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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. Mavredakis, 430
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Donald A. Harwood,
Thomas H. Townsend, Assistant District Attorney
(Lori K. Odierna, Assistant District Attorney, with him) for the Commonwealth.
Present:
The
defendant was convicted of murder in the first degree on the theory of felony‑murder. (FN1)
He also was convicted of armed robbery, the underlying felony; breaking and entering in the nighttime; and illegal possession of a firearm. On appeal, he challenges the denial of his
motion for a required finding of not guilty on the armed robbery and felony‑murder
charges; the denial of his motion to
suppress statements he made to the police in response to questioning at the
police station (and items subsequently seized pursuant to a warrant that was
issued, in part, based on information he had disclosed in his statements); and certain evidentiary rulings. He seeks a new trial or a reduction in the
degree of the verdict pursuant to G.L. c. 278, §
33E. Because we conclude that art. 12 of
the Massachusetts Declaration of Rights requires the police to inform a suspect
of an attorney's efforts to contact him for purposes of providing legal advice,
the majority of the defendant's statements to the police should have been
suppressed and, accordingly, the defendant is entitled to a new trial.
1. The murder. We summarize the evidence in the light most
favorable to the Commonwealth. Commonwealth v. Nichypor, 419
John and
the defendant went inside the house and spoke with John's girl friend,
Catherine Zayas. John told Zayas that
he, the [430 Mass. 850] defendant, and Siniscalchi were going
to get a gun (FN2) and break into the KFC. John, Siniscalchi, and the defendant
left shortly thereafter, with Siniscalchi driving.
They
arrived at the KFC at approximately 1 A.M., but saw that the lights were still
on. Rather than entering while someone
was there, they went to a grocery store and bought a few items sometime before
1:31 A.M. Returning to the KFC and seeing that nobody was there, John and the
defendant, using John's keys, (FN3) unlocked a door to the KFC, while
Siniscalchi remained in the car.
When they
entered, they found the safe open.
Fearing that the night manager might return, the defendant suggested
that they leave immediately. John
insisted that he wanted to get all of the money from the safe.
Thomas
Henson, the shift supervisor on duty that night, returned to the KFC after
making a night deposit. John and the
defendant ran to the back of the restaurant and hid. Henson walked to the office and turned on the
light. Then, he walked to the kitchen
where he was shot three times. Despite
being shot, Henson moved toward the front of the restaurant and collapsed. After he fell to the floor, he was shot twice
more.
The
defendant and John took approximately $1,000 in bills and rolled coins from
three cash register drawers that were in the safe. They also took receipts, a police scanner,
and a white towel. They wiped off the
surfaces that they had touched and placed the drawers in water‑filled
sinks, in an attempt to remove their fingerprints. Siniscalchi was not outside waiting, so they
walked toward a pizza shop to call him.
As they walked, John carried the money in a white plastic grocery
bag. On the way, they passed by Agri‑Mark,
a dairy processing plant. An employee on
his break saw them walking by and noticed that one of them was carrying a white
plastic bag. Several rolls of coins were
discovered where the two of them had been walking.
Shortly
thereafter, Siniscalchi picked up the defendant and John and they drove to the
defendant's house. The defendant hid
some items in his cellar. Siniscalchi
and John then went to John's home. There,
Siniscalchi and John told Eddie and Zayas what had happened. They told Zayas that, if the police should [430 Mass. 851] question her, she should say that the defendant, John, and
Siniscalchi went to "Worthington Street with some girls" after they
picked Eddie up from work at the KFC. They were also instructed to tell the
police that Eddie had left his gun at the KFC and was planning to get it in the morning when he went
to work.
2. The investigation and the defendant's
statements to the police. (FN4) Henson's body was discovered at approximately
8:40 A.M. on August 12, 1995. On
arriving at work, Eddie told police that he had left his gun in the men's
restroom, and that he had been with the defendant, John, and Siniscalchi the
night before. The police sought to
locate each of these individuals in an attempt to confirm Eddie's statement.
At
approximately 8:40 P.M., (FN5) two police officers arrived at the family‑owned
restaurant where the defendant worked.
They identified themselves to the defendant and asked him to accompany
them to the police station. The
defendant asked if it was about the murder at the KFC. When one of the officers
asked the defendant why he had asked that question, the defendant said that his
father had told him something about it.
The motion judge found that the defendant went voluntarily with the officers
to the police station, and that the defendant was not a suspect at that
time. As he was leaving, the defendant
asked a waitress to telephone his father so that his father could close down
the restaurant for the night.
On
arriving at the station, the defendant was taken to the "drug room,"
a large office with a word processor. At
8:55 P.M., the defendant was given Miranda warnings and signed a "Miranda
rights/waiver" form. At 9:07 P.M.
the defendant began dictating a noninculpatory statement to an officer who
typed the statement into the computer.
The interview lasted approximately twenty minutes; because there was some trouble with the
computer printer, the defendant did not sign the statement until 9:40 P.M.
Meanwhile,
the defendant's father arrived at the station at approximately 9:30 P.M. and
asked to speak to the defendant. When
his request was denied, the defendant's father left the station. [430
Mass. 852] The defendant was not informed that his
father was at the station.
At 9:45
P.M., Eddie gave the police a statement implicating John, Siniscalchi, and the
defendant in the shooting. The motion
judge found that at that time, 9:45 P.M., the defendant became a suspect and
was no longer free to leave.
Just
before 10 P.M., Sergeant Paul Finnie told the defendant that he knew he was
lying, and told him that there was a witness who could place him at the scene
of the crime. In response, the defendant
stated that he knew the person at Agri‑Mark would be their undoing, that
he had been at the KFC, but that, if he said anything, "he'd be
dead." The motion judge found that
shortly thereafter two more officers, Lieutenant Peter Higgins and Captain
Daniel Murray, entered the room. They
overheard the defendant say that, if he talked, the Los Solidos gang, to which
he belonged, would kill him or his parents.
Lieutenant Higgins and Captain Murray then left the room.
Meanwhile,
the defendant's relatives had retained Attorney Steven Leary to represent the
defendant. At 10:15 P.M., Attorney Leary
called the police station and informed Sergeant Ferrarini that he had been
retained by the defendant's family to represent the defendant, and asked to
speak with the defendant. Sergeant
Ferrarini denied Attorney Leary's request because, after conferring with
Lieutenant Higgins, he determined that the defendant had not requested to speak
with a lawyer. Although Attorney Leary
demanded that the defendant not be questioned further until he arrived at the
station, (FN6) the police continued their interrogation. The police did not inform the defendant of
Attorney Leary's call.
The
defendant's father had also contacted a second lawyer, Steven Newman. Because Attorney Newman was closer to the
police station than Attorney Leary, it was agreed that Attorney [430 Mass. 853] Newman would go to the station.
(FN7) Attorney Newman and the
defendant's father arrived at the station at 10:30 P.M. and asked to see the
defendant. The defendant, however, was
not told that his father and Attorney Newman were there until 11:05 P.M. (FN8)
At
approximately 10:40 P.M., while Attorney Newman was waiting downstairs, the
defendant, who, up to that point had denied involvement in the shooting,
admitted his involvement. In response to
questions about who had shot the victim, the defendant stated, "We didn't
mean to shoot [the victim]," and was placed under arrest. (FN9)
At
approximately 11:05 P.M., the defendant was informed that his father and
Attorney Newman were in the station, and he was asked whether he wished to
speak to them. The defendant, who by then
was in the process of writing out a confession by hand, said that he wanted to
finish writing his statement before speaking to them. After finishing his statement at 11:30 P.M.,
the defendant gave the police additional information which was incorporated
into a search warrant application. Based
in part on the defendant's statements, the police obtained a warrant to search
the cellar of the duplex where the defendant lived. Executing the warrant, they found the murder
weapon, stolen money, various bullets, KFC paperwork, a white towel, the police
scanner, John's keys to the KFC, and some of the clothes that the defendant and
John had been wearing the night of the crime.
The motion
judge found that "[the] West Springfield Police Department has a policy of
neither putting any third person through to someone being interviewed by police
at the station nor informing any such interviewee that a third person wants to [430 Mass. 854] speak to such interviewee, regardless of whether the third person
is at the station or on the phone, unless the person being interviewed has
previously requested the contact."
Following
the analysis that the Supreme Court formulated in Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410
(1986) (Moran ), the motion judge
denied the defendant's motion to suppress.
We "independently review[ ] the correctness of the judge's application
of constitutional principles to the facts found." Commonwealth v. Nieves, 429
Mass. 763, 768‑769 n. 5, 711 N.E.2d 571 (1999), quoting Commonwealth v. Magee, 423 Mass. 381,
384, 668 N.E.2d 339 (1996).
[1] 3. Motion for a required finding of not
guilty. The defendant claims that
there was no evidence warranting a finding that the victim was shot in the
course of an armed robbery, the underlying felony for the charge of murder in
the first degree, only that the victim was shot in the course of a breaking and
entering. In reviewing the ruling on the
motion for a required finding of not guilty, we consider whether the evidence,
viewed in the light most favorable to the Commonwealth, was sufficient to
permit a jury to infer beyond a reasonable doubt the essential elements of the
crime charged. (FN10) See
Commonwealth v. Walsh, 407 Mass. 740, 741, 555 N.E.2d 593 (1990), citing Commonwealth v. Latimore, 378 Mass.
