subject to the Federal statute.
Because
neither the State nor the Federal statute prohibits the interception of the
Look‑Pierce conversation by the desk officers, we need not consider
whether Carr and Masuret, while interrogating Look, put to use any of the
information they had obtained from the desk officers. ([FN11])
We
conclude that neither the State nor the Federal statute was violated by the
action of the desk officers in listening to the conversation, and there was no
error in the admission of any of Look's statements.
[31] 4.
Look's next contention is that there was error in the admission of the shotgun
because of a question whether the gun was in the same condition as it was on
the night of the homicide. He further
claims that "there once existed physical evidence (demonstrating) whether
the weapon was in need of cleaning at the time of the incident."
We find no
merit in either of these contentions.
First, the question of the condition of the gun at the trial as compared
to the night of the incident is a proper subject for cross‑examination,
and goes to the weight of the evidence rather than its admissibility. Cf. Commonwealth v. Hogg, 365 Mass. 290, 294‑295,
311 N.E.2d 63 (1974); Commonwealth v. White, 353 Mass. 409, 419‑420, 232
N.E.2d 335 (1967), cert. denied, 391 U.S. 968, 88 S.Ct. 2039, 20 L.Ed.2d 881 [379 Mass. 911] (1968). There was
testimony that the gun had been marked with a number shortly after the
incident, and that it was similarly marked when allowed in evidence. There was considerable testimony about an oil
can being found on the table where Look claimed to have been cleaning his gun,
and a photograph of the dining room table, with the oil can and the gun on it,
was admitted in evidence. There was also
testimony that rags were found near the dining room table. The jury had ample evidence to consider in
determining whether to believe that Look killed his wife accidentally or
intentionally and we find nothing to substantiate Look's claim that exculpatory
evidence was lost. See generally Commonwealth
v. Boyer, 355 Mass. 762, 764, 247 N.E.2d 589 (1969).
6.
Pursuant to G.L. c. 278, s 33E, as it existed on the date of the defendant's
conviction, we have considered the whole case as to both the law and the facts,
and we find no reason to change the verdict or to grant the defendant any other
relief. ([FN12]) For a later amendment
to G.L. c. 278, s 33 E, see St.1979, c. 346, s 2, which took effect on
July 1, 1979.
Judgment
affirmed.
(FN1.) There was a great deal of testimony
about the substance of the argument Look had with the victim just before the
shooting. Look told Carr and Masuret it
had concerned mating dogs in the kennel.
Look himself testified that there had been a discussion at about 10 P.
M. on the night of the homicide about adopting a Vietnamese baby, and that he
had asked the victim if it was true she had borne a child prior to their
marriage.
(FNA.)
Mass.App.Ct.Adv.Sh. (1977) 969, 982,
983.
(FNB.)
Mass.Adv.Sh. (1977) 1922, 1923.
(FN2.)
We note parenthetically that, as Look's counsel mentioned in argument before
this court, a defendant is not privy to the administrative decisions of the
district attorney's office and must therefore be content, under the present
system, with whatever he can glean through discovery. The new Rules of Criminal Procedure relieve
the defendant of this difficulty to some degree by shifting the burden to the
Commonwealth if a defendant has not been brought to trial within certain
progressively shorter time periods, eventually to be one year. See Mass.R.Crim.P. 36(b)(1)(A)‑(C), ‑‑‑
Mass. ‑‑‑ (1979) (effective July 1, 1979). The new rule provides that certain time
periods shall be excluded, such as those encompassing pretrial motions and
interlocutory appeals. Mass.R.Crim.P.
36(b)(2), ‑‑‑ Mass. ‑‑‑ (1979). Once the defendant has established a prima
facie delay, and the Commonwealth offers no justification, the defendant is
entitled to dismissal of the indictment without a showing of prejudice. See Mass.R.Crim.P. 36(b)(1)(D), ‑‑‑
Mass. ‑‑‑ (1979), and Reporter's Notes. Even within the specified time periods, a
defendant may obtain a dismissal if he can demonstrate prejudice. Mass.R.Crim.P. 36(c), ‑‑‑
Mass. ‑‑‑ (1979). The
new rule, of course, encompasses all existing case law under former G.L. c.
277, s 72A, to the extent that a defendant is not automatically entitled to
dismissal if he acquiesces, Commonwealth v. Jones, ‑‑‑
Mass.App. ‑‑‑‑, ‑‑‑‑ ‑ ‑‑‑‑
383 N.E.2d 527 (1978) (Mass.App.Ct.Adv.Sh.
(1978) 1218, 1219‑1221); is responsible for the delay,
Commonwealth v. Loftis, 361 Mass. 545, 549‑550, 281 N.E.2d 258 (1972); or
benefits from the delay, Commonwealth v. Alexander, 371 Mass. 726, 729, 359
N.E.2d 306 (1977).
