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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. Mahnke, 368
Supreme Judicial Court of Massachusetts,
Argued
Decided
Gerald Alch,
Newman A. Flanagan, Asst. Dist. Atty., for the
Commonwealth.
Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER,
HENNESSEY, KAPLAN and WILKINS, JJ.
TAURO, Chief Justice.
The events
which frame the central issues in this case arise from legal and illegal
efforts of the family and friends of a young woman (the victim) to provide an
explanation for her mysterious disappearance in September of 1970. On
[1] In the
present appeal, under G.L. c. 278, ss 33A‑‑33G, the defendant
argues four specific assignments of error, chiefly related to the refusal of
the judge to exclude from the trial all evidence obtained as a result of his
abduction and subsequent police interrogation.
We delineate these assignments of error with more particularity
below. (FN2) Other assignments of error, included in the
defendant's 'Assignment of Errors,' have not been briefed or argued in this appeal
and must be deemed waived. Commonwealth
v. Baker,‑‑‑ Mass. ‑‑‑, ‑‑‑
(FNa), 330 N.E.2d 794 (1975), and authorities cited. On January 8, 1975, by our order we directed
the trial judge to make supplementary findings with respect to the
voluntariness of the statements made by the defendant on December 9 and 10,
1971. These supplementary findings were
duly filed on February 12, 1975, and on the defendant's motion, we allowed
submission of further briefs directed to issues raised by the supplementary
findings.
[2] At the
outset, we briefly summarize the subsidiary facts developed at the voir dire
and reported in the careful and detailed initial and supplementary findings of
the experienced trial judge. (FN3) We accept, as we must, the trial judge's resolution
of conflicting testimony (FN4) (Commonwealth v. Valcourt, 333 Mass. 706, 710,
133 N.E.2d 217 (1956); Commonwealth v. Femino, 352 Mass. 508, 513, 226 N.E.2d
248 (1967); Commonwealth v. D'Ambra, 357 Mass. 260, 262‑‑263, 258
N.E.2d 74 [368 Mass. 667] (1970)), and will not disturb his
subsidiary findings if they are warranted by the evidence (see Commonwealth v.
Murphy, 362 Mass. 542, 547, 289 N.E.2d 571 (1972). However, ultimate findings and conclusions of
law, particularly those of constitutional
dimensions, are open for our independent review in this appeal. (FN5)
Id. at 551, 289 N.E.2d 571 (Hennessey, J., concurring). See Commonwealth v. Kleciak, 350 Mass. 679,
685‑‑689, 216 N.E.2d 417 (1966); Commonwealth v. Cook, 351 Mass.
231, 235, 218 N.E.2d 393 (1966), cert. den., 385 U.S. 981, 87 S.Ct. 529, 17
L.Ed.2d 443 (1966). Additional facts in
the case are discussed below as they become relevant to the several issues of
law being considered.
The Police
Investigations. On September 16, 1970,
the day following the victim's disappearance, her parents reported her
disappearance to the Boston police, who immediately undertook an
investigation. In the course of the
early investigation, the defendant was twice interviewed by detectives from
division 4 of the Boston police. The
police did not suspect that a crime had been committed, but they did suspect
that the victim was hiding somewhere in the Boston area and that the defendant
had knowledge of where she was hiding, which he refused to divulge. Their suspicions were aroused by the several
inconsistent stories which the defendant told in the September 16 interrogation
regarding the events of the previous evening.
(FN6) The second interview, held
September 24 with the defendant's attorney present, had as its primary purpose
a discussion of whether, and in [368
Mass. 668] what circumstances, the
defendant might take a lie detector test.
In fact, the defendant never took the test.
The police
investigation continued, but failed to discover the cause of the victim's
disappearance or her location. In early
December, 1970, Detective Stanley Gawlinski (Gawlinski), attached to the office
of the district attorney for Suffolk County, was assigned to the case on a full
time basis. After repeated urging by the
victim's father (the father) Gawlinski arranged a meeting with the defendant for
December 22 in the law office of the defendant's attorney. The defendant, in the presence of his
attorney, described his relationship with the victim and repeated the last
story he had related to the police on September 16. In April, 1971, again at the father's
suggestion, Gawlinski arranged to have Muddy River in the Fenway area dragged
for the victim's body. When this search
proved unavailing, Gawlinski conceded that he had exhausted his leads and
consigned the case to the inactive file at the district attorney's office. Thereafter, Gawlinski maintained only
sporadic contact with the victim's family and limited his investigations to
leads which were supplied by interested persons. Even this limited contact ceased in August,
1971, after an unpleasant conversation in which he reprimanded the father for
an attempt (FN7) by some young men to question the defendant at his place of
work.
Private
Efforts. Throughout the course of the
police investigation, the father and his son were impatient with police
investigations and unwilling to place sole reliance on them. The father worked with three private
investigators and utilized the voluntary assistance of a large number (perhaps
as many as 100) of family or neighborhood friends. Of these friends, a core group of the son's
friends, styled the 'concerned group' by the judge, were the most persistent
workers. Included in the concerned group
were Gary Fisher, James Ferreri, Frank [368
Mass. 669] Fontacchio, John (Jay) Campbell
and Joseph (Jay) Heard, participants in the abduction of the defendant.
The
private efforts were principally (FN8) directed toward a program of
surveillance designed to determine the pattern of the defendant's
movements. Ultimately, the surveillance
program was used to provide an opportunity to put questions to the defendant
under conditions that would compel responses.
There were a number of attempts to question the defendant. In September, 1970, before reporting the
disappearance to the police, the father and son sought out the defendant on the
campus of Northeastern University, where he was a student, questioned him, and
took him on a tour of the Fenway district, in which, it could be supposed, the
defendant met or was to have met the victim on the night of September 15. On two subsequent occasions, members of the
concerned group accosted the defendant at Northeastern University and
attempted, unsuccessfully, to detain him.
In December, 1970, two members of the concerned group, Fontacchio and
Campbell, appeared in the reception area of the office of the defendant's
attorney while the meeting between the defendant and Gawlinski was in progress
and inquired whether the defendant was within.
They later followed the defendant and his mother. In August, 1971, Ferreri and Fontacchio were
thwarted in an attempt to confront the defendant in the office of Henry F.
Bryant & Son, Inc., where he was a summer employee. (FN9)
The
Abduction. On December 8, 1971, the
defendant drove to Mt. Ida Junior College in order to meet a young woman with
whom he had a date. He arrived about [368 Mass. 670] 7:30 P.M. A surveillance
group, consisting of the father, Fisher, Ferreri and Fontacchio, followed him
in two cars. After the defendant had
parked his car and entered a building, Ferreri and Fontacchio concealed
themselves in heavy foliage near the defendant's car. When the defendant returned to his car,
Ferreri emerged from the bushes, grabbed the defendant, and demanded to
question him. As the defendant struggled
to free himself, Ferreri, described as a 'big, strong, husky youth,' struck him
near the left eye. The defendant fell
and lost his glasses. Fontacchio
approached and he and Ferreri guided the defendant into the back seat of an
Oldsmobile. The father, who had moved
from the Oldsmobile to the second car, raced the engine to divert attention
from the defendant's calls for help.
While Fisher drove the Oldsmobile, Ferreri maintained a headlock on the
defendant so that his head was below the level of the front seat. With the defendant under secure restraint,
Fisher drove to his uncle's hunting cabin in Worthington, Massachusetts, in the
western part of the State, 128 miles from Mt. Ida Junior College. Though the surveillance for the night of
December 8 had undoubtedly been prearranged, the judge was persuaded and found
that the idea to remove the defendant to a remote, isolated hunting cabin was
'spontaneous and unpremeditated.' (FN10)
On
reaching the cabin, Fisher gained entrance by breaking a pane of glass. The defendant was placed on a couch in the
room farthest from the front door, and ice packs and snow were applied to the
severe bruises on his face which had resulted from Ferreri's blow. At approximately 11:30 P.M. Ferreri and
Fontacchio departed [368 Mass. 671] for Boston. Fisher, armed with a bread knife
(FN11) which he exhibited to the defendant, remained in the room with the
defendant. The judge found that they
dozed intermittently. (FN12)
Interrogation
of the defendant commenced on the return of Ferreri with Jay Campbell about 6
A.M. Questioning by the group (FN13)
continued for over six hours. During
that time, the defendant admitted nothing.
The questioning was repetitious and insistent. The interrogators used extremely rough
language and occasionally threatened the defendant's life. The judge was satisfied, however, that no
physical force was applied. Finally, at
approximately 12:30 P.M. the defendant said that he wanted to speak to Ferreri
alone. Ferreri wanted Campbell present
at any further conversation and the defendant finally agreed.
Alone in
the room with these two, the defendant, after receiving assurances that he
would not be harmed, related facts pertaining to the victim's death: He met her
on the night of September 15 at a bus stop near the Sears store. When she told him that she was pregnant and
that he was the father, he denied the responsibility and accused her of having
relations with a man in California. She
slapped him and he struck her in retaliation.
She fell, hit her head on the curb, and lay motionless. After mouth‑to‑mouth
resuscitation failed to revive her, the defendant realized she was dead. He carried her down a [368 Mass. 672] hill to
some abandoned railroad tracks, wrapped her in a blanket he found there, dug a
shallow grave with his shoes, and buried her.
The defendant declined to specify the exact location of the body and
would say only that the gravesite was in the area near the Sears store. However, he was willing to lead the group to
the body. (FN14)
The
interrogation ceased once the defendant had made these statements. The judge found that a spirit of relative
friendliness supplanted the former hostile, strained relationship between the
defendant and his captors. The defendant
expressed relief at having finally disclosed his secret and referred to Ferreri
and Campbell as friends. When the rest
of the group returned, Ferreri persuaded the others to trust the defendant to
lead them to the body. They tidied up
the cabin and departed for Boston about 4:15 P.M. (FN15)
As the
group emerged from the cabin with the defendant it encountered two hunters,
David Tyler, the chief of police of Worthington, and Reino Liimatainen. Earlier in the day, Tyler had stopped at the
cabin and, without identifying himself, had questioned Fisher about his
occupation of the cabin. Though Fisher
had partially satisfied Tyler as to his right to be there, Tyler had remained
somewhat suspicious. At 4:15 P.M. Tyler
questioned Fisher once again.
Liimatainen, who harbored his own suspicions, slipped shells into the
chambers of his shotgun and, in a loud voice, said, If there is any funny
business I will blow your guts out.' The
judge [368 Mass. 673] found that the entire party,
including the defendant, could hear this and that the group was under the
hunters' 'control' at this point. Fisher
evidently allayed Tyler's suspicions once again, for the episode ended with the
group's driving away in two cars. As
they left, the defendant remarked to Ferreri, 'See, I could have gotten away if
I wanted to, but I didn't.' (FN16)
The
defendant directed Ferreri to drive to the Sears parking lot. They arrived in darkness at approximately
6:30 P.M.
The
defendant described the gravesite to Ferreri as an overgrown area near an
abandoned railroad spur below a grouping of three windows in a Metropolitan
District Commission maintenance shed.
Ferreri, alone, walked down a hill to the tracks. Unable to find the gravesite, he returned to
the parking lot, where the others had remained, and told the defendant, 'You
will have to come down with me.' The
defendant refused and stated that the place was 'spooked' and that they would
kill him if he went down there. Heard
handed the defendant a pocketknife for protection. Whereupom, Ferreri started down and was followed
by the defendant, who held the open knife.
The defendant refused to proceed the full distance to the grave, but he
did point out its location. The
defendant then returned to the parking lot.
Ferreri, joined by Fontacchio and Campbell, ascertained that a body was
buried at the place indicated. Ferreri
then drove the defendant to a point a short distance from his home.
While
Ferreri had been searching the track area the first time, the defendant found
himself momentarily alone with Heard and casually acknowledged that he had
killed the victim. In response to a
question from Heard, he said that he was not worried about the consequences
because the abductors would be hostile witnesses whose [368 Mass. 674]
testimony would not stand up in court, and because his grandmother would hire a
certain well‑known lawyer who would get him off. Asked how he had expected to get away with it
at the time, the defendant replied that he had thought the rainfall on
September 15 would prevent police dogs from discovering the body.
Subsequent
Events: Police Reinvolvement. Sometime
that evening, the group notified the victim's family that her body had been
found. About 11:30 P.M. the father
telephoned Gawlinski, who had just returned home from attending classes and studying
at Northeastern University, described the location of the body, and gave a
somewhat cryptic, incomplete account of the events leading up to the
discovery. After Gawlinski finished his
telephone conversation with the father, his wife informed him that the
defendant's attorney had tried several times to reach him that night. Gawlinski did not return the attorney's
calls. He informed his partner in the
case and a private investigator the father had hired that the body had been
discovered and, after some delay, drove to the gravesite.
About 3
A.M. Gawlinski and other officers went to the defendant's home. (FN17)
From there, they proceeded to the Massachusetts General Hospital, where
the defendant had been admitted as a patient.
At the hospital, after securing permission to speak to the defendant,
two officers went to his room (FN18) with a police stenographer while Gawlinski
remained downstairs.
The
defendant was interrogated from 3:30 A.M. until 7:30 A.M. Before questioning him, the police gave the
defendant the Miranda warnings. The
defendant did not request counsel or respond to the precise question whether he
understood the warnings. On at least
four [368 Mass. 675] occasions, he did ask to have his
parents present. Nevertheless, the
police continued their questioning. The
defendant did not respond to some questions; others were answered in a halting
manner. The judge found that the
defendant showed intelligent discrimination and some control over the course of
the interrogation. (FN19) Ultimately, the defendant allegedly made a
statement which, in substance, reiterated the story he had related to the
concerned group in the cabin.
About 7:30
A.M. on December 10, the interrogating officers left the hospital and met
Gawlinski at the entrance. At 8:30 A.M.
one of them Sergeant Daley, wrote down his recollection of the defendant's
statement. The following morning,
December 11, the defendant was discharged from the hospital. He was indicted on December 15, 1971.
Principal
Motions and Assignments of Error.
(FN20) After the voir dire
hearing on motions to suppress, the judge ruled that all statements which the
defendant had made to his kidnappers prior to the departure of the party from
the cabin at 4:15 P.M. were to be suppressed and inadmissible at trial because
they were the product of coercion. In
this respect, the judge attached no significance to the fact that the defendant
was coerced by private persons and not by police. However, he ruled that later statements to
the kidnappers and 'statements and actions leading to the discovery of the body
of the deceased near . . . (the Sears store in) the early evening of December
9, 1971' would be admissible. These
statements and actions he found to be voluntary and the result of the [368 Mass. 676] exercise of the defendant's 'free will.' (FN21)
The defendant assigns this ruling as error.
The
defendant also moved to suppress the statement allegedly made by him to the
police at the Massachusetts General Hospital on the morning of December 10,
1971. The judge ruled that as the police
had knowingly denied the defendant the benefit of advice of his counsel, the
statement was not admissible in the Commonwealth's case in chief. Nevertheless, he ruled on the authority of
Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), that the
Commonwealth could introduce the statement by way of impeachment if the
defendant testified. The defendant, who
testified at voir dire but not at trial, assigns the latter ruling as error.
I. MIRANDA
WARNINGS BY THE CONCERNED GROUP
[3] We
disagree with the defendant's contention that the failure of his kidnappers to
apprise him of his Miranda rights requires suppression of all statements made
on December 9. In Miranda v. Arizona,
384 U.S. 436, 444, 461, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court
formulated a series of prophylactic rules (see Michigan v. Tucker, 417 U.S.
433, 443, 94 S.Ct. 2357, 2363, 41 L.Ed.2d 182 (1974)), designed 'to secure the
privilege against self‑incrimination' from overreaching and coercion
during custodial interrogation.
Custodial interrogation was defined as 'questioning initiated by
law enforcement officers after a person has been taken into custody or
otherwise deprived of his freedom of action in any significant way' (emphasis
supplied). Miranda v. Arizona, supra,
384 U.S. at 444, 86 S.Ct. at 1612; Commonwealth v. White, 353 Mass. 409, 415‑‑416,
232 N.E.2d 335 (1967), cert. den., 391 U.S. 968, 88 S.Ct. 2039, 20 L.Ed.2d 881 [368 Mass. 677] (1968). In the instant
case, the kidnappers were not law enforcement officers. They were private citizens embarked on an
illegal enterprise. The Miranda rules do
not extend to their activities. See
United States v. Antonelli, 434 F.2d 335, 337 (2d Cir. 1970), and authorities
cited; United States v. Bolden, 461 F.2d 998 (8th Cir. 1972); United States v.
Casteel, 476 F.2d 152 (10th Cir. 1973).
[4] [5]
[6] Nevertheless, the defendant argues that the 'connection' among the
kidnappers, the father, and Gawlinski 'clothed the actions of the kidnappers
with police authority.' Again, we
disagree. Of course, the police may not
accomplish through private proxies what they cannot do directly. If the defendant had shown that the group of
kidnappers was 'functioning as an instrument of the police' (United States v.
Brown, 466 F.2d 493, 495 (10th Cir. 1972); cf. Coolidge v. New Hampshire, 403
U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)), or acting as an agent of
the police pursuant to a scheme to elicit statements from the defendant by
coercion or guile (cf., e.g., Commonwealth v. White, supra, 353 Mass. at 416,
232 N.E.2d 335; Commonwealth v. Martin,
357 Mass. 190, 193, 257 N.E.2d 444 (1970)), the statements would have to
be suppressed for failure to give Miranda warnings. However, we agree with the judge that the
subsidiary facts developed at voir dire supported the conclusion that the
defendant did not establish such a police connection. It is true that Gawlinski worked closely with
the victim's father in the initial stages of his investigation. (this was to be expected.) It is also true that he was aware of the
surveillance undertaken by the concerned group and aware of the father's deepening
bitterness and frustration and that, despite his awareness, he did not order
the father and his associates to refrain from further investigation and
repeatedly professed himself willing to follow and leads which private efforts
uncovered. Yet, when considered in all
the circumstances, these facts are insufficient to establish police connivance
in, and responsibility for, the events of December 8 and 9. Gawlinski vehemently[368 Mass. 678] opposed any conduct which would harm the
defendant or interfere with his liberty.
He cautioned the father against any 'rough stuff' and threatened to
prosecute anyone who violated the law.
In August, 1971, after the incident at Henry F. Bryant & Son, Inc.,
Gawlinski reprimanded the father. The
two had harsh words, and communication between them, which had been sporadic
since April, lapsed completely until December 9. (FN22)
Moreover, Gawlinski was not shown to have had foreknowledge of the
kidnapping plan and first learned of its occurrence at 11:30 P.M. on December
9. In these circumstances, despite
whatever encouragement the kidnappers may have felt they had received from
Gawlinski's talk about possible leads, we cannot say that they acted as agents
or instruments of the police in extracting statements from the defendant and
that the absence of Miranda warnings required suppression of those
statements. (FN23)
[368 MASS.
679] II. VOLUNTARINESS OF POST‑4:15
STATEMENTS TO THE ABDUCTORS.
[7] [8]
[9] 1. Since the Miranda rules are not
apposite to the statements (FN24) made by the defendant to his abductors, the
admissibility of these statements at trial is governed by the due process
standard of voluntariness. Delle Chiaie
v. Commonwealth, ‑‑‑ Mass. ‑‑‑, ‑‑‑
(FNb), 327 N.E.2d 696 (1975); Davis v. North Carolina, 384 U.S. 737, 740, 86
S.Ct. 1761, 16 L.Ed.2d 895 (1966).
Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524
(1971). A conviction founded in whole or
in part on statements which are the product of physical or psychological
coercion deprives the defendant of his right to due process of law under the
Fourteenth Amendment and, as a consequence, is invalid. Rogers v. Richmond, 365 U.S. 534, 540‑‑541,
81 S.Ct. 735, 5 L.Ed.2d 760 (1961); Jackson v. Denno, 378 U.S. 368, 376, 84
S.Ct. 1774, 12 L.Ed.2d 908 (1964). See
Commonwealth v. Harris, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ (FNc), 303 N.E.2d 115 (1973). Such convictions are invalid irrespective of
the truth or [368 Mass. 680] falsity of the statements
admitted. 'The use of coerced
confessions . . . is forbidden because the method used to extract them offends
constitutional principles' (Lego v. Twomey, 404 U.S. 477, 485, 92 S.Ct. 619,
624, 30 L.Ed.2d 618 (1972)) and because 'declarations procured by torture (or
other coercive means) are not premises from which a civilized forum will infer
guilt.' Lyons v. Oklahoma, 322 U.S. 596,
605, 64 S.Ct. 1208, 1213, 88 L.Ed. 1481 (1944).
See Rogers v. Richmond, supra, 365 U.S. at 540‑‑541, 81
S.Ct. 735; Jackson v. Denno, supra, 378 U.S. at 385‑‑386, 84 S.Ct.
1774. Cf. Stein v. New York, 346 U.S.
156, 192, 73 S.Ct. 1077, 97 L.Ed. 1522 (1953).
[10] [11]
There is no easy acid test for voluntariness.
Judicial determinations must rest on more than a 'more
colormatching' comparison of analogous cases.
Reck v. Pate, 367 U.S. 433, 442, 81 S.Ct. 1541, 6 L.Ed.2d 948
(1961). In each case, the court must
assess the totality of relevant circumstances to ensure that the defendant's
confession was a free and voluntary act and was not the product of
inquisitorial activity which had overborne his will. Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct.
1338, 18 L.Ed.2d 423 (1967). Procunier
v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971), and cases
cited. Delle Chiaie v. Commonwealth, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNd), 327 N.E.2d 696
(1975). See Schneckloth v. Bustamonte,
412 U.S. 218, 225‑‑226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The burden of proof is on the government to
show such voluntariness by a preponderance of the evidence. Jackson v. Denno, 378 U.S. 368, 376‑‑377,
84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Lego v. Twomey, 404 U.S. 477, 489, 92
S.Ct. 619, 30 L.Ed.2d 618 (1972). (FN25)
[12]
2. These principles apply even though
the statements were extracted by private coercion, unalloyed with any official
government involvement. We have not
squarely decided this point previously, but it is implicit in our decisions in
Commonwealth v. White, 353 Mass. 409, 417‑‑418, 232 N.E.2d 335
(1967), cert. den., 391 U.S. 968, 88 S.Ct. 2039, 20 L.Ed.2d 881 (1968),
(voluntariness test applied to confession made to private parties [368 Mass. 681] after two statements to police which were inadmissible under
Miranda), Commonwealth v. Wallace, 356 Mass. 92, 96‑‑97, 248 N.E.2d
246 (1969) (statements to Canadian police), and Commonwealth v. Martin, 357
Mass. 190, 193, 257 N.E.2d 444 (1970).
The Supreme Court of the United States has not spoken to the question
(FN26) but it has invoked the usual analysis where pressure was exerted by
private persons while the defendant was nominally in official custody. See Thomas v. Arizona, 356 U.S. 390, 78 S.Ct.
885, 2 L.Ed.2d 863 (1958) (private citizen, a member of a posse, abused a
prisoner who later confessed to the authorities). A number of State courts have applied the due
process analysis to circumstances in which the only claimed coercion leading to
a confession was private. See, e.g.,
Palmore v. State, 244 Ala. 227, 12 So.2d 854 (1943); State v. Christopher, 10
Ariz.App. 169, 457 P.2d 356 (1969); People v. Haydel, 12 Cal.3d 190, 115
Cal.Rptr. 394, 524 P.2d 866 (1974); Lawton v. State, 152 Fla. 821, 13 So.2d 211
(1943).
[13]
Underlying the above‑cited decisions in this jurisdiction and other
jurisdictions is the fundamental recognition that a statement obtained through
coercion and introduced at trial is every bit as offensive to civilized
standards of adjudication when the coercion flows from private hands as when
official depredations elicit a confession.
Statements extracted by a howling lynch mob or a lawless private pack of
vigilantes from a terrorized, pliable suspect are repugnant to due process
mandates of fundamental fairness and protection against compulsory self‑incrimination. See People v. Berve, 51 Cal.2d 286, 290, 332
P.2d 97 (1958).
[14]
3. When, as in the instant case, several
statements given at different times by the defendant must be evaluated for
voluntariness, a finding that an earlier statement was involuntary does not
necessarily require suppression of the later statements. 'The admissibility of the later [368 Mass. 682] confession depends upon the same test‑‑is it
voluntary. Of course the fact that the
earlier statement was obtained from the prisoner by coercion is to be
considered in appraising the character of the later confession. The effect of earlier abuse may be so clear
as to forbid any other inference than that it dominated the mind of the accused
to such an extent that the later confession is involuntary. . . .'
Commonwealth v. White, 353 Mass. 409, 417, 232 N.E.2d 335, 341 (1967),
cert. den., 391 U.S. 968, 88 S.Ct. 2039, 20 L.Ed.2d 881 (1968), quoting from
Lyons v. Oklahoma, 322 U.S. 596, 603, 64 S.Ct. 1208, 88 L.Ed. 1481 (1944). It is equally true, however, that the
defendant may have been under no compulsion at the time of the later statements
and may have felt no effect of the earlier abuse at the time. The later statements, then, would be
admissible. The United States Supreme
Court has never held that 'making a confession under circumstances which
preclude its use, perpetually disables the confessor from making a usable one
after those conditions have been removed.'
United States v. Bayer, 331 U.S. 532, 541, 67 S.Ct. 1394, 1398, 91 L.Ed.
1654 (1947).
[15] [16]
Two lines of analysis emerge from the case law and guide our analysis of the
voluntariness of the defendant's post‑4:15 statements. We are still required to look to the
'totality of the circumstances.' Clewis
v. Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967); Darwin v.
Connecticut, 391 U.S. 346, 349, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968). See United States v. Bayer, supra, 331 U.S.
at 540‑‑541, 67 S.Ct. 1394.
However, these lines of analysis furnish convenient, commonsense
approaches to ordering and evaluating the necessary elements of the
circumstances which bear on the voluntariness of the later statements. In the first line of analysis, the court must
look for a 'break in the stream of events,' the coercive circumstances which
extracted earlier statements, 'sufficient to insulate the (subsequent)
statement from the effect of all that went before.' Clewis v. Texas, supra, 386 U.S. at 710, 87
S.Ct. at 1340. The focus of this line of
analysis is on external constraints, continuing or new, which may have
overborne the defendant's will. When
circumstances no [368 Mass. 683] longer coerce the defendant, a break
in the stream has occurred. The second
line of analysis looks more specifically to the effect of the previous
confession on the defendant's will. To
be admissible, subsequent statements may not be 'merely the produce of the
erroneous impression that the cat was already out of the bag' (Darwin v.
Connecticut, 391 U.S. 346, 351, 88 S.Ct. 1488, 1491, 20 L.Ed.2d 630 (1968)
(Harlan, J., concurring and dissenting)) because one coerced confession has let
the secret 'out for good.' United States
v. Bayer,331 U.S. 532, 540, 67 S.Ct. 1394, 91 L.Ed. 1654 (1947).
Pursuant
to our order of January 8, 1975, the judge has filed supplementary findings
addressing the issue of voluntariness as elucidated by these lines of
analysis. After a detailed recitation of
the evidence and the facts found by him, he concluded that the post‑4:15
P.M. statements made by the defendant to his abductors were voluntary and
admissible. We believe such a conclusion
was warranted.
a. Break in the Stream of Events. The judge quite correctly ruled that
statements obtained by the concerned group from the defendant prior to the
departure from the cabin were involuntary because 'induced by threats, duress,
intimidation, fear, and at least some violence (the original striking of the
defendant at Mt. Ida).' The defendant,
held incommunicado (see, e.g., Rogers v. Richmond, 365 U.S. 534, 536, 81 S.Ct.
735, 5 L.Ed.2d 760 (1961)) by his violent, law‑breaking captors (see,
e.g., Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936)) in
a remote hunting cabin, was subjected to continuous rough questioning and
threats (see, e.g., Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917,
9 L.Ed.2d 922 (1963)) designed to overcome his resistance and extract by
psychological compulsion what he would not give freely. These circumstances are 'so inherently
coercive that . . . (their) very existence is irreconcilable with the
possession of mental freedom (by the person) . . . against whom . . . (the)
full coercive force is brought to bear.'
Ashcraft v. Tennessee, 322 U.S. 143, 154, 64 S.Ct. 921, 926, 88 L.Ed.
1192 (1944); Reck v. Pate, 367 U.S. 433, 442, 81 S.Ct. 1541, 6 L.Ed.2d 948
(1961).
[17][368 Mass. 684] However, as the trial
judge found on sufficient evidence, once the defendant had admitted his
connection with the death, all hostility and intimidation ceased. The defendant's captors no longer threatened
him or sought to elicit further information through their rough persistent
questioning. A peculiar relationship of
friendship and mutual trust seems to have arisen between Ferreri and the
defendant. Thus, though the defendant
remained captive while the concerned group discussed their next move, the
atmosphere of coercion had been dispelled to a large extent.
After the
group had left the cabin, even the vestige of coercion inherent in the group's
control over the defendant's person vanished.
Numerous opportunities for escape were presented to the defendant. The defendant eschewed these opportunities,
though, as the trial judge found on ample evidence, (FN27) he 'knew he could
have effected an escape.' The defendant
could have made some protest or sign when the group was within range of the
hunters' guns. The warning about 'funny
business,' issued by Liimatainen, was an invitation to outcry by the
defendant. Yet he chose not to seek
assistance. Similarly, on the trip back
to Boston, the defendant made no attempt to attract attention at the
Massachusetts Turnpike toll booths through which the group passed. While Fontacchio and Campbell, the other
members of the concerned group in the car, dozed, the defendant conversed in a
friendly manner with Ferreri, the driver.
At the Weston toll, the defendant contributed part of the necessary
payment because Ferreri lacked sufficient funds. When the group reached the Sears parking lot,
the defendant again let pass [368
Mass. 685] opportunities for
escape. He did not attempt to escape to
the nearby MBTA station or to mingle with shoppers traversing the parking
lot. He could have but did not create a
disturbance which would have drawn public attention to his plight.
Rather, he
acted like a man who felt sufficiently in control of his circumstances to make
a free choice. Initially, he refused to
go down to the burial site, but he agreed when armed with the only weapon then
in evidence. Even then, he exercised his
will and halted short of the precise site.
He gave Ferreri directions to the body and, while Ferreri searched,
engaged in casual incriminating conversation with Heard. His statements to Heard exhibited a bravado
and lack of fear which were indicative of mental freedom of action.
Given the
opportunities for escape, the lack of physical restraint, and the defendant's
possession of the weapon, we believe that the judge had ample justification for
his finding that the defendant's statements and actions were not products of
coercion exerted after he left the cabin.
These factors separate the later statements from the coercive
circumstances surrounding the earlier ones.
Cf. Clewis v. Texas, 386 U.S. 707, 710, 87 S.Ct. 1338, 18 L.Ed.2d 423
(1967). This is not a case such as Leyra
v. Denno, 347 U.S. 556, 74 S.Ct. 716, 98 L.Ed. 948 (1954), or Beecher v.
Alabama, 389 U.S. 35, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967), in which the later
statements were extracted by part of a continuous
coercive process. This is not a case
such as Reck v. Pate, 367 U.S. 433, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961); Clewis
v. Texas, 386 U.S. 707, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967), or Darwin v.
Connecticut, 391 U.S. 346, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968), in which the
defendant remained in official custody without access to potentially friendly
faces (FN28) or intercession for the duration of the 'stream of events.' The objective evidence of the defendant's
behavior after leaving the cabin substantiates the judge's finding that the
mere continuation in the presence of the concerned group [368 Mass. 686] did not
coerce the defendant or render his post‑4:15 P.M. statements involuntary.
b. Cat Out of the Bag. The cat‑out‑of‑the‑bag
line of analysis requires the exclusion of a statement if, in giving the
statement, the defendant was motivated by the belief that, after a prior
coerced statement, his effort to withhold further information would be futile
and he had nothing to lose by repetition or amplification of the earlier
statements. Such a statement would be
inadmissible as the direct product of the earlier coerced statement. The primary exposition of the underlying
proposition by the United States Supreme Court occurs in United States v.
Bayer, 331 U.S. 532, 540‑‑541, 67 S.Ct. 1394, 1398, 91 L.Ed. 1654
(1947). Mr. Justice Jackson wrote: 'Of
course, after an accused has once let the cat out of the bag by confessing, no
matter what the inducement, he is never thereafter free of the psychological
and practical disadvantages of having confessed. He can never get the cat back in the
bag. The secret is out for good. In such a sense, a later confession always
may be looked upon as fruit of the first.'
However, Mr. Justice Jackson qualified his statement of the principle:
'But this Court has never gone so far as to hold that making a confession under
circumstances which preclude its use, perpetually disables the confessor from
making a usable one after those conditions have been removed.'
Mr.
Justice Harlan returned to the point in his opinion (concurring in part and
dissenting in part) in Darwin v. Connecticut, 391 U.S. 346, 350‑‑351,
88 S.Ct. 1488, 20 L.Ed.2d 630 (1968). He
wrote: 'A principal reason why a suspect might make a second or third confession
is simply that, having already confessed once or twice, he might think he has
little to lose by repetition. If a first
confession is not shown to be voluntary, I do not think a later confession that
is merely a direct product of the earlier one should be held to be
voluntary. It would be neither conducive
to good police work, nor fair to a suspect, to allow the erroneous impression
that he has nothing to lose to play the major [368 Mass. 687] role in
a defendant's decision to speak a second or third time. . . .
I would remand for further proceedings, in order to give the prosecution
the opportunity to show that the third confession was not merely the product of
the erroneous impression that the cat was already out of the bag.' Id. at 350‑‑351, 88 S.Ct. at 1490‑‑1491. (FN29)
[18] The
evidence supports the supplementary finding of the judge that there was 'no
'cat out of the bag' aspect to . . . (the defendant's post‑4:15 P.M.)
statements and actions.' The judge was
warranted in finding that the defendant did not yield further information out
of a conviction that his first coerced statement had damned him and in finding
that subsequent admissions were not attributable to a feeling that nothing
further would be lost by repetition. As
the judge found, the defendant 'evidenced no fear of culpability' after the
statements in the cabin and did not believe what he said in the cabin would
have serious adverse effects.
(FN30) In his conversation with
Heard, the defendant disclaimed any fear that the statements made under
coercion would lead to his conviction.
He stated that a (specific) good lawyer would discredit his abductors'
testimony and secure his acquittal in any subsequent proceeding. He may have thought he had 'little to lose'
(Darwin v. Connecticut, 391 U.S. 346, 350, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968)
(Harlan, J.)) through further admissions, but not because he feared the use of
his previous statements. He may have
thought he had 'little to lose' based on an actual belief that he could not be
convicted. Perhaps he thought that the
kidnappers believed and accepted his story that the victim's death was
accidental.
[19][368 Mass. 688] The post‑4:15
statements and actions appear to be attributable to the peculiar friendship
which the defendant formed with Ferreri or to relief at having divulged his
secret at last. (FN31) Neither of these sentiments is the sentiment
against which the cat‑out‑of‑the‑bag analysis would
guard. Fear, continuation of coercive
effects, and a sense of the futility of attempting to 'get the cat back in the
bag' are the objects of the analysis.
See Darwin v. Connecticut, supra, at 350, 88 S.Ct. at 2012; Harrison v.
United States, 392 U.S. 219, 224‑‑226,
88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968).
[20] In
these circumstances, we cannot say, contrary to the judge's findings, that the
post‑4:15 statements and actions were involuntary because they were
products of earlier statements. Cf.
United States v. Gorman, 355 F.2d 151, 157 (2d Cir. 1965), cert. den., 384 U.S.
1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966).
(FN32)
4. In holding the post‑4:15 statements
made to the abductors admissible, we do not in any way approve the illegal and
reprehensible manner in which they were
[368 Mass. 689] obtained. Justice Kaplan's dissent begins with a
statement which focuses attention on the 'dangerous vigilantism' evident in
this case and which indicates that such vigilantism must not be condoned. We join with him in vigorous condemnation of
the violence, kidnapping and intimidation practiced by the members of the
concerned group. Regardless of the
nature of the crime alleged to have been committed by the defendant, there can
be no justification for such unlawful conduct.
Such conduct, apart from its illegality, is contrary to all acceptable
norms of human behavior. It cannot
be countenanced in any form. The rule of
law and lawful procedures must be followed.
[21]
Having said this much, we must add that it is also the duty of this court to
follow settled rules of law in its review of the facts of the case found by the
trial judge. It is settled (and
undisputed) that an appellate court cannot disturb the judge's findings of
subsidiary facts if they are supported by the evidence. In like manner, the court may not deaw
inferences contrary to those of the trial judge which were derived from his
subsidiary findings and from oral testimony.
See Glover v. Waltham Laundry Co., 235 Mass. 330, 333, 127 N.E. 420
(1920). There is a very real and
practical reason for the rule: The appellate court did not conduct the trial or
the voir dire. It has neither heard the
witnesses nor seen all of the evidence.
It lacks the exposure to appearance and demeanor on the witness stand
which assists the trial judge in his evaluation of veracity and resolution of
conflicting testimony.
In the
instant case, none of the dissenters is willing to say that the judge below was
plainly wrong in his findings. Each
purports to accept the basic 'historical or subsidiary facts' found below but
then reaches a result inconsistent with the trial judge's factual finding that
the defendant was 'completely free from fear' after the encounter with the
hunters. Justice Kaplan returns to the
record in order to divine the defendant's state of mind throughout the period
following the departure from the [368
Mass. 690] cabin. He concludes (contrary to the trial judge's
findings) that 'the defendant remained under the heel of the kidnappers' and
that his 'statements at the Sears parking lot were . . . made within a
continuing constraint and compulsion.'
Justice Hennessey, while unwilling to draw these further inferences,
nevertheless finds that the Commonwealth has not proved that the defendant's
admissions were voluntary by a fair preponderance of the evidence. He refuses to be bound by the judge's
inference . . . that is synonymous with voluntariness.'
[22] Is it
now open to this court to disregard the trial judge's findings and to come to a
contrary conclusion? We think not. A decision as to the voluntariness of the defendant's
admissions involves determination of his state of mind at the time they were
made. State of mind is a question of
fact. See Kelley v. Jordan Marsh Co.,
278 Mass. 101, 106, 179 N.E. 299 (1932); Commonwealth v. Holiday, 349 Mass.
126, 128, 206 N.E.2d 691 (1965). It can
be established by the defendant's direct testimony or through reasonable
inferences drawn from other proved facts and demeanor evidence. In the instant case, the defendant testified
directly to the precise question at issue‑‑namely, his state of
mind at the time he agreed to disclose the gravesite to the concerned
group. He testified that he had agreed
to lead the group to the body in order to get out of the cabin. He claimed that members of the group had told
him that he would never leave the cabin alive if he did not tell them the
location of the body. Thus, it was his
story that fear engendered his cooperation with his captors, his disclosure of
the gravesite and his other admissions.
However, this testimony cannot be of any significance here and cannot be
employed to support inferences contrary to those of the trial judge. The trial judge, who had the opportunity to
observe all of the witnesses, evaluated the defendant's testimony and rejected
it. The judge observed the defendant on
the stand, his appearance and his mannerisms; the tone of his voice and his
attitude as he was examined and cross[368
Mass. 691] ‑examined; his
facial expressions and his general demeanor.
(FN33) In short, the trial judge's primary function on this issue
(voluntariness) was to ascertain the defendant's state of mind‑‑whether
he was telling the truth as to the reasons he gave for his decision to reveal
the gravesite (and as to his state of mind).
The trial judge, in rejecting the defendant's testimony, necessarily
found that he was not telling the truth.
This was a finding of fact based on oral testimony of the defendant and
of other witnesses. An appellate court cannot
find to the contrary.
[23] This
is not to say that merely because the judge disbelieved the defendant's
testimony he could, without additional evidence, find the reverse to be
true. His finding of the reverse must be
supported by other relevant evidence.
Here there was extensive testimony, as fully delineated elsewhere in
this opinion, tending to demonstrate the change of mood and relationship found
by the judge below. It was more than
sufficient to sustain the government's burden of proof. The judge's finding of voluntariness must
stand.
III. STATEMENT
TO THE POLICE AT HOSPITAL‑‑THE HARRIS VS. NEW YORK PROBLEM.
[24]
1. The judge quite properly suppressed
all statements made to the police in the Massachusetts General Hospital on
December 10 for purposes of the prosecution's case in chief. Police conduct at the hospital was clearly
inconsistent with the standards for custodial interrogation established by
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). It is true that an officer read the requisite
Miranda warnings to the defendant and then requested that the defendant read
the Miranda warning card. However, [368 Mass. 692] none of the officers apprised the defendant of his lawyer's
efforts to speak to Gawlinski or informed the attorney that a custodial
interrogation of his client was in progress.
Gawlinski, who was most familiar with the case and who knew both that
the defendant had had counsel for many months and that counsel wished urgently
to contact a responsible police official, conspicuously absented himself from
the interrogation. The judge stated that
'conduct on the part of prosecuting officers was at least heedless, if not
deliberate, and I can conclude only that it was a course of conduct calculated
to circumvent . . . (the defendant's) constitutional rights to have the
benefit, aid, and counsel of his attorney.'
[25] The
Miranda safeguards encompass more than a simple explanation to a suspect that
he has a right to remain silent and a right to counsel. The suspect must 'be afforded the opportunity
to exercise these rights throughout the interrogation. . . . (H)e . . . (is)
entitled to know of his counsel's availability and, with that knowledge, to
make the choice (to forgo the benefits of counsel) with intelligence and
understanding.' Commonwealth v. McKenna,
355 Mass. 313, 324, 244 N.E.2d 560, 566 (1969).
In previous cases, we have noted that police may not thwart counsel who
seeks to confer with a client (Commonwealth v. McKenna, supra, at 325‑‑326,
244 N.E.2d 560) and have held inadmissible statements elicited by the police in
the absence of counsel after an attorney has entered the case when no
intentional and knowing waiver of the right to counsel was proved (Commonwealth
v. Murray, 359 Mass. 541, 544‑‑546, 269 N.E.2d 641 (1971)). Cf. Commonwealth v. Cain, 361 Mass. 224, 227‑‑229,
279 N.E.2d 706 (1972). Similarly, in the
instant case, the defendant's statements in the hospital were inadmissible for
the prosecution's case in chief.
[26]
Nevertheless, we hold that the defendant's statements, if voluntary and
trustworthy, (FN34) were available to impeach [368 Mass. 693] his testimony if he took the
stand. (FN35) Harris v. New York, 401 U.S. 222, 91 S.Ct.
643, 28 L.Ed.2d 1 (1971), and Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43
L.Ed.2d 570 (1975), are controlling.
In Harris
v. New York, the defendant took the stand and denied having sold heroin to an
undercover officer. On cross‑examination,
he was asked whether he had made certain statements (FN36) to the police
shortly after his arrest. The transcript
of the interrogation showed that the police had not advised the defendant of
his right to appointed counsel at the time.
Despite this infringement of the Miranda safeguards (Miranda v. Arizona,
supra, 384 U.S. at 444, 86 S.Ct. 1602), the Supreme Court held that the statements
had been properly admitted to impeach the defendant's testimony. The court rejected the argument that under
Miranda 'evidence inadmissible against an accused in the prosecution's case in
chief is barred for all purposes.'
Harris v. New York, supra, 401 U.S. at 224, 91 S.Ct. at 645. In the court's view, a valid policy
consideration, the possibility that the defendant might deliver perjurious
testimony, outweighed the extra measure of deterrence to unconstitutional
police action which might be achieved by total exclusion of such evidence. Mr. Chief Justice Burger wrote for the court:
'Every criminal defendant is privileged to testify in his [368 Mass. 694] own
defense, or to refuse to do so. But that
privilege cannot be construed to include the right to commit perjury. . . .
The shield provided by Miranda cannot be perverted into a license to use
perjury by way of a defense, free from the risk of confrontation with prior
inconsistent utterances.' Id. at 225‑‑226,
91 S.Ct. at 645‑‑646. The
court noted, however, that there had been no claim that the statements made to
police were coerced or involuntary and that 'the trustworthiness of the
evidence (must) satisf(y) legal standards.'
Id. at 224, 91 S.Ct. at 645.
In Oregon
v. Hass, the court again spoke to the issue whether evidence obtained by the
police without strict compliance with Miranda standards was admissible for
impeachment purposes. After his arrest
for bicycle theft, Hass was given the Miranda warnings. He admitted that he had stolen two bicycles
but was uncertain which one was the subject of the investigation. He and a police officer then departed for the
place where he had left one of the stolen bicycles. On the way, Hass commented that he "was
in a lot of trouble" and wanted to telephone his attorney. The police officer replied that Hass could
use the telephone after they returned to the 'office.' Thereafter, Hass guided the police officer to
the bicycle and pointed out the locations of the houses from which he had
stolen the two bicycles. At trial,
Hass's statements to the police officer after his request for counsel were
admitted only as to the credibility of his testimony. The Oregon Court of Appeals reversed his
subsequent conviction and the Supreme Court of Oregon affirmed the
reversal. The United States Supreme
Court, on the authority of Harris v. New York, reversed. The court reiterated its concern that
exclusionary rules could 'free (the defendant) from the embarrassment of
impeachment evidence from . . .
(his) own mouth' (Oregon v. Hass, 420 U.S. 714, 723, 95 S.Ct. 1215, 1221, 43
L.Ed.2d 570) and emphasized, as it had in Harris, the valuable aid which the
defendant's statements would provide to the jury in assessing his
credibility. Id. at 722, 95 S.Ct. at
1221. The court found no [368 Mass. 695] 'valid distinction' between the situation in Harris, which
involved defective Miranda warnings, a violation of a prophylactic rule, (FN37)
and the situation in Hass, which involved the failure to afford a suspect his
full constitutional right to counsel after his attempt to exercise that
right. (FN38) The court added, however, that '(i)f, in a
given case, the officer's conduct amounts to an abuse, that case, like those
involving coercion or duress, may be taken care of when it arises measured by
the traditional standards for evaluating voluntariness and
trustworthiness.' Id. at 723, 95 S.Ct.
at 1221.
We believe
the Harris and Hass exception to the exclusionary rule of Miranda and like
cases permits introduction of the defendant's statements (if they are voluntary
and trustworthy) to impeach his direct testimony. Functionally, (FN39) the violation of the
defendant's rights in the instant case is closely analogous to that in Harris
and Hass. In each case, the deprivation
of rights stems from the failure of police to provide a suspect with counsel to [368 Mass. 696] whom he was entitled. Just
as Harris received no assistance from the appointed counsel to whom he was
entitled and Hass did not have a timely opportunity to consult counsel whom he
had requested, so the defendant here did not benefit from the assistance of
counsel who urgently wished to reach him.
We are not
persuaded that factual distinctions between the instant case and Harris and
Hass are sufficient to shift the balance struck in the two Supreme Court cases
between impeachment of perjurious testimony and deterrence of improper police
conduct. The exclusionary rules
fashioned in Miranda and like cases (FN40) deter 'impermissible police conduct'
(see Harris v. New York, supra, 401 U.S. at 225, 91 S.Ct. 643) by excluding
from trial any evidence which was improperly obtained. Michigan v. Tucker, 417 U.S. 433, 447, 94
S.Ct. 2357, 41 L.Ed.2d 182 (1974). Cf.
United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561
(1974). An exception to the exclusionary
rules in the instant case is no more an encouragement to such misconduct (or a
slackening of the deterrent effects of the rules) than are the exceptions promulgated
in Harris and Hass. Such encouragement
may be thought to arise from the police officer's knowledge that a lawyer will likely
advise his client to make no statement while in custody (FN41) and the further
knowledge that a statement elicited in the absence of counsel will at least be
available for impeachment of testimony.
(FN42) Yet, in Hass, (FN43) where
the suspect had actually requested counsel and, thus, the [368 Mass. 697]
incentive for continuation of interrogation without adherence to constitutional
requirements, if there were an impeachment exception to the exclusionary rule,
would be at a maximum, the court held that the interest in deterring such
police conduct was outweighed by the general interest in impeachment of
perjurious testimony. In the instant
case, by contrast, the police could not know that the defendant would ask to
see his attorney. If he had been
informed that his attorney wished to see him, the defendant might have chosen
to proceed without counsel‑‑to reject the offer. After all, the police had 'given' the defendant
his Miranda warnings. He was aware of
the fact that his parents had engaged an attorney to represent him. If was open to him at any time to halt the
inquiry and request the attorney.
Instead, the defendant intermittently asked for his parents and
continued to answer questions when they did not arrive. In view of the uncertainty in the defendant's
response to the information that his attorney wished to see him, an exception
to the exclusionary rule in the instant case presents lesser incentives to
police misconduct than were present in Hass, and there is a correspondingly
less substantial interest in an exclusionary rule for deterrence.
Accordingly,
we hold that, as in Hass, the interest in impeachment of perjurious testimony
here outweighed the interest in deterrence of police misconduct and that those
of the defendant's statements which were voluntary and trustworthy were
properly available to impeach his testimony if he had taken the stand.
2. We think the judge was warranted in finding
that the statements made by the defendant to the police at the hospital were
voluntary. (FN44)
[27][368 Mass. 698] Having concluded that the
defendant's post‑4:15 P.M. statements to his abductors were separated
from his earlier statements to them by a break in the stream of events and that
these later statements were not made because the cat was out of the bag, we
believe that the statements in the hospital were also sufficiently separated
from the coercive conditions which had extracted the statements in the cabin
and were also not the product of the cat‑out‑of‑the‑bag
effect. The statements in the hospital
were elicited by different people, police officers uninvolved in the original
abduction, in a different place. See
Lyons v. Oklahoma, 322 U.S. 596, 602, 64 S.Ct. 1208, 88 L.Ed. 1481 (1944). Cf. Miranda v. Arizona, 384 U.S. 436, 496, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966).
(FN45) By the time of his
questioning in the hospital, the defendant had had an opportunity to consult
his family (cf. Reck v. Pate, 367 U.S. 433, 441, 81 S.Ct. 1541, 6 L.Ed.2d 948
(1961)) and had been out of the control of his captors for quite some time (cf.
Beecher v. Alabama, 389 U.S. 35, 38, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967); Darwin
v. Connecticut, 391 U.S. 346, 349, 88 S.Ct. 1488, 20 L.Ed.2d 630 (1968)). It does not appear from the evidence that the
statements in the cabin caused him to make admissions to the police. As noted above, the defendant did not believe
his statements could be used against him.
In the interrogation by police, he did not immediately confess, as might
a man who felt he had [368 Mass. 699] nothing to lose. Rather, he maintained some control over the
session and answered only selected questions.
[28]
Further, we believe that the trial judge found correctly that the police
interrogation, itself, did not overbear the defendant's will and did not
extract an involuntary statement from him.
The trial judge found the following significant subsidiary facts on
ample evidence. The defendant is an
intelligent and educated young man. See
Commonwealth v. Pratt, 360 Mass. 708, 713‑‑714, 277 N.E.2d 517
(1972); Lisenba v. California, 314 U.S. 219, 239‑‑241, 62 S.Ct.
280, 86 L.Ed. 166 (1941). Cf., e.g.,
Fikes v. Alabama, 352 U.S. 191, 196, 77 S.Ct. 281, 1 L.Ed.2d 246 (1957); Payne
v. Arkansas, 356 U.S. 560, 567, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958). At the time of his interrogation, he was
neither dazed nor bewildered (cf. Leyra v. Denno, 347 U.S. 556, 560, 74 S.Ct.
716, 98 L.Ed. 948 (1954)), nor drugged (cf. Beecher v. Alabama, 389 U.S. 35,
38, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967)), nor too sick or weak to resist
questioning (see Commonwealth v. Sousa, 350 Mass. 591, 598, 215 N.E.2d 910
(1966); cf. Reck v. Pate, 367 U.S. 433, 443, 81 S.Ct. 1541, 6 L.Ed.2d 948
(1961); Beecher v. Alabama, supra). He
was physically and mentally alert. Aside
from the injury to his eye, he showed no evidence of physical disability or
impairment of physical or mental functions.
Before questioning commenced, the officers informed the defendant of his
Miranda rights. See Davis v. North
Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 16 L.Ed.2d 895 (1966); Procunier v.
Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524 (1971). During the questioning, the police officers
were courteous. They did not threaten
the defendant (cf. Harris v. South Carolina, 338 U.S. 68, 70, 69 S.Ct. 1354, 93
L.Ed. 1815 (1949) (threat to the defendant concerning his mother); Beecher v.
Alabama, supra, 389 U.S. at 36, 88 S.Ct. 189) or attempt to induce admissions
by deception (cf. Spano v. New York, 360 U.S. 315, 323, 79 S.Ct. 1202, 3
L.Ed.2d 1265 (1959)). The questioning
was not unduly lengthy or prolonged (cf. Ashcraft v. Tennessee, 322 U.S. 143,
153‑‑154, 64 S.Ct. 921, 88 L.Ed. 1192 (1944); Watts v. Indiana, 338
U.S. 49, 53, 69 S.Ct. 1347, 93 L.Ed. 1801 (1949); Clewis v. Texas, 386 U.S.
707, 709, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967)) and, throughout the
questioning, the defendant maintained the abovementioned control over the
proceedings (see Commonwealth v. Cook, 351 Mass. 231, 235, 218 N.E.2d 393 [368 Mass. 700] (1966), cert. den., 385 U.S. 981, 87 S.Ct. 529, 17 L.Ed.2d 443
(1966); Stein v. New York, 346 U.S. 156, 186, 73 S.Ct. 1077, 97 L.Ed. 1522
(1953)). At his insistence, the
stenographer was dismissed. He did not
answer every question, but chose those to which he would reply.
In these
circumstances, we cannot say that the statements which finally emerged were
involuntarily given. Accordingly, the
statements were properly ruled available for impeachment of testimony under the
rule of Harris and Hass.
IV. REVIEW
PURSUANT TO G.L. C. 278, S 33E.
Having
determined that there was no constitutional error in the admission of evidence
at trial, we turn now to the additional review of the record and law which is
our duty in all capital cases. (FN46)
General Laws c. 278, s 33E, as amended through St.1974, c. 457, provides in
relevant part, 'In a capital case . . . the supreme judicial court shall
transfer to that court the whole case for its consideration of the law and the
evidence. Upon such consideration the
court may, if satisfied that the verdict was against the law or the weight of
the evidence, or because of newly discovered evidence, or for any other reason
that justice may require (a) order a new trial or (b) direct the entry of a
verdict of a lesser degree of guilt, and remand the case to the superior court
for the imposition of sentence.' The
statute 'gives us the power and duty exercised by a trial judge on a motion for
a new trial' (Commonwealth v. Baker, 346 Mass. 107, 109, 190 N.E.2d 555, 557
(1963)) but also reserves for our consideration the broader issue whether the
verdict rendered represents, a miscarriage of justice or whether a lesser
degree of guilt [368 Mass. 701] would be more consonant with
justice. Commonwealth v. Baker, supra;
Commonwealth v. Williams, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
(FNe) 301 N.E.2d 683 (1973). See
Commonwealth v. Jones, ‑‑‑ Mass. ‑‑‑, ‑‑‑,
(FNf) 323 N.E.2d 726 (1975). This latter
power is a power which the trial court does not have. Commonwealth v. Baker, supra. Commonwealth v. Bearse, 358 Mass. 481, 485,
265 N.E.2d 496 (1970).
The record
before us contains little direct evidence from which a finder of fact could
construct an account of the events which immediately preceded the victim's
death. There were no witnesses to the
conversation and violence between the victim and the defendant. The jury undoubtedly reached their verdict, a
verdict warranted by the evidence, by drawing a chain of inferences from the
relationships among the witnesses, the defendant and the victim and from the
defendant's statements and actions immediately before and simultaneously with
the discovery of the body. The principal
direct evidence concerning the killing, the defendant's admissions to members
of the concerned group in the cabin and to the police in the hospital, was, of
necessity, excluded from the trial and had no place in the jury's
deliberations. This evidence, itself, is
suspect because of the coercive circumstances in which the admissions were
elicited (see Jackson v. Denno, 378 U.S. 368, 386‑‑388, 84 S.Ct.
1774, 12 L.Ed.2d 908 (1964)) and the subsequent implicit repudiation of the
admissions by the defendant in his voir dire testimony.
[29]
Nevertheless, despite this relative paucity of reliable direct evidence
concerning the victim's death, we believe that justice requires that we reduce
the verdict of murder in the second degree to manslaughter. The thrust of the evidence is that the killing
lacked the element of malice aforethought necessary to support a verdict of
murder.
[30] In
reaching this conclusion, we rely in large measure on the account of the
killing given by the defendant to the concerned group in the cabin. Although this evidence was correctly excluded
from the jury's consideration, it may be considered by us in the exercise of
our [368 Mass. 702] authority under G.L. c. 278, s 33E.
(FN47) Cf. Commonwealth v. Smith,
357 Mass. 168, 182, 258 N.E.2d 13 (1970).
To repeat (see p. ‑‑‑, ante[FNg], 335 N.E.2d 667), the
defendant's story was that, after an argument, the victim provoked him with a
slap which he answered impulsively and angrily with a return blow. Her death then followed in an unexpected
manner as she fell and hit her head on the curb. This version of the events will not support a
finding of malice aforethought. The
defendant never formed a specific intention to kill the victim. Rather, he struck in almost‑reflexive
response to her provocation, and such passion as he felt did not achieve the
intensity of a desire to kill. Though
the defendant undoubtedly intended to inflict some injury on the deceased, this
intention was 'palliated by the existence of . . . (the) mitigating
circumstances' (Commonwealth v. Mangum, 357 Mass. 76, 85, 256 N.E.2d 297, 303
(1970)) represented by the prior slap and provocation. Nor could death reasonably be expected to
follow the defendant's blow.
"(A)ccording to common experience" there is no "plain and
strong likelihood that death will follow" a simple blow with the hand administered
to a healthy adult (FN48)‑‑even if the victim is standing on
slippery, [368 Mass. 703] rain‑spattered pavement. See Commonwealth v. Mangum, supra;
Commonwealth v. Chance, 174 Mass. 245, 252, 54 N.E. 551 (1899); Commonwealth v.
Gordon, 307 Mass. 155, 158, 29 N.E.2d 719 (1940). Cf. Commonwealth v. Gricus, 317 Mass. 403,
411, 58 N.E.2d 241 (1944). Such a
battery which causes death is manslaughter.
Commonwealth v. Sostilio, 325 Mass. 143, 145, 89 N.E.2d 510 (1949);
Commonwealth v. Campbell, 352 Mass. 387, 397, 226 N.E.2d 211 (1967). See, generally, Perkins, A Re‑examination
of Malice Aforethought, 43 Yale L.J. 537, 552‑‑555 (1934).
Although
other reconstructions of the events of that night are possible and some will
support a finding of malice, we have accepted the defendant's story, in so far
as it precludes a finding of malice aforethought and suggests an accidental,
unintended death, because it comports well with the other evidence concerning
the defendant, the victim, and their relationship. The defendant appears to be a reasonably
normal, mature and intelligent engineering student. (FN49)
In his life prior to the evening of the victim's death, (FN50) he had
not manifested any violent tendencies and had not had any prior involvement
with the law. His ongoing relationship
with the victim was of some duration and was characterized, it seems, by
reciprocal affection. Although the smooth continuation of the
relationship was evidently disturbed by the victim's trip to California, her
relationship with a man there, and the defendant's consequent jealousy, there
is no evidence in the record that his feelings of jealousy had so overmastered
his affectionate inclination toward the victim that he would at any time have
considered[368 Mass. 704]
taking steps to bring about her death.
Certainly, there is no substantial indication (FN51) in the record that
he went to their meeting that night with the premeditated intent to kill or to
employ violence against the victim. Cf.
Commonwealth v. Kendrick, 351 Mass. 203, 210‑‑211, 218 N.E.2d 408
(1966). Further, there is no indication
that their relationship had so deteriorated that he would have undertaken to
kill or attack savagely the object of his affections even if he had been enraged
at being asked to bear the consequences of her infidelity‑‑a
pregnancy. In the context of their
relationship, the defendant's story of one hasty unfortunate blow rings true.
The case
is remanded to the Superior Court where the verdict of murder in the second
degree and the sentence previously imposed are to be vacated. A verdict of guilty of manslaughter shall be
entered and sentence shall be imposed thereon.
So
ordered.
[368 Mass. 705] KAPLAN, Justice (with whom WILKINS, J., joins, dissenting).
The record
of this case discloses a dangerous vigilantism, not to be condoned even if it
began out of understandable feelings of frustration. The response of the police detective in
charge of the official investigation to these private activities was maladroit
or worse. (FN1) Later, the same officer and others
deliberately obstructed counsel's access to the defendant when the defendant
had dire need of advice. At a trial
following such events, constitutional protections should have been accorded to
the accused with particular scruple. The
able trial judge tried conscientiously to give the accused his constitutional
due, but I think two of his rulings were faulty. The rulings were (I) that the statements made
by the defendant to his kidnappers at the Sears parking lot around 6:30 P.M. on
December 9, 1971, were voluntary and thus admissible, and (II) that the
Commonwealth could use for impeachment purposes the statements made by the
defendant to the police at the hospital early the following morning, at a time
when the defendant's counsel was being kept from him by the police. Because the court upholds these rulings, I am
obliged to dissent.
I
This case
must be the first in our jurisprudence in which incriminating statements, made
by a kidnapped person to his kidnappers while still in their grip, have been
adjudged to be acts of free will. How
does the court justify such an extraordinary conclusion here?
All
members of this court accept the basic facts‑‑the historical or
subsidiary facts‑‑as found below.
The dispute is as to the conclusions to be drawn from those facts, a
matter on which this court, as an appellate court dealing with constitutional
rights, is required to make its own independent judgment. See Commonwealth v. [368 Mass. 706] Murphy, 362 Mass. 542, 550‑‑551,
289 N.E.2d 571 (1972) (FN2) (concurring opinion of Hennessey, J.); Napue v.
Illinois, 360 U.S. 264, 271‑‑272, 79 S.Ct. 1173, 1178‑‑1179,
3 L.Ed.2d 1217 (1959). (FN3) The
majority of this court reach [368
Mass. 707] their conclusion by a
train of reasoning that declines to acknowledge the natural inferences flowing
from the subsidiary facts, and constructs instead a wholly speculative theory
to explain the defendant's behavior.
That the
statements given up to 4:15 P.M. of December 9 were coerced, is not
disputed. But we have to sum up the
circumstances of that coercion because they bear on the defendant's situation
when he made the further statements two hours later.
A large
number of hostile pursuers, all the more fearsome because not quite identifiable,
had been harassing the defendant over a period of fifteen months, making
threatening appearances at unpredictable times at his home, school, and places
of work. The insistent surveillance
broke out into episodes instinct with violence.
Toward the end the defendant would have ground for believing that his
tormentors had already convicted him of murder and sought only an opportunity
to enforce their own law. Finally came
the kidnapping at Mt. Ida. The physical
hurt was compounded by the uncertainties of a long trip to an unknown
destination. Arrival in the dead cold of
winter at an isolated, snowbound place must further have shaken the
defendant. The threat of the bread knife
was upon him throughout the night.
Starting
in the early morning and for some six to eight hours the defendant was
questioned by three and then five antagonists whose determination to break him may
have been intensified by an apprehension that they could not 'justify' the
kidnapping, if called to account for it, unless they managed to extract some
tangible results. This may have
underlain the severity of the questioning: in any event, it was extended,
repetitious, nagging, interspersed with extremely rough language and threats to
take the defendant's life, threats that he would never leave the place
alive. In confronting this inquisition,
the defendant was alone, without benefit of friends or advice. At length, the defendant's will was broken. He made incriminating statements to Ferreri
and Campbell.
[368 Mass. 708] It is conceded that these statements were coerced. But the defendant still withheld the
revelation of the exact location of the body.
Instead he offered to lead Ferreri to the gravesite. The kidnappers debated the defendant's offer;
only after argument among themselves (Ferreri pressing one view and Fontacchio
and Heard the other) did they decide to accept the offer and take the defendant
with them to Boston, rather than to continue to hold him at the cabin until he
revealed the location of the gravesite and the information could be
verified. But the defendant was not to
be released until the body was found.
Thus, the kidnapping and imprisonment were not brought to an end by the
defendant's initial statements at the cabin, but would continue until he satisfied
his captors' ultimate demand. On these
facts, I conclude that the defendant's acceptance of the condition that he
reveal the gravesite was as much coerced as his initial statements. His statements at the Sears parking lot were
thus made within a continuing constraint and compulsion. (FN4)
In light
of the natural conclusion from the subsidiary facts that the defendant remained
under the heel of the kidnappers through the 6:30 P.M. statements, it may be
unnecessary to apply those tests which have been used in more doubtful cases to
measure how far coercion or illegality has been attenuated by later
events. But if those tests are applied
here, the conclusion is reinforced.
As to
whether there has been an insulating 'break in the stream of events' between
successive statements, the cases point to certain central, objective
considerations. Among these‑‑besides
the elementary question of the length of time between the statements, here
quite short‑‑are the factors: whether in the interval the defendant [368 Mass. 709] had an opportunity to see his family or friends (Reck v. Pate,
367 U.S. 433, 444, 81 S.Ct. 1541, 6 L.Ed.2d 948 (1961)), or to consult with
counsel (Darwin v. Connecticut, 391 U.S. 346, 349, 88 S.Ct. 1488, 20 L.Ed.2d
630 (1968); Clewis v. Texas, 386 U.S. 707, 709, 711, 87 S.Ct. 1338, 18 L.Ed.2d
423 (1967)); whether he has been throughout the period continuously in the
hands of those who obtained the first statement (Beecher v. Alabama, 389 U.S.
35, 38, 88 S.Ct. 189, 19 L.Ed.2d 35 (1967)); and whether the later statement
was given to the same persons as the original, coerced statement. (Lyons v. Oklahoma, 322 U.S. 596, 604, 64
S.Ct. 1208, 88 L.Ed. 1481 (1944).) According
to these objective indicators, there is no basis for discovering here a
material break in the stream of events.
Next, as
to 'cat‑out‑of‑the‑bag,' we observe that by 4:15 P.M.
the defendant had already made statements involving himself in the death of the
victim; he had not divulged the exact location of the grave, but he had given
up its approximate location. The main
secret was out. There is nothing to
suggest that the defendant knew that under the law his statements to that point
were inadmissible; indeed, such mention as the defendant is supposed to have made
of his chances in case of trial indicate that he thought his statements could
and would be used against him. But if he
believed that his first statements were beyond recall‑‑and
realistically they were, regardless of their exact legal position at trial‑‑the
defendant would see little point in withholding the rest of his story. So the conclusion is well justified that the
coercion which produced the pre‑4:15 P.M. statements was also the cause
of the post‑4:15 statements. And
here, to repeat, we have the added, overriding factor that the defendant was
under great continuing pressure to make the final disclosure of the gravesite
as a means of getting free of the kidnappers.
My
assessment of the subsidiary facts seems to me within the reasoning of the
passage from Mr. Justice Jackson in United States v. Bayer, 331 U.S. 532, 540,
67 S.Ct. 1394, 91 L.Ed. 1654 (1947), and the remarks by Mr. Justice Harlan in
Darwin v. Connecticut, 391 U.S. 346, 350‑‑351, 88 S.Ct. 1488, 20
L.Ed.2d 630 (1968), quoted by [368
Mass. 710] the court. (FN5)
Again, in United States v. Gorman, 355 F.2d 151, 157 (2d Cir. 1965),
cert. den., 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027 (1966), the Second
Circuit considered a 'situation in which, after a first confession has been
extracted from a man previously professing innocence by means calculated to
break his will, a second confession is more politely secured.' Judge Friendly wrote, 'In such a case, there
is a strong basis both in logic and in policy for drawing the inference that
the second confession was the product of the first, and for permitting that
inference to be overcome only by such insulation as the advice of counsel or
the lapse of a long period of time.'
Compare Fisher v. Scafati, 439 F.2d 307, 310‑‑311 (1st Cir.
1971), cert. den., 403 U.S. 939, 91 S.Ct. 2256, 29 L.Ed.2d 719 (1971), where
Chief Judge Aldrich suggested that Miranda warnings after a first invalid
confession may not themselves make a second confession admissible unless
accompanied by advice about that prior invalidity and inadmissibility. (FN6)
There is
analogy in a case decided by the Supreme Court last term, Brown v. Illinois,
422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). After a warrantless arrest without probable
cause, the defendant was given Miranda warnings and then, about 9 P.M., made an
inculpatory statement. The defendant
then went with the police to look for an alleged confederate, Claggett, and at
3 A.M. the next morning, after [368
Mass. 711] repeated Miranda
warnings, gave a second statement. The
court held that the illegal arrest vitiated the defendant's first statement
despite the warnings: 'Brown's first statement was separated from his illegal
arrest by less than two hours, and there was no intervening event of
significance whatsoever.' ‑‑‑
U.S. at ‑‑‑, 95 S.Ct. at 2262. As to the second statement, the court said of
it that it was 'clearly the result and the fruit of the first.' ‑‑‑ U.S. at ‑‑‑,
95 S.Ct. at 2262. 'The fact that Brown
had made one statement, believed by him to be admissible, and his cooperation
with the arresting and interrogating officers in the search for Claggett, with
his anticipation for leniency, bolstered the pressures for him to give the
second, or at least vitiated any incentive on his part
to avoid self‑incrimination.' ‑‑‑
U.S. at ‑‑‑, n. 12, 95 S.Ct. at 2262. (FN7)
In the
present case, the problem for the trial judge, and for this court in following
him, was how to reconcile a conclusion that the defendant's statements after
4:15 P.M. were voluntary, with (a) the earlier conceded coercion by the
kidnappers, (b) the effect on the defendant's mental state of his having made
the initial confession, (c) the determination by the kidnappers, well
understood by the defendant, to hold the defendant until he completed his
confession by revealing the gravesite, and (d) the kidnappers' possession and
control of the defendant until he actually did so. The trial judge and the [368 Mass. 712] court
have responded to this challenge by simply introducing a kind of deus ex
machina; they assert that a sudden and complete change occurred after the
initial statements; with the cessation of overt intimidation on the part of the
kidnappers, the defendant abruptly became friendly and trustful toward them, so
that his actions and statements thereafter were manifestations of his free
will, uninfluenced by the previous coercion.
In attempted support of this inference, the court seizes upon a number
of incidents after 4:15 P.M. With
occasion to cry out to the two hunters or at the toll stations on the way back
to Boston, the defendant remained silent.
Similarly, the defendant made no attempt to attract the attention of
passersby at the parking lot, and did not seize any opportunities to escape
that may have presented themselves while he was descending to the tracks and
returning (with the advantage of the open penknife). It is said that the defendant warmed to
Ferreri and spoke of those to whom he first confessed as his 'friends,' he took
credit with Ferreri for not appealing to the hunters, and he contributed some
change to pay a toll. Just before
reaching the parking lot, he volunteered to Ferreri an indication of the bus
stop figuring in his confession, and later talked easily to Heard about his
legal chances. Even so, we encounter the
fact that during the ride to Boston the defendant secretly unscrewed the door
lock plunger on his side of the car in order to provide himself with physical
proof that he had been kidnapped; he complained that the GTO automobile was
bugged; and he resisted the walk down the path.
All this
behavior does not lead to the inference that the defendant was free of
compulsion or of its effects; on the contrary, his behavior is entirely
consistent with a broken will and indeed is to be expected from one in that
condition. As was said in a case where a
defendant had been intimidated and beaten by private parties and shortly
thereafter made statements to the police: 'Torture destroys not only physically
but psychologically. Elements[368 Mass. 713] of despair, fatigue,
craving for companionship, identifying one's interrogator as a friend and
source of aid, (FN8) and suggestions of guilt were all present in a crude
haphazard form in this case.' People v. Berve,
51 Cal.2d 286, 292, 332 P.2d 97, 100 (1958).
It is all too easy, reading this record in retrospect, with control of
one's faculties and with time and capacity to think clearly, to point out one
or another moment when the defendant might have escaped. But such heroics are more likely in the
movies than in real life. If the
defendant had the ability to think of escape, he might also have thought that
it would only result in recapture by the five vigorous young men or ultimately
by others of the concerned group. In all
probability, planning escape was out of the question for the defendant. Suffering from the bewildering and
frightening events since his abduction, and already deeply committed by the pre‑4:15
statements, he most likely was incapable of further resistance, though he might
yet retain sufficient presence of mind for such sporadic acts as taking the
door lock plunger. At the same time, the
facts demonstrate that the defendant was not beyond some gestures to ingratiate
himself with his tormentors; it may be inferred that he felt these a means of
preventing further mistreatment or of gaining his final release. Once he had told his story, the 'cat‑out‑of‑the‑bag'
syndrome explains his telling it again, and his further remarks to Heard were
nothing but self‑comforting braggadocio.
Any inference that the defendant was lighthearted after 4:15 P.M.
because he thought the kidnappers accepted his story of a blow struck in anger,
is dispelled when we note that, even if that statement were believed, the
defendant would still be in very serious trouble: consider here his admission,
as part of the story, [368 Mass. 714] that he had deliberately concealed
the body, and then suppressed the truth for fifteen months.
In
evaluating the historical facts to reach a conclusion, we should recall that it
is not the defendant's burden to establish that his statements were coerced;
the burden is on the government to prove the contrary, that the statements were
freely willed. Jackson v. Denno, 378
U.S. 368, 376‑‑377, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct.
619, 30 L.Ed.2d 618 (1972). It is
submitted that the inference of abrupt and total transformation of the
defendant, from hostility and resistance to an attitude of voluntary cooperation,
simply is not made out on the basis of the historical facts. Rather, the most modest conclusion that
emerges from the facts is that the post‑4:15 P.M. statements were
substantially conditioned and influenced by the coercion directed at the
defendant throughout the period during which he was held.
II
The police
conduct surrounding the questioning of the defendant at the M.G.H. on the
morning of December 10 violated the defendant's constitutional right to the
assistance of counsel. The trial judge
so held, and the court concedes the point.
When the questioning began, Detective Gawlinski, in charge of the case,
(FN9) knew that
[368 Mass. 715] the defendant's
counsel was trying to reach him. Yet he
neither took steps to inform the defendant of that fact nor returned counsel's
calls; instead he tried in a highly suspicious (if clumsy) way to conceal or
avoid his responsibility for this breach of the Constitution by absenting
himself from the interrogation that he knew to be going on. (FN10)
There was, then, in the words of the trial judge, 'a course of conduct
calculated to circumvent . . . (the defendant's) constitutional rights,'
conscious 'treading on constitutional thin ice,' 'deception and circumvention'
by the principal investigating officer.
Nevertheless,
the trial judge ruled that the statements obtained at the hospital could be
used for impeachment purposes if the defendant testified in his own defense,
and the court affirms. I think the
ruling is not required by the decided cases and is fundamentally wrong. I could, with some difficulty, sympathize
with such a decision if the violation of constitutional right involved was
accidental or of a minor or technical nature.
Here it was deliberate and of serious consequence.
[368 Mass. 716] The court rests its conclusion on two cases, Harris v. New York,
401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), and Oregon v. Hass, 420 U.S.
714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975).
Neither is a sufficient prop. In
Harris (a five to four decision), the Supreme Court held that, notwithstanding
the failure of the police to give full Miranda warnings (Harris was told of his
right to counsel, but not of his right to court‑appointed counsel), a
statement obtained during custodial interrogation could be used for impeachment
when Harris testified in his own behalf at trial. Weighing the promotion of truth through
allowing the impeaching use of the statement, against the possible added
deterrence of police misconduct that would flow from denial of such use, the
court thought the truth‑seeking interest prevailed. It is a ground for distinguishing the Harris
case from the present that Harris did not involve the direct violation of a
constitutional right but only the violation of a prophylactic rule safeguarding
the right. (FN11) Beyond that, however, it is vital to observe
that the questioning in Harris took place before Miranda was decided, so that
the violation of the defendant's right was unintentional. unintentional.
We
followed Harris v. New York in Commonwealth v. Harris, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑,
(FNa) 303 N.E.2d 115, 118 (1973). In
doing so, we took note of the objections raised by the dissenters in Harris v.
New York, (FN12) and quoted from Riddell v. Rhay, 404 U.S. 974, 976, 92 S.Ct.
336, 338, 30 L.Ed.2d 291 (1971) (Douglas, J., dissenting from denial of
certiorari): '(T)he possible use of tainted statements . . . opens
the door to a calculated risk by police
[368 Mass. 717]
interrogators.' The risk referred to is
that involved in intentionally violating constitutional rights in hopes that
damaging statements will be obtained useful for impeachment. We said, 'The present case does not require
us to enter into this dispute. . . . (T)he record is entirely barren of any
indication that police or prosecutor took any 'calculated risk'; there seems
rather to have been an inadvertent defect in the Miranda warnings given.' Thus it is evident that neither Harris v. New
York nor our own Commonwealth v. Harris reaches the present case which is the
paradigm of police deliberateness and calculation in infringing constitutional
rights.
The court
argues also from Oregon v. Hass. That
case posed the question (in the words of the Supreme Court): 'When a suspect .
. . states that he would like to telephone a lawyer but is told that this
cannot be done until the officer and the suspect reach the station, and the
suspect then provides inculpatory information, is that information admissible .
. . for impeachment purposes . . .?' 420 U.S. at 714‑‑715, 95 S.Ct.
at 1217 (1975). The Supreme Court held
(six to two) that it was admissible, as long as no 'abuse' occurred making the
statement involuntary or untrustworthy.
Hass was arrested at his home for bicycle theft, and, after full Miranda
warnings, agreed to show the police where he had left the bicycle. '(The police officer) and Hass then departed
in a patrol car for the site. . . . On the way Hass opined that he . . . would
like to telephone his attorney. . .
. (The officer) replied that he could
telephone the lawyer 'as soon as we . . . (get) to the office.' . . .
Thereafter . . . (Hass) pointed out a place . . . where the bicycle was
found.' 420 U.S. at 715‑‑716,
95 S.Ct. at 1217.
The
Supreme Court avoided characterizing the police violation of Hass's rights as
either accidental or deliberate. If the
sketchy facts are read as implying that the police acted in good faith, or at
least without design to evade the Constitution, then the case is like Harris v. [368 Mass. 718] New York and, like that case, does not reach the present
situation. Two recent Supreme Court
cases, decided since Harris v. New York, suggest that Hass should be so
interpreted.
In
Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), a
defendant, not informed of his right to appointed counsel, made a statement
which led the police to a witness. In
holding that the witness was properly allowed to testify, Mr. Justice Rehnquist
wrote that '(w)e consider it significant to our decision in this case that the
officers' failure to advise respondent of his right to appointed counsel
occurred prior to the decision in Miranda.'
He explained that '(t)he deterrent purpose of the exclusionary rule
necessarily assumes that the police have engaged in willful, or at the very
least, negligent conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a
result of such conduct, the courts hope to instill in those particular
investigating officers, or in their future counterparts, a greater degree of
care towards the right of an accused. Where
the official action was pursued in complete good faith, however, the deterrence
rationale loses much of its force.' 417
U.S. at 447, 94 S.Ct. at 2365. See the
discussion of the case at 27 U. of Fla.L.Rev. 302, 309‑‑310 (1974).
Emphasis
on the importance of good‑faith behavior of the police, as a factor in
decision as to admitting or rejecting a suspect's statement, appears also in
Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). This came three months after Hass; both were
written by Mr. Justice Blackmun. Setting
out the considerations with regard to admitting or excluding a statement made
after an arrest which violated the Fourth Amendment, the Justice said that the
giving of Miranda warnings after the arrest was 'an important factor .
. . (b)ut . . . (t)he temporal proximity of the arrest and the confession, the
presence of intervening circumstances . . . and, particularly, the purpose and
flagrancy of the official misconduct are all relevant.' ‑‑‑ [368 Mass. 719] U.S. at
‑‑‑ ‑ ‑‑‑, 95 S.Ct. at 2261. (FN13)
It seems unlikely that a court which singled out for emphasis 'the
purpose and flagrancy of the official misconduct' in one case analyzing whether
an exclusionary rule should be applied, would totally ignore the presence of
purposeful and flagrant misconduct in another case also dealing with
exclusion. Thus the failure of the Hass
majority to weigh the deliberateness and seriousness of the police conduct in
the case before it suggests that they believed no deliberate police misconduct‑‑or
at least no very invidious deliberate police misconduct‑‑was
present. (FN14)
Presumably
this court disagrees and sees in Hass more than a casual misprision in that the
police continued the patrol car on its course to the area of the crime, rather
than turning it back to the station, at the moment when the suspect stated his
desire for counsel. This court then
takes the Hass case a step further and reads it as covering also as aggravated
a situation as we find in the case at bar.
Hass, if
interpreted to cover intentional interference by the police with suspects'
access to counsel, would encourage[368
Mass. 720] the most objectionable kind of 'risktaking'
by the police. Mr. Justice Jackson said
that any qualified lawyer will tell a suspect not to give a statement to the
police. (FN15) Hence, faced with an attempt by a suspect to
see a lawyer, as in Hass, or of a lawyer to see his client, as here, the police
will have a choice: if they accede and allow a meeting with counsel, they will
be obeying the Constitution, but they will get no statement from the suspect;
if they deliberately prevent the contact, they will be scorning the
Constitution, but they will have the chance of getting a statement from the
suspect that can be used to impeach (and may have other practical uses). In sum, the police will have nothing to lose,
and much to gain, by intentionally flouting the Constitution. (FN16)
A rule of law presenting such a temptation to the police is radical and
unwise.
It is said
that permitting impeaching use of the statement furthers the truth‑seeking function
because only defendants bent on perjury will refrain from taking the stand
through fear of being impeached. But the
rule would in practice operate also against suspects who are trying to tell the
truth throughout. Even one attempting to
be as truthful as possible may recall certain facts incorrectly or fail to
recall other important ones: the time after arrest is confused and pressure‑filed;
there is indeed [368 Mass. 721] a subtle coercion that is inherent in
all police interrogation. That a
defendant at trial tells a story not on all fours with his prior statement to
the police does not mean that he is committing perjury, but the inconsistency
evident to the trier may nevertheless be devastating to the defendant's
case. The possibility of initial error
by even a conscientiously truthful suspect and the later embarrassment at trial
are reasons why counsel will advise his client to remain silent and not to
accommodate the police. All this very
much qualifies the notion that allowing the impeaching use will further the
search for truth. (FN17)
This court
is, of course, at liberty to adopt a higher standard than that which the
Supreme Court has applied to the States under the Federal Constitution. See Cooper v. California, 386 U.S. 58, 62, 87
S.Ct. 788, 17 L.Ed.2d 730 (1967). If,
indeed, the Hass case goes so far as to hold that a statement obtained from a
suspect by deliberate and calculated police obstruction of his right to counsel
may be admitted for impeachment purposes at a State court trial, then we should
decline to adopt such a rule and we should hold, instead, as a matter of
Massachusetts law, that the statement is inadmissible for any purpose. It is instructive that at least two States
have already rejected the milder doctrine of Harris v. New York and have
imposed upon themselves a rule more protective of the accused. See State v. Santiago, 53 Hawaii 254, 492
P.2d 657 (1971); Commonwealth v. Triplett, Pa., 341 A.2d 62 (1975). See also, e.g., State v. Brown, 262 Or. 442,
497 P.2d 1191 (1972) (interpreting State Constitution's double jeopardy clause
independently of Federal Constitution); People v. Brisendine, 13 Cal.3d 528,
119 Cal.Rptr. 315, 531 P.2d 1099 (1975); State v. Kaluna, 55 Hawaii 361, 520
P.2d 51 (1974) (both [368 Mass. 722] interpreting State constitutional
protection against unreasonable search and seizure to be broader than the
guaranty found in the Federal Constitution by the decisions of United States v.
Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v.
Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973)).
To
conclude: The lawlessness of the 'concerned group' is here matched by official
lawlessness. Both brands of anarchic
behavior deserve solemn rebuke. Out of
the welter came a trial so beset by error that the conviction should be
reversed and judgment entered for the defendant.
HENNESSEY,
Justice (dissenting).
I
dissent. I cannot concur with the majority
of the court in its conclusion that the defendant's admissions made in and near
the Sears parking lot subsequent to 4:15 P.M. on December 9, 1971, were
properly received in evidence. Although
it is clear from the record that the trial judge conducted the proceedings with
extraordinary competence and thoroughness, and with full appreciation of the
constitutional issues, I do not believe that his ruling which permitted the
introduction of the evidence was constitutionally permissible. Due process of law required the exclusion of
the evidence. (FN1) Neither can I concur entirely in the
reasoning of Justice Kaplan, as to this issue, in his dissenting opinion.
As to the
second principal issue, whether the defendant's statements to the police at the
hospital were admissible[368 Mass.
723]
in evidence, I disagree with the majority and I concur with the
conclusion and reasoning of Justice Kaplan in his dissenting opinion, viz.:
that this evidence was not admissible even for the limited purpose of impeachment
of the defendant.
1. In light of some of the differences between
the majority view and the dissent of Justice Kaplan, particularly as expressed
in Part II, section 4, of the majority opinion, I feel compelled to explore the
standards of appellate review which should be applied by this court on issues
such as are presented here. It is
necessary to decide what standards are appropriate, not only in the hope of
reaching the correct result in this case, but also for the sake of evenhanded
justice in similar appeals. This court
must have regard for two obligations in particular: its responsibility as an
appellate court to reverse for errors of law, and its responsibility to defer
where appropriate to findings of fact as made by the triers of fact at the trial
level.
A
defendant in a criminal case is deprived of due process of law if his
conviction is founded, in whole or in part, on an involuntary confession. Rogers v. Richmond, 365 U.S. 534, 540‑‑541,
81 S.Ct. 735, 5 L.Ed.2d 760 (1961). The
defendant here presses the constitutional issue by motions to suppress his
admissions from evidence. These motions,
and the inherent voluntariness issue, like all questions as to the
admissibility of evidence, were for the judge's (not the jury's)
determination. Lego v. Twomey, 404 U.S.
477, 489‑‑490, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). (FN2)
In order
to meet the constitutionally required standards of admissibility the burden is
on the Commonwealth to [368 Mass.
724] prove, at least by a
preponderance of the evidence, that a confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct.
619, 30 L.Ed.2d 618 (1972). (FN3) The question whether a confession was
voluntarily given and rightly admitted presents a two‑step analysis for
an appellate court. First, the appellate
court must determine whether the trial court's subsidiary findings of fact are supportable
in evidence, and are warranted. Second,
and of crucial importance, assuming the findings are warranted, the appellate
court must independently determine whether admission of a confession is
constitutionally permissible on the facts as found and accepted.
Where the
facts are disputed, the resolution of such conflicts is for the judge and the
appellate court must accept his findings.
It is not for the reviewers to reconsider decisions of fact, since those
decisions concern appraisals of the credibility of witnesses. This author, in a concurring opinion in
Commonwealth v. Murphy, 362 Mass. 542, 550, 289 N.E.2d 571, 577 (1972), (FN4)
phrased it this way: 'We cannot properly be asked to revise a judge's
subsidiary findings of fact, where they are warranted by the evidence, or to
review the weight of the evidence related to the findings.' Like the United States Supreme Court, this
court 'does not sit as in nisi prius to appraise contradictory factual
questions.' Ker v. California, 374 U.S.
23, 34, 83 S.Ct. 1623, 1630, 10 L.Ed.2d 726 (1963).
However,
the appellate court is bound to review the ultimate conclusions of a judge
where those conclusions [368 Mass.
725] are of constitutional
moment. This author expressed it this
way in the concurring opinion in the Murphy case, supra: '(T) he ultimate
findings and rulings of a judge may give rise to a meaningful appeal, even in a
case where his subsidiary findings are beyond practical challenge. This is true because the ultimate conclusions
of a judge on identification issues may be of constitutional proportions. This court must, where justice requires,
substitute its judgment for that of a trial judge at the final stage. . . .
The mere recital of appropriate phrases denoting constitutional
acceptability may serve only to obscure error in admitting the evidence.' 362 Mass. at 551, 289 N.E.2d at 578 (1972).
Mr.
Justice Harlan, quoting from Watts v. Indiana, 338 U.S. 49, 51‑‑52,
69 S.Ct. 1347, 93 L.Ed. 1801 (1949), expressed the principle as follows:
'(T)here has been complete agreement that any conflict in testimony as to what
actually led to a contested confession (or to a contested arrest) is not this
Court's concern. Such conflict comes
here authoritatively resolved by . . . (the trial judge)' (citations
omitted). Beck v. Ohio, 379 U.S. 89,
100, 85 S.Ct. 223, 230, 13 L.Ed.2d 142 (1964) (Harlan, J., dissenting).
2. Examining the ultimate issue of voluntariness
here, I conclude that the admissions (FN5) of the defendant, including his
statements made subsequent to 4:15 P.M., should have been excluded. I accept, as I must and should, the judge's
subsidiary findings of fact in their entirety, since these findings were
adequately supported in the evidence.
However, on the basis of the findings, in my view it cannot
constitutionally be concluded that the Commonwealth has sustained its burden of
proving voluntariness.
The judge
found that the defendant was assaulted, kidnapped, threatened, and interrogated
for hours. He [368 Mass. 726] was in
captivity for at least twenty hours between the early evening of December 8,
1971, and the late afternoon of December 9, 1971. He was isolated from family, friends and
counsel. Although there was opportunity
for him to escape during approximately the last two hours of this time, in my
view an inference of voluntariness is not warranted even as to his admissions
during those final few hours. I believe this conclusion inescapably follows
from an application of the 'stream of events' and 'cat‑out‑of‑the‑bag'
reasoning as carefully explored by Justice Kaplan in his separate dissenting
opinion.
It follows
that I cannot accept the contention of the majority that this court is bound by
the judge's ultimate conclusion of voluntariness, or any inference of his that
is synonymous with voluntariness or so broad as necessarily to import a
conclusion of voluntariness (e.g., the finding that the defendant was
'completely free from fear' after his encounter with the hunters).
Considering
all the circumstances of the more than twenty hours of captivity, and accepting
all the judge's subsidiary findings, I do not believe the case permits a
conclusion that the Commonwealth has proved by a fair preponderance of the
evidence that the defendant's statements at any time on December 9 were free of
the influence of duress, fear and hopelessness caused by his captors.
The
ultimate conclusion as to voluntariness requires the application of
constitutional principles to facts. It
is a conclusion which partakes of policy considerations and as such 'is not a
matter of mathematical determination.
Essentially it invites psychological judgment‑‑a
psychological judgment that reflects deep, even if inarticulate, feelings of
our society.' Haley v. Ohio, 332 U.S.
596, 603, 68 S.Ct. 302, 305, 92 L.Ed. 224 (1948) (Frankfurter, J., concurring).
As was
stated in Lyons v. Oklahoma, 322 U.S. 596, 602, 64 S.Ct. 1208, 1212, 88 L.Ed.
1481 (1944), a case involving the voluntariness of a second confession given
twelve hours after a first coerced confession, 'The question of whether those
confessions subsequently[368 Mass.
727]
given are themselves voluntary depends on the inferences as to the
continuing effect of the coercive practices which may fairly be drawn from the
surrounding circumstances. . . . When conceded facts exist which are
irreconcilable with such mental freedom, regardless of the contrary conclusions
of the triers of fact, whether judge or jury, this Court cannot avoid
responsibility for such injustice by leaving the burden of adjudication solely
in other hands.'
However,
although I concur with Justice Kaplan that the admissions of the defendant
should have been excluded, I cannot concur in his entire reasoning. It is neither necessary nor desirable for
this court to reach affirmative findings of fact, substantially contrary to the
findings of the trial judge. (FN6) Nor is it significant that some of these
findings were so broad as to approach the ultimate constitutional conclusion;
they were affirmative, substantially contrary to the judge's findings, and
unnecessary. Such a process (of making
findings at the appellate level) is markedly different from concluding, as I
have, in light of where the burden of proof lay, that certain inferences drawn
by the trial judge were not warranted on the facts as found by him. Also, such a [368 Mass. 728] process
is significantly different from concluding, as I have, that the Commonwealth
has failed to sustain its burden of proof on the issue of voluntariness. Our hope for evenhanded disposition of such
difficult matters, free of appellate whim, requires that we not encroach on the
trial judge's function. (FN7)
3. I concur in Justice Kaplan's dissenting
reasoning that the statements of the defendant to the police at the hospital
should have been excluded, even for impeachment purposes. I do not believe that Harris v. New York, 401
U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), stands for the proposition that
wilful violations by the police of the defendant's right to counsel, such as
occurred in the instant case, permit the use of the resulting product of the
interrogation for any purpose. See in
particular 401 U.S. at 226‑‑232, 91 S.Ct. 643 (Brennan, J.,
dissenting). Nor do I believe that
Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975),
sufficiently modified the holdings of the Harris case to permit the result
reached here by the majority.
FN1. We omit mention of motions to suppress which
are not at issue in this appeal.
FN2.
See, however, n. 20, infra.
FNa.
Mass.Adv.Sh. (1975) 1875, 1877.
FN3.
On occasion, we refer to additional facts developed at the voir dire
hearing.
FN4.
The judge chose to reject much of the testimony given by the defendant
at voir dire and preferred contradictory testimony given by his captors. The judge was not required to believe the
defendant's account. Commonwealth v.
Rogers, 351 Mass. 522, 529, 222 N.E.2d 766 (1967), cert. den., 389 U.S. 991, 88
S.Ct. 484, 19 L.Ed.2d 483 (1967).
Commonwealth v. Femino, 352 Mass. 508, 512, 226 N.E.2d 248 (1967). See Commonwealth v. Forrester, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(Mass.Adv.Sh. (1974) 431, 437‑‑438),
309 N.E.2d 190 (1974).
FN5.
The scope of review by the United States Supreme Court is at least this
broad. See, e.g., Haynes v. Washington,
373 U.S. 503, 515‑‑516, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); Davis
v. North Carolina, 384 U.S. 737, 741‑‑742, 86 S.Ct. 1761, 16
L.Ed.2d 895 (1966).
FN6.
Initially, the defendant claimed that he and the victim had not met the
night before as planned. Under further
questioning, he admitted that he had seen her but said that he had left her at
a ramp of the toll road to New York where, he said, she was going to have an
abortion. When pressed further, he
altered details of this story as well.
FN7.
This is described in somewhat greater detail at p. ‑‑‑,
infra (Mass.Adv.Sh. (1975) p. 2915), 335
N.E.2d 670 (1975).
FN8.
On one occasion, the larger group was assembled in the parking lot of
the Sears store in the Fenway district to scour the area for clues or the
victim's body.
FN9.
This incident precipitated the cessation of communication between
Gawlinski and the father which lasted until the discovery of the body in
December.
FN10.
In this respect, the judge found convincing the evidence that neither
Ferreri nor Fontacchio knew where he was going when Fisher drove to the cabin,
that the cabin was locked, that the group had to force an entry, and that the
entire area was 'knee‑deep in snow.'
The judge concluded that Fisher was 'the father of the thought' to take
the defendant to Worthington.
FN11.
This was the first weapon used by any member of the group. There was some uncorroborated testimony that
either Ferreri or Fontacchio had had a gun, but the judge disbelieved it.
FN12.
The trial judge found, and his conclusion appears amply justified, that
escape at that time would have been impossible.
The defendant had poor vision without his glasses. Even if he had succeeded in escaping from the
cabin without drawing Fisher's attention, he would have faced the intractable
problem of securing assistance in an isolated, snow‑bound area on a cold
night.
FN13.
Fontacchio and Jay Heard arrived with breakfast at 10 A.M.
FN14.
In his testimony at voir dire, the defendant denied having made the
incriminating statements. He admitted
that, as a means of getting back to Boston, he had said that he would take the
young men to the body. He testified that
in fact he had known nothing about the body and implied that the young men knew
its location and were seeking to fasten guilt on him. He sought to explain some of his conduct by
testimony that the concerned group had said they were holding his brother
hostage.
FN15. The time interval from roughly 2 P.M. to 4:15
P.M. is not well accounted for in the voir dire record.
FN16. The judge's finding in this respect is
principally based on Ferreri's testimony.
FN17. The defendant's mother told Gawlinski in the
presence of other officers that the defendant's attorney wished to speak to
Gawlinski.
FN18. During the course of questioning, the
defendant was moved from a room he shared with three other patients to a
corridor, and thence to a private room.
FN19. For example, the defendant objected to the
stenographer's presence and he was dismissed.
FN20. We omit mention of the numerous assignments
of error which have not been argued and are deemed waived. See p. ‑‑‑, ante
(Mass.Adv.Sh. (1975) p. 2898), 335
N.E.2d 664 (1975). We also omit mention
of one assignment of error which, though it was argued before this court,
considered by us and found to be without merit, has not received extended
discussion hereinbelow.
FN21. He also ruled that these statements 'amounted
only to admissions' (emphasis in original) and, as such, were not entitled to
the full safeguards accorded confessions under Massachusetts law. See n. 24, infra.
FN22. The judge attributed this lapse to
Gawlinski's disgust over the incident.
FN23. The defendant's reliance on Gambino v. United
States, 275 U.S. 310, 48 S.Ct. 137, 72 L.Ed. 293 (1927), and Knoll Associates,
Inc. v. Federal Trade Commn., 397 F.2d 530 (7th Cir. 1968), is misplaced. In Gambino, New York State troopers had coo
perated extensively with the Federal government over a period of months to
control liquor traffic at a United States border. The search and seizure challenged in the case
had been undertaken 'solely for the purpose of aiding the United States in the
enforcement of its laws.' Gambino v.
United States, supra, 275 U.S. at 317, 48 S.Ct. at 139. In Knoll Associates the court set aside an
order of the Federal Trade Commission because it was based on evidence obtained
through a 'theft of corporate documents on behalf of the government for use in
a them pending proceeding against the corporate owner of what was stolen.' Knoll Associates, Inc. v. Federal Trade
Commission, supra, at 535. In the
instant case, cooperation between the concerned group and Gawlinski had been
sporadic at best. At the time of the
abduction, he had never spoken to members of the group who abducted the
defendant and had not spoken to the father for over three months. It could not be said that the abduction had
as its sole purpose aid to the enforcement of the law. There was no proceeding pending at the time
against the defendant. Indeed, no crime
was then officially under investigation.
Moreover,
each of the cases relied on by the defendant is a Fourth Amendment case,
implicating the full range of protection for a right of constitutional
dimension. As noted above, the Miranda
rules are only prophylactic rules which themselves safeguard rights of
constitutional magnitude. These Fourth
Amendment cases do not support extension of Miranda in this case.
FN24. The judge found that the statements made
after 4:15 P.M. 'amounted only to admissions and not confessions because they
did not amount to an 'acknowledgment of guilt of the entire crime charged"
(emphasis in the original). See
Commonwealth v. Haywood, 247 Mass. 16, 18, 141 N.E. 571 (1923). Under settled Massachusetts law, a defendant
is entitled to lesser safeguards with respect to the admissibility of
admissions and exculpatory statements than he would have if the statements had
amounted to a confession. Commonwealth
v. Chapman, 345 Mass. 251, 254, 186 N.E.2d 818 (1962). See Commonwealth v. Dascalakis, 243 Mass.
519, 521, 137 N.E. 879 (1923); Commonwealth v. Haywood, supra, 247 Mass. at 17‑‑18,
141 N.E. 571; Commonwealth v. Gleason, 262 Mass. 185, 190, 159 N.E. 518
(1928). Though this distinction has been
criticized (Commonwealth v. Wallace, 346 Mass. 9, 17, 190 N.E.2d 224 (1963)),
we do not consider its continuing validity in the instant case because we deem
correct the admission at trial of evidence concerning the defendant's post‑‑4:15
statements and actions even under the more stringent standards applicable to
confessions. Throughout this opinion, we
refer to the defendant's admissions as 'statements.'
FNb. Mass.Adv.Sh.
(1975) 1220, 1227.
FNc.
Mass.Adv.Sh. (1973) 1379, 1384‑‑1385.
FNd. Mass.Adv.Sh.
(1975) 1220, 1227.
FN25. This proposition is now established as a
constitutional right. The different view
expressed in Commonwealth v. Johnson, 352 Mass. 311, 315‑‑316, 225
N.E.2d 360 (1967), cert. dism., 390 U.S. 511, 88 S.Ct. 1155, 20 L.Ed.2d 69
(1968), must be taken to be superseded.
We need not inquire how far the Johnson case was qualified by
Commonwealth v. Cain, 361 Mass. 224, 228, 279 N.E.2d 706 (1972).
FN26. Arguably, the Supreme Court's position is
implicit in Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568
(1897), which strongly resembles Commonwealth v. Wallace, supra.
FN27. One example is Ferreri's testimony concerning
the defendant's statements to him after the incident with the hunters. As recounted by Ferreri, these statements
reflect the defendant's awareness of, and express rejection of, the opportunity
for escape presented by the appearance of the hunters.
FN28. See Goldsmith v. United States, 107 U.S. App.D.C.
305, 277 F.2d 335 (1960), cert. den. sub nom., Carter v. United States, 364
U.S. 863, 81 S.Ct. 106, 5 L.Ed.2d 86 (1960).
FN29. See, further, Harrison v. United States, 392
U.S. 219, 226‑‑228, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) (opinion
of the court and dissenting opinion of Harlan, J.); United States v. Gorman,
355 F.2d 151, 157 (2d Cir. 1965), cert. den., 384 U.S. 1024, 86 S.Ct. 1962, 16
L.Ed.2d 1027 (1966). Cf. Commonwealth v.
Spofford, 343 Mass. 703, 180 N.E.2d 673 (1962).
FN30. Actually his statements were somewhat
exculpatory and indicated that the death was accidental.
FN The judge found that the defendant 'had a
wish to get things off his chest . . . and was very relieved after he gave his
first statement in the cabin in Worthington.'
FN32. We do not deal separately here with the
question whether the defendant's post‑4:15 statements and actions,
including those leading to the discovery of the body, were the 'fruits' of the
earlier involuntary statements. See
Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed.
319 (1920); Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307
(1939); Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441
(1963). In the context of the instant
case, the factual inquiry required to decide whether the causal connection
between the earlier statements and the later ones had 'become so attenuated as
to dissipate the taint' of the earlier coercion (Nardone v. United States,
supra, 308 U.S. at 341, 60 S.Ct. at 268; Wong Sun v. United States, supra, 371
U.S. at 491, 83 S.Ct. 407) tracks the cat‑out‑of‑the‑bag
analysis. In each line of analysis, the
court must examine the circumstances of determine if the later statements were
the product of the lingering psychological effects of the prior coerced
confession. Having concluded pursuant to
the cat‑out‑of‑the‑bag analysis that the defendant's
subsequent statements and actions resulted from an independent, voluntary
decision to cooperate with his abductors, we also conclude that the statements
and actions were not the 'fruits' of the prior involuntary statements.
FN33. The smile, the blush, the harsh or soft
voice, the shrug, even the dilation of a pupil may send a message and alter the
tone of the trial. Myriad subtle
communications of our bodies are lost in the stenotype machine.' 1 Weinstein & Berger, Weinstein's
Evidence (1975) iv.
FN34. The question of voluntariness is considered
infra. The defendant does not explicitly
challenge the availability of these statements on the ground that they are
untrustworthy. Indeed, the other
evidence in the case corroborates them.
Nevertheless, a claim of untrustworthiness is implicit in the claim of
involuntariness. At common law, coerced
confessions were excluded from evidence because of their inherent
untrustworthiness. Wigmore, Evidence, s
822(a), p. 330 (Chadbourn rev. 1970).
See, e.g., Commonwealth v. Morey, 1 Gray 461, 462‑‑463
(1854); Commonwealth v. Myers, 160 Mass. 530, 532, 36 N.E. 481 (1894); Lisenba
v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941). Though this is not the principal
justification for exclusion of coerced confessions under the due process clause
of the Fourteenth Amendment, the Supreme Court has noted 'the probable unreliability
of confessions that are obtained in a manner deemed coercive.' Jackson v. Denno, 378 U.S. 368, 386, 84 S.Ct.
1774, 1785, 12 L.Ed.2d 908 (1964).
FN35. He did not testify at the trial before the
jury.
FN36. The statements had been suppressed for
purposes of the prosecution's case in chief.
FN37. In Michigan v. Tucker, 417 U.S. 433, 446, 94
S.Ct. 2357, 2364, 41 L.Ed.2d 182 (1974), the court held that 'police conduct at
issue . . . (in the case) did not abridge respondent's constitutional privilege
against compulsory self‑incrimination, but departed only from the
prophylactic standards later laid down . . . in Miranda to safeguard that
privilege.' The Miranda warnings are not
themselves a constitutional requirement but are 'safeguards' designed to
'provide practical reinforcement for the right against compulsory self‑incrimination.' Id. at 444, 94 S.Ct. at 2364.
FN38. The facts in Hass bear strong resemblance to
those in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977
(1964), which was argued on a Sixth and Fourteenth Amendment theory. The right to counsel, which the defendant in
Hass sought to effectuate under the Fifth and Fourteenth Amendments, is, of
course, of equal constitutional dignity.
FN39. We emphasize the functional similarity of the
rights at issue because the cases, though analogous, proceed on a variety of
different theories. In the instant case,
the defendant claims abridgment of rights under the Fifth, Sixth, and Fourteenth
Amendments. Hass was decided on Fifth
and Fourteenth Amendment grounds. The
Harris opinion mentions only Miranda (and no specific constitutional amendment)
and seems to foreshadow the description of Miranda warnings as prophylactic
rules in Michigan v. Tucker. See n. 37,
supra.
FN40. Compare, however, the rationale for exclusion
of coerced confessions given at p. ‑‑‑, ante (Mass.Adv.Sh.
(1975) at p. 2918), 335 N.E.2d 671 (1975).
FN41. See the opinion of Jackson, J., in Watts v.
Indiana, 338 U.S. 49, 59, 69 S.Ct. 1347, 1358, 93 L.Ed.2d 1801 (1949): '(A)ny
lawyer worth his salt will tell the suspect in no uncertain terms to make no
statement to police under any circumstances.'
FN42. In Hass, the Supreme Court termed this a
'speculative possibility.' Oregon v.
Hass, supra, 420 U.S. at 723, 95 S.Ct. at 1221 (1975).
FN43. In the interest of brevity, we limit out
examination of the balancing test to Hass.
However, we note that Harris also supports our holding here. See United States ex rel. Wright v. LaVallee,
471 F.2d 123 (2d Cir. 1972), cert. den., 414 U.S. 867, 94 S.Ct. 167, 38 L.Ed.2d
87 (1973); United States ex rel. Padgett v. Russell, 332 F.Supp. 41 (E.D.Pa.
1971).
FN44. There was no claim of involuntariness or
coercion in either Harris v. New York, 401 U.S. 222, 224, 91 S.Ct. 643, 28
L.Ed.2d 1 (1971), or Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d
570 (1975). However, as noted above, in
Hass, the Supreme Court wrote: 'If, in a given case, the officer's conduct
amounts to an abuse, that case, like those involving coercion, or duress, may
be taken care of when it arises measured by the traditional standards for
evaluating voluntariness and trustworthiness.'
Id. at 723, 95 S.Ct. at 1221. We
assume without deciding that in the circumstances of this case we would not
distinguish involuntary admissions from involuntary confessions for purposes of
impeachment. See Commonwealth v. Harris,
‑‑‑ Miss. ‑‑‑, ‑‑‑
(Mass.Adv.Sh. (1973) 1379, 1384) 303
N.E.2d 115 (1973). Involuntary (and,
hence, untrustworthy) confessions are not admissible to impeach a defendant's
testimony. Commonwealth v. Kleciak, 350
Mass. 679, 690, 216 N.E.2d 417 (1966).
Commonwealth v. Harris, supra.
FN45. This is the discussion of Westover v. United
States, one of the consolidated cases.
FN46. The statute defines a 'capital case' as one
in which 'the defendant was tried on an indictment for murder in the first
degree and was convicted of murder either in the first or second degree.' G.L. c. 278, s 33E.
FNe. Mass.Adv.Sh.
(1973) 1245, 1250.
FNf.
Mass.Adv.Sh. (1975) 365, 371.
FN47. We have said repeatedly that the statute
'requires us to consider the whole case broadly to determine whether there was
any miscarriage of justice' (emphasis supplied). Commonwealth v. Cox, 327 Mass. 609, 614, 100
N.E.2d 14, 17 (1951). Accord,
Commonwealth v. Gricus, 317 Mass. 403, 407, 58 N.E.2d 241 (1944); Commonwealth
v. Baker, 346 Mass. 107, 109, 190 N.E.2d 555 (1963); Commonwealth v. Williams, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (Mass.Adv.Sh. (1973) 1245, 1250), 301 N.E.2d 683
(1973). Moreover, G.L. c. 278, s 33E,
provides specifically that this court may direct the entry of a verdict of a
lesser degree of guilt 'if satisfied that the verdict was against the law or
the weight of the evidence . . . or for any other reason that justice may
require' (emphasis supplied).
FNg. Mass.Adv.Sh.
(1975) at 2906.
FN48. 'But where death ensues from acts or means
which, under the circumstances, could not have been supposed to endanger life
or to inflict great bodily injury the law will not imply malice, because it
cannot be reasonably inferred that the party charged intended the consequences
which flowed from his act. If therefore
death should ensue from an attack made with the hands and feet only, on a
person of mature years and in full health and strength, the law would not imply
malice, because ordinarily death would not be caused by the use of such
means.' Commonwealth v. Fox, 7 Gray 585,
588 (1856).
FN49. The judge below implicitly found this.
FN50. Statements about the defendant's prior life
must be limited by the state of the record, which is relatively uninformative
in this respect. We assume the accuracy
of the statements in the text in the absence of contrary information.
FN51. At trial, the assistant district attorney termed
the killing a 'cold, calculated murder' and asked the jury to return a verdict
of murder in the first degree. In
support of his request, he directed the jury's attention specifically to the
love beads worn by the victim (acquired while she was in California), to the
lengths of rope which bound the body in two places, to the blanket in which the
body was wrapped, to the grave in which the body was buried and to the
defendant's silence for fifteen months about the circumstances of the victim's
death. While these facts may support an
inference of premeditation and preparation, they certainly do not provide
substantial proof of an intentional killing.
FN1. See n. 9, infra.
FN2. At part II, section 4, of its opinion, the
court chides this dissent for refusing to accept the trial judge's findings and
in effect adopting contrary findings.
The criticism is misdirected and ignores constitutional
requirements. As will be evident, we do
indeed differ from the trial judge in his 'finding' (quoted by the court) that
the defendant was 'completely free from fear.'
But to call that and similar statements by the trial judge subsidiary
findings and thereby to foreclose reexamination of them here would subvert the
process of review in constitutional cases.
Those statements are merely reformulations in other words of the judge's
conclusion that the defendant acted voluntarily after 4:15 P.M., and are the
very constitutional issue that must be reassessed by this court. Particularly pertinent is the closing remark
in the following passage by Hennessey, J., concurring in the Murphy case, cited
in the text: '(T)he ultimate findings and rulings of a judge may give rise to a
meaningful appeal, even in a case where his subsidiary findings are beyond
practical challenge. This is true
because the ultimate conclusions of a judge on identification issues may be of
constitutional proportions. This court
must, where justice requires, substitute its judgment for that of a trial judge
at the final stage. . . . The mere recital of appropriate phrases
denoting constitutional acceptability may serve only to obscure error in
admitting the evidence.' 362 Mass. at
551, 289 N.E.2d at 578. See Frankfurter,
J., in Watts v. Indiana, 338 U.S. 49, 50‑‑51, 69 S.Ct. 1347, 93
L.Ed. 1801 (1949), and Colombe v. Connecticut, 367 U.S. 568, 603‑‑606,
81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).
FN3. The court said in Napue: 'The duty of this
Court to make its own independent examination of the record when federal
constitutional deprivations are alleged is clear, resting, as it does, on our
solemn responsibility for maintaining the Constitution inviolate. Martin v. Hunter's Lessee, 1 Wheat. 304, 14
U.S. 304, 4 L.Ed. 97; Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d
5. This principle was well stated in
Niemotko v. Maryland, 340 U.S. 268, 271, 71 S.Ct. 325, 327, 95 L.Ed. 267: 'In
cases in which there is a claim of denial of rights under the Federal
Constitution, this Court is not bound by the conclusions of lower courts, but
will reexamine the evidentiary basis on which those conclusions are
founded.' It is now so well settled that
the Court was able to speak in Kern‑Limerick, Inc. v. Scurlock, 347 U.S.
110, 121, 74 S.Ct. 403, 410, 98 L.Ed. 546 of the 'long course of judicial
construction which establishes as a principle that the duty rests on this Court
to decide for itself facts or constructions upon which federal constitutional
issues rest.' As previously indicated,
our own evaluation of the record here compels us to hold that the false testimony
used by the State in securing the conviction of petitioner may have had an
affect on the outcome of the trial.' See
Drope v. Missouri, 420 U.S. 162, 174, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975).
FN4. See the distinction suggested in Commonwealth
v. McGarty, 323 Mass. 435, 438, 82 N.E.2d 603 (1948), between an officer's
saying to a suspect during questioning that he will not be beaten, and the
officer's saying he will not be beaten if he confesses to the crime. See also Commonwealth v. Femino, 352 Mass. 508,
514, 226 N.E.2d 248 (1967).
FN5. See, further, Stewart, J., in Harrison v.
United States, 392 U.S. 219, 224‑‑226, 88 S.Ct. 2008, 20 L.Ed.2d
1047 (1968), and Harlan, J., dissenting in the same case and further explaining
his position in the Darwin case. 392
U.S. at 227, 88 S.Ct. 2008, note. See
also Ruffin v. United States, 293 A.2d 477, 480‑‑481
(D.C.App.1972).
FN6. It may serve in some measure to explain the
trial judge's error in admitting the post‑4:15 statements, that in his
original findings he omitted entirely to deal with the factor of 'cat‑out‑of‑the‑bag'
and paid insufficient attention to the factor of 'break in the stream of
events.' Accordingly, this court entered
an order directing the trial judge to address himself to these two factors. The judge's 'supplementary findings' do not
add to the subsidiary facts and asseverate his earlier conclusions without
adding any fresh appreciation of the defendant's predicament before or after
4:15 P.M.
FN7. This court took a similar approach in Commonwealth
v. Spofford, 343 Mass. 703, 180 N.E.2d 673 (1962), a case involving not the
admissibility of a subsequent confession, but rather the effectiveness of a
consent for a search, given after a prior illegal search had turned up
incriminating evidence, as the defendant knew.
We emphasized that, given the prior search and its consequences, the
defendant was 'in no environment to make a free choice,' and held that the
consent obtained was 'an offshoot of the original unreasonable search and
seizure' and so did not validate the subsequent search. 343 Mass. at 707, 708, 180 N.E.2d 673.
That
Brown and Spofford both relate to an inquiry into the lasting effect of a
Fourth Amendment violation, while the case at bar involves a Fifth Amendment
violation, is of no consequence for our inquiry, as the court appears to
recognize. See, ante, p. ‑‑‑,
n. 32, 335 N.E.2d 676.
FN8. This warming of the pursued toward his
pursuer appears in imaginative literature in the relation of Jean Valjean to
the detective Javert in Les Mise rables,
and of Raskolnikov to police inspector Porfiri Petrovich in Crime and
Punishment.
FN9. Gawlinski's earlier connection with the case
sheds light on his actions and motivation during the hospital interrogation.
Gawlinski
knew of the extensive surveillance of the defendant by the concerned group and
he also became aware of the exacerbated incidents such as the one at Henry F.
Bryant & Son, Inc., which ended in a physical encounter, with Ferreri or
Fontacchio saying, 'George, we know what you did and you're going to pay for
it,' and 'You think you got away with it this time but you didn't‑‑we'll
get you,' or words to that effect. Yet
Gawlinski took no decisive action against any of this activity. His attitude is further illustrated by an
incident that occurred in July, 1971.
Arthur M. Pascal, a private investigator employed by the father of the
victim, learned that Erwin Katz, a 'concerned' person, was planning to 'pick
up' or 'kidnap' the defendant for questioning at which the father would be
present. Pascal called Gawlinski to ask
whether Gawlinski had given Katz the 'green light' (as Pascal had been told by
others); Pascal pointed to the danger of violence by the father. Gawlinski indicated that he knew what was
going to be done, yet insisted simply that there should be no 'rough stuff'; if
there was, he said, he would prosecute.
The illegality and violence latent in the entire situation might have
been more evident to an independent police officer. Gawlinski's independence, however, had been
impaired by his too close association with the father and brother; it is
symptomatic that Gawlinski's many meetings with the father took place at the
father's residence rather than in official quarters. Gawlinski's hunger for results‑‑for
leads from any source‑‑evidently overcame his respect for legality
and orderly behavior. It comes, then, as
no surprise that Gawlinski engineered to prevent the defendant from seeing his
counsel on the morning of December 10.
FN10. In fact, Detective Sheehan, who did
participate in the interrogation, also knew that counsel had been trying to
reach Gawlinski.
FN11. See Michigan v. Tucker, 417 U.S. 433, 443‑‑444,
94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); Michigan v. Payne, 412 U.S. 47, 53, 93
S.Ct. 1966, 36 L.Ed.2d 736 (1973).
FNa. Mass.Adv.Sh.
(1973) 1379, 1382‑‑1383.
FN12. See Harris v. New York, 401 U.S. at 226‑‑232,
91 S.Ct. 643 (Brennan, J., dissenting).
Adverse commentary on the Supreme Court's decision in Harris was copious
and severe. See, e.g., Dershowitz &
Ely, Harris v. New York: Some Anxious Observations on the Candor and Logic of
the Emerging Nixon Majority, 80 Yale L.J. 1198 (1971); The Supreme Court, 1970
Term, 85 Harv.L.Rev. 40, 44 (1971); 10 Duquesne L.Rev. 128 (1971); 40 Fordham
L.Rev. 394 (1971); 45 Temple L.Q. 118 (1971); 33 Pitt.L.Rev. 135 (1971).
FN13. The concurring opinion of Mr. Justice Powell,
in which Mr. Justice Rehnquist joined, developed at some length the distinction
between 'technical' and 'flagrant' violations of the Fourth Amendment and the
consequences of the distinction on the admission or exclusion of statements
later given. ‑‑‑ U.S.
at ‑‑‑, 95 S.Ct. 2254.
FN14. The flagrancy of official misconduct as a
determinant of whether a statement should be suppressed is also adopted by the
A.L.I.'s Model Code of Pre‑Arraignment Procedure (1975 Approved
Draft). In s 150.3(1) and (2), the Code
takes the position that '(a) motion to suppress a statement . . . (obtained in
violation of the Code's procedural protections which include right of access to
counsel) shall be granted . . . if the court finds that the violation upon
which it is based was substantial . . ..
A violation shall . . . be deemed substantial if . . . (t)he violation
was gross, wilful and prejudicial to the accused. . . .'
According to s 150.3(3), a violation, not meeting the foregoing test,
may nevertheless be found substantial if it satisfies another definition of
which material elements are 'the extent of deviation from lawful conduct,' and
'the extent to which the violation was wilful.'
FN15. Watts v. Indiana, 338 U.S. 49, 59, 69 S.Ct.
1347, 93 L.Ed. 1801 (1949) (Jackson, J., concurring in part and dissenting in
part).
FN16. The egregiousness of Hass, if it is taken to
extend to permitting the use for impeachment of statements gained by deliberate
denial of the right to counsel, is shown by comparing it with a rule that would
apply Harris v. New York to allow impeaching use of statements gained by
deliberate denial of proper Miranda warnings.
If the latter rule were in force, the police would still have
significant incentive to give the warnings, since many suspects give
statements, which are fully admissible, after being given warnings. But in the situation of deliberate denial of
the right to counsel there is no deterrence whatever of the illegal police
conduct, since, as noted, an attorney if given access to his client will advise
him to make no statement.
FN17. Compare United States v. Hale, 422 U.S. 171,
95 S.Ct. 2133, 45 L.Ed.2d 99 (1975), forbidding the prosecutor from asking a
defendant why he did not tell the police at the time of his arrest the facts
amounting to alibi that he testified to at trial. The Hale court reasoned that the inference
the jury could draw‑‑that the alibi was a contrivance‑‑was
so prejudicial to an honest defendant that questioning on the point must be
foregone even though it might expose a perjurer.
FN1. Both the majority opinion and the dissenting
opinion of Justice Kaplan express special concern for the threat to individual
rights inherent in vigilantism. This is
not to say that the defendant's rights are any greater because he was a victim
of private persons rather than police officers (compare the statement by
Kaplan, J., supra, that 'constitutional protections should have been accorded
to the accused with particular scruple').
Nevertheless, it is a fair inference that the threat of vigilantism to
constitutional rights is particularly acute at this time of greatly increased
violent crime and resulting widespread fear and frustration. It is worth noting that several of the most
popularly received recent books and moving pictures dealt with (and, it can be
contended, glorified) violent self‑help of the kind shown in the instant
case.
FN2. The evidentiary and constitutional question
of voluntariness is not to be confused with the issue of reliability (truth or
falsity) of the confession, which is for the jury's decision. See Jackson v. Denno, 378 U.S. 368, 385‑‑386,
84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Lego v. Twomey, 404 U.S. 477, 484‑‑485
n. 12, 92 S.Ct. 619. 30 L.Ed.2d 618 (1972).
Also, we note that the Massachusetts rule that the voluntariness issue
is to be submitted to the jury, if the judge first finds voluntariness after a
hearing, is not of constitutional dimensions.
See Commonwealth v. Valcourt, 333 Mass. 706, 710, 133 N.E.2d 217 (1956);
LaFrance v. Bohlinger, 499 F.2d 29, 35‑‑36 (1st Cir. 1974), cert.
den. sub nom., LaFrance v. Meachum, 419 U.S. 1080, 95 S.Ct. 669, 42 L.Ed.2d 674
(1974).
FN3. Similarly, the burden of proof is on the
government to establish the reasonableness of a warrantless search (Chimel v.
California, 395 U.S. 752, 756, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969)), and to
prove reasonableness at least by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177‑‑178
n. 14, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).
FN4. Both the majority opinion and Justice
Kaplan's dissenting opinion in this case refer to this concurring opinion in
the Murphy case. See in particular n. 2
of Justice Kaplan's dissent.
FN5. I note that neither the majority opinion nor
the dissenting opinion makes any point of distinguishing 'admissions' from
'confessions' in the constitutional context concerned here. In this I concur; it would be specious to indulge
in variant reasoning or results based on such a distinction.
FN6. See, e.g., in Justice Kaplan's dissenting
opinion, supra, the following findings: 'On these facts, I conclude that the
defendant's acceptance of the condition that he reveal the gravesite was as
much coerced as his initial statements'; 'His statements at the Sears parking
lot were thus made within a continuing constraint and compulsion'; '(T)he
defendant remained under the heel of the kidnappers through the 6:30 P.M.
statements'; 'So the conclusion is well justified that the coercion which
produced the pre‑4:15 P.M. statements was also the cause of the post‑4:15
statements'; 'And here, to repeat, we have the added, overriding factor that
the defendant was under great continuing pressure to make the final disclosure
of the gravesite as a means of getting free of the kidnappers'; '(H)is further
remarks to Heard were nothing but self‑comforting braggadocio'; 'Rather,
the most modest conclusion that emerges from the facts is that the post‑4:15
P.M. statements were substantially conditioned and influenced by the coercion
directed at the defendant throughout the period during which he was held.'
FN7. Concededly other courts, including the
Supreme Court of the United States, have approached some cases substantially as
Justice Kaplan has treated this one.