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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. Pennellatore,
392
Supreme Judicial Court of Massachusetts,
Argued
Decided
Roger Witkin,
John A. Kiernan, Asst. Dist. Atty. (John N. Tramontozzi,
Asst. Dist. Atty., with him), for the Commonwealth.
Before [392
LYNCH, Justice.
This case
and its companion (FN1) stem from a common incident, although each raises for
the most part independent questions of law.
The defendant was convicted of murder in the first degree, armed
robbery, and armed assault in a dwelling with intent to commit a felony. The trial judge sentenced the defendant to
concurrent life terms on the latter two convictions, to be served from and
after the mandatory life term on the conviction of murder in the first
degree. The victim, an eighty‑four
year old woman, died as a result of between fifty and sixty blows of severe
force to her head which fractured her skull.
Three days after the crime had been committed, the police received a
telephone call from the defendant's partner in the incident, James
Costello. As a result of this
conversation, the police later arrested both Costello and the defendant. After being informed of his Miranda rights, the defendant confessed
to the crime.
On appeal,
the defendant makes several arguments.
First, he contends that his confession should be suppressed because his
request for an attorney was not honored and his attempt to terminate questioning
was not heeded. Second, the defendant
argues that his motion to compel immunization of an adverse witness, Donna Westbrooks, should have been allowed so as to prevent her
from refusing to testify on Fifth Amendment
[392 Mass. 384] grounds about
certain events allegedly related to the crime.
Finally, the defendant objects to the sentences imposed by the
judge. He argues that, since his
conviction of murder in the first degree was based in part upon a felony‑murder
theory, additional, consecutive sentences for the underlying felonies cannot be
properly imposed. Further, the defendant
maintains that the sentences imposed effectively forestall the potential for
commutation by the Governor, and in this respect they constitute an
impermissible judicial intrusion into an executive function. Finally, the defendant requests us to
exercise our power under G.L. c. 278, § 33E, to direct the entry of a verdict of a
lesser degree of guilt or to restructure the sentences received. We decline to exercise our power under G.L. c. 278, § 33E, and we affirm the judgments below.
There was
evidence from which the jury could have concluded the following. In March and April of 1981, the second‑floor
apartment of Donna Westbrooks on
Westbrooks returned to her apartment and told the defendant
that Costello needed his assistance. By
her account, the defendant asked, "What happened? ...
Did he hit her yet?" The
defendant ran upstairs and saw the victim lying on the kitchen floor screaming
in pain. As the victim began to rise up
from the floor, the defendant took the cable and by his account struck [392 Mass. 385] the victim fifty or sixty times until she lay motionless on the
floor.
The
defendant and Costello then proceeded to steal items from the victim's
apartment. Just prior to their
departure, they noticed that the victim was still alive. An attempt was then made to suffocate her
with a pillow, and her face was struck several times with a hammer. Finally, her wrist was slit, and the
defendant and Costello departed.
1. As
noted above, the defendant confessed to the crime, and the circumstances of
this confession are now contested on appeal.
The details of the confession merit close examination. After the defendant and Costello were
arrested by police, Miranda warnings
were read to the defendant both on the way to the police station and again at
his booking on arrival. After listening
to the latter warnings, the defendant stated that he understood them, and he
declined an offer to use the telephone.
Some minutes after the defendant's arrival at the police station, while
he was awaiting interrogation by a member of the homicide unit of the police
force, the booking officer, who had administered the second set of Miranda warnings, spoke further with
the defendant. After the officer
indicated to the defendant that he was in some difficulty, the defendant said,
"I guess I'll have to have a lawyer for this." The officer responded, "Yes, you
will. All of these charges are very
serious." The officer then suggested
that the defendant use the telephone to call his family, and when the defendant
refused to do this the officer offered to call the defendant's family
himself. The defendant again refused.
About
twenty minutes later, the defendant was taken to the detectives' room to speak
with an officer from the homicide unit.
Again, he was informed of his
Miranda rights. The defendant indicated
that he understood these rights, and expressed a willingness to speak with the
detectives. The defendant gave a tape‑recorded
statement to the detectives, in the course of which he described the incident
in some detail and confessed to his participation. At one particularly emotional point during
the questioning, the defendant requested that the interrogation stop and
apparently a short break was taken in order to get the [392 Mass. 386]
defendant a can of soda. The questioning
then resumed, with the defendant again indicating a willingness to proceed.
