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Opinions of
The Massachusetts Supreme Judicial Court
and the Massachusetts
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
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Commonwealth v. Roberts, 6 Mass.App.Ct.
891 (1978)
Appeals Court of Massachusetts,Suffolk.
Argued June 8, 1978.
Decided June 14,
1978.
J. Russell Hodgdon, Boston, for defendant.
Garrett H. Byrne, Dist. Atty., for the Commonwealth.
Before HALE, C. J., and GOODMAN and GRANT, JJ.
RESCRIPT.
[1][2][3]
1. The judge did not err in admitting the testimony of the two hospital police
officers and the associate director of the hospital to the effect that they had
overheard the defendant confess to a hospital social worker that he had beaten
the child. That confession was made
prior to the first set of Miranda warnings which was given to the defendant,
but it is clear from the evidence at the voir dire
(as clarified by the judge's questioning of the witness Grow) and from the
judge's findings on that evidence that the interrogation of the defendant which
took place in the hospital was initiated and conducted by the social worker and not by either of the police
officers. See
Commonwealth v. Mahnke,
368 Mass. 662, 676‑677, 335
N.E.2d 660 (1975), cert. denied, 425 U.S.
959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). There was no evidence at the voir dire from which the judge could have found that the
social worker was acting as the agent or instrument of the police pursuant to a
scheme to elicit statements from the defendant.
See Commonwealth
v. Mahnke, supra at 677‑678, 335 N.E.2d 660;
Commonwealth v. Storella, ‑‑‑ Mass.App. ‑‑‑, ‑‑‑ n. 1
([FNA]), 375 N.E.2d 348 (1978); United
States v. Hearst, 412 F.Supp.
880, 882 (N.D.Cal.1976). Contrast Evalt v. United States,
359 F.2d 534, 541‑542 (9th Cir. 1966); United
States v. Brown, 466 F.2d 493, 495 (10th
Cir. 1972). Nor was there any evidence
from which the judge could have found [6
Mass.App.Ct. 892]
that that confession was the product of physical or psychological coercion
exerted by the social worker, the police or anyone else. See Commonwealth v. Mahnke,
supra, 368 Mass. at 679‑680, 680‑681, 335 N.E.2d 660. 2. The
only argument now advanced as to why the judge should have excluded the
defendant's second confession (given at a police station following a further
set of Miranda warnings) is that the defendant had already let the cat out of
the bag during the course of his earlier confession at the hospital. See Commonwealth v. Mahnke,
supra, at 682‑683, 686‑687, 698‑700, 335 N.E.2d 660;
Commonwealth v. Haas, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ ([FNB]), 369 N.E.2d 692
(1977). Passing the question whether
there was any evidence at the voir dire which would
have supported any such theory (the defendant did not testify), we conclude
that the argument falls for lack of a predicate because the earlier confession
was properly admitted. 3. As there was no evidence introduced at the
trial from which it could have been inferred that either confession had been
coerced or involuntarily made, the judge was not required to instruct the jury
on his own motion that they should ignore the confessions unless they should be
satisfied that the confessions had been voluntarily made. The bill of exceptions simply fails to
indicate that voluntariness was made an issue before
the jury. Compare Commonwealth v. Pratt,
360 Mass. 708, 714, 277 N.E.2d 517 (1972).
Contrast Commonwealth v. Harris, ‑‑‑ Mass. ‑‑‑,
‑‑‑, ‑‑‑ ‑ ‑‑‑ ([FNC]), 358 N.E.2d 982 (1976). 4. No
other question has been argued.
Exceptions
overruled.
(FNA.) Mass.App.Ct.Adv.Sh.
(1978) 499, 502 n. 1.
(FNB.) Mass.Adv.Sh. (1977) 2212, 2222‑2223.
(FNC.) Mass.Adv.Sh. (1976) 2754, 2758, 2762‑2763, 2765.