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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. Wills, 398
Supreme Judicial Court of Massachusetts,
Argued
Decided
Willie J. Davis,
Stephanie Martin Glennon, Asst. Dist. Atty. (Charles J. Hely, Asst. Dist. Atty., with
her), for the Com.
Before HENNESSEY, C.J., LIACOS, ABRAMS, NOLAN and
LYNCH, JJ.
LIACOS, Justice.
The defendant, Jeffrey Wills, was convicted by a jury of
murder in the first degree and of armed burglary in connection with the fatal
stabbing of Constance Jacobsen on
The defendant claims that certain evidence should have
been suppressed because it was discovered by police officers when their search
exceeded the scope of an initial search warrant. He also claims that the trial judge erred in
ruling that his statements were voluntary beyond a reasonable doubt; in admitting circumstantial evidence; and in his instructions to the jury. We conclude there is no error warranting
reversal, or any circumstance warranting an exercise of our powers under
G.L. c. 278, § 33E, and we affirm.
There was evidence of the following facts. Constance Jacobsen was found dead in her
Approximately thirty minutes before Constance Jacobsen's
body was discovered, the defendant was admitted to the emergency room at
Notified that a stabbing victim had arrived at the
emergency room, the
While being treated for his injuries, the defendant asked
that a bandanna around his neck not be removed because it was a "good luck
piece." When the bandanna was
removed, severe scratch marks, identified as being caused by a woman's
fingernails, were found on the defendant's neck. The defendant explained that his girl friend
had made them the previous night, but he would not provide her last name. The attending physician and nurse testified
that the scratches appeared to be fresh, but they could not estimate with
precision how recently they might have been inflicted.
Approximately
Mark Rowell, a friend of the defendant, testified at
trial that he and the defendant had broken into the Jacobsen home in 1978 and
had taken several items, including photograph albums. On six or seven subsequent occasions, Rowell
and the defendant went to the victim's house at night and looked at her through
her bedroom window. During that period,
the defendant told Rowell that he would like to engage in sexual acts with the
victim. According to Rowell, the
defendant told him on ten occasions that he fantasized about engaging in
various sexual acts with the victim. The
last of these "Peeping Tom" incidents occurred approximately in June,
1981.
Police officers investigating Constance Jacobsen's death
executed three search warrants the morning of
1. Admissibility of photograph album. The defendant argues that the search of his
home, which revealed photographs of the victim, exceeded the scope of the first
warrant and was therefore invalid. The
first warrant authorized a search for (a) blood-stained clothing; (b) any towel, dressing, or material used to treat,
clean, or conceal a knife wound; and (c)
any knives or sheaths. During the
execution of this warrant on the morning of
Later, while searching an empty field directly behind the
defendant's home, Detective Bolio found six loose photographs, including
pictures of the victim, scattered on top of tall grass approximately 200 feet
from the defendant's home. The
photographs had been torn or cut out of some other object. Twenty-five to thirty feet away, he found a
paper shopping bag under a tree. The bag
contained a bent hunting knife, a pair of gloves, and cut-off jeans.
All were covered with blood.
(FN5) The bag was completely dry,
although the grass was very wet. The
police officers showed the defendant's father the items found in the bag. The father said, "Well, Jeffrey has a
knife like that, but the blade isn't bent." He had seen it in his son's room "a
couple of days before."
After the bloodied items and the victim's photographs
were discovered in the field adjacent to the defendant's home, a third warrant
was secured to search the defendant's home for a "Photo album
w/photographs & Photographs."
Pursuant to this warrant, Detective Bolio seized the two photograph
albums which he had opened during his search of the defendant's room pursuant
to the first warrant. The albums were
later identified [398 Mass. 774] by the victim's daughter as
items which had been taken during a burglary at the victim's home two or three
years earlier.
The defendant filed a pretrial motion to suppress all
physical evidence, including the photograph albums, seized from his
residence. He alleged that the search
and seizures were illegal because (a) there was no probable cause for the
issuance of the first warrant; (b) the
first warrant and affidavit were insufficient on their face; and (c) the third warrant for the albums and
photographs was obtained following execution of the first, invalid
warrant. Hence, he argued, the material
obtained in that last search was inadmissible under the doctrine of "fruit
of the poisonous tree."
After hearing the testimony of eight witnesses, the
motion judge ruled that the first search warrant and affidavit were sufficient
to meet the test of probable cause. On
appeal, the defendant does not dispute the judge's determination that there was
probable cause to issue the first warrant.
Rather, he argues that, when the police officers entered his home
pursuant to the first warrant, they "exceeded the scope and intensity of
the warrant by searching areas where items sought could not reasonably be
expected to be found. Therefore,
evidence resulting therefrom should have been suppressed."