The
defendant argues that his confession should have been excluded from evidence at
trial on two basic grounds. First, he contends that his reference to a lawyer at
the time of his booking constituted a request for a lawyer and there should
have been no subsequent questioning without one present. In addition, the defendant contends here for
the first time that questioning should not have resumed after he said,
"Can we stop please?", at which time a break was taken and the can of
soda procured.
Regarding
the defendant's first argument, the judge found that the defendant never
manifested an unwillingness to talk nor did he ever affirmatively request an
attorney. Further, the judge determined
that the defendant's tape‑recorded confession was given absent any duress
or coercion. The judge found that at the
time of his confession the defendant was sober, that he understood the
questions posed to him, and that for the most part he answered them in a calm
and articulate manner.
It has
long been beyond dispute that "an individual held for interrogation must
be clearly informed that he has the right to consult with a lawyer and to have
the lawyer with him during interrogation." Miranda v. Arizona, 384
U.S. 436, 471, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694
(1966). Further, once such
"warnings have been given [as they were in the instant case] the
subsequent procedure is clear: If the
individual states that he wants an attorney, the interrogation must cease until
an attorney is present.... The rule is
that the defendant's decision to cut off questioning must be 'scrupulously
honored.' " Commonwealth v. Brant, 380 Mass. 876,
882, 406 N.E.2d 1021, cert. denied, 449 U.S. 1004, 101 S.Ct.
545, 66 L.Ed.2d 301 (1980), quoting
Miranda v. Arizona, supra 384 U.S. at 479, 86 S.Ct.
at 1630.
[1][2] A
criminal defendant may choose to waive his right to an attorney during
interrogation. It is true that "
'courts indulge every reasonable presumption against waiver' of fundamental
constitutional rights," Commonwealth
v. White, 374 Mass. 132, 137, 371 N.E.2d 777 (1977), aff'd,
439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978),
quoting Johnson v. Zerbst,
304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).
However, this natural predilection[392
Mass. 387] must yield to the well established principle
of appellate review that where, as here, there has been a determination by a
trial judge that a voluntary waiver was made, "the judge's subsidiary
findings will not be disturbed, if they are warranted by the evidence, and his
resolution of conflicting testimony will be accepted." Commonwealth v. Tavares,
385 Mass. 140, 144‑145, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102
S.Ct. 2967, 73 L.Ed.2d 1356 (1982), quoting
Commonwealth v. Santo, 375 Mass. 299, 303, 376 N.E.2d 866
(1978). See Commonwealth v. Tabor, 376 Mass. 811, 822, 384 N.E.2d 190 (1978);
Commonwealth v. Murphy, 362 Mass. 542, 550, 289 N.E.2d 571 (1972)
(Hennessey, J., concurring). "Such
findings as to intelligent and voluntary waiver, or the absence thereof, are
entitled to substantial deference by this court." Commonwealth v. White, supra
374 Mass. at 138, 371 N.E.2d 777.
[3][4] The
finding that the defendant voluntarily waived his right to have an attorney
present during questioning satisfies this standard. The defendant's isolated statement, "I
guess I'll have to have a lawyer for this," when viewed in context,
appears to be an acknowledgment of the serious nature of the charges facing
him, directed in response to the police officer's comment regarding the crimes
listed on the booking sheet, rather than a request for an attorney during
interrogation. For the rule of Miranda regarding the termination of
questioning to apply, there must be either an expressed unwillingness to
continue or an affirmative request for an attorney. See, e.g.,
Commonwealth v. Bradshaw, 385 Mass. 244, 263, 431 N.E.2d 880 (1982). Contrast
Commonwealth v. Watkins, 375 Mass. 472, 484, 379 N.E.2d 1040 (1978). Here there was neither. Despite the booking officer's repeated
efforts to urge the defendant to telephone someone for assistance, he
steadfastly refused.
The
defendant's solitary request to halt the questioning at a point later on must
be interpreted in the context of his willingness to talk both immediately prior to and
subsequent to the break. While "a
defendant has not only the right to remain silent from the beginning but also a
continuing right to cut off, at any time, any questioning ..., he must 'indicat[e] in [some] manner' that he is invoking the right
he previously waived." Commonwealth v. Bradshaw, 385 Mass. 244,
265, 431 N.E.2d 880 (1982), quoting
Miranda, supra 384 U.S. at 473‑474, 86 S.Ct.
at 1627‑1628. There is no
indication on [392 Mass. 388] the record that the defendant's
request to stop was meant to be an assertion of his right to remain silent or
to stop the questioning permanently. The
record shows that throughout the dialogue the defendant had a full
understanding of his rights and chose voluntarily not to exercise them. Neither under constitutional principles nor
in the interests of justice are we compelled to suppress the defendant's
confession, and we decline to do so.
