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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.
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
Hugh W. Samson,
Daniel F. Toomey, Asst. Dist. Atty., for the
Commonwealth.
Before [379
WILKINS, Justice.
This is
the defendant's second appeal following his conviction of murder in the first
degree and rape of a young woman in January, 1975. On the defendant's first appeal, we reversed
the convictions because of the prejudicial introduction of certain photographs
showing gruesome post mortem injuries to the victim caused by dogs. Commonwealth v.
1. The
defendant argues that the trial judge should have held a voir
dire hearing on his motion to suppress inculpatory
statements that he made to the police.
The judge at the first trial had held such a hearing and had suppressed
some but not all of the defendant's statements.
[1][2] The
judge at the second trial had no obligation to conduct another hearing on the
motion to suppress, particularly in this case where both counsel agreed that
the evidence would be the same as that presented to the first judge. The situation was not substantively different
from one in which a pretrial motion to suppress has been heard and acted on and
the defendant renews the motion at trial.
Although, in his discretion, a judge may consider the motion again, he
has no duty to do so, and may rely on the pretrial ruling, even if made by another
judge. See, effective
The
defendant argues further that, if the trial judge did not have to hold a
hearing on his motion to suppress, the first judge erred in not suppressing his
entire confession. We have considered
the evidence offered before the first judge on the motion to suppress and his
findings. The judge's subsidiary
findings were warranted by the evidence, and, reaching our own conclusions on
the application of constitutional[379
Mass. 559] principles to the facts found (see
Commonwealth v. Santo, ‑‑‑ Mass. ‑‑‑, ‑‑‑
([FNA]), 376 N.E.2d 866 (1978)), we conclude that
there was no violation of Miranda rights requiring the suppression of the
defendant's inculpatory responses to a question from
a police officer.
We summarize
the facts found by the first judge. The
defendant went voluntarily to the Worcester police headquarters. He admits that he was advised of his Miranda
rights and, in his motion to suppress, indicates that he waived them, at least
initially. When asked at the voir dire hearing what he understood these rights to be,
the defendant recited the Miranda warnings almost verbatim. The police first took a signed, exculpatory
statement from the defendant. After
that, the defendant asked questions about the murder, the name of the victim,
where her body was found, and whether it was clothed. He asked if he was a suspect and was told
that he was. He then said, "I think
I should get a lawyer." He was
offered a nearby telephone to do so, but he replied "no" and
continued asking questions, such as how the victim had died. He did call his employer to tell him that he would
be late to work. Some time after that a
police officer, without reiterating the Miranda warnings, asked him what he had
done with one of the victim's shoes. At
this point, the defendant broke down, said he had thrown the shoe on the roof
of the gasoline station where he worked, admitted killing the victim, and said
he was sorry. ([FN1]) The defendant then
signed a written statement admitting his guilt.
The judge
suppressed all statements, written and oral, made subsequent to the defendant's
statement that he killed the victim and was sorry. The judge concluded that new Miranda warnings
should have been given following the defendant's incriminating statement, but
ruled that the statement itself did not have to be suppressed.
[3][4][5]
We commence our analysis of the defendant's claim that he was denied his
constitutional right to counsel by acknowledging[379 Mass. 560] that the right is a most important one. When an individual has indicated that he
wants an attorney, normally all questioning must cease. Miranda v. Arizona, 384 U.S. 436, 473‑474,
86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The government has a heavy burden to
demonstrate that the defendant knowingly and intelligently waived his right to
counsel. Commonwealth v. Watkins, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNB]), 379 N.E.2d 1040 (1978). However, in particular circumstances, an
individual may waive his previously asserted desire to consult counsel. Id. at ‑‑‑ ‑ ‑‑‑
([FNC]), 379 N.E.2d 1040.
[6] In
this case, the government sustained its burden of showing that the defendant
waived his right to counsel. The
defendant expressed an interest in exercising his right to counsel at one point
and was given an opportunity to use a telephone to obtain a lawyer. He declined that offer and it was he, not the
police, who continued the questioning.
He might have chosen to remain silent, but he pursued the subject of the
investigation actively. In this respect,
this case differs significantly from Commonwealth v. Taylor, ‑‑‑Mass.
‑‑‑ ([FND]), 374 N.E.2d 81 (1978),
where the police attempted to convince the defendant to continue talking after
he had asserted his constitutional right to remain silent. In the circumstances of this case, the police
did not have to give new Miranda warnings before asking him what he had done
with the victim's shoe. Commonwealth v.
Watkins, supra at ‑‑‑ [FNe], 379
N.E.2d 1040.
[7][8] 2.
The defendant argues that the judge should have put the question of the voluntariness of his confession to the jury, even in the
absence of both a request for such an instruction and any objection to the
charge as given. The defendant relies on
Commonwealth v. Harris, 371 Mass. 462, 469‑471, 358 N.E.2d 982
(1976). A judge must give such an
instruction on his own motion only when the voluntariness
of a defendant's confession is a live issue at trial. Commonwealth v. Alicea,
‑‑‑ Mass. ‑‑‑, ‑‑‑ ([FNF]), 381 N.E.2d 144 (1978). See Commonwealth v. Chung, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNG]), 392 N.E.2d 1015 (1979); Commonwealth v.
Williams, ‑‑‑Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ ([FNH]), 391 N.E.2d
1202 (1979); Commonwealth v. Harris, supra at 471 n.3, 358 N.E.2d 982. The question of the voluntariness
of the defendant's confession was not raised at any time. The motion to suppress the defendant's
confession was not [379 Mass. 561] based on such a claim. There was no evidence that the defendant was
under the influence of alcohol or any other drug or that the police engaged in
physical coercion, threats, or duress.
Nor was there psychiatric evidence bearing on the question of voluntariness. See Commonwealth v. Chung, supra at ‑‑‑
n.8 [FNi], 392 N.E.2d 1015. The challenge to the admissibility of the
confession was founded only on a claim of the violation of Miranda rights. The defendant does not argue that the Miranda
issue should have been submitted to the jury.
[9] 3. The
defendant challenges the admission of a seriously incriminating letter which he
wrote while he was being held on the charges for which he was ultimately
convicted. The letter was addressed to
his former girlfriend, who was then sixteen years old, at her parents'
residence. Her father picked up the
letter at the family's post office box and gave it to his wife. She in turn called the local chief of police
to ask if she could open the letter. The
chief of police, who knew that the defendant was "a prime suspect" in
the murder investigation, told the mother that she could open the letter if she
thought it was in her daughter's interest to do so. The trial judge found that the police did not
solicit or procure the opening of the letter and that there was no arrangement
between the police and any third party for obtaining incriminating statements
from the defendant. The mother, who
testified that she thought she would have opened the letter even if the chief
of police had told her not to, did open the letter, read it, and delivered it
to the chief of police.
The
defendant claims that the opening of the letter was an unlawful, warrantless search in violation of Fourth Amendment
rights. The argument fails because there
is no evidence of State action in the opening of the letter. The police did not direct or encourage the
opening, and most significantly, the mother was acting in the interests of her
daughter, and not on behalf of the police, when she did so. In such a case the Fourth Amendment does not
come into [379 Mass. 562] play.
([FN2]) Commonwealth v. Weiss,
370 Mass. 416, 419, 348 N.E.2d 787 (1976).
Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048
(1921). See United States v. Clegg, 509
F.2d 605, 609 (5th Cir. 1975). ([FN3])
[10][11]
4. Finally, the defendant contends that the judge should have instructed the
jury on assault and battery as a lesser included offense within the charge of
rape. We accept the principle that one
may be convicted of assault and battery on an indictment which charges rape
(see Commonwealth v. Creadon, 162 Mass. 466, 467, 38
N.E.2d 1119 (1894)); Commonwealth v. Eaton, 2 Mass.App.Ct.
113, 118, 309 N.E.2d 504 (1974)), and that an instruction concerning the lesser
included offense should be given, on request, unless the evidence would not
warrant a finding that the defendant was guilty of that offense (see
Commonwealth v. McKay, 363 Mass. 220, 228, 294 N.E.2d 213 (1973); Commonwealth
v. Campbell, 352 Mass. 387, 392, 226 N.E.2d 211 (1967)).