671, 676‑678, 393 N.E.2d 370 (1979).
We conclude that the Commonwealth produced sufficient evidence of each
element of armed robbery.
The
defendant argues that the evidence, viewed most favorably to the Commonwealth,
demonstrated at most that the defendant and his joint venturers intended to
steal money and food from the restaurant, that they intended to do so after the
victim had left the premises for the night, that the victim unexpectedly
returned while the breaking and entering was in progress, and that the moment
the victim put on the light he was shot in the course of this breaking and
entering.
[2] In Commonwealth v. Rajotte, 23
Mass.App.Ct. 93, 499 N.E.2d 312 (1986), a case factually similar to the case at
bar, a restaurant employee interrupted the defendant's theft while it was in
progress. The defendant was convicted of
armed robbery and argued on appeal that "the taking was not effected by
force or threat of force and hence was only a larceny and not a robbery. The intimidation occurred, he claim[ed], only
after he was caught by the [430
Mass. 855] employee." Id.
at 94, 499 N.E.2d 312. The Appeals
Court rejected that claim, holding that the larceny was converted into a
robbery because the assault was committed on someone who had a "protective
concern" for the goods taken (as did the victim in this case) and who had
interfered with the completion of the theft (as did the victim in this case). Id.
at 94‑96, 499 N.E.2d 312. See Commonwealth v. Assad, 19 Mass.App.Ct.
1007, 476 N.E.2d 629 (1985) (involving tenant who returned to his apartment,
interrupting would‑be thieves).
Here, the
defendant and John were still inside the restaurant and the theft was still in
progress when the victim arrived. In
effect, what began as a breaking and entering and a larceny was converted into
an armed robbery once the victim arrived on the scene. See
Commonwealth v. Johnson, 379 Mass. 177, 181, 396 N.E.2d 974 (1979)
("Robbery includes all the elements of larceny and in addition requires that
force and violence be used against the victim or that the victim be put in
fear"). (FN11)
[3] The
underlying felony, armed robbery, was not a crime that merged with the
murder. As we stated in Commonwealth v. Christian, 430 Mass.
552, 556, 722 N.E.2d 416 (2000), in regard to the felony‑murder merger
doctrine, "[w]e can envision no situation in which an armed robbery would
not support a conviction of felony‑murder." As we went on to explain there, "a
defendant who commits a robbery in a manner that intentionally heightens the
possibility of the victim's death, by shooting the victim first, cannot escape
application of the felony‑murder rule." Id. at 557, 722 N.E.2d 416.
[4] 4. The art. 12 duty to inform a suspect under
police interrogation of an attorney's efforts to provide counsel. The defendant argues that the statements he
gave to the police after the attorneys attempted to contact him should have
been suppressed because he had a constitutional right to be informed of their
efforts to provide legal assistance.
(FN12)
[5] In a
series of decisions handed down before the United States Supreme Court had
spoken on the issue, we concluded that a
[430 Mass. 856] suspect's
knowledge of an attorney's efforts to render assistance was necessary to effect
a knowing and intelligent waiver of a suspect's Miranda rights, and that if a
suspect were not so informed, any waiver obtained from the defendant was
inoperative. See Commonwealth v. Sherman, 389 Mass. 287, 288, 450 N.E.2d 566
(1983);
Commonwealth v. Mahnke, 368 Mass. 662, 691‑692, 335 N.E.2d 660
(1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976);
Commonwealth v. McKenna, 355 Mass. 313, 317‑320, 244 N.E.2d
560 (1969). Those decisions did not
state, however, whether they were based on the Federal or the State
Constitution.
Then, in Moran, supra, the United States Supreme
Court ruled that, under the Fifth and Sixth Amendments to the Federal
Constitution, the police had no duty to inform a suspect of an attorney's
efforts to render legal services when the suspect had not personally requested
such legal representation. The majority
opinion reasoned that a defendant's Fifth Amendment rights were not implicated
because "[e]vents occurring outside of the presence of the suspect and
entirely unknown to him surely ... have no bearing on the capacity to
comprehend and knowingly relinquish a constitutional right." Id.
at 422, 106 S.Ct. 1135. Further, the
Court ruled that a defendant's Sixth Amendment rights were not infringed because
the right to counsel attaches only after the filing of criminal charges. Id.
at 432, 106 S.Ct. 1135. The motion
judge correctly concluded, as the defendant effectively concedes on appeal,
that Moran, supra, is dispositive on
the Federal constitutional issue.
In the
wake of the Court's decision in Moran v.
Burbine, supra, a number of other jurisdictions have analyzed, under their
respective State Constitutions, the same question we confront today. Many States have determined that State
constitutional law mandates broader protection from self‑incrimination
than the Moran decision affords. (FN13)
Other jurisdictions have determined[430 Mass. 857] that, on this issue, their State
Constitutions do not provide rights beyond those required by the Federal
Constitution and adopt the analysis of
Moran. (FN14)
Since the Moran decision, we have not had the
opportunity to rule on the State constitutional issue. See
Commonwealth v. Cryer, 426 Mass. 562, 689 N.E.2d 808 (1998). Two Appeals Court decisions, however, have
assumed that Commonwealth v. McKenna,
supra; Commonwealth v. Mahnke, supra;
and Commonwealth v. [430 Mass. 858] Sherman, supra,
survived Moran and were still good
law. See Commonwealth v. Mencoboni, 28 Mass.App.Ct. 504, 506, 552 N.E.2d
589 (1990); Commonwealth v. DiMuro, 28 Mass.App.Ct.
223, 226‑227 n. 2, 548 N.E.2d 896 (1990).
The assumption of the Appeals Court was correct.
We have
noted that we "can interpret the rights of our citizens under art. 12 to
be more expansive than those guaranteed by the Federal Constitution."
Commonwealth v. Cryer, supra, at 568, 689 N.E.2d 808. As we stated in Commonwealth v. Hodge, 386 Mass. 165, 169, 434 N.E.2d 1246 (1982),
in discussing the differences between the Sixth Amendment and the Massachusetts
Declaration of Rights, the "Declaration of Rights can ... provide greater
safeguards than the Bill of Rights of the United States Constitution."
[6] In
deciding whether to interpret art. 12 more expansively than the Fifth
Amendment, we look to the text, history, and our prior interpretations of art.
12, as well as the jurisprudence existing in the Commonwealth before Moran was decided. Throughout our analysis, our guiding
consideration is whether the Federal rule adequately protects the rights of the
citizens of Massachusetts in regard
to self‑incrimination and the affirmative right to access legal counsel
during police interrogations. See
Wilkins, Judicial Treatment of the Massachusetts Declaration of Rights in
Relation to the Cognate Provisions of the United States Constitution, 14
Suffolk U.L.Rev. 887, 921 (1980) ("standards under a state constitution
that are more strict than the 'lowest common denominator' determined under the
United States Constitution may be appropriate in the special circumstances of a
given state or by a different measure of what essential fairness
requires").
The text
of art. 12, as it relates to self‑incrimination, is broader than the
Fifth Amendment. The Fifth Amendment, in
relevant part, states: "[N]or shall
[any person] be compelled in any criminal case to be a witness against
himself." Article 12, however,
commands that "No subject shall ... be compelled to accuse, or furnish
evidence against himself." Based
on the textual differences between art. 12 and the Fifth Amendment, we have
"consistently held that art. 12 requires a broader interpretation [of the
right against self‑incrimination] than that of the Fifth Amendment."
Opinion of the Justices, 412 Mass. 1201, 1210, 591 N.E.2d 1073
(1992), quoting Attorney Gen. v.
Colleton, 387 Mass. 790, 796, 444 N.E.2d 915 (1982) (admitting evidence of
defendant's refusal to consent to breathalyzer test at criminal trial would [430 Mass. 859] violate art. 12). The
precise wording of art. 12 was a subject of debate at the Constitutional
Convention of 1779‑1780. Journal
of the Convention for Framing a Constitution of Government for the State of
Massachusetts Bay 38‑39, 151 (1832).
It is a standard principle of constitutional interpretation that
"[a]ll [the] words [of the Constitution] must be presumed to have been
chosen advisedly." Mount Washington v. Cook, 288 Mass. 67,
70, 192 N.E. 464 (1934).
The
history of art. 12, and our prior interpretations of its self‑incrimination
provisions, also lead to the conclusion that art. 12 provides greater
protection than the Federal Constitution does.
As we have previously pointed out, the "Constitution of the
Commonwealth preceded and is independent of the Constitution of the United
States. In fact, portions of the
Constitution of the United States are based on provisions in the Constitution
of the Commonwealth...." Commonwealth v. Upton, 394 Mass. 363,
372, 476 N.E.2d 548 (1985). Article 12
and other similar State constitutional provisions evolved from a sense of
disapproval of the inquisitorial methods of the Star Chamber and ecclesiastical
courts in England. See Note, The
Colonial and Constitutional History of the Privilege against Self‑incrimination
in America, 21 Va. L.Rev. 763, 770, 788‑789
(1935). Our precedents have often interpreted
art. 12 expansively. See, e.g., Emery's Case, 107 Mass. 172, 181 (1871)
(art. 12 "forbids that [a person] should be compelled to accuse
himself. By the narrowest construction,
this prohibition extends to all investigations of an inquisitorial nature,
instituted for the purpose of discovering crime, or the perpetrators of crime,
by putting suspected parties upon their examination in respect thereto, in any
manner.... But it is not even thus
limited").
[7]
Accordingly, art. 12 requires a higher standard of protection than that
provided by Moran. The
Moran analysis proceeds from the assumption that information regarding the
immediate availability of an attorney has no bearing on a suspect's ability
knowingly and intelligently to waive Miranda rights. As other courts have mentioned, however,
there is an important difference between the abstract right to speak with an
attorney mentioned in the Miranda warnings, and a concrete opportunity to meet
"with an identified attorney actually able to provide at least initial
assistance and advice." State v. Haynes, 288 Or. 59, 72, 602 P.2d
272 (1979), cert. denied, 446 U.S. 945, 100 S.Ct. 2175, 64 L.Ed.2d 802
(1980). "Faced with a concrete
offer of assistance ... a suspect may well decide to [430 Mass. 860] reclaim his or her continuing right to legal assistance."
State v. Stoddard, 206 Conn. 157, 167‑168, 537 A.2d 446
(1988). Essentially, the duty to inform
a suspect of an attorney's efforts to render assistance is necessary to
actualize the abstract rights listed in
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966). Accordingly, the duty to inform
is only another way of saying that the rights listed in the Miranda case are substantively meaningful. Cf.
Commonwealth v. McKenna, supra at 324, 244 N.E.2d 560 ("the
opportunity to exercise [Miranda] rights throughout the interrogation" is
as important as being informed of those rights).
Any other
approach would lend tacit approval to affirmative police interference with the
attorney‑client relationship. We
prefer to view the "role of the lawyer ... as an aid to the understanding
and protection of constitutional rights," rather than "as a
nettlesome obstacle to the pursuit of wrongdoers." Moran, supra at 433, 106
S.Ct. 1135 (Stevens, J., dissenting). In
the words of one of our sister jurisdictions, "[t]he day is long past ...
where attorneys must shout legal advice to their clients, held in custody,
through the jailhouse door." People v. McCauley, 163 Ill.2d 414, 423,
206 Ill.Dec. 671, 645 N.E.2d 923 (1994).
[8] In
addition, we address several arguments that have been raised against the
creation of a duty to inform a suspect of an attorney's efforts to render
assistance. First, we address the
concern that such a rule is unfair as it would only benefit those who already
had legal representation at the time of a police interrogation. As the Supreme Court of California
stated: "We fail to see ... how an
individual enmeshed in custodial interrogation can be kept from his own lawyer
... simply because other suspects under questioning do not yet have
attorneys. The doctrine of equal
protection is society's shield against discriminatory treatment by the
authorities. It is not a sword with
which the authorities may deprive the accused of his counsel's
assistance." People v. Houston, 42 Cal.3d 595, 612,
230 Cal.Rptr. 141, 724 P.2d 1166 (1986) (superseded by constitutional
amendment).
[9][10]
Second, the Commonwealth argues that such a duty would create administrative
difficulties. However, the duty to
inform is a bright‑line rule.
Furthermore, until the decision in
Moran, it was clear that such a duty to inform did exist in the
Commonwealth, and that the duty was regularly observed. The same is true for other jurisdictions that
have adopted a duty to inform. See note
13, infra. Our conclusion does not, however, mean that
the police have a duty to provide information such as the [430 Mass. 861]
"nature and quality of the evidence" that the investigation has
amassed against the suspect. Oregon v. Elstad, 470 U.S. 298, 317, 105
S.Ct. 1285, 84 L.Ed.2d 222 (1985).
Rather, the duty we announce concerns solely the obligation "to
apprise the defendant of a specific communication from his attorney that bore
directly on the right to counsel." State v. Stoddard, supra at 169, 537 A.2d
446.
[11][12][13]
The establishment of a duty to inform a suspect of an attorney's efforts to
provide legal advice builds on our decisions in Commonwealth v. Sherman, 389 Mass. 287, 450 N.E.2d 566 (1983); Commonwealth
v. Mahnke, 368 Mass. 662, 335 N.E.2d 660 (1975); and
Commonwealth v. McKenna, 355 Mass. 313, 244 N.E.2d 560 (1969). When an attorney identifies himself or
herself to the police as counsel acting on a suspect's behalf, the police have
a duty to stop questioning and to inform the suspect of the attorney's request
immediately. The duty to inform applies
whether the attorney telephones or arrives at the station. (FN15)
See State v. Stoddard, 206
Conn. 157, 171, 537 A.2d 446 (1988) (telephone call from attorney
triggers duty to inform). The suspect
can then choose whether to speak with the attorney, or whether to decline the
offer of assistance. On the suspect's
acceptance of this assistance, the police must suspend questioning until the
suspect is afforded the opportunity to consult with the attorney either on the
telephone or in person. If the attorney
telephones and then informs the police that he or she will appear for the
initial consultation, the suspension of questioning will apply only so long as
the attorney appears at the station within a reasonable time.
