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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. MacNeill, 399
Supreme Judicial Court of Massachusetts, Essex.
Argued
Decided
Peter D. Feeherry,
Lila Heideman, Asst. Dist.
Atty. (George M. O'Connor, Asst. Dist.
Atty., with her) for the Com.
Before HENNESSEY, C.J.,
and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.
O'CONNOR, Justice.
In this
appeal from a conviction of murder in the first degree, the defendant argues
that the denial of his motion to suppress his signed confession to the police,
made in the presence of the defendant's grandfather when the defendant was
sixteen years old, was error. The
defendant also seeks relief under G.L. c. 278, § 33E
(1984 ed.). We affirm the conviction.
The
challenged confession is contained in a report prepared by Lieutenant Alfred Duemling of the State police. The report [399
"I
got up at 7:45 A.M., took a bath and left the house about 9:00 A.M. or so and
went to my mother's house. On the way
down I threw the rope away. I left my
mother's about 9:40 A.M. I walked to Frank's house on Rock Avenue. My mother lives at 7 Essex Circle. It took me about 10 minutes to walk
there. On the way I picked up another
length of rope in a parking lot on Brownville Avenue. It was about two or two and half feet
long. It was like clothes line
rope. I put it in my pocket. I didn't know if I was going to go through
with it or not but I still had the rope.
I had thrown the other rope away because I had changed my mind at that
time.
"At
Frank's house I was talking with Billy and Melissa Bragen. Bill had some pot and we smoked it, Bill and
I. Bonnie [399 Mass. 73] came and
I asked her to go for a walk with me. I
had decided to kill her, we went to the Pine Grove. Sunday I had thought about killing her at the
Pine Grove because it was close. At the
Pine Grove we walked to the little bathroom and she wanted to see what was
inside. I knew the house was there from
a while ago. She wanted to stay inside
because she was cold. We were in there
about 45 minutes talking about why she wanted to beat and kill Tracy. She told me that, 'If she couldn't have me no
one could, and if she couldn't beat them up she would get someone to do it for
her.' At that time she was sitting on
the hopper and I was on the ledge above her with my feet on the opposite window
and I was behind her, I had made up my mind to kill her, it was now or
never. I took the rope out of my pocket
and one foot on the hopper, my left, and my right knee in her back. I had one end of the rope in each hand and
put it around her neck. I pulled the
rope around her neck and held it for 3‑4 minutes. She attempted to get her finger under the
rope but couldn't. She didn't make any
noise. I let go of the rope and she fell
on the floor. The rope was still around
her neck and I took the ends and tied them to the hopper seat. I did this because I read in a book that if
you strangle someone and don't hold it long enough they are just
unconscious. So I thought if I tied the
rope from her neck to the hopper and she woke up she would strangle
herself. I wanted to make sure I killed
her. I didn't hate her, I just loved my
girlfriend and I didn't want to lose my baby.
"I
told my friends that I killed her and they didn't believe me. So I told them where the body was and they
saw her, Tracy, Bill Newhall, Ted, Darryl.
I went back to Tracy's house and we met John Davis and I told him that I
killed her. He asked me and I told
him. Tracy told me that she felt
sick."
As further
background, especially in connection with our duty to determine whether the
conviction ought to be reduced, we note that, at trial, several Commonwealth
witnesses essentially corroborated, and also supplemented, the defendant's
confession. The witnesses testified that
on the day of the killing and on the previous day the defendant told his
friends that he intended to kill Mitchell, his former girl friend, because she [399 Mass. 74] had threatened his current girl friend whom he believed to be
pregnant.
The
defendant testified at the trial. He
denied that he had killed Mitchell. He
said that another person killed her in his presence, and that that person
threatened him with a gun and told him to say that he, the defendant, had
killed Mitchell. The defendant testified
that, later, Mitchell's killer told him that he would kill the defendant's
current girl friend if the defendant did not confess to Mitchell's killing.
We now
specifically turn our attention to the motion to suppress the confession. The defendant's contention is that the
Commonwealth has failed to sustain its heavy burden of showing that he waived
his Fifth Amendment rights voluntarily with an understanding of their nature
and the possible consequences of waiving them. Miranda v. Arizona, 384
U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
Commonwealth v. Cameron, 385 Mass. 660, 664, 433 N.E.2d 878 (1982).
Commonwealth v. Garcia, 379 Mass. 422, 428‑431, 399 N.E.2d 460
(1980). "Special caution, of
course, must be exercised in examining the validity of inculpatory
statements made by juveniles." Commonwealth v. King, 17 Mass.App.Ct. 602, 609, 460 N.E.2d 1299 (1984).
Commonwealth v. Cain, 361 Mass. 224, 228, 279 N.E.2d 706 (1972).
The judge
found the following facts beyond a reasonable doubt. At approximately 9:35 P.M. on October 19,
1981, Lynn police officers met the defendant and his grandfather at the
building where the grandfather lived.