(FN3.)
The Commonwealth's brief before this court concedes that the delay was due to
negligence. This does not relieve the
Commonwealth of responsibility for not having presented an explanation of the
underlying facts causing the delay at the hearing on the motion to dismiss.
(FN4.)
In a case dealing with the statutory right of a prisoner to trial on additional
charges within six months after demand under G.L. c. 277, s 72A, we stated that
"(w)here 'the delay or lack of any activity occurred in circumstances
neither caused by nor attributable to the defendant,' . . . the Commonwealth
must at the very least, explain why such delay is 'reasonably necessary and
justifiable.' " Commonwealth v.
Alexander, 371 Mass. 726, 730, 359 N.E.2d 306, 309 (1977).
(FNC.)
Mass.App.Ct.Adv.Sh. (1977) 154, 157.
(FN5.)
In Campbell, the defendants presented no evidence that they searched for the
missing witness, and no evidence as to what that witness' testimony might have
been. Commonwealth v. Campbell, 5
Mass.App. 571, ‑‑‑‑ ‑ ‑‑‑‑,
366 N.E.2d 44 (1977). In Dabrieo, the
defendant claimed that "several alibi witnesses" who would have
testified that he was at a party on the night of the crime were dead or
unavailable. He presented evidence of a
search "not undertaken with any great effort," and both the motion
judge and this court apparently disbelieved his claim. See Commonwealth v. Dabrieo, 370 Mass. 728,
738, 352 N.E.2d 186, 192 (1976).
(FN6.)
Look also argues that the Commonwealth should bear the burden of proving that
Roy did not have potentially exculpatory evidence, relying on United States v.
Barket, 530 F.2d 189 (8th Cir. 1976). In
Barket, a forty‑seven month pre‑indictment delay was accompanied by
the death of six material witnesses and faded memories of other witnesses. Id. at 192.
Because the delay occurred before indictment when the speedy trial right
had not attached, the court applied a Fifth Amendment due process analysis to
uphold a District Court finding of "severe" prejudice. The Court of Appeals stated that "the
Government must bear the burden of demonstrating that the missing witnesses did
not possess exculpatory evidence."
Id. at 196. The present case is
quite different from Barket, where the defendant, because of inaction for which
the government was found responsible, had no reason to believe he would have to
prepare a defense and faced beginning that task nearly four years after the
incident.
(FN7.)
The trial judge observed that "(t)his Court is certainly not aware of any
obstruction put in (Look's) path to such interviewing of a potential witness. .
. . (T)his Court is aware that the very experienced defense counsel had
available to him the services of a private detective at around the time of the
probable cause hearing."
(FN8.) Look's counsel took the stand at the
hearing and denied that any such conversation occurred.
(FND.) Mass.Adv.Sh. (1978) 87, 89.
(FNE.) Mass.Adv.Sh. (1978) 2707, 2714‑2715.
(FNF.) Mass.Adv.Sh. (1977) 2302, 2306‑2307.
(FN9.) Although Congress intended to preempt
the field of wiretapping and eavesdropping in enacting 18 U.S.C. ss 2510 et
seq. (1976), State legislation is
permitted as long as it is not less restrictive than the Federal statute. See Commonwealth v. Vitello, 367 Mass. 224,
246‑247, 327 N.E.2d 819 (1975).
The Federal statute contains no "intercom exception," but its
definition of "oral communication" as pertaining only to situations
where the speaker justifiably expects privacy would arguably exclude
circumstances where an "intercom" system has been installed. See generally Vitello, supra at 231, 327 N.E.
at 825 (both statutes "designed to ensure that unjustified and overly
broad intrusions on rights of privacy are avoided; " that is, to protect
Fourth Amendment rights).
(FN10.) "It shall not be a violation of
this section . . . (b) for persons to possess an office intercommunication
system which is used in the ordinary course of their business or to use such
office intercommunication system in the ordinary course of their
business." G.L. c. 272, s 99 D 1 b.
(FN11.) Masuret testified at the hearing on
the motion to suppress that he intended to question Look about the argument
with his wife when he entered the interrogation room. Carr testified that they did ask Look about
the argument.
(FN12.) Both Look and the Commonwealth waived
an instruction on manslaughter.