[14][15]
The Commonwealth has the burden of proving that the suspect declined the offer
of legal advice. The consequence of the
failure so to inform a suspect is that any waiver of rights that has been given
becomes "inoperative" for further admissions. Commonwealth v. McKenna, supra
at 324, 244 N.E.2d 560. "Only that
part of the interrogation is admissible which the prosecution proves to have
taken place before" the failure to inform occurred. Id. at 325, 244 N.E.2d 560.
[16] In
this case, the motion judge found that the West Springfield police department
had a policy that forbade suspects under interrogation from being contacted by
third parties either over the telephone or in person. The policy also forbade informing the suspect
of these attempted communications. This
policy of [430 Mass. 862] the West Springfield police
department is unconstitutional insofar as it applies to attorneys' contacts
with suspects. Those statements made
before 10:15 P.M., the time that Attorney Leary telephoned the police station,
were properly admitted. All the
defendant's statements made after 10:15 P.M. should have been suppressed. We now address several additional issues
raised by the defendant in order to provide guidance on retrial.
5. Search warrant. The search warrant, which eventually led to
the discovery of a cache of evidence, including the murder weapon, stolen
money, and KFC paperwork, was issued in reliance, at least in part, on the
defendant's statements to the police. At
retrial, the judge should determine whether, excluding the defendant's
statements made after 10:15 P.M. and any other evidence tainted by those
statements, there was probable cause for the warrant to issue. See
Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441
(1963);
Commonwealth v. Wilson, 427 Mass. 336, 342, 693 N.E.2d 158 (1998).
6. Evidentiary rulings. a. Before Attorney
Leary telephoned the police station, the defendant told the police that he was
a member of the Los Solidos gang and that, if he said anything, he or his
parents would be killed. The defendant
moved in limine to exclude this remark, claiming that the gang reference would
be unduly prejudicial. The motion was allowed
without prejudice. At trial, however,
the judge allowed the Commonwealth, over the defendant's objection, to
introduce the statement. The
Commonwealth also introduced evidence that the defendant, subsequent to making
that statement, had twice denied that he was a member of any gang. The Commonwealth offered the evidence on the
theory that the defendant's conflicting statements, particularly his false
claim initially that he could not speak to the police because of his gang
involvement, demonstrated consciousness of guilt.
[17][18]
The judge was within her discretion in determining that the defendant's comment
about his involvement in a gang was relevant to consciousness of guilt and that
the probative value of the evidence outweighed the prejudice to the
defendant. See Commonwealth v. Young, 382 Mass. 448, 463, 416 N.E.2d 944 (1981)
(balancing probative and prejudicial value of evidence an issue on which the
opinion of trial judge will be accepted except for palpable error). In any case, the potential for prejudice was
limited because the judge carefully instructed the jury, both at the time [430 Mass. 863] the evidence was admitted and again in her
final charge, that the evidence was admitted only for this limited
purpose. (FN16)
[19][20]
b. Also over objection, the Commonwealth was permitted to introduce several
statements made by John and Siniscalchi to the police and to Zayas. (FN17)
The defendant claims that there was no evidence to warrant a finding
that he was involved with the others in an ongoing joint venture after the
shooting, when some of the statements were made. Statements made after a crime has been
committed, but at a time when the joint venturers are "attempting actively
to conceal evidence," "to avoid detection and detention," or
"to enlist [another's] aid in their concealment and escape," and
which are made while the joint venturers' interests are still "closely
bound together, tending to ensure the reliability of their statements,"
are admissible against all joint venturers. Commonwealth v. Colon‑Cruz, 408
Mass. 533, 545, 562 N.E.2d 797 (1990).
See Commonwealth v. Simpson,
370 Mass. 119, 122, 345 N.E.2d 899 (1976).
The statements were admissible because there was ample evidence for the
jury to find that the defendant, John, and Siniscalchi were engaged in an
ongoing attempt to [430 Mass. 864] cover up the crime at the time the
challenged statements were made, and that the challenged statements were made
in furtherance of their ongoing efforts.
In addition, the judge instructed the jury as to the use of such
evidence both during the officer's testimony and again during the final charge.