[1][2] The motion judge found that "[a]ll of the
articles seized at the residence were within the scope of the first
warrant." He ruled that
"nothing impermissible was done during the search of the [defendant's]
second floor room under the first search warrant. Nothing was taken from the residence that was
not within the scope of this warrant, and everything examined was in open
view." That ruling is supported by
the evidence. The photograph album,
measuring 10"' by 12"' and approximately 1 1/2"' thick, (FN6)
could have concealed a small knife or material used to treat, clean, or conceal
a wound. The permissible intensity of a
search is determined by the description of the items to be seized. The size of the object or objects sought
affects the appropriate scope of the search.
Commonwealth v. [398
[3] The motion judge ruled that the affidavit (FN7) supporting
the third search warrant fully described what was seen in the
defendant's bedroom in open view and also what was found in the adjacent
field. (FN8) He also ruled that there was probable cause
to support issuance of the third warrant pursuant to which the albums were
seized. His findings and conclusions
were warranted by the evidence, Commonwealth v. Moynihan, 376 Mass. 468,
473, 381 N.E.2d 575 (1978), and we shall not disturb them. There was no error.
2. Admissibility of defendant's statements. The defendant argues that the judge erred in
admitting his statements (FN9) to police [398 Mass. 776] officers
the morning after Constance Jacobsen's murder.
He claims that the record did not support the judge's ruling that the
statements were voluntary beyond a reasonable doubt. We disagree.
At the conclusion of voir dire hearings, the judge found
that the defendant's statements, made at the hospital, to police officer at
12:45 A.M. and at 9:30 A.M. on September 12, 1982, were voluntary beyond a reasonable
doubt. When we review a judge's
determination that an admission was voluntarily made, we "grant
substantial deference to the judge's ultimate conclusions and we will not
reject a judge's subsidiary findings if they are warranted by the
evidence." Commonwealth v.
Benoit, 389
[4] In this case, the judge held an extensive voir dire
to determine the voluntariness of the defendant's statements. There was testimony that the attending
physician indicated to the police officer that it was "medically all
right" to speak to the defendant.
When Corporal Zepf advised the defendant of his Miranda rights and asked
if he understood, the defendant indicated that he did. Corporal Zepf then informed the defendant
that the officers were investigating a homicide. Sergeant Roman and Corporal Zepf had no
problem understanding the defendant; the
defendant appeared to have no difficulty communicating with the officers and
did not ask to have questions repeated.
The defendant did not ask the police officers to leave, or ask for a
doctor. He did not say that he was in
pain or indicate that he did not want to speak further.
Despite the defendant's wounds, his condition was
described as stable, calm, and alert.
There is no suggestion in the record that the defendant suffered from
any deficiency or physical condition that would undermine a finding of
voluntariness. Nor is there any
suggestion that the defendant's will was overborne by the questioning officer
or by anyone else. The judge's
determination that the defendant's statements were voluntary is amply supported
by the evidence. There was no error.
The defendant urges this court to hold that "in
order for a statement to be voluntary, a person has to know why he is [398
Mass. 777] being questioned."
He argues that "he was led to believe that the interrogation
concerned only the crime committed upon his person." (FN10)
Neither the evidence nor the
law supports this argument. As noted
above, the defendant was given Miranda warnings twice prior to the 9:30 A.M.
statement. During his first conversation
with Corporal Zepf at 12:44 A.M., the corporal told the defendant that he was
investigating a homicide, and the defendant responded, "It was probably
the same man that stabbed me."
[5] Even if the evidence supported the defendant's
argument, the law does not. "The
prevailing view of relevant authority is that Miranda v.
3. Admissibility of physical evidence. The defendant argues that the judge erred in
admitting, over objection, a bent hunting knife, gloves, and cut-off jeans
which police officers had found several yards from the defendant's home in an
open field. The items were discovered
approximately ten hours after Constance Jacobsen's body was found. The defendant contends that the items should
not have been admitted as circumstantial evidence tending to establish his
guilt because he was not identified as being in possession of the items, and
the items were not identified as connected to the crime.
[398 Mass. 778] [6] Conceding that there
was no direct evidence that the items belonged to the defendant, the judge
ruled that, in the totality of the circumstances, the items were sufficiently
relevant to be admitted. He noted the
evidence that the defendant had stolen a photograph album containing
photographs of the victim in 1978 and had expressed a specific state of mind
with respect to conduct relevant to the victim.
(FN11) The defendant was away
from his home at the time of Constance Jacobsen's murder. The items were discovered in close proximity
to the defendant's home and were "fresh," in the sense that the paper
bag in which they were found had not deteriorated and that the photographs were
on top of the long grass rather than beaten down into it.
We have defined relevant evidence as that evidence which
has a "rational tendency to prove an issue in the case." Commonwealth v. LaCorte, 373
4. Instