|
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. Meehan, 377
Supreme Judicial Court of Massachusetts,
Argued
Decided
Sandra Hamlin, Asst. Dist. Atty. (Paul A. Mishkin, Sp. Asst. Dist. Atty., with
her), for the Commonwealth.
David A. Mills,
Before [377
KAPLAN, Justice.
[1] A
Drawing on
the findings and the underlying record, we state some of the facts at this
point, reserving the rest for the later discussion of particular issues.
About
Of the former group, Mary Crowley, interviewed
at her home on 38 Oak Street, said that about 2 A.M. that morning she was
awakened by a scream, dogs barking, and a tapping sound; she heard a woman
scream, "Don't. Please don't,"
and then a wordless scream. Crowley's
daughter, Claire Wilde, staying at the same address, gave a similar account and
added that, looking out the window, she saw a white male walk by the house; he
was about five feet ten inches, in his mid‑twenties, had dark hair, and
was slender; he was wearing faded jeans and his shirtsleeves were rolled
up. Some minutes later the man returned
and she heard what she described as the sound of a large boulder being thrown
on the lawn. She did not see the man's
face. The statements of these two
witnesses were recorded on tape.
[377 Mass. 555] Also on the morning of June 11, four persons of the Cleary Square
group were interviewed at District 5 police station on Hyde Park Avenue. Two gave material statements, also tape‑recorded. Joseph Ventola, who knew the victim, said
that around midnight he had driven past her; she was on the steps of Christ
Church at 1220 River Street in the company of a white man, shirtless, in his
late teens, "skinny," with dark hair.
The second witness, John Carroll, said that between 11:30 P.M. and
midnight he had driven by the victim and the defendant Joseph Meehan (both
known to him); they were sitting on the steps of Christ Church; he described Meehan
as eighteen or nineteen years old, five feet six, about 130 pounds, dark hair,
wearing sneakers and a print shirt with rolled‑up sleeves.
As Carroll
was being interviewed about 10:30 A.M. in a first‑floor room at the
police station, he chanced, looking through the window near street level, to
see the defendant trying to hitch a ride on Hyde Park Avenue and pointed him
out to the police. Detective James
Solari, one of the officers present, passed through the opened window to the
street, while two other officers, William Cannon and Louis Russo, went by the
front door. Russo walked up the street;
Solari and Cannon proceeded in a police cruiser. The cruiser pulled up alongside the
defendant. Cannon told him they were
investigating an assault on a woman, were questioning those who had been seen
in the area of the crime, and had been told that the defendant was there the
previous evening. They asked the
defendant to come with them to the station for an interview. The defendant said he was willing, but he was
going to the unemployment office and did not want to be late. The officers answered they would drive him to
the office if he should be delayed. The
defendant opened the car door and took a rear seat, where he was joined by the
officer who had approached on foot. The
defendant was eighteen, five feet six inches, 135 pounds, dark hair, wearing
cut‑off dungarees and a blue print shirt with rolled‑up sleeves.
[377 Mass. 556] Officer Solari interviewed the defendant at the station. Sitting at a short distance from the
defendant, Solari noticed reddish stains on the defendant's sneakers. In response to a question, the defendant said
they were probably mud. When Solari said
they appeared to be blood, the defendant said, if so, the stains were from a
fight he had had several days earlier with George Quish. Solari asked whether he could inspect the
sneakers. The defendant answered by
removing the left sneaker and handing it to Solari. Leaving the defendant in the room, Solari
took the sneakers and showed them to Sergeant James Feeney. Feeney agreed there were blood stains. It happened that Quish was being interviewed
at the station at the same time. When
asked by Sergeant Feeney whether he had been involved in a fight recently,
Quish said he had not been. Feeney then
instructed Solari to arrest the defendant and give him Miranda warnings, which
evidently was done (there was no proof as to the manner of administering the
warnings). A chemical test, made
promptly, confirmed the visual judgment of blood.
About
11:20 A.M., the defendant was passed on to Sergeant Joseph Kelley (with
Officers Feeney, Mark Madden, and Russo also present). Kelley gave the defendant Miranda warnings,
and then followed an interrogation, interlarded with cajolings and
assurances, which continued for perhaps an hour (almost all recorded on
tape). Starting with his denial that he
had been in the company of the victim on the night of the assault, the
defendant was gradually brought around to admitting that he had kicked her,
thrown a rock at her, and left her unconscious (as he thought) at the place
where she was found. The circumstances
of this confession were dealt with by the judge in particular detail, and must
be closely examined later in this opinion.
Mentioning
the confession (and with some reference also to the statements of Claire Wilde
and John Carroll previously given to the police), Officer Solari applied early
that afternoon to the assistant clerk of the Municipal [377 Mass. 557] Court
of the West Roxbury District for a warrant to search the defendant's house at
1559 River Street and recover the dungarees he was wearing (as mentioned during
the confession) at the time of the alleged assault. The dungarees were in fact recovered under
the warrant, as was a pair of undershorts found during the search.
