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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. Shipps, 399
Supreme Judicial Court of Massachusetts,
Argued
Decided
Joseph F. Krowski,
Judith A. Cowin, Asst. Dist. Atty., for Com.
Before [399
ABRAMS, Justice.
Convicted
on two indictments charging murder in the first degree, the defendant, William
M. Shipps, Jr., appeals. He also appeals
two convictions of armed assault in a dwelling house, see G.L. c. 265, § 18A
(1984 ed.), and [399
We
summarize the evidence. In the early
morning hours of July 24, 1982, an elderly brother and sister were murdered in
their home in Stoughton. The victims,
John J. Lucey and Esther L. King, were fatally wounded during an armed
robbery. Ballistics evidence showed that
the weapon used was one capable of firing .38 caliber ammunition, either a .38
or a .357 caliber weapon.
A few
hours prior to the murders, the defendant was in his home in Stoughton with a
friend, Darren Carey. Carey (FN1) said
that he arrived at the defendant's home sometime after midnight on July 24,
1982. When Carey arrived, the defendant
showed him a pair of car speakers which the defendant stated that he had taken
"from a car up the street."
The defendant also produced a gun which he said he had stolen from the
home of a police officer in Easton.
(FN2) Carey stated that the
weapon he had seen the defendant with was a black revolver with a brown
handle. Shortly after Carey arrived at
the defendant's home, the gun accidentally fired into the wall in the
defendant's bedroom.
[399 Mass. 823] In the early morning hours, Carey stated that he and the
defendant went into the garage of a residence near the defendant's home. There they found barbells and weights, which
they decided to steal. The two men
removed the weights to nearby woods.
While Carey continued this process, the defendant went across the street
and broke into two cars. Carey did not
see the defendant steal anything from these cars. Shortly thereafter, Carey and the defendant
went into the garage of the victims' residence.
Carey stated that the defendant tried to open a window at the front of
the house. Carey told the defendant that
there were people inside. According to
Carey, the defendant stated that only one old man lived in the house. The defendant then made a punching motion and
said, "One ... and he's out."
The two
men parted and Carey started toward his own home. He changed his mind and headed back to the
hiding place and began assembling the weights.
As he was assembling the weights, Carey saw the defendant walking up the
street in the general direction of the victims' home. Carey left the woods with the weights and
went in the opposite direction from that which the defendant had taken. (FN3)
At
approximately 11:15 A.M. on July 24, 1982, victim King's son‑in‑law
arrived at the victims' home. The son‑in‑law
testified that he found King lying face up in her blood‑stained bed. The contents of her bureau drawers were
strewn about the room. King was still
alive at this time. The son‑in‑law
then entered the bedroom of Lucey and found no apparent signs of life. The contents of Lucey's bureau drawers were
also strewn about his room. When the
police and ambulance arrived, King was taken to a local hospital. King died shortly after her arrival at the
hospital.
1. Motion to suppress the incriminating
statements. Thirteen months after
the murders, on August 25, 1983, the defendant and a friend were arrested in an
apartment complex in Stoughton [399
Mass. 824] and charged with
disorderly conduct. The two men had consumed
a substantial quantity of alcohol. A
Stoughton police officer transported the two men to the police station and the
reasons stated on the booking sheet for the defendant's arrest were disorderly
conduct, being a minor in possession of alcohol and a controlled substance, and
protective custody. (FN4)
During the
booking, the defendant saw State Trooper Robert Murphy, an individual whom the
defendant recognized as involved in the murder investigation. (FN5)
Murphy was not on duty that evening.
When the defendant saw Murphy, he called out that he wanted to talk to
Murphy. Murphy responded that he would
speak to the defendant later and left the booking area. The defendant called to Murphy to remind him
not to leave the station without talking to him (the defendant).
After
being booked, the defendant made two telephone calls. He then met with Murphy. Murphy recited the Miranda warnings for a second time and the defendant said that he
understood the warnings. Murphy then
asked the defendant what he wanted to talk to him about. In the ensuing conversation, the defendant
made some damaging remarks. The
defendant stated: "[Y]ou've been
following me and my friends. You think I
killed those people. I didn't kill those
people." The defendant told Murphy
that he was home asleep on the night of the murders. The defendant further stated that he would
have told the trooper earlier, but his lawyer in the firearms matter had
advised him not to speak to Murphy. The
defendant also said that he was aware that the police were searching for the
gun and stated that the police would not be able to find the gun without his
help. The defendant then said that the
gun they were searching for was a "Three, Five, Seven." The defendant also told Murphy that, although
Murphy might know what [399 Mass.
825] happened, the police could not
prove anything. Finally, the defendant said that on the day after the murders he told
his sister and girl friend that he had heard that "50G's" had been
stolen from the house and that he wished he had made the "hit."
[1] Prior
to trial, the defendant moved to suppress those statements. In his motion, the defendant asserted that
because of his youth (FN6) and intoxication, he made these statements without a
knowing and voluntary waiver of his rights.