[12] Here,
the defendant did not request an instruction on assault and battery, nor did he
object to the judge's omission of such an instruction. In this circumstance, we would consider the
argument only under our authority pursuant to G.L. c.
278, s 33E, and would reverse only on a showing of grave prejudice or
substantial likelihood that a miscarriage of justice has occurred. Commonwealth v. Roberts, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
([FNJ]), 389 N.E.2d 989. Commonwealth v. Burnett, 371 Mass. 13,
16, 353 N.E.2d 665 (1976). ([FN4])
[379 Mass. 563] [13][14] Clearly the defendant was not prejudiced by the absence
of a charge on assault and battery. It
is arguable that the evidence did not warrant an instruction on assault and
battery. The defendant testified on
direct examination that he closed his arm around the victim, and she dropped to
the ground. He guessed that was when she
died. A battery which causes death is
manslaughter (Commonwealth v. Campbell, supra at 397, 226 N.E.2d 211), and the
jury were properly instructed on the crime of manslaughter, although not with
reference to battery. Without deciding
that an instruction on assault and battery would not have been required if
requested, we conclude that a finding of simple assault and battery was not a
reasonable possibility and certainly no "grave prejudice" occurred to
the defendant from the omission of a charge on assault and battery.
[15] In
assessing the likelihood of prejudice and in fulfilling our obligation under G.L. c. 278, s 33E, we may rightly consider the strength of
the evidence against the defendant. As
we noted when the matter was here before, the Commonwealth had a very strong
case. Commonwealth v. Richmond, 371
Mass. 563, 566, 358 N.E.2d 999 (1976).
Judgments
affirmed.
(FNA.) Mass.Adv.Sh. (1978)
1376, 1380.
(FN1.)
The show was found on the roof. The
other shoe had been found at the scene of the crime.
(FNB.) Mass.Adv.Sh. (1978) 1646, 1663‑1664.
(FNC.) Mass.Adv.Sh. (1978) at 1662‑1663.
(FND.) Mass.Adv.Sh. (1978) 394.
FNe. Mass.Adv.Sh. (1978) at 1663.
(FNF.) Mass.Adv.Sh. (1978) 2707, 2725.
(FNG.) Mass.Adv.Sh. (1979) 1722, 1729‑1732.
(FNH.) Mass.Adv.Sh. (1979) 1431, 1442‑1443.
FNi. Mass.Adv.Sh. (1979) at 1731 n.8.
(FN2.)
In light of this conclusion, we need not pass on the question whether the
parents had a lawful right under Federal statutes and postal regulations to
open a letter addressed to their sixteen‑year‑old daughter or
whether the defendant had any legitimate expectation of privacy in the letter
once he mailed it to his former girlfriend at her parents' home, knowing that
her family did not approve of him.
(FN3.)
This case is unlike those on which the defendant relies because in those cases
the search was conducted solely for the purpose of aiding a government
investigation. See Gambino
v. United States, 275 U.S. 310, 317, 48 S.Ct. 137, 72
L.Ed. 293 (1927); Corngold
v. United States, 367 F.2d 1, 5 (9th Cir. 1966). Cf. Commonwealth v. Mahnke,
368 Mass. 662, 678 n.23, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976).
(FNJ.) Mass.Adv.Sh. (1979) 1302, 1309‑1310.
(FN4.)
The defendant's objection relates specifically to the charge on the indictment
for rape and thus does not fall readily within the provisions of G.L. c. 278, s 33E, which statute concerns convictions of
murder on indictments charging murder in the first degree. However, any error in the charge concerning
the rape indictment might have affected the murder conviction because the jury
could have based that conviction on the principle of felony‑murder. Even if the principles of G.L.
c. 278, s 33E, were inapplicable here, we might reverse a conviction because
there was a substantial risk of a miscarriage of justice, even though no
objections were made to the charge. See
Commonwealth v. Freeman, 352 Mass. 556, 563‑564, 227 N.E.2d 3 (1967). Because it is unimportant to the result, we
do not pause to consider differences between the standards of s 33E and the
seemingly stricter standard of the Freeman case.