(FN1) The police and the
grandfather made an unsuccessful effort to find the defendant's mother. At around 10 P.M. on the same night,
Lieutenant Alfred Duemling of
the State police went to the grandfather's apartment and told the defendant and
the grandparents that his visit concerned the death of Mitchell. Duemling noticed
nothing wrong with the grandfather's speech or behavior. The defendant and his grandfather were asked
to go to the police station. They went
there in a police cruiser, and at 10:30 P.M. Duemling,
Lieutenant Coppinger, the defendant, and the
defendant's [399 Mass. 75] grandfather went into a small room
containing a table and four chairs. The
door was closed.
The judge
found that Duemling told the defendant and his
grandfather that he was investigating Mitchell's death and that he had heard
that the defendant was involved. Duemling then read the Miranda warnings to the defendant
and the grandfather. After being asked
if he understood his rights, the defendant replied that he did and that he
wanted to talk to the police. The
grandfather also responded that the defendant could talk to the police. The defendant and the defendant's grandfather
read the Miranda card and signed it. The
defendant, the judge found, "then gave a cogent and detailed
statement" denying any involvement with Mitchell's death, but, when Duemling told the defendant to stop lying, the defendant
stated that he did kill her "and went on with a detailed explanation of
why and how he killed her." When
the confession was completed, the defendant and the grandfather signed it, as
did the officers as witnesses. The
interrogation lasted one hour, during which the defendant was not under the
influence of drugs or alcohol. He had
been given a soft drink during the interrogation, and he remained unemotional
and "exhibited no unusual signs" during that time. At 11:45 P.M. the defendant telephoned his
mother.
The judge
found that the defendant was born on February 17, 1965 (making him sixteen
years and eight months old at the time of the incident), that he had gone no
further in school than completion of the eighth grade, and that he left school
because the teachers were not giving him enough work (the defendant had so
testified). The judge also found that
the defendant had never before been arrested or been in a police station, and
that, while being held awaiting trial, the defendant "pretended to be
attempting to commit suicide in order to be transferred to Bridgewater where he
sought to study law books." The
judge further reported that he had "observed the defendant on the stand,
and he appeared bright and answered the questions with appropriate
responses. He appears to be stoic in his
mannerisms and countenance." After
explicitly acknowledging the Commonwealth's heavy burden of proving [399 Mass. 76] a knowing, intelligent, and voluntary waiver of a defendant's
constitutional rights, and that for a waiver the defendant must understand
"the import of each Miranda warning," the judge, expressly employing
"special caution" in view of the defendant's youth, concluded beyond
a reasonable doubt that the defendant intentionally and without any form of
coercion relinquished his Fifth Amendment rights.
[1][2][3]
In the absence of clear error, we accept the judge's subsidiary findings.
Commonwealth v. Corriveau, 396 Mass. 319,
326, 486 N.E.2d 29 (1985). Also, we give
substantial deference to a judge's ultimate findings. Id. Of course, we must make our own determination
of the correctness of the judge's application of law to his or her findings. Id. In this case, the judge's subsidiary findings
were clearly warranted by the evidence, and no reason appears for rejecting his
ultimate findings. The judge correctly
applied the law.
The
defendant relies on Commonwealth v. A
Juvenile, 389 Mass. 128, 449 N.E.2d 654 (1983), decided several months
after this case was tried, and argues that the several requirements for a valid
determination that a juvenile has waived his Fifth Amendment rights announced
in that case apply to this case as well, and that they were not met. Specifically, the defendant argues that the
police failed to make an adequate effort to have his mother, instead of his
grandfather, present with him at the police station, and that this failure may
have prejudiced his rights. He further
argues that the judge failed to find that the grandfather
understood the defendant's rights and the possible consequences of waiving
them, and that the defendant and the grandfather engaged in no discussion about
those matters.
In Commonwealth v. A Juvenile, supra at
133‑134, 449 N.E.2d 654, we said:
"In those jurisdictions which have adopted the 'interested adult'
rule, the courts have generally held that to demonstrate a knowing and
intelligent waiver by a juvenile the State must first prove that the juvenile
and his parent, or if a parent is not available, someone in loco parentis, were fully advised of the juvenile's right
against self‑incrimination through administration of the standard Miranda warnings. See, e.g.,
Commonwealth v. Smith, [472 Pa. 492, 497, 372 A.2d 797 (1977) ]. We conclude that, [399 Mass. 77] for the
Commonwealth successfully to demonstrate a knowing and intelligent waiver by a
juvenile, in most cases it should show that a parent or an interested adult was
present, understood the warnings, and had the opportunity to explain his rights
to the juvenile so that the juvenile understands the significance of waiver of
these rights. For the purpose of
obtaining the waiver in the case of juveniles who are under the age of
fourteen, we conclude that no waiver can be effective without this added
protection. This procedure reflects our
assumption that an informed parent, or person standing in loco parentis, will be better able to understand the child's
rights, rights which a child of such tender years is unlikely to comprehend
fully without the assistance of such a person.