The defendant also argued that the police action violated his right to
counsel under the Sixth Amendment to the United States Constitution and art. 12
of the Massachusetts Declaration of Rights because Murphy knew the defendant
had been represented by counsel on the firearms charges the year before. Finally, the defendant claimed that the
police violated the protective custody statute, see G.L. c. 111B, §§ 8 and 10
(1984 ed.), and as a result his statements should be suppressed. The judge denied the motions. The defendant claims error in that denial.
The judge
made the following findings of fact. At
the police station, the police recited the
Miranda warnings on at least two occasions. Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
The defendant said that he understood those warnings. The judge found that, even though he had been
drinking earlier that evening, the defendant understood the warnings. The police also informed the defendant of his
right to take a breathalyzer examination.
See G.L. c. 111B, § 8. The
defendant declined to do so. The judge
further found that the defendant initiated the conversation with Murphy. (FN7)
[399 Mass. 826] The judge found that, after being advised of his right to make a
telephone call, the defendant made two telephone calls to a friend's
mother. See G.L. c. 111B, § 8; G.L. c. 276, § 33A (1984 ed.). The judge found that the defendant made those
telephone calls without any assistance.
During the course of the defendant's booking, the defendant's family
learned of his arrest. The judge found
that the defendant's sister was present at the arrest and that his friend's
mother had telephoned the defendant's mother to inform her of his status and
whereabouts.
As to the
defendant's degree of intoxication, the judge found that, while the defendant
appeared glassy‑eyed and smelled of alcohol, he had no difficulty walking
or speaking. The defendant had no
difficulty understanding questions concerning his address, age, telephone
number, and mother's maiden name. The
judge found that he answered all questions appropriately.
[2][3]
Initially, the defendant argues that his degree of intoxication precludes a
conclusion that he voluntarily and knowingly waived the constitutional rights
protected by the Miranda
warnings. Special care must be taken in
assessing a waiver and the voluntariness of the statements where there is
evidence that the defendant was under the influence of alcohol or drugs. An otherwise voluntary act is not necessarily
rendered involuntary simply because an individual has been drinking or using
drugs.
Commonwealth v. Doucette, 391 Mass. 443, 448, 462 N.E.2d 1084
(1984).
Commonwealth v. Parham, 390 Mass. 833, 839, 460 N.E.2d 589 (1984).
[4][5][6]
The details of the booking procedure and the circumstances of the defendant's
statement do not support his contention that his waiver was involuntary. The officers who saw the defendant that night
concluded that, although he had been drinking, he was not drunk. Although the defendant asserted that he was
so drunk that he was unable to waive his rights, the judge [399 Mass. 827] could
disbelieve his testimony. (FN8) Credibility is for the factfinder.
Commonwealth v. Santo, 375 Mass. 299, 303, 376 N.E.2d 866
(1978). We do not substitute our
judgment for that of the trial judge, who heard and saw the witnesses.
Commonwealth v. Fernette, 398 Mass. 658, 663 nn. 9 & 10, 500
N.E.2d 1290 (1986).
[7] We
also find no merit in the defendant's contention that his youth and low
intelligence precluded a voluntary waiver.
"It is well settled that a minor may waive his constitutional
rights and make an incriminating statement to the police that is admissible
against him" (citations omitted). Commonwealth v. Williams, 388 Mass. 846,
851, 448 N.E.2d 1114 (1983). See Commonwealth v. Tavares, 385 Mass. 140,
146, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d
1356 (1982); Commonwealth v. Daniels, 366 Mass. 601,
605, 321 N.E.2d 822 (1975). The defendant
was age seventeen, eleven months. The
defendant had had at least one prior arrest.
He was twice given Miranda
warnings. He decided to waive his rights
and take the opportunity to offer an alibi.
Further, the defendant initiated the conversation with Murphy. The police officers did not seek to obtain
information from the defendant. There is
no evidence that the police employed any unfair tactics to prompt the defendant
to incriminate himself. We conclude that
the judge correctly determined that the Commonwealth met its burden of proving
that the defendant validly waived the rights protected by the Miranda warnings and that his
statements were made voluntarily. See Commonwealth v. Tavares, supra 385
Mass. at 152, 430 N.E.2d 1198.
[8] As to the
defendant's contention that his right to counsel was violated, the defendant
did not invoke his right to counsel [399
Mass. 828] after receiving the Miranda warnings. See
Commonwealth v. Pennellatore, 392 Mass. 382, 387, 467 N.E.2d 820
(1984). The judge found that, although
the defendant had counsel on the firearms charge, there was no evidence that
this representation extended beyond the firearms charge. There was no error.
The
defendant's final argument concerning the incriminating statements involves the
violation of the protective custody statute, G.L. c. 111B, §§ 8 and 10. (FN9)
After the defendant was placed in protective
custody, the police did not telephone either of his parents to state that he
was in protective custody. Nonetheless,
the defendant concedes that his mother had notice of his protective custody
booking shortly after it occurred.
According
to the mother, she telephoned the police station between 1:30 A.M. and 2 A.M.
and requested the release of her son.
(FN10) The officer informed her
that she could not pick up her son because he was being held in protective
custody. This statement was
misinformation conveyed to the mother in conflict with the provisions of G.L.
c. 111B, § 10. The judge ruled that even
if the officer told the defendant's mother not [399 Mass. 829] to come
to the police station, the defendant's statements were made voluntarily after
waiver of his rights and should not be suppressed at trial. We agree.
[9][10][11]
An unlawful arrest does not compel suppression of statements not related to the
unlawful arrest. Commonwealth v. LeBlanc, 373 Mass. 478,
487, 367 N.E.2d 846 (1977). So too,
improper conduct unrelated to the statements does not compel suppression of the
statements. While the initial arrest and
protective custody were lawful, the subsequent conduct of the police in
misinforming the defendant's mother as to whether the defendant could be
released was improper. Thus, the issue
is whether that illegality requires suppression of the statements. We think not.
In Brown v. Illinois, 422 U.S. 590, 95
S.Ct. 2254, 45 L.Ed.2d 416 (1975), and
Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979),
the Supreme Court stated that the important factors to be analyzed in the
determination of the admissibility of statements made following an illegal
arrest are: (1) Miranda warnings; (2) the
temporal proximity of the arrest and the confession; (3) the presence of intervening
circumstances; and (4) the purpose and
flagrancy of the police misconduct. Brown v. Illinois, supra 422 U.S. at 603‑604,
95 S.Ct. at 2261‑2262. See, e.g., Commonwealth v. Bradshaw, 385 Mass.
244, 258, 431 N.E.2d 880 (1982); Commonwealth v. Sylvia, 380 Mass. 180,
183, 402 N.E.2d 489 (1980). We turn to
the defendant's statements with these factors in mind.
The police
informed the defendant of the Miranda
warnings on at least two occasions. The
temporal proximity between the protective custody booking and the statements
was fairly close. The police arrested
the defendant at approximately 12:30 A.M.
The booking process was fairly brief and, according to the record, the
defendant telephoned his friend's mother about 12:40 A.M. The conversation with Murphy occurred shortly
after this telephone call, and lasted for, at most, one‑half hour. Thus, the time between the arrest and the
statements was about forty‑five minutes.
The most crucial intervening circumstance was the presence of Murphy at
the station, see note 7 supra, and
the defendant's insistence on speaking with him. (FN11)
Finally, [399 Mass. 830] the police did not attempt to exploit
the circumstances of the arrest. The
statutory violation was not a deliberate one aimed at encouraging the defendant
to incriminate himself. There appears to
be no causal relationship between the statement and the subsequent
detention. "In these circumstances,
outlawing [the defendant's] statement[s] would hardly have served an important
demonstrative purpose of deterring the police from future malfeasance." Commonwealth v. Sylvia, supra at 184, 402
N.E.2d 489.
2. Motion to suppress the identification
evidence. Prior to trial, the
defendant moved to suppress two different forms of identification
evidence. The defendant sought to
suppress evidence of a jewelry store employee's identification of his
photograph. The defendant also filed a
motion to suppress the identification of a picture of a weapon which the
Commonwealth's witness, Carey, stated looked similar to the weapon he had seen
in the defendant's bedroom on the night of the murders. The judge denied both motions. There was no error in the judge's rulings.
On
September 29, 1983, a detective from the Stoughton police department went to a
local jewelry store and showed an employee a piece of paper with photographs of
two different individuals and a list of stolen items. This employee immediately recognized the
photograph of the defendant. The
employee also recalled some of the items that the defendant had sold to
her. The employee said that the
defendant came into her store several times in August and September, 1983. She had purchased from the defendant three
silhouette charms, two of female heads and one of a male head, a watch case, a
pearl ring, two pearl earrings, and a pearl clasp.
The
defendant contends that the identification procedure was impermissibly
suggestive and that the use of a photograph of the defendant, taken in
connection with a prior juvenile matter, violated the statutory protections
given juveniles. (FN12) At trial,
[399 Mass. 831] the defendant
argued that G.L. c. 119, § 60A (1984 ed.), prohibited police use of the
defendant's photograph. The defendant
did not argue, however, that the police lacked the authority under G.L. c. 263,
§ 1A (1984 ed.), to photograph juveniles arrested for the equivalent of a
felony but charged with delinquency. He
makes both arguments on appeal. As to
the defendant's contention that G.L. c. 119, § 60A, prohibits police use of his
photograph, a reading of the statute does not support the defendant's contention. As to the defendant's contention that the
police lack authority to photograph a juvenile charged with the equivalent of a
felony, we consider the statute to determine whether a substantial likelihood
of a miscarriage of justice has occurred.
G.L. c. 278, § 33E.
[12] The
judge found that the jewelry store employee had seen the defendant on four or
five occasions over a six‑week period.