[21] 7. General Laws c. 278, § 33E. Because we conclude that art. 12 requires the
police to inform a suspect of an attorney's efforts to contact him for purposes
of providing legal advice, certain statements that the defendant made to the
police, listed in Part 4, supra,
should have been suppressed. We cannot
conclude that the admission of these statements was harmless, and the defendant
is therefore entitled to a new trial.
Accordingly,
the judgments are reversed, the verdicts set aside, and the cases remanded to
the Superior Court for a new trial.
So ordered.
(FN1.) The Commonwealth proceeded at trial on
all three theories of murder in the first degree.
(FN2.)
They were using a gun that Eddie had purchased approximately one month earlier.
(FN3.)
John had previously worked at the West Springfield KFC and still had a set of
keys.
(FN4.)
"In reviewing the denial of a motion to suppress, we accept the motion
judge's subsidiary findings of fact absent clear error."
Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378
(1990).
(FN5.)
Officers had tried to interview the defendant earlier in the day, but had not
been able to find him.
(FN6.)
At this point in the conversation, Sergeant Ferrarini told Attorney Leary that
he did not know him, and did not even know whether he was an attorney. When Attorney Leary asked to speak with
officers that he did know, and who could identify him, Sergeant Ferrarini, on
the advice of Lieutenant Higgins, told Attorney Leary that he would have to
come down to the station to identify himself.
Even though Lieutenant Higgins knew Attorney Leary, he did not offer to
verify his identity because, in the words of the motion judge, Lieutenant
Higgins "knew that if Attorney Leary spoke to the defendant the
interrogation would end."
(FN7.)
Attorney Leary had no further contact with this case.
(FN8.)
The motion judge found that "the failure of police to determine ... that
Attorney Newman was there to see the defendant [was] non‑deliberate and
non‑purposeful; though I am
convinced that they would not have let him see the defendant unless the
defendant had previously requested to speak to an attorney, which he did
not." While this finding seems to
conflict with the judge's finding regarding Lieutenant Higgins's actions, see
note 6, supra, we see no need to
address the issue because, as we discuss
infra, the policy of the West Springfield police department was
unconstitutional.
(FN9.)
There was conflicting testimony among the police officers about when the
defendant actually made this statement.
Captain Murray stated that he remembered this remark being made at 10:05
P.M., because he made a notation on a pizza box that was later thrown
away. The motion judge apparently chose
instead to rely upon testimony of other officers and the times listed in the
official police report written the night of the interrogation.
(FN10.)
The question is not, as the Commonwealth argues, whether the defendant had a
"conditional" or "contingent" intent to commit an armed
robbery, if necessary. Rather, the true
question is whether the Commonwealth's case contained enough evidence to prove
every element of armed robbery.
(FN11.) Contrast Commonwealth v. Novicki, 324 Mass. 461, 465, 87 N.E.2d 1 (1949)
(finding no justification for an armed robbery conviction where alleged robber
had taken money, left the victim's presence undetected, and was in the process
of leaving through a door when the victim first noticed him; "[a]lthough the crime may be considered
as continuing at least until the defendants left the store with the money ...
it cannot be said that the fright which [the victim] experienced when she saw
[one defendant] leaving the [cashier's] cage with the money was a factor in the
taking of the money from her possession").
(FN12.) The defendant, who was seventeen years
old at the time of the shooting and the interrogation, also cursorily raises
the denial of access to his father as a basis for the suppression of his
statements to the police. Because the
defendant was no longer a juvenile, he was not entitled to the protections
afforded juveniles detailed in
Commonwealth v. A Juvenile, 389 Mass. 128, 134‑135, 449 N.E.2d 654
(1983). See Commonwealth v. Carey, 407 Mass. 528, 536‑538, 554 N.E.2d
1199 (1990).
The
defendant also argues that all his
statements to the police were involuntary, based on the fact that he had only
recently reached the age of majority.
However, the motion judge made numerous findings concerning factors such
as the defendant's physical and mental state, maturity, the physical
surroundings, and the tenor of the questioning.
None of these findings was clearly erroneous, and they more than adequately
supported the judge's conclusion that the statements made before 10:15 P.M.
were voluntary.