2. The
defendant raises a second argument that he was denied his right under the Sixth
Amendment to the United States Constitution and art. 12 of the Massachusetts
Declaration of Rights to confront an adverse witness and his Fourteenth
Amendment right to due process by the trial judge's denial of his motion to
compel extended immunization of defense witness Donna Westbrooks. It will be recalled that Westbrooks
initially accompanied Costello up to the victim's apartment, and then ran
downstairs to alert the defendant that Costello had struck the victim and
needed assistance. Westbrooks
was given immunity by the prosecution regarding her actions on the day of the
murder, April 6, and the defendant took extensive advantage of this in
effectively "cross‑examining" her as a hostile witness. However, the defendant urged that this grant
of immunity be extended to cover Westbrooks'
activities on March 30, the date of an earlier break‑in of the victim's
apartment, purportedly to show that Westbrooks was
the motivating force behind the subsequent robbery and murder of the victim the
following week. When the defendant did
attempt to question Westbrooks regarding her
participation in the break‑in on March 30, she asserted her Fifth
Amendment right to remain silent.
[5] There
was no error in the judge's denial of the defendant's motion to compel an
extended immunization for Westbrooks. It has long been understood that "the
right to confront and to cross‑examine [witnesses] is not absolute and
may, in appropriate cases, bow to accommodate other legitimate interests in the
criminal trial process." Chambers v. Mississippi, 410 U.S. 284,
295, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297 (1973). We have previously held that the Fifth
Amendment privilege against self‑incrimination is one of these legitimate
interests. Commonwealth v. Francis, 375 Mass. [392 Mass. 389] 211, 214, 375 N.E.2d 1221, cert. denied, 439 U.S. 872
(1978). In Francis, we rejected "the defendant's contention that we
should attempt to 'balance' his rights under the Sixth Amendment against his
witness's decision to invoke the Fifth Amendment. Rather, we examine[d] the record only to
determine the propriety of the witness's refusal to testify on Fifth Amendment
grounds." Id. 375 Mass. at 215, 375 N.E.2d
1221. The standard we applied was one
clearly enunciated many years ago by the United States Supreme Court in Hoffman v. United States, 341 U.S. 479,
71 S.Ct. 814, 95 L.Ed. 1118
(1951), that a witness's decision not to testify on Fifth Amendment grounds
must be honored unless it is " 'perfectly
clear, from a careful consideration of all the circumstances in the case,
that the witness is mistaken, and that the answer[s] cannot possibly have such tendency' to incriminate" (emphasis
in original). Hoffman, supra at 488, 71 S.Ct. at 819, quoting
Temple v. Commonwealth, 75 Va. 892, 898 (1881), cited with approval Counselman v.
Hitchcock, 142 U.S. 547, 579‑580, 12 S.Ct.
195, 204, 35 L.Ed. 1110 (1892).
Westbrooks' refusal to testify regarding her role in the
March 30 burglary clearly falls within this benchmark. The fact that she did waive her testimonial
privilege regarding the April 6 robbery and murder is of no moment, nor is her
decision to enter a guilty plea for a lesser offense arising out of the incident. "Pleading guilty to a crime does not
waive the privilege not to incriminate oneself at other times in other crimes,
any more than conviction of one crime erases the privilege as it relates to
others." United States v. Johnson, 488 F.2d 1206,
1209‑1210 (1st Cir.1973). See Commonwealth v. Francis, supra 375
Mass. at 217, 375 N.E.2d 1221.
Although, as we acknowledged in
Commonwealth v. Curtis, 388 Mass. 637, 448 N.E.2d 345 (1983), "the
assertion by a witness of his Fifth Amendment right may in some cases hinder a
defendant's ability to present his most effective defense," we determined
that the question "whether to seek a grant of immunity from the
prosecution for a witness primarily involves public interest considerations
best evaluated by the prosecutor." Id. at 645‑646, 448 N.E.2d 345.
Here, the
defendant's case was not measurably affected by his inability to cross‑examine
Westbrooks about the prior burglary. The defendant was given free rein to cross‑examine [392 Mass. 390] Westbrooks in detail regarding her role
in the April 6 murder, for which she was given immunity. This testimony showed that she was an active
participant in the planning and carrying out of the robbery and at least an
accessory to the murder. Although
according to the defendant's trial strategy it may have been desirable to
question Westbrooks regarding other crimes committed
in the past, such testimony would have had a minimal effect on the jury's
evaluation of her credibility. The
judge's decision to favor protection of the witness's Fifth Amendment privilege
over execution of the defendant's trial strategy was justifiable. There was no error in the judge's denial of
the defendant's motion to compel immunization.
[6][7] 3.
The defendant also objects to the judge's imposition of concurrent life
sentences from and after his mandatory life sentence for the first degree
murder conviction. It is true that, when
a jury reaches a verdict of first degree murder based on a felony‑murder
theory, a consecutive sentence may not then additionally be imposed for the
underlying felony. Shabazz v. Commonwealth,
387 Mass. 291, 293‑294, 439 N.E.2d 760 (1982). Commonwealth v. Wilson, 381
Mass. 90, 123‑125, 407 N.E.2d 1229 (1980). However, the jury's answers to special
questions employed in this case reveal that there has been no imposition of
multiple punishment for the same crime.
The judge instructed the jury to determine first whether the defendant
was guilty of murder in the first degree, and, if so, then to specify the
grounds for their conclusion. In
response, the jury found that their guilty verdict was supportable
independently on each of the three
grounds for first degree murder:
deliberate premeditation; extreme
atrocity or cruelty; and felony‑murder. Since the jury found that two separate,
sufficient grounds existed for their first degree murder finding in addition to
the felony‑murder ground, our decisions in Shabazz and Wilson ‑‑where the possibility existed that felony‑murder
was the sole basis for the finding of murder in the first degree‑‑can
therefore be distinguished.
[8] The use
of the special question format did not constitute an impermissible special
verdict. We approved the use of such a
device in Commonwealth v. Licciardi, 387 Mass. 670, 677 n. 4, 443 N.E.2d 386
(1982), "on the ground that, without such answers, a judge [392 Mass. 391] would be barred from imposing consecutive sentences for
conviction of both murder in the first degree and any felony which may have
been the basis of that murder conviction." We went on to observe that if a jury does
find and state "that a defendant is guilty of murder in the first degree
on the ground of deliberate premeditation or on the ground of extreme atrocity
or cruelty (or on both grounds), the fact that there was a guilty finding on a
felony charge which might have warranted, and perhaps resulted in, a finding of
guilty of murder in the first degree, based on the felony‑murder
doctrine, would not foreclose consecutive sentences." Id. If anything, the use of such a verdict slip
effectively raises the burden of proof for the prosecution, since it requires
the jury not only to reach a verdict of
guilty unanimously but also to reach the same result on, at least, one to three
independent, specific grounds.
[9] We
conclude further that the imposition of consecutive sentences does not represent
a judicial intrusion on an executive function (i.e., commutation of a life
sentence), since G.L. c. 279, § 8A, expressly
contemplates the commencement of a "from and after" sentence
subsequent to the completion of a previous sentence served either to the end of
its term or shortened by parole or
commutation. (FN2) In addition, it would be still open to the
executive department to exercise its power of commutation on all sentences. The judge's decision to impose consecutive
"from and after" prison terms was a proper exercise of his sentencing
power.
[10]
Finally, we decline to exercise our powers under G.L.
c. 278, § 33E, in this case to alter the result of the jury's
determinations. At the outset of this
opinion, we took some pains to develop the facts surrounding the incident,
facts which must have weighed heavily in the jurors' minds in determining guilt
and in the judge's mind in sentencing.
In a case displaying [392
Mass. 392] such a strong indication
that the defendant is guilty of a vicious homicide without a hint of
justification or excuse, we see no reason to grant the defendant's request for
a verdict of a lesser degree of guilt or to disturb the sentences imposed.
Judgments affirmed.
(FN1.)
Commonwealth v. Costello, 392 Mass. 393, 467 N.E.2d 811 (1984).
(FN2.)
General Laws c. 279, § 8A, inserted by St.1924, c. 165, provides in pertinent
part: "For the purpose only of
determining the time of the taking effect of a sentence which is ordered to
take effect from and after the expiration of a previous sentence, such previous
sentence shall be deemed to have expired when a prisoner serving such previous
sentence shall have been released therefrom by parole
or otherwise."