The employee saw the defendant under lighting that existed in the
store. The judge did not find the
procedure employed by the police to be suggestive. In the totality of circumstances, the judge
concluded that the employee was able to make a credible identification.
The
jewelry store employee's identification of the defendant occurred during the
police investigation of the homicides.
Because certain jewelry had been stolen from the victims, the police
circulated information with photographs of two suspects and a list of the
stolen items to precious metal dealers in the area. In presenting the material to the jewelry
store employee, the officer simply asked whether she recognized either
individual. He did not seek to influence
her choice in any way. We agree with the
judge that this identification was not so suggestive as to give rise to a
substantial likelihood of misidentification.
See Commonwealth v. Botelho,
369 Mass. 860, 343 N.E.2d 876 (1979).
[13] As to
the defendant's second challenge to the identification, the use of his
photograph taken as a result of a prior juvenile proceeding, the judge
determined that G.L. c. 119, § 60A, (FN13)
[399 Mass. 832] did not prohibit police
use of this photograph. The judge
concluded that the statute applied to court proceedings and was not applicable
by its terms to police investigations, especially those occurring before
arrest. Thus, he concluded that the use
by police of the defendant's photograph during the murder investigations did
not give rise to a § 60A violation. We
conclude that the judge correctly ruled the statute by its terms does not apply
to police investigations.
[14] On
appeal, the defendant argues that the police do not have the authority to
photograph juveniles arrested on a charge which would be a felony if the
offender were an adult. Under G.L. c.
263, § 1A (1984 ed.), the police are empowered to fingerprint and photograph
anyone who is taken into custody and charged with a felony. See G.L. c. 274, § 1 (1984 ed.). A juvenile who is arrested for the commission
of the equivalent of a felony may be charged only with delinquency. See G.L. c. 119, §§ 53, 54 (1984 ed.). Therefore, the defendant argues that G.L. c.
263, § 1A, by its terms, is inapplicable to individuals charged with
delinquency. Thus, he concludes that the
police lack authority to photograph or fingerprint any person who is arrested
and charged with delinquency pursuant to G.L. c. 119,§ 54. We do not agree.
In Police Comm'r of Boston v. Municipal Court
of the Dorchester Dist., 374 Mass. 640, 647, 374 N.E.2d 272 (1978), we left
open the question whether the statutory authority to photograph and fingerprint
individuals charged with a felony includes juveniles arrested for the
equivalent of a felony but charged with delinquency. (FN14)
Nevertheless, we recognized in
Police Comm'r of Boston, supra at 655, 374 N.E.2d 272 that "[t]he maintenance
of fingerprint, photograph and arrest records serves an important law
enforcement function." The
Legislature did not explicitly exclude juveniles from G.L. c. 263, § 1A. Thus, we construe G.L. c. 263, § 1A, to
include an individual who is arrested for an [399 Mass. 833] offense
classified as a felony but who is later charged with delinquency because of
age. (FN15) See
Monroe v. Tielsch, 84 Wash.2d 217, 525 P.2d 250 (1974).
[15][16][17]
The defendant also challenges testimony by Darren Carey that the gun he had
seen in the defendant's bedroom on the night of the murders resembled a picture
of a gun which an investigating officer had shown him. Carey was shown pictures of four guns, all of
which were either .38 or .357 caliber weapons.
The defendant contends that the officer's action, in opening up a book
with pictures of guns to a particular page, was unnecessarily suggestive. We disagree.
The officer's action in directing Carey's attention to a particular page
of a book did not result in a prejudicial and unreliable identification of the
gun. Defense counsel had the opportunity
to bring out the weakness of the identification of the gun on cross‑examination. See
Commonwealth v. Simmons, 383 Mass. 46, 52, 417 N.E.2d 1193 (1981). The judge correctly ruled that any
infirmities of this identification evidence went to the weight, not the
admissibility, of Carey's testimony.
(FN16) See id. at 51, 417 N.E.2d 1193.
3. Motion to suppress the results of
scientific tests. The Commonwealth
performed destructive chemical testing on the three charms which were
recovered from the jewelry store. (FN17) [399
Mass. 834] The daughter of one of
the victims identified these charms as belonging to her mother. The daughter stated that she had given these
three charms to her mother with her name and birth date engraved on one female
silhouette. Her children's names and
birth dates were engraved on the other two silhouette charms. When the charms were recovered at the jewelry
store, the surface of the charms had been filed or ground down so that any
engraving was not legible.
A chemist
for the Commonwealth attempted to restore any markings which may have been on
the charms by applying different acid solutions to the surface of the
charms. On the male silhouette charm,
the chemist observed a number five or six followed by the number one on the
right side of the charm. On the second
charm, the chemist observed no markings after applications of the chemical
solution. On the third charm, the
chemist noted on the left side of the charm the number nine, and the number
six. These numbers corresponded to some
of the numbers in the birth dates of the children, and so corroborated the
daughter's identification of the charms as those of her mother.