(FN13.) See
People v. Houston, 42 Cal.3d 595, 609‑610, 230 Cal.Rptr. 141, 724
P.2d 1166 (1986), (analyzing issue under California Constitution and finding
reasoning of Moran
"unpersua[sive]") (superseded by constitutional amendment);
State v. Stoddard, 206 Conn. 157, 166, 537 A.2d 446 (1988) (tracing
history of due process clause of Connecticut Constitution, as well as right to
counsel, and concluding police must inform suspect of attorney's telephone
call);
Bryan v. State, 571 A.2d 170, 176‑177 (Del.1990) (interpreting
Delaware Constitution); Haliburton v. State, 514 So.2d 1088, 1090
(Fla.1987), cert. denied, 501 U.S. 1259, 111 S.Ct. 2910, 115 L.Ed.2d 1073
(1991) (failure to notify suspect of attorney's presence at police station
violates due process clause of Florida Constitution); People v. McCauley, 163
Ill.2d 414, 424‑446, 206 Ill.Dec. 671, 645 N.E.2d 923 (1994) (relying on
previous State decisions and Illinois Constitution to suppress statements after
attorney denied access to defendant at police station); West v. Commonwealth, 887
S.W.2d 338, 342 (Ky.1994) (holding Kentucky Constitution provides greater
protection of individual rights than Federal Constitution, and criminal rule
providing access to counsel predating
Moran survives); People v. Bender, 452 Mich. 594, 612‑614,
551 N.W.2d 71 (1996) (Michigan Constitution requires informing suspect of
counsel's attempts to provide assistance;
without such information waiver of rights not knowing and voluntary);
State v. Reed, 133 N.J. 237, 262, 627 A.2d 630 (1993) (common‑law
and statutory right against self‑incrimination requires informing suspect
of attorney's efforts to provide assistance, and lack of such information
renders suspect's waiver of rights "invalid per se");
State v. Simonsen, 319 Or. 510, 514, 878 P.2d 409 (1994)
(constitutionally requiring that police inform defendant of counsel's attempts
to consult with him, and suppressing evidence obtained from the defendant's
confession because waiver of right to counsel not knowing, intelligent, and
voluntary).
(FN14.) See
Mitchell v. State, 306 Ark. 464, 468‑469, 816 S.W.2d 566 (1991)
(adopting reasoning of Moran without
separate analysis under State Constitution); McClaskey v. State, 540 N.E.2d 41, 44
(Ind.1989) (same); Lodowski v. State, 307 Md. 233, 244‑247,
513 A.2d 299 (1986) (following precedent that had interpreted art. 22 of the
Maryland Declaration of Rights to be in pari materia with the Federal
Constitution); State v. Drayton, 293 S.C. 417, 426‑427,
361 S.E.2d 329 (1987), cert. denied, 484 U.S. 1079, 108 S.Ct. 1060, 98 L.Ed.2d
1021 (1988) (adopting reasoning of Moran
v. Burbine, supra, without a separate analysis under State Constitution);
State v. Stephenson, 878 S.W.2d 530, 546‑547 (Tenn.1994)
(art. I, § 9, of Tennessee Constitution
in accord with Moran v. Burbine, supra
);
State v. Earls, 116 Wash.2d 364, 377, 805 P.2d 211 (1991) (majority
opinion relying on precedent that had interpreted art. 1, § 9, "as being
identical in scope to the Fifth Amendment"); State v. Hanson, 136 Wis.2d
195, 211‑212, 401 N.W.2d 771 (1987) (majority opinion interpreting
Wisconsin Constitution, art. I, § 8, in
accord with Moran because wording
"virtually identical" to Fifth Amendment).
(FN15.)
Police departments may want to institute policies for identifying and verifying
that individuals representing themselves as attorneys are in fact attorneys,
whether on the telephone or in person.
(FN16.) The defendant also claims that the
judge's ruling on this matter was problematic because she had tentatively ruled
before trial that this evidence would be excluded, and that, therefore, she did
not ask the prospective jurors a voir dire question requested by the defendant
concerning their attitudes about gangs.
However, the judge made clear that her preliminary ruling on the matter
was tentative only and might be reconsidered at trial as the evidence unfolded. The defendant expressly withdrew his request
for the voir dire question that he now complains should have been asked.
(FN17.) A police officer testified that,
during questioning, John and Siniscalchi initially stated that they, along with
the defendant, picked up Eddie after work at approximately midnight on the
night of the shooting, and that they all either went to a bar or went home for
the night. The officer testified that
neither John nor Siniscalchi mentioned returning to West Springfield that
night. There was evidence that John,
Siniscalchi, and the defendant were in a supermarket in West Springfield, near
the scene of the shooting, at approximately 1:30 A.M., shortly before the
victim was shot and killed. It was
inferable that the statements by John and Siniscalchi, in which they omitted telling
of their presence in the area, were intended to cover up their involvement.
Zayas
testified that, shortly after the time of the shooting, she was present in
Eddie's house with John and Siniscalchi, and that they told her that, if asked,
she should tell the police that they were in Springfield after they picked up
Eddie from work; that they went home
from there; and that Eddie had left his
handgun at the restaurant that night and intended to pick it up in the
morning. As John and Siniscalchi were instructing
her on what to say, Eddie was speaking in Greek to someone on the
telephone. An inference could be drawn
that he was talking to the defendant.