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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Perrot, 407
Supreme Judicial Court of Massachusetts, Hampden.
Argued
Decided
Yvonne P. Toyloy,
Committee for Public Counsel Services, for defendant.
Elizabeth G. Dineen, Asst.
Dist. Atty. (Jennifer N. Fitzgerald,
Asst. Dist. Atty., with her) for the Com.
Before [407
GREANEY, Justice.
The
defendant was convicted on charges of aggravated rape, burglary and assault in
a dwelling, unarmed robbery, indecent assault and battery, and battery. The charges and convictions pertained to the
burglary of the residences of two elderly women in
[1] 1. An
evidentiary hearing was held on the defendant's pretrial motion to suppress
statements made by him to the police.
The judge made findings of fact which are supported by the evidence that
he deemed the most credible. We now
summarize those findings.
In the
fall of 1985, the
At about
Murphy
called for assistance, and he and other officers were admitted to 87 Malibu
Drive where the defendant lived with his sister and her husband. The defendant was found in his bedroom and
placed under arrest. Murphy was assigned
the task of taking the defendant from the house to the cruiser. As they started to enter the cruiser, the
defendant ran away. The defendant was
apprehended hiding in a backyard.
At about
3:30 A.M., Sergeant Thomas M. Kelly of the Springfield police department was
called at home and informed of the defendant's arrest. He was in charge of the investigation of the
attacks on elderly women. At about 5
A.M., Kelly and another officer met with the defendant in an interrogation
room. The defendant was read his Miranda
warnings. He signed a card acknowledging
receipt of his rights and agreed to talk with Kelly. The defendant was also advised of his right
to use the telephone and acknowledged this by signing a notice slip. The defendant declined to use the telephone
at that time.
After
being informed that he had been identified by the victim of the purse snatch,
the defendant admitted that crime and the breaking and entering at Allendale
Circle. The defendant denied any
involvement in the attacks on elderly women.
Kelly terminated his questioning of the defendant at about 5:30 A.M. to
help in the preparation of an affidavit to support an application for a warrant
to search the defendant's residence. The
defendant at his own request remained in the interrogation room rather than
being returned to a cell.
The
defendant was interrogated three more times on December 7 by Detective Thomas
Jarvis, who was also involved in the investigation of the attacks on elderly
women. These interrogations took place
at 7:30 A.M., 12:30 P.M., and 3 P.M. [407 Mass. 542] The judge found that Miranda warnings were furnished to the
defendant, and acknowledged by him, prior to the first two periods of
questioning. The defendant signed a form
agreeing to furnish the police with blood and hair samples. During the interrogation, the defendant made
oral and written statements in which he admitted the purse snatch, the breaking
and entering on Allendale Circle, and the breaking and
entering of the residences of the two victims in this case. The defendant denied, however, that he had
ever sexually attacked anyone. While giving
his statement to Jarvis during the final meeting at 3 P.M. the defendant became
emotional, began to cry, and asked for a police officer's gun so he could shoot
himself. After the last written
statement had been completed, read, and signed, Jarvis, pursuant to prescribed
police procedure, asked that the defendant be placed on a suicide watch.
At the
hearing on the motion to suppress, the defendant testified that he could not
recall giving the police any oral or written statements with regard to the
crimes charged. On the evening prior to
his arrest, the defendant claimed to have consumed, along with three other
people, two six‑packs of beer and a gram of cocaine, and to have himself
ingested eight "number ten" Valium pills. On the date of the burglaries which were the
subject of the trial, the defendant stated he had been drinking beer and had
taken two "purple" Mescaline pills.
The defendant also testified that he did not recall receiving Miranda
warnings and did not recall signing any form acknowledging such warnings, that
he had been threatened and beaten by the police, and that he was, throughout
the long questioning process, under the influence of drugs and alcohol and
confused by the lack of sleep. At the
hearing, other witnesses also testified as to the defendant's version of the
facts.
The judge
rejected the defendant's contentions.
The judge found that the defendant had exaggerated his consumption of
alcohol and drugs. Photographs taken of
the defendant while he was in police custody showed, according to the judge's
findings, "clear facial views with no indication of bruises or [407 Mass. 543] beating." The
defendant had at least ten prior encounters with the police, and, during those
experiences, had been exposed time and again to the content of the Miranda
warnings. The defendant was aware of his
rights, including his right to remain silent.
The judge concluded that the motion to suppress should not prevail, and
that the defendant's statements had been voluntarily made after knowing and
intelligent waivers of his constitutional rights.
On this
appeal, the defendant concentrates on the findings describing his emotional
state and the fact that he was placed on a suicide watch. In the view of the defendant's appellate
counsel, these findings indicate that the defendant could not have understood
or waived his rights because his contemplation of suicide left him devoid of
will to protect himself from improper police interrogation.
The judge
did not consider the point now argued because it was not raised before
him. The fact that the defendant's trial
counsel did not consider it significant is of relevance. The judge's findings indicate that the
defendant made rational and informed choices in deciding to cooperate with the
police. The findings also suggest that
the defendant's emotional state was natural for someone who had admitted the
commission of serious crimes. Placing
the defendant on a suicide watch was nothing more than normal police
procedure. That fact, and the defendant's
somewhat depressed state of mind at the end of his contacts with the police, do
not mandate a conclusion that he was incompetent to waive his rights and
confess voluntarily. The record
demonstrates a sufficient factual and legal basis for the denial of the motion
to suppress (FN1).
[407
Mass. 544] [2] 2. The second issue
pertains to the admission in evidence of a pocketbook. The first victim's residence, located at 33 Covel Street in Springfield, was burglarized on November
30, 1985, shortly after 3 A.M. The
victim was in her home at the time, but ran outside before encountering the
burglar. Her pocketbook was taken. The second victim's residence, located at 27
Malibu Drive in Springfield, was broken into that same morning at approximately
4 A.M. This victim encountered the
burglar, who indecently assaulted and raped her. Her change purse was taken. Neither victim was able to identify the
intruder.
As has
been indicated, on December 7, 1985, the defendant provided the police with a
written statement which admitted the burglaries. This statement reads in part as follows: "I headed for number 33 Covel St. The reason
I went there was I heard it had been broken into before. I had a pair of my sisters [sic ] gloves on. They were like wool gloves. I entered an unlocked rear breezeway door at
33 Covel St. I
kicked the rear inner door in. I entered
the house and started looking through the house. I found a handbag and took it with me. I left through the rear door. I
left the pocketbook a few houses down the street. I left 33 Covel
St. and went to 27 Malibu Dr. I opened
the door to the breezeway and kicked the side door in. I started to go through the house and a
little black dog started barking and I ran out the side door." (Emphasis supplied.)
At trial,
the Commonwealth sought to introduce a further statement made by the defendant
on December 10, 1985, to Officer Richard Kane who had gone to the Hampden
County house of correction (jail) to witness the taking of a blood sample from
the defendant. The defendant had been
arraigned and counsel appointed for him on December 9. Kane admitted that he knew of the defendant's
arraignment when he began talking to him at the jail, but denied having any [407 Mass. 545] intention of going to the jail to engage the defendant in
conversation. When the defendant began
talking freely about his girl friend, Kane stopped him, identified himself, and
advised the defendant of his Miranda rights.
Kane then questioned the defendant about the Covel
Street break‑in. In the course of
that questioning, the exact location of the abandoned pocketbook was
disclosed. Kane transmitted the
information to Sergeant Thomas Kelly who was in charge of the
investigation. Kelly then went to the
spot indicated, and found the pocketbook about five feet off the traveled way
in some bushes near a house. The
pocketbook was located about 300 yards from the first victim's residence (33 Covel Street) in a direct line along a traveled walking
path toward the second victim's residence (27 Malibu Drive). The distance between 33 Covel
Street and 27 Malibu Drive is less than one mile.
Relying on Michigan v. Jackson, 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631 (1986), the judge suppressed the
defendant's December 10 statement made in response to interrogation initiated
by Officer Kane because the statement was obtained in violation of the
defendant's right to counsel. The
Commonwealth does not contest this ruling.
According to Jackson, "if
police initiate interrogation after a defendant's assertion, at an arraignment
... of his right to counsel, any waiver of the defendant's right to counsel for
that police‑initiated interrogation is invalid." Id. at 636, 106 S.Ct. at 1411. The
Commonwealth, however, sought to introduce the pocketbook in evidence under the
inevitable discovery rule.
The judge
conducted a voir dire on that issue. At that hearing, Sergeant Kelly testified
that he was in charge of investigating the sexual assaults and robberies of
elderly residents that had occurred over a two‑month period in the Malibu
Drive area. He had read the defendant's
December 7 statement late in the afternoon of the same day. December 8 and 9 were his days off. On returning to work on December 10, Kelly
intended to search the Covel Street area with every
available man to try to locate the abandoned pocketbook. Before ordering the search, however, he
received the more [407 Mass. 546] specific information regarding the
pocketbook's location contained in the defendant's statement to Officer Kane.