The markings
that were exposed by the testing were visible for approximately two hours. They then disappeared completely. The chemist made notes of his observations at
each stage of the test. The chemist also
prepared a report containing the results of this testing. Finally, the chemist made sketches to record
what he had observed. He did not,
however, photograph any of the steps of the testing procedure.
The
defendant argues that the admission of the results of these tests, where the
testing procedure destroyed the evidence in the process of testing, violates
his right to due process. After an
evidentiary hearing, the judge found that this testing was done before the
defendant had been arrested. Therefore,
there was no lawyer to whom notice could have been given concerning the
testing. The judge also found that
nondestructive testing [399 Mass.
835] was not an alternative in this
case. According to both the Commonwealth
and the defense experts, all the available testing methods involved some
reduction of the surface of the metal.
Although the judge concluded that photographs of the test procedure
would have provided a better record, the chemist's report was made available to
the defendant. The judge did not find
the absence of photographs to be fatal to admissibility, thus he denied the
motion to suppress the test results.
[18][19]
Due process requires that the prosecution disclose to a defendant, on request,
evidence in its possession that is material either to guilt or to punishment.
California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81
L.Ed.2d 413 (1984). Brady v. Maryland, 373 U.S. 83, 87, 83
S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963). Commonwealth v. Liebman, 388 Mass. 483,
487, 446 N.E.2d 714 (1983). This
obligation includes "evidence which provides some significant aid to the
defendant's case, whether it furnishes corroboration of the defendant's story,
calls into question a material, although not indispensable, element of the
prosecution's version of the events, or challenges the credibility of a key
prosecution witness." Commonwealth v. Ellison, 376 Mass. 1, 22,
379 N.E.2d 560 (1978). Obviously, in the
case of destructive testing, the prosecution no longer has the evidence in its
possession, but that is not dispositive of the issue of the Commonwealth's
obligation to disclose exculpatory evidence.
"Otherwise, disclosure might be avoided by destroying vital
evidence before prosecution begins or before defendants hear of its
existence." United States v. Bryant, 439 F.2d 642, 651
(D.C.Cir.1971).
In cases
where potentially exculpatory evidence has been lost or destroyed, courts have
employed a balancing test, weighing the culpability of the government, the
materiality of the evidence, and the potential prejudice to the defendant to
determine the necessity or appropriateness of sanctions or other remedial
action. See Commonwealth v. Charles, 397 Mass. 1, 14, 489 N.E.2d 679 (1986);
Commonwealth v. Walker, 14 Mass.App.Ct. 544, 547‑548, 441
N.E.2d 261 (1982). See, e.g., United States v. Arra, 630 F.2d 836,
848 (1st Cir.1980); United States v. Wilks, 629 F.2d 669, 674
(10th Cir.1980); United States v. Herndon, 536 F.2d 1027,
1029 (5th Cir.1976); United States v. Bryant, supra at 653.
[399 Mass. 836] [20] In assessing the culpability of the government in this case,
the judge's findings reveal that the Commonwealth's expert knew of no test
procedures which were nondestructive.
The defendant's expert suggested that polishing the surface of the metal
might remove the scrapings and reveal the engraving underneath. But, if this polishing technique were not
successful, the defendant's expert conceded that the application of chemicals
to reveal the engraving would involve a reduction of the surface of the
metal. (FN18) Compare
United States v. Beltempo, 675 F.2d 472, 479 (2d Cir.), cert. denied, 457
U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982) (good faith loss which came
about as a necessary consequence of the testing method used).
Any
culpability of the Commonwealth arises in the failure to photograph each step
of the test procedure. Because there had
been no indictment or arrest in connection with the murders, the defendant did
not have an attorney or an expert who could be notified concerning the
testing. In this setting, the better
practice would have involved careful documentation and photographing of the
entire test. See, e.g., United States v. Bridges, 499 F.2d 179,
185 (7th Cir.), cert. denied, 419 U.S. 1010, 95 S.Ct. 330, 42 L.Ed.2d 284
(1974);
United States v. Shafer, 445 F.2d 579, 582 (7th Cir.), cert. denied,
404 U.S. 986, 92 S.Ct. 448, 30 L.Ed.2d 370 (1971); State v. Carlson, 267
N.W.2d 170, 175 n. 4 (Minn.1978).
[21]
Against this failure of the government to photograph the test procedure, we
balance the materiality of the evidence and the potential prejudice to the
defendant. "The mere possibility
that an item of undisclosed information might have helped the defense, or might
have affected the outcome of the trial, does not establish 'materiality' in the
constitutional sense." United States v. Agurs, 427 U.S. 97, 109‑110,
96 S.Ct. 2392, 2400, 49 L.Ed.2d 342 (1976).
See generally Commonwealth v.
Gilday, 382 Mass. 166, 178‑179, 415 N.E.2d 797 (1980);
Commonwealth v. Ellison, 376 Mass. 1, 23‑25, 379 N.E.2d 560
(1978). It seems clear that if the
defendant had had the ability to perform tests on the charms which revealed
numbers or letters not included [399
Mass. 837] in the names and
birthdates engraved on the charms of the victim, the evidence would have been material. But, even if that had occurred, those test
results would not have proved that the defendant did not commit the
murders. Cf. Commonwealth v. Preziosi, 399 Mass. 748, 752, 506 N.E.2d 887
(1987). The victim's daughter also had
identified at the jewelry store the watch back with the name "Bill"
engraved on it as belonging to her mother.