The
defendant's mother and brother, with Sergeant Feeney present, visited him at
his cell at the District 5 station around 3:45 P.M. According to Feeney's testimony (which
differed from that of the relatives), the defendant then uttered an
incriminatory remark.
The judge
after voir dire held (1) there was not an arrest on Hyde Park Avenue; (2) the
sneakers should not be suppressed; (3) the confession should be suppressed, (4)
with like consequence for the dungarees and undershorts; and (5) the statement
to the mother and brother should not be suppressed. The cross‑applications for
interlocutory appeal followed.
[2] [3] In
reviewing the judge's order we apply the standard recently stated, "that
there is a presumption against waiver of constitutional rights, and, with
regard to the attitude owed by the reviewing court to the trial judge who rules
on a motion to suppress, that it is for that judge to resolve questions of
credibility; that his subsidiary findings are to be respected if supported by
the evidence; that his findings of ultimate fact deriving from the subsidiary
findings are open to reexamination by this court, as are his conclusions of
law, but, even so, that his conclusion as to waiver is entitled to substantial
deference." Commonwealth v. Doyle, ‑‑‑
Mass. ‑‑‑, n.6 (FNA), 385 N.E.2d 499, 503 n.6 (1979). Adhering to that standard, we see no
sufficient basis for interfering with the findings or conclusions of the judge
below, except as to the statement to the mother and brother which, as matter of
law, must be suppressed as the product of the original confession. We reverse that part of the order and affirm
the rest.
[4] 1. The
arrest. The defendant argues initially
that he was arrested at 10:30 A.M. on Hyde Park Avenue, and [377 Mass. 558] that
there was not probable cause for an arrest at that time. If the arrest was thus illegal, he maintains,
it would infect the sequelae. The
Commonwealth contends, and the judge found, that there was no arrest on Hyde
Park Avenue, that an arrest did not take place until about 11:15 A.M., after
the sneakers appeared on inspection to be bloodied and Quish had denied the
fighting. The defendant does not
challenge the judge's finding that there was sufficient cause for an arrest at
that time.
The
judge's conclusion that the defendant accompanied the officers voluntarily, and
not under constraint, is well supported.
It was put to the defendant that the police were engaged in a general
inquiry and were seeking cooperation: the officers asked, did not demand, that
the defendant come with them; the defendant opened the car door himself and
entered the vehicle without compulsion; (FN2)
the officers yielded to his convenience by promising to drive him to his
destination if he lost time. Allowing
for any implications arising from the police uniform itself, we think the case
for the judge's inference of nonarrest is quite as strong as it was in such
instances as Commonwealth v. Cruz, ‑‑‑ Mass. ‑‑‑
(FNB), 369 N.E.2d 996 (1977), and Commonwealth v. Slaney, 350 Mass. 400, 215
N.E.2d 177 (1966), where like conclusions were reached. The situation would have been clearer if the
officers had told the defendant that he was free to go on his way if he chose;
but this punctilio cannot be insisted on here.
See Commonwealth v. Cruz, supra at ‑‑‑ n.3 (FNC), 369
N.E.2d 996.
[5] The
judge seemed to be appraising the defendant's own understanding of his
situation (account being taken of the defendant's mental or psychological
condition at the time), (FN3) but we need to add that, regardless of the
defendant's[377 Mass. 559]
inner reaction, there was no arrest for the present purpose if a
reasonable person on the scene would not receive the impression that the
defendant was being forcibly detained unless, indeed, the officers had reason
to understand that the defendant apprehended he was confronting force, and they
then did nothing to disabuse his mind.
See United States v. Scheiblauer, 472 F.2d 297, 301 (9th Cir. 1973);
Seals v. United States, 117 U.S.App.D.C. 79, 325 F.2d 1006 (1963). On this view, it also appears there was not
an arrest. See United States v. Chaffen,
587 F.2d 920 (8th Cir. 1978); United States v. Brunson, 549 F.2d 348 (5th
Cir.), cert. denied, 434 U.S. 842, 98 S.Ct. 140, 54 L.Ed.2d 107 (1977). We need not enter on a more refined
subjective‑objective analysis. See
State v. Kelly, 376 A.2d 840 (Me.1977); Model Code of Pre‑Arraignment
Procedure, Commentary to s 110.1 (1975); Cook, Subjective Attitudes of Arrestee
and Arrestor as Affecting Occurrence of Arrest, 19 U.Kan.L.Rev. 173 (1971).
[6] [7] 2.
The sneakers. The judge ruled against
suppression of the sneakers on the ground that the defendant surrendered them
voluntarily to the officer. In a
camera's eye, that is what happened. But
the defense disputes a conclusion of consent.