The judge
allowed the Commonwealth's motion reasoning as follows: "From the information obtained on
December 7, the police knew that the pocketbook was discarded within a few
houses from 33 Covel Street, going in the direction
of Malibu Drive. They knew the defendant
was on foot when he threw the pocketbook away, that he was familiar with the
neighborhood and was intending to break into 27 Malibu Drive. They could reasonably infer that he would
take the shortest route. [Sergeant]
Kelly is an experienced, 13‑year police officer with 12 1/2 years of
service in the crime prevention bureau.
Kelly was in charge of a serious investigation involving repeated,
brutal sexual attacks on elderly females in their homes. The [first victim's] pocketbook was a vital
piece of evidence which would corroborate the defendant's written confession
and tie him directly to these crimes. I
accepted Kelly's testimony that he was planning a multi‑manned search of
the area after obtaining the information on December 7. I also found that based on these facts, even
if Kelly had not ordered the search, someone in the Police department would
have demanded it once the reports were read.
"The
location of the pocketbook itself was another factor that I considered. It was located a few feet off a driveway
being used by the occupants of two adjacent homes and by pedestrians taking a
shortcut to Parker Street. The
pocketbook was almost in plain view and contained dozens of papers identifying
[the first victim] as the owner.... It
can reasonably be inferred that eventually a passerby would discover it and
turn it in. (Apparently there was no
money in the pocketbook when found.)"
In Commonwealth v. O'Connor, 406 Mass.
112, 546 N.E.2d 336 (1989), we adopted an inevitable discovery rule which
complied with art. 14 of the Massachusetts Declaration of Rights. We indicated that application of the rule
requires a two‑step analysis which focuses, first, on the question of
inevitability, and, second, on the character of the police misconduct. Id.
at 117, 546 N.E.2d 336. As [407 Mass. 547] to the first consideration, we indicated that the Commonwealth
has the burden of proving the facts bearing on inevitability by a preponderance
of the evidence and, once the relevant facts have been proved, that discovery
by lawful means was "certain as a practical matter." Id. As to the second consideration, we stated
that "the severity of the constitutional violation is critical in deciding
whether to admit evidence that it is shown would inevitably have been
discovered." Id. at 118, 546 N.E.2d 336. For example, we stated that evidence seized
in violation of a search warrant requirement would not be admitted even if its
subsequent lawful discovery was inevitable. Id. Commonwealth v. Benoit, 382 Mass.
210, 415 N.E.2d 818 (1981). We also
stated that the "[b]ad faith of the police ... will be relevant in
assessing the severity of any constitutional violation."
Commonwealth v. O'Connor, supra.
The judge
did not have the benefit of the O'Connor
decision when he ruled on the Commonwealth's motion. He followed instead the reasoning in Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), in which the United
States Supreme Court applied its version of the inevitable discovery rule. As a consequence, the judge did not consider
the second prong of the analysis required by
O'Connor concerning the severity of the constitutional violation in terms
of the presence or absence of police bad faith.
The issue of bad faith is not of great relevance in the Federal
application of the rule. Nix v. Williams, supra at 445‑446,
104 S.Ct. at 2509‑10.
In our
view, the case turns on the resolution of the first part of the test‑‑whether
the pocketbook would have been inevitably discovered by lawful means. We accept the judge's findings of fact on
that issue, including the finding, disputed by the defense, that Sergeant
Kelly, or someone else in the police department, would have ordered a search of
the area described in the defendant's statement of December 7. These facts, however, do not support a legal
conclusion that the pocketbook's discovery was "certain as a practical
matter," Commonwealth v. O'Connor,
supra, 406 Mass. at 117, 546 N.E.2d 336, that is,
virtually certain.