The defendant had sold this item to the jewelry store along with the
charms. Additionally, the daughter was
able to identify her mother's watch band which the defendant had sold because
it had some distinctive broken places in the basketweave mesh of the band. The daughter also stated that some pearl
jewelry belonging to her mother was missing.
The jewelry store employee had purchased various pieces of pearl jewelry
from the defendant, but, given that the daughter looked at over one hundred
pieces of jewelry at the jewelry store, she was not able positively to identify
this jewelry. Regardless of any defense
testing on the charms, the testimony regarding the other jewelry clearly was
probative of the defendant's guilt. Cf. Commonwealth v. Preziosi, supra
(failure to test for fingerprints does not relate directly to guilt or
innocence); Wilks, supra at 675 (missing evidence,
rendering test for defendant's fingerprints impossible, could not have proved
innocence). Error, if any, was
nonprejudicial in view of the other evidence connecting the defendant to the
sale of the jewelry similar to that stolen from the victim.
[22] 4. The motion for a mistrial. On the sixth day of trial, Trooper Murphy
testified to the details of the police investigation of the homicides. On cross‑examination, the defendant
brought out several deficiencies in the police investigation. In particular, the defendant opened up the
subject of the items recovered by the police pursuant to three search
warrants. The police had recovered
relevant evidence as a result of the first search warrant, (FN19) but the other
two searches did not produce items which pertained to the case.
[399 Mass. 838] In redirect examination, the prosecutor sought to rehabilitate
his witness by clarifying that the police did recover some items pursuant to
the third search warrant. The trooper
said, over objection, that in the third search of the defendant's bedroom he
found a bag containing forty to fifty pieces of silver jewelry. The judge ruled that, because the defendant
had opened up the subject of the warrants, the trooper could testify as to what
was found. After the trooper then stated
that the jewelry was unrelated to this case, the judge requested a bench
conference with the parties and reprimanded the prosecutor for introducing
evidence which might suggest other crimes.
(FN20) The defendant then moved
for a mistrial. The judge denied this
motion. The defendant did not move to
strike this testimony. In addition, the
record reflects that the defendant did not seek a curative instruction.
[23] The
prosecutor should not have allowed the witness to make this reference to
jewelry unrelated to the case. (FN21) The suggestion of other crimes was so vague
and the evidence inculpating the defendant so strong that, on balance, we
conclude that this did not taint the defendant's trial and thus reversal of the
convictions is not required.
[24] 5. Prosecutorial misconduct. The defendant challenges one remark made by
the prosecutor concerning the qualifications of the defendant's expert. The defendant also asserts that he was
unfairly prejudiced by two statements of the prosecutor during his closing
argument. We find no merit in these
contentions.
[399 Mass. 839] A metallurgist testified on behalf of the defendant. After testifying to his qualifications in his
field of expertise, the prosecutor objected.
In front of the jury, the prosecutor stated that it was unclear whether
the expert had two years of high school or elementary school training in
chemistry. The defendant objected to the
prosecutor's disparaging remarks in front of the jury. The judge promptly corrected the prosecutor's
improper remark by instructing the jury that the statement was inappropriate
and that the objection was simply to the lack of qualifications. (FN22) While it was unfortunate that the prosecutor
made this improper comment in front of the jury, the judge promptly and forcefully
corrected this misstatement. Any
possible harm was eliminated promptly by the judge. See
Commonwealth v. Eagan, 357 Mass. 585, 592, 259 N.E.2d 548 (1970). See also
Commonwealth v. Fernette, 398 Mass. 658, 665‑666, 500 N.E.2d 1290
(1986).
[25][26]
Prior to the closing arguments in this case, the prosecutor indicated to the
judge that he sought an instruction on the theory of murder with extreme
cruelty or atrocity. The record reflects
that the judge did not indicate to the parties whether he would give an
instruction on this theory of murder in the first degree until after the
prosecutor's closing argument. See
Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979).
Thus, the prosecutor argued this theory of murder in his closing
statement.
At the
conclusion of the prosecutor's closing statement, the judge indicated to the
parties that, although these crimes were certainly vicious, he did not believe
it was appropriate to instruct the jury on the extreme atrocity or cruelty
theory of murder in the first degree.
The defendant requested that the judge give an instruction to
"sanitize" the prosecutor's remarks on this theory of murder. In his instructions, the judge explained to
the jury that, although the prosecutor had argued the atrocity or cruelty theory
of murder, it was "not a proper principle" for the jury to consider
in connection with murder in the first degree.