It presses a Fourth Amendment contention that, even if not in custody,
the defendant was now in a coercive setting, with a tendentious question raised
and unresolved whether the stains were not in fact blood. See Commonwealth v. Harmond, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FND), 382 N.E.2d 203
(1978). The defendant was not informed
that he could withhold the sneakers. See
Id.; Schneckloth v. Bustamonte, 412 U.S.
218, 248‑249, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Again there is the element of the defendant's
mental condition at the time.
The
judge's finding of voluntariness is supported, and his ruling should not be
disturbed. However, another basis for
the ruling is at hand. On a conventional
interpretation,[377 Mass. 560]
the articles were in "plain view," and so could have been
taken in any event. For the officer,
lawfully questioning the defendant, had a "legitimate reason for being
present" (Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29
L.Ed.2d 564 (1971); the evidence, an article appearing to be bloodstained, was
"come by 'inadvertently' " or "without particular design"
(Commonwealth v. Bond, ‑‑‑ Mass. ‑‑‑, ‑‑‑
(FNE), 375 N.E.2d 1214 (1978), and the officer could recognize it, in
combination with the statements received, "to be plausibly related as
proof to criminal activity of which (he was) already aware." Id. at ‑‑‑ (FNF), 375
N.E.2d at 1219. See Commonwealth v.
Moynihan, ‑‑‑ Mass. ‑‑‑ (FNG), 381 N.E.2d
575
(1978); Harris v. United
States, 390 U.S. 234, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968). This interpretation is in accord with
decisions applying the plain view rule to the seizure without warrant of
clothing or other material believed to be bloodstained and thus connected with
a crime under investigation. See, e. g.,
Commonwealth v. Perez, 357 Mass. 290, 258 N.E.2d 1 (1970); Smith v. Slayton,
484 F.2d 1188 (4th Cir. 1973), cert. denied, 415 U.S. 924, 94 S.Ct. 1429, 39
L.Ed.2d 481 (1974); United States v. Sheard, 154 U.S.App.D.C. 9, 473 F.2d 139
(1972), cert. denied, 412 U.S. 943, 93 S.Ct. 2784, 37 L.Ed.2d 404 (1973); State
v. Hardin, 90 Nev. 10, 518 P.2d 151 (1974); State v. Rudd, 49 N.J. 310, 230
A.2d 129 (1967). The case of
McCorquodale v. State, 233 Ga. 369, 375, 211 S.E.2d 577 (1974), cert. denied,
428 U.S. 910, 96 S.Ct. 3223, 49 L.Ed.2d 1218 (1976), parallels our facts very
closely. Professor LaFave might dispute
whether, in strictness, the articles here, having not been come by in the
course of a lawful search, were within the sense of the "plain view"
doctrine (W. R. LaFave, Search and Seizure s 2.2 at 240‑248 (1978)), but
the whole going situation was one where a requirement of procuring a warrant
for the sneakers would seem extravagant.
Cf. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973).
[8] 3. The
confession. (a) Content. Sergeant Kelley started his interrogation by
stating that the victim was dead and the defendant was under arrest. The defendant: "I am under
arrest?" (And later: "Under
arrest for what?") Kelley recited
the Miranda warnings, asking the defendant to acknowledge each sentence as it
was recited, which the defendant did by saying "yes" or
"right." Then followed [377 Mass. 561] questions whether the defendant knew the victim. The defendant went as far as to say that he
had spoken with her the previous Tuesday, but had not gone out with her.
Sergeant
Kelley changed the subject to the sneakers and said they had been tested
positively for blood. When the defendant
tried again to account for this by referring to a fight with Quish on Tuesday,
Kelley said the blood stains were fresh, made within hours, and scouted the
defendant's attempted (and weak) explanations of how the stains could appear so
although made on Tuesday.
Sergeant
Kelley returned to the question of the defendant's acquaintance with the
victim, and now said that they had been seen together on the church steps last
night by two witnesses (not named): both witnesses, he said, were sure of the
identification, reliable, and had known the defendant for several years. Kelley said it was not incumbent on him to
show these witnesses to the defendant, but the defendant could confirm with
Feeney and Madden that they had talked to the witnesses. (Kelley referred to the two witnesses at
least seven times and later added, "we are not holding you here on a
little threat of evidence. We have a
good case here.") The defendant
proceeded to admit he and the victim were together on the church stairs about
midnight, but he said they had parted shortly afterwards. He added that he had been "high"
and "whacked out" on "downers" fifteen Valium pills (on top
of a "few 6‑packs").
At this
point, the interrogation seems to pause and take a turn with Madden reporting a
question supposed to have been raised by the defendant: If he, the defendant,
told them that he did it, "what bearing would that have on the case and
what degree it would be?" Kelley
went forward on two lines. On the
"bearing" of a confession, he spoke at some length. He indicated a number of times that he could
make no promises and would only be in a position to make it known to the court
and the attorneys that the defendant had cooperated and finally told the truth,
and "the court looks upon these cases, where a guy tells the truth, a lot
better [377 Mass. 562] than when we have to prove it the
hard way." But he went on to say:
"If you wish to tell the truth of what happened, then I can say in all
fairness it would probably help your defense; in fact, I am sure it
would." "As I said before, if
there is anything more you want to add to it, and my suggestion is the truth is
going to be a good defense in this particular
case." The second line Kelley took
was to indicate there were extenuating factors: he laid stress on the fact of
the defendant's drunken condition and, immediately after speaking of the
"good defense," elicited from the defendant a "yes" answer
to a leading question about the victim's "provoking" the defendant. The defendant first expressed doubt ("I
don't know"), then answered questions, many of them leading, to the effect
that he and the victim had gone to the Oak Street location where the victim had
refused to have intercourse with him because (as she said) he was too young;
that in his drunken state he had lost control and kicked her and found a stone
nearby and threw it upon her; but he did have intercourse with her, whether
before or after the beating, he could not remember. Finding her unconscious, he fled. After most of the story had been elicited,
the defendant asked, "Does that mean I am railroaded in now, then to be
convicted and everything now?"
Sergeant Kelley: "No."
(b)
Analysis. The judge did not base himself
on a single factor, but rather on the cumulative effect of several, (FN4) in [377 Mass. 563] finding the confession "involuntary," or to speak more
accurately in finding that the Commonwealth had not carried the heavy burden of
establishing that it was voluntary, see Commonwealth v. Murray, 359 Mass. 541,
546, 269 N.E.2d 641 (1971); Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966). The factors
were: communication of incorrect information about the strength of the
Commonwealth's case; assurance that the defense would benefit from a
confession; defendant's unstable condition combined with his youth and
inexperience; failure to inform the defendant he could telephone his family or
friends.
(i) It was
true that one witness, John Carroll, gave a statement that he saw the defendant
and the victim sitting on the church steps on the fatal night and that he had
known and recognized them both. There
was, however, no second witness who gave a like statement. Officer Kelley had in fact interviewed both
Carroll and Joseph Ventola and had heard Ventola say that he did not recognize
the male sitting on the steps. Ventola's
description of the male actually contradicted Carroll's statement in the matter
of whether the male was wearing a shirt.
Officer Kelley's statements, repeatedly bracketing two witnesses as
having known the defendant for years and as giving direct, mutually reinforcing
identifications, were deceptive. The
more general remarks about the strength of the Commonwealth's "case"
served still further to give the impression that the case against the defendant
was already proved. Taken alone, the
misinformation would not, we think, suffice to show "involuntariness"
(see Frazier v. Cupp, 394 U.S. 731, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969);
United States ex rel. Hall v. Director, Dep't of Corrections of Ill., 578 F.2d
194 (7th Cir. 1978)), but the judge could view it as a relevant factor in
considering whether the defendant's ability to make a free choice was
undermined. See Commonwealth v. Jackson,
‑‑‑ Mass. ‑‑‑, ‑‑‑ &
n.8, (FNH) 386 N.E.2d 15 (1979); United States ex rel. Everett v. Murphy, 329
F.2d [377 Mass. 564] 68 (2d Cir.), cert. denied, 377 U.S.
967, 84 S.Ct. 1648, 12 L.Ed.2d 737 (1964); United States ex rel. Caminito v.
Murphy, 222 F.2d 698 (2d Cir. 1955); Robinson v. Smith, 451 F.Supp. 1278 (W.D.N.Y.1978);
Model Code of Pre‑Arraignment Procedure, Commentary to s 140.4 (1975).
(ii) The judge could find that the police
overstepped the permissible line in advising the defendant about the
consequences a confession might have for the conduct of the defense.
[9] An
officer may suggest broadly that it would be "better" for a suspect
to tell the truth, (FN5) may indicate that the person's cooperation would be
brought to the attention of the public officials or others involved, (FN6) or
may state in general terms that cooperation has been considered favorably by
the courts in the past. (FN7) What is prohibited, if a confession is to
stand, is an assurance, express or implied, that it will aid the defense or
result in a lesser sentence. (FN8)
Here the
officer did emphasize that he could make no promises. But having said that, and uttered in addition
the generalities about cooperation, he assured the defendant[377 Mass. 565] that a confession would
"probably help your defense; in fact, I am sure it would." The further remark that "the truth is
going to be a good defense in this particular case" goes further and
carries an intimation that the defendant would be exonerated. Especially is this thought conveyed, when in
the immediate background is the idea that a crime, if it was committed, would
be palliated by the victim's "provocation" and by the defendant's
inebriated condition at the time.
The law
invoked here goes back many years.
"No cases require more careful scrutiny," said this court in Commonwealth
v. Curtis, 97 Mass. 574, 578 (1867), "than those of disclosures made by a
party under arrest to the officer who has him in custody, and in none will
slighter threats or promises of favor exclude the subsequent confessions." In that case the court excluded a confession
given after an assurance by a police officer that "as a general thing it
was better for a man who was guilty to plead guilty, for he got a lighter
sentence." For other expressions of
the policy, see Commonwealth v. Smith, 119 Mass. 305 (1876); Commonwealth v.
Taylor, 5 Cush. 605 (1850); Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 12
L.Ed.2d 653 (1964); and for cases on either side of the line, compare Bram v.
United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), and State v.
Pruitt, 286 N.C. 442, 458, 212 S.E.2d 92 (1975), with United States v.
Williams, 479 F.2d 1138 (4th Cir.), cert. denied, 414 U.S. 1025, 94 S.Ct. 425,
38 L.Ed.2d 317 (1973), and United States v. Springer, 460 F.2d 1344 (7th Cir.),
cert. denied, 409 U.S. 873, 93 S.Ct. 205, 34 L.Ed.2d 125 (1972).
(iii) In
the defendant's confession and affidavit on the motion to suppress, and his
testimony and the testimony of others on voir dire, there was basis for
questions to a medical expert called by the defense which led to the following
opinion. If a person ingested ninety‑five
milligrams of Valium between 7:30 and 9 P.M. and between 7:30 and 11:30 P.M.
drank twelve twelve‑ounce bottles of beer, (FN9) there would be an
impairment of memory, judgment,[377 Mass. 566] and intellectual function for at least six
hours. At 11:30 the next morning, a
wearing‑off of the effects of the drug might be expected, "how much
can't be said with certainty." If,
in addition, twenty‑five milligrams were taken at 10:20 A.M. that
morning, (FN10) there would be at 11:20 A.M. "some drowsiness, sedation,
impairment of judgment and intellectual function." The same expert conceded that if a person
took Valium once a week over a two‑year period, some "tolerance
would develop," but there was in fact no testimony that the defendant had
been so regular a user. Expert testimony
on the part of the Commonwealth was less suggestive of difficulties that the
defendant might experience in the morning.
The defendant testified that he was dazed and confused and unable to
remember much of the questioning by the police.
Reading and listening to the tape of the Kelley interrogation, one finds
strings of questions answered with monosyllables ("not reassuring
explanations of his asserted comprehension," Commonwealth v. Daniels, 366
Mass. 601, 608, 321 N.E.2d 822, 827 (1975)); confusion, too, in the defendant's
questions about whether he was under arrest and whether he was to be
"railroaded." Other answers
were more forthcoming and involved some reasoning. The judge concluded that the defendant's
judgment at that time was "dim" and "impaired." If it should be assumed that this condition
would not alone justify suppression of the admissions (compare COMMONWEALTH V.
WHITE, ‑‑‑ MASS. ‑‑‑, 371 N.E.2D 777 (1977)(FNI), aff'd by an
equally divided court, ‑‑‑ U.S. ‑‑‑‑,
99 S.Ct. 712, 58 L.Ed.2d 519 [377
Mass. 567] (1978), with COMMONWEALTH
V. DOYLE, ‑‑‑ MASS. ‑‑‑, 385 N.E.2D 499 (1979)(FNJ), it would still be
entitled to count in the judge's total assessment. See Commonwealth v. Johnston, ‑‑‑
Mass. ‑‑‑ (FNK), 364 N.E.2d 1211 (1977); United States v.
Grant, 427 F.Supp. 45, 50 (S.D.N.Y.1976).
(FN11) So also the judge could
give weight to the defendant's youth, inexperience, and limited schooling. See Commonwealth v. Cain, 361 Mass. 224, 228‑229,
279 N.E.2d 706 (1972).
[10] (iv)
Especially in light of the defendant's youth, inexperience, and condition, a
violation of G.L. c. 276, s 33A, as amended through St.1963, c. 212, assumes
importance. A person under arrest at a
station with a telephone is entitled to be informed "forthwith upon his
arrival . . . of his right to so use the
telephone (i. e., to communicate with his family or friends), and such use
shall be permitted within one hour thereafter." It has been held that unfavorable evidence,
obtained as the result of an intentional deprival of the statutory right,
should be considered inadmissible and subject to suppression. Commonwealth v. Jones, 362 Mass. 497, 287
N.E.2d 599 (1972). We have not yet
ordered suppression in a case where, although deprivation has occurred, it was
not through proved intention; but we have lately again given warning of the
importance of the statutory duty. See
Commonwealth v. Alicea, ‑‑‑ Mass. ‑‑‑, ‑‑‑
n.11, (FNL) 381 N.E.2d 144 (1978). We
agree with the judge that the failure affirmatively to comply with the statute
is a factor in deciding whether a confession, vulnerable on other grounds,
should be suppressed. Incidentally, it
is clear, as will be seen below, that had the defendant called his mother or
brother, they would have advised him not to speak to the police.
To
conclude: The defendant, eighteen years of age, with a poor educational
background, uninformed of his right to reach his family or friends, his judgment
impaired through intoxication, confessed after being told that the case against
him was established and after receiving assurance[377 Mass. 568] that the confession would assist his
defense. We should not interfere with
the judge's conclusion that the confession was involuntary and inadmissible.
[11] 4.
The dungarees. When Officer Solari
presented his application for the search warrant, the police were in possession
of evidence probably sufficient, apart from the confession, to justify the
issuance. The application, however,
omitted mention of the crucial parts of this evidence, and the Commonwealth
proceeds here on the assumption that the warrant rests on the confession. So the question is raised whether the warrant
can legalize the seizure of the dungarees, when it is held that the confession
must be suppressed. We agree that the
answer is no, and this is explained simply on the ground that the confession
was involuntary and thus directly offensive to the Fifth Amendment. See United States ex rel. Hudson v. Cannon,
529 F.2d 890, 892‑893 (7th Cir. 1976); United States v. Massey, 437
F.Supp. 843, 861‑862 (M.D.Fla.1977).
Cf. United States v. Castellana, 488 F.2d 65 (5th Cir. 1974); United
States v. Cassell, 452 F.2d 533, 541 (7th Cir. 1971). The conclusion follows from our recent
decision of Commonwealth v. White, supra,‑‑‑ Mass. at ‑‑‑
‑ ‑‑‑, (FNM) 371 N.E.2d 777, where we suggested that
the reasons for excluding the product of a warrant based on an inadmissible
confession are surely no less persuasive than those for excluding material
seized in pursuance of a warrant supported by an affidavit infected by evidence
that has been unlawfully seized. See
Model Code of Pre‑Arraignment Procedure, Commentary to s 150.4 (1975).
There are
cases in the Supreme Court suggesting that in certain circumstances evidence,
secured as a result of a confession elicited by a violation of the prophylactic
Miranda rule, need not be excluded on any constitutional ground. See Michigan v. Tucker, 417 U.S. 433, 94
S.Ct. 2357, 41 L.Ed.2d 182 (1974). Cf.
Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v.
New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971) (the latter case was
followed in Commonwealth v. Harris, 364 Mass. 236, 303 N.E.2d 115 (1973)). Those cases do not, however, reach the
present, where the confession [377
Mass. 569] was involuntary. This distinction has been noted by the
Court. (FN12) We add that our position here is consistent
with both the majority and minority views expressed in Commonwealth v. Mahnke,
368 Mass. 662, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct.
1740, 48 L.Ed.2d 204 (1976).
[12] 5.
The afternoon statement. News of the
defendant's trouble did not reach his mother or brother until mid‑afternoon. About 3:45 P.M. they arrived at the police
station and were informed that the defendant had already confessed the
crime. Sergeant Feeney and at least one
other officer escorted the pair to the defendant's cell. Feeney testified that, as his visitors
appeared, the defendant blurted out, "Ma, I didn't mean to hit her so
hard." According to the defendant
and his mother, he said only, "I'm sorry, ma." The mother and brother said loudly the
defendant should say nothing to the police.
The encounter was extremely emotional; the three were shouting at
different points in the conversation.
In
contending that any incriminating statement was consequent upon the involuntary
confession and therefore similarly inadmissible, the defendant relies on the
"cat out of the bag" analysis, which requires "the exclusion of
a statement if, in giving the statement, the defendant[377 Mass. 570] was motivated by a 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." Commonwealth v.
Mahnke, supra at 686, 335 N.E.2d at 675.
See Commonwealth v. Watkins, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑, (FNN) 379 N.E.2d 1040
(1978); United States v. Bayer, 331 U.S. 532, 540, 67 S.Ct. 1394, 91 L.Ed. 1654
(1947). The judge below pointed to the
following circumstances to show that the conditions of the statement were
different from those of the confession and the two were thus independent: the
statement was not prompted by police interrogation or made to the police
(although police officers were within hearing), but was rather made to the
family, and it appeared spontaneous.
Here we
are obliged to hold that the judge committed error. His conclusion is not supported, and a
contrary conclusion plainly is. The
error actually derives from a misperception of the law.
It has
been suggested that "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." United States v. Gorman, 355 F.2d 151, 157
(2d Cir. 1965), cert. denied, 384 U.S. 1024, 86 S.Ct. 1962, 16 L.Ed.2d 1027
(1966) (Friendly, J.). See Brown v.
Illinois, 422 U.S. 590, 605 & n.12, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975);
Darwin v. Connecticut, 391 U.S. 346, 350‑351, 88 S.Ct. 1488, 20 L.Ed.2d
630 (1968) (Harlan, J., concurring in part and dissenting in part). The factors relied on by the judge were not
themselves strong enough to provide "insulation," and in all events
they were quite overcome by other circumstances. The statement was made a relatively short
time after the confession, and at the same place; it was corroborative of the
confession; there was no opportunity for consultation with family; although, as
we have noted, there had been a statement that the confession would help the
defendant or even free him in the end, we cannot say he had such confidence as
would mark a "break in time or the stream [377 Mass. 571] of
events" (see Commonwealth v. Haas, ‑‑‑ Mass. ‑‑‑,
‑‑‑, (FNO) 369 N.E.2d 692, 699 (1977)) sufficient to
dissociate the statement from the confession.
Cf. Commonwealth v. Mahnke, supra, 368 Mass. at 667, 335 N.E.2d
660. Nor do we think it may be assumed
that remorse was so far at work as to provide the "break." See Id. at 688 & n.31, 335 N.E.2d 660;
Copeland v. United States, 120 U.S.App.D.C. 5, 9, 343 F.2d 287, 291 & n.3
(1964). Finally, the confession was
rendered involuntary by police misconduct which cannot be termed
inadvertent. Cf. Knott v. Howard, 378
F.Supp. 1325 (D.R.I.1974), aff'd, 511 F.2d 1060 (1st Cir. 1975). The burden was on the Commonwealth to show
circumstances insulating the statement from the confession, see Brown v.
Illinois, supra, 422 U.S. at 604, 95 S.Ct. 2254, and in this we think it must
fail.
Our
conclusion is in accord with other decisions requiring the suppression of an
inculpatory statement which followed an inadmissible confession and which was
not made in the course of police interrogation. See Ricks v. United
States, 118 U.S.App.D.C. 216, 334 F.2d 964 (1964); State v. Paz, 31 Or.App.
851, 572 P.2d 1036 (1977). Cf. Copeland
v. United States, supra, 120 U.S.App.D.C. at 10, 343 F.2d at 292 (Bazelon, C.
J., concurring in part and dissenting in part); Commonwealth v. Bordner, 432
Pa. 405, 247 A.2d 612 (1968); Soolook v. State, 447 P.2d 55 (Alaska 1968),
cert. denied, 396 U.S. 850, 90 S.Ct. 107, 24 L.Ed.2d 99 (1969).
6.
Conclusion. The order of the Superior
Court is reversed in so far as it denied the defendant's motion to suppress the
alleged mid‑afternoon inculpatory statement; in all other respects it is
affirmed. The case is remanded to the
Superior Court for further proceedings consistent with this opinion.
So
ordered.
FN1. The
defendant has not briefed or argued certain assignments of error and they are
considered waived. S.J.C. Rule 1:13, as
amended, 366 Mass. 853 (1974). See
Commonwealth v. Watkins, ‑‑‑ Mass. ‑‑‑, ‑‑‑
& n.2 (Mass.Adv.Sh. (1978) 1646,
1647 & n.2), 379 N.E.2d 1040, and cases cited; Mass.R.A.P. 16, as amended,
367 Mass. 921 (1975).
FNa.
Mass.Adv.Sh. (1979) 168, 175 n.6.
FN2. The defendant testified that Officer
Russo "had his arm on my elbow, opened the door, put me in," but the
judge accepted Officer Solari's testimony that the defendant opened the door
and climbed into the car himself.
Officer Solari also testified that there was no physical contact between
the defendant and any of the officers.
FNb.
Mass.Adv.Sh. (1977) 2395.
FNc.
Mass.Adv.Sh. (1977) at 2401 n.3.
FN3. There is no inconsistency between the
judge's finding of voluntariness here and his finding, discussed below, that
the defendant's condition of mind was one factor which, together with others
arising later, rendered his confession involuntary.
FNd.
Mass.Adv.Sh. (1978) 2773, 2779.
FNe.
Mass.Adv.Sh. (1978) 1241, 1246.
FNf.
Mass.Adv.Sh. (1978) at 1247.
FNg.
Mass.Adv.Sh. (1978) 2654.
FN4. Referring to the factors of defendant's
youth, inexperience, and psychological condition induced by his drug and
alcohol intake, the judge doubted seriously the effectiveness of the waiver of
Miranda rights, but in his apparent view (which we share) the decision is
better rested on those and other factors which in combination rendered the
confession involuntary. (As the judge
noted, there is a place in the tape of the interrogation which may be open to
the interpretation that, at a point before the most serious admissions,
Sergeant Kelley went on to question the defendant although the defendant had
indicated that that was all he wanted ("liked") to say. See Miranda v. Arizona, 384 U.S. 436, 474, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Mitchell, 246 Pa.Super. 132,
136 n.3, 369 A.2d 846 (1977). The
interpretation is dubious and again we pass to the better foundation of
decision.)
FNh.
Mass.Adv.Sh. (1979) 401, 413 & n.8.