[407 Mass. 548] [3] The consideration of inevitability is made on
"circumstances existing at the time of the unlawful seizure." Id.
at 117 n. 4, 546 N.E.2d 336. In this
case, those circumstances indicate that the pocketbook had been left partially
concealed ("almost in plain view") in an area traveled by
pedestrians. It had not been found by
anyone in the ten days that had elapsed after the commission of the
crimes. The findings suggest on their
face that the police also might not have found it in any planned search because
the judge infers that "eventually a passerby" would have seen the
pocketbook, examined its contents, and been responsible enough to turn it over
to the victim or to the police. No case
has been brought to our attention involving a delay of this length in the
discovery of concealed or partially concealed evidence in a public area, the
discovery of which is made dependent on the sort of alternatives suggested
here. The more typical situation
involves a search where the sought‑after evidence is discovered shortly
after the commission of the crime either in plain view or in a reasonably
obvious place. See, e.g., Nix v. Williams, supra, 467 U.S. at 449‑450,
104 S.Ct. at 2511; United States v. Webb, 796 F.2d 60, 62
(5th Cir.1986), cert. denied, 479 U.S. 1038, 107 S.Ct.
894, 93 L.Ed.2d 846 (1987); State v. Tillery,
107 Ariz. 34, 39, 481 P.2d 271, cert. denied, 404 U.S. 847, 92 S.Ct. 151, 30 L.Ed.2d 84 (1971). Compare
United States v. Owens, 782 F.2d 146, 152‑153 (10th Cir.1986);
State v. Raj, 368 N.W.2d 14, 16
(Minn.Ct.App.1985). See also discussion
in Note, The Inevitable Discovery Exception to the Constitutional Exclusionary
Rules, 74 Colum.L.Rev. 88, 94‑96 (1974). Even though the police had some general leads
on the pocketbook's whereabouts, the over‑all situation as to its
eventual discovery was characterized by a measure of doubt and
uncertainty. At best, the findings
indicate to us a probability that the pocketbook might have been found. This is insufficient to satisfy the demanding
test of inevitability. The evidence
should have been excluded.
[4][5] 3.
The remaining issue is whether the error was harmless beyond a reasonable
doubt.
Chapman v. California, 386 U.S. 18, 24, 87 S.Ct.
824, 828, 17 L.Ed.2d 705 (1967). Commonwealth v. Kelleher, 395 Mass. 821,
827, 482 N.E.2d 804 (1985). Commonwealth v. Garcia, 379 Mass. 422,
441, 399 N.E.2d 460 [407 Mass. 549] 1980). Whether an error is harmless depends on many
factors, Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct.
1431, 1438, 89 L.Ed.2d 674 (1986), including whether the "erroneously
admitted evidence was 'merely cumulative' of evidence properly before the
jury." Commonwealth v. Sinnott,
399 Mass. 863, 872 n. 8, 507 N.E.2d 699 (1987).
The essential question is whether the error had, or might have had, an
effect on the jury and whether the error contributed to or might have
contributed to the verdicts. See Commonwealth v. Marini,
375 Mass. 510, 520, 378 N.E.2d 51 (1978).
[6] There
were no identifications of the defendant by the victims. Both the fact, and the validity, of his
statements to the police were strenuously denied by the defendant in his
testimony at the trial. The defendant
also denied throughout that he was involved in any sexual attacks on
women. The judge characterized the
pocketbook as "a vital piece of evidence," which he thought necessary
to "corroborate the defendant's written confession and tie him directly to
[the] crimes." The Commonwealth
also maintained that view at trial. The
presence of the pocketbook in evidence could have influenced the jury in their
evaluation of the Commonwealth's proof on all the charges, particularly the
proof on the existence of valid statements by the defendant. The jury could have reasoned that, despite
the defendant's denials, the fact that he had made valid written statements was
established because the police had been able to find, and place in evidence,
the first victim's pocketbook. We
conclude that there was prejudice because the pocketbook might have had an
effect on the jury's resolution of the central issue in the case, the issue
pertaining to the defendant's statements.
The
judgments are reversed, the verdicts are set aside, and the cases are remanded
for a new trial.
So ordered.
(FN1.) The defendant's attempt to analogize
the case to Commonwealth v. Hosey, 368 Mass. 571, 334 N.E.2d 44 (1975), is not
persuasive. The defendant in that case
had been arrested for drunkenness shortly before being interrogated. He was illiterate and had been observed by
the police not only to be "extremely emotional" but also to be
"detached from reality." Id. at 575, 334 N.E.2d 44. Further, correct Miranda procedure had not
been followed. Id. at 576, 334 N.E.2d 44. These circumstances, and others present in
the Hosey
case, necessitated a conclusion that the defendant did not understand the
significance of a waiver of his rights and, consequently, that an improper
waiver had been induced. The facts in
the case before us are fundamentally dissimilar. They show that the defendant was capable of
understanding and waiving his constitutional rights, and that he voluntarily
cooperated with the police inquiry in making his statements.