At the conclusion of the instructions, the defendant [399 Mass. 840] raised
no objection to the judge's handling of this issue. There was no error in the prosecutor's
summation. (FN23)
Because
the judge had not informed the parties whether he would submit the case to the
jury on this theory of murder, there was no prosecutorial misconduct in arguing
to the jury the evidence and asserting that from this evidence the jurors could
conclude that the murders were committed with atrocity or cruelty. "We have never criticized a prosecutor
for arguing forcefully for a conviction based on the evidence and on inferences
that may reasonably be drawn from the evidence." Commonwealth v. Kozec, 399
Mass. 514, 516, 505 N.E.2d 519 (1987).
Here, the prosecutor's argument was properly based on the physical
evidence and inferences drawn from that evidence. While some of this argument was graphic and
unpleasant, as the judge noted, this was an extremely vicious crime. The argument was based on the evidence.
[27] 6. Review pursuant to G.L. c. 278, § 33E. Pursuant to our duty under G.L. c. 278, §
33E, we have reviewed the record and conclude that there is no reason to order
entry of a verdict of lesser degree of guilt or a new trial on the convictions
of murder in the first degree. The
defendant suggests that the sentences on the two murder convictions should run
concurrently. See Commonwealth v. Stewart, 375 Mass. 380, 390‑393, 377 N.E.2d
693 (1978) ("same evidence rule").
Because there were two murders, there is no merit in this contention.
Judgments affirmed.
(FN1.) Carey had immunity from
prosecution. See G.L. c. 233, §§ 20C‑20G
(1984 ed.).
(FN2.)
The defendant also told Carey that he had stolen two other guns in addition to
the one he showed Carey. The calibers of
the three stolen weapons were .38, .22, and .357.
(FN3.)
Neighbors' testimony and the physical evidence corroborated several aspects of
Carey's testimony.
The
defendant presented evidence from his family which would tend to support his
alibi that he was home asleep on the night of the murders.
(FN4.) At the time of this disorderly conduct
arrest, the defendant was seventeen years old.
At the station, his status was as an individual in protective custody.
(FN5.) The defendant recognized Trooper Murphy
because he had arrested the defendant on firearms charges in August, 1982. See G.L. c. 269, § 10 (1984 ed.). The defendant was prosecuted for unlawful
possession of .38 and .22 caliber revolvers.
These guns were stolen from the residence of an Easton police
officer. The defendant was incarcerated
for these convictions from August, 1982, until June 16, 1983.
(FN6.) The defendant was seventeen years old
at the time of this arrest. But, at the
time of the murders, the defendant was sixteen years old. Thus, delinquency complaints were originally
brought against the defendant. After
transfer proceedings, it was determined that the defendant's case should be
bound over to the Superior Court and the juvenile complaints were
dismissed. See G.L. c. 119, § 61 (1984
ed.).
Two Juveniles v. Commonwealth, 381 Mass. 736, 412 N.E.2d 344
(1980). There is no argument that it was
error to transfer the case. Issues not
argued are deemed waived. Commonwealth v. Cundriff, 382 Mass. 137,
150‑151 n. 22, 415 N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101
S.Ct. 2054, 68 L.Ed.2d 353 (1981). See
Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 919 (1975).
(FN7.)
According to the findings, Murphy was at the police station on a social visit
and was not involved in the defendant's arrest.
The judge found that Trooper Murphy had a longstanding practice to visit
with officers at the Stoughton police station.
On this particular evening, the judge found that Murphy had been working
in Sharon until about 10:30 P.M. Murphy
then stopped for coffee at a doughnut shop, visited with a friend, and
proceeded to the Stoughton police station.
(FN8.) The defendant relies heavily on Commonwealth v. Hosey, 368 Mass. 571,
334 N.E.2d 44 (1975), and Commonwealth v.
Meehan, 377 Mass. 552, 387 N.E.2d 527 (1979), cert. dismissed, 445 U.S. 39,
100 S.Ct. 1092, 63 L.Ed.2d 185 (1980).
Those cases are inapposite. In Hosey, the officer testified that the
defendant was extremely "high" and emotional. The officer had difficulty making sense of
the defendant's statements. Id. 368 Mass. at 575, 334 N.E.2d 44. On these facts, the Hosey court stated that it could not "condone an attempt to
induce a waiver in this manner." Hosey, supra at 578, 334 N.E.2d 44. The defendant here did not suffer the same
mental and physical impairment as the defendant in Hosey.
In Meehan, supra 377 Mass. at 567, 387
N.E.2d 527, the court suppressed statements made as a result of the defendant's
intoxication and youth, and the failure of the police to permit the defendant
to make a telephone call. This
combination of factors lead the court to conclude that suppression was
appropriate.
(FN9.) In relevant part, G.L. c. 111B, § 8,
provides: "Any person who is
incapacitated may be assisted by a police officer with or without his consent
to his residence, to a facility or to a police station. To determine for purposes of this chapter
only, whether or not such person is intoxicated, the police officer may request
the person to submit to reasonable tests of coordination, coherency of speech,
and breath.