FN5. See United States v. Barfield, 507 F.2d
53 (5th Cir.), cert. denied, 421 U.S. 950, 95 S.Ct. 1684, 44 L.Ed.2d 105
(1975); State v. McLallen, 522 S.W.2d 1 (Mo.App.1975); Bell v. State, 258 Ark.
976, 530 S.W.2d 662 (1975); Robinson v. State, 229 Ga. 14, 189 S.E.2d 53
(1972); Coursey v. State, 457 S.W.2d 565 (Tex.Cr.App.1970).
FN6. See United States v. Curtis, 562 F.2d
1153, 1154 (9th Cir. 1977), cert. denied, ‑‑‑ U.S. ‑‑‑‑,
99 S.Ct. 279, 58 L.Ed.2d 256 (1978); United States v. Frazier, 434 F.2d 994
(5th Cir. 1970); Fernandez‑Delgado v. United States, 368 F.2d 34 (9th Cir.
1966); Burton v. Cox, 312 F.Supp. 264 (W.D.Va.1970); People v. Hubbard, 55
Ill.2d 142, 302 N.E.2d 609 (1973).
FN7. See United States v. Reynolds, 532 F.2d
1150 (7th Cir. 1976); United States v. Glasgow, 451 F.2d 557 (9th Cir. 1971);
Wallace v. State, 290 Ala. 201, 275 So.2d 634 (1973).
FN8. See Bram v. United States, 168 U.S. 532,
18 S.Ct. 183, 42 L.Ed. 568 (1897); Grades v. Boles, 398 F.2d 409 (4th Cir.
1968); State v. Setzer, 20 Wash.App. 46, 579 P.2d 957 (1978); Bradley v. State,
356 So.2d 849 (Fla.Dist.Ct.App.1978); State v. Williams, 33 N.C.App. 624, 235
S.E.2d 869 (1977); State v. Tardiff, 374 A.2d 598 (Me.1977); Robinson v. State,
229 Ga. 14, 189 S.E.2d 53 (1972); Wallace v. State, 290 Ala. 201, 275 So.2d 634
(1973); State v. Castonguay, 240 A.2d 747 (Me.1968); Lyter v. State, 2 Md.App.
654, 236 A.2d 432 (1968); State v. Fuqua, 269 N.C. 223, 152 S.E.2d 68 (1967).
FN9.
In his affidavit the defendant stated that he took twenty five‑milligram
tablets of Valium at about 9 P.M. on June 10, drank about twelve containers of
beer between 6 and 11 P.M. that evening, and about 8:30 A.M. on the following
morning ingested an additional three or four Valium tablets. During the voir dire he added that he had
smoked an unspecified quantity of marihuana on the evening of June 10.
FN10. In fact the defendant
said that he ingested Valium at about 8:30 A.M.; but the testimony as to the
duration of the effects of the drug indicated that the one hour and fifty‑minute
disparity would not make a material difference.
FNi. Mass.Adv.Sh. (1977) 2805.
FNj. Mass.Adv.Sh. (1979) 168.
FNk. Mass.Adv.Sh. (1977) 1473.
FN11. See note 4 Supra.
FNl. Mass.Adv.Sh. (1978), 2707, 2711 n.11.
FNm. Mass.Adv.Sh. (1977) at 2812‑2813.
FN12. In Michigan v.
Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974), where the Court
held that testimonial evidence need not be excluded because it was obtained as
a result of a confession elicited in violation of Miranda, the confession
"could hardly be termed involuntary."
Thus "the police conduct . . .
did not deprive respondent of his privilege against compulsory self‑incrimination
as such, but rather failed to make available to him the full measure of
procedural safeguards associated with that right since Miranda.'' Id. at 444‑445, 94 S.Ct. at 2364. See also Oregon v. Hass, 420 U.S. 714, 722,
95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Harris v. New York, 401 U.S. 222, 224, 91
S.Ct. 643, 28 L.Ed.2d 1 (1971). After
Michigan v. Tucker, some courts have expressed doubt as to whether physical
evidence gathered as a result of a confession which is voluntary but obtained
in violation of Miranda requirements must always be excluded as its
"fruits." See United States ex
rel. Hudson v. Cannon, 529 F.2d 890, 894 n.3 (7th Cir. 1976); Rhodes v. State,
91 Nev. 17, 23, 530 P.2d 1199 (1975).
But see Commonwealth v. Caso, ‑‑‑ Mass. ‑‑‑
(Mass.Adv.Sh. (1979) 298), 385 N.E.2d
979; United States v. Ceccolini, 435 U.S. 268, 98 S.Ct. 1054, 55 L.Ed.2d 268
(1978) (suggesting that derivative physical evidence will less readily be
admitted than derivative testimonial evidence).
FNn. Mass.Adv.Sh. (1978) 1646, 1656‑1661.
FNo. Mass.Adv.Sh. (1977) 2212, 2223.