For cases involving a juvenile who has reached the age of fourteen,
there should ordinarily be a meaningful consultation with the parent,
interested adult, or attorney to ensure that the waiver is knowing and
intelligent. For a waiver to be valid
without such a consultation the circumstances should demonstrate a high degree
of intelligence, experience, knowledge, or sophistication on the part of the
juvenile." (Footnote concerning the
retroactivity of the per se rule applicable to juveniles under fourteen
omitted.) The standards we set forth in Commonwealth v. A Juvenile, supra, for
assuring that juvenile defendant who has reached fourteen years of age has
knowingly, intelligently, and voluntarily waived his Fifth Amendment rights
have been met in this case.
[4] In Commonwealth v. A Juvenile, supra, we
specifically allowed for someone other than a parent, such as a grandfather, to
be present with the juvenile. Of course,
deliberate police avoidance of a parent's participation in an exchange between
the police and a juvenile ordinarily would be highly suspect, but no such
conduct is indicated here. At best it
may be said that the search for the defendant's mother does not appear to have
been extensive, but we have not announced minimum search requirements, and we
are not inclined to do so. In the
absence of contrary indications, it is fairly inferrable
that a grandfather in whose home a juvenile is found, and who accompanies the
juvenile to the police station, is sufficiently interested [399 Mass. 78] in the
juvenile's welfare to afford the juvenile appropriate protection.
It is true
that the judge, not having the benefit of our decision in Commonwealth v. A Juvenile, 389 Mass. 128, 449 N.E.2d 654 (1983),
did not specifically find that the defendant's grandfather understood the Miranda warnings. However, the judge did focus on the
grandfather's mental capacity. He found
that Lieutenant Duemling noticed nothing wrong with
the grandfather's speech or behavior immediately before the trip to the police
station, and in his memorandum of findings, the judge explicitly stated that he
disbelieved the grandfather's testimony at the suppression hearing that he was
drunk at the police station and knew very little about what had happened. Furthermore, the judge found that Duemling read the
Miranda warnings to the grandfather, who subsequently read and signed the Miranda card. Nothing more need be shown to demonstrate
that the presence of the grandfather gave the defendant a realistic opportunity
to get helpful advice if he needed it.
[5][6] The facts that the defendant did not
actually seek his grandfather's advice and that his grandfather did not
expressly offer it, are without consequence.
It is the juvenile's opportunity to consult that is critical, not
whether he avails himself of it. That
opportunity was present here. Without
the benefit of context, our statement in
Commonwealth v. A Juvenile, supra at 134, 449 N.E.2d 654, that "[f]or
cases involving a juvenile who has reached the age of fourteen, there should
ordinarily be a meaningful consultation with the parent, interested adult, or
attorney," might suggest that a mere opportunity for a consultation
without a consultation actually taking place is insufficient, but the context
makes clear that no more than genuine opportunity is required. Both before and after the quoted language,
the opinion explicitly speaks of the importance of the defendant's having an
"opportunity" to consult with an adult. In the Pennsylvania case on which this court
relied in A Juvenile, the court held
that opportunity is enough, Commonwealth
v. Smith, supra, 472 Pa. at 502‑503, 372 A.2d 797, rejecting the
view, expressed in a concurring opinion, that there can be no waiver in the
absence of an actual consultation. Commonwealth v. Smith, supra at 506, 372
A.2d 797 (Manderino, J., [399 Mass. 79]
concurring). Furthermore, the ultimate
question is whether the juvenile has understood his rights and the potential
consequences of waiving them before talking to the police. The choice of a sixteen year old juvenile not
to consult with an available friendly advisor concerning those matters suggests
that the juvenile's understanding was such that consultation was unnecessary. We conclude, therefore, that the judge's
determination that the defendant knowingly, intelligently, and voluntarily
waived his Fifth Amendment rights was well warranted even if we take the view
that the judge's findings do not amount to findings of "a high degree of
intelligence, experience, knowledge, or sophistication" on the defendant's
part.
Commonwealth v. A Juvenile, supra, 389 Mass. at 134, 449 N.E.2d
654. Accordingly, we perceive no error
in the denial of the defendant's motion to suppress.
In
addition to the defendant's claim that the denial of his motion to suppress was
error, he seeks reduction of the conviction pursuant to G.L.
c. 278, § 33E. We have considered the
entire record, including the confession, and we are satisfied that the
interests of justice would not be served by our granting relief under G.L. c. 278, § 33E.
Judgment affirmed.
(FN1.) The uncontroverted
evidence adduced at the suppression hearing was that the grandfather was sixty‑eight
years old.