"Any
person assisted by a police officer to a police station shall have the right,
and be informed in writing of said right, to request and be administered a
breathalyzer test....
"Any
person presumed intoxicated and to be held in protective custody at a police
station shall, immediately after such presumption, have the right and be
informed of said right to make one phone call at his own expense and on his own
behalf.... The parent or guardian of any
person, under the age of eighteen, to be held in protective custody at a police
station shall be notified forthwith upon his arrival at said station or as soon
as possible thereafter...."
In
relevant part, G.L. c. 111B, § 10, provides:
"Any person under the age of eighteen who is ... held in protective
custody at a police station pursuant to section eight shall, upon request of
his parent or guardian, be released to the custody of said parent or
guardian...."
(FN10.) The judge made no findings as to the
time of the violation, but the mother's testimony indicates that she sought to
obtain custody of the defendant between approximately 1:30 A.M. and 2 A.M.
(FN11.) As we read the record, the illegality
alleged by the defendant had not yet occurred.
The statutory violation occurred sometime between 1:30 A.M. and 2 A.M.,
according to the mother's testimony, when the police told the defendant's
mother over the telephone that they would not release the defendant. The defendant's statements were made before
this improper police conduct. We do not
rely on this time sequence because the judge did not make any findings as to
the time these events occurred.
(FN12.) This identification occurred two
months before delinquency complaints were brought against the defendant.
(FN13.) General Laws c. 119, § 60A,
provides: "The records of the
court, including those of a juvenile appeals session, in all cases of delinquency
arising under sections fifty‑two to fifty‑nine, inclusive, shall be
withheld from public inspection except with the consent of a justice of such
court, but such records in any such case against any particular child shall be
open, at all reasonable times, to the inspection of the child, his or her
parent or parents, guardian and attorney, or any of them."
(FN14.)
The juvenile in Police Comm'r of Boston
did not argue that the police lacked the authority to fingerprint and
photograph juveniles, therefore we did not consider the issue. Id.
374 Mass. at 647, 374 N.E.2d 272.
(FN15.) Some States have passed legislation
regarding police authority to photograph juveniles and police authority to use
their records during an investigation.
See, e.g., N.J.Stat.Ann. § 2A: 4A‑61
(West.Supp.1986); 42 Pa.Cons.Stat.Ann. §
6308(c) (1982); Wash.Rev.Code §
13.04.130 (1985).
(FN16.) The defendant also challenges the
admission of evidence seized pursuant to a search warrant executed on the same
day the defendant was arrested on the firearms charges. See note 5
supra. In this trial, the defendant
claims that the arrest on the firearms charge was a pretext. This he cannot do. The defendant's challenge amounts to a
collateral attack on a prior arrest. Any
question concerning the validity of this prior arrest was appropriate only
during the prior proceedings. We note
that there is nothing in the record to show that the defendant challenged the
validity of the arrest in the prior proceedings.
(FN17.) In addition to the three charms, other
pieces of the jewelry similar to the victim's were recovered at this jewelry
store. The jewelry store employee stated
that she had purchased a watch back or case, a pearl ring, two pearl earrings,
and a pearl clasp from the defendant.
The victim's daughter testified that items such as a diamond necklace, a
pearl ring, and a man's watch were missing.
At the jewelry store and at trial, the daughter was able to identify the
watch back as belonging to her mother.
The watch had been given to the victim by a friend and was engraved with
the name "Bill." This
engraving was visible and legible despite the scraping on the watch.
(FN18.) The defendant's expert also indicated
that the chemical process which destroyed the surface of the charms could have
been halted prior to the complete disappearance of the engraving.
(FN19.) In this search, the police seized a
section of wall paneling and a wooden stud from the defendant's bedroom with a
hole that appeared to be the result of a gun shot.
(FN20.) The judge stated that he thought
"it was grossly improper to introduce this evidence knowing it had no
bearing."
(FN21.) We note that the testimony concerning
a bag of jewelry was never mentioned again by the Commonwealth in the course of
the nine‑day trial. There was
never any connection made between this bag of jewelry and any criminal
activity. See, e.g., Commonwealth v. Helfant, 398 Mass. 214, 224‑226, 496 N.E.2d
433 (1986); Commonwealth v. King, 387 Mass. 464, 468‑472,
441 N.E.2d 248 (1982). Cf. Commonwealth v. Welcome, 348 Mass. 68,
70, 201 N.E.2d 827 (1964).
The
defendant's mother testified that the defendant's grandmother had given the
defendant several pieces of jewelry shortly before she died, thus presenting
the jury with an explanation for the presence of jewelry in the defendant's
bedroom.
(FN22.) The prosecutor's objection was
overruled and the witness was permitted to testify as an expert.
(FN23.) Pursuant to G.L. c. 278, § 33E, we
considered whether the judge's late ruling regarding the first degree murder
instructions created a substantial likelihood of a miscarriage of justice. We conclude that it did not. The prosecutor stayed within the evidence and
the jurors were not misled as to what was necessary to support a verdicts of
murder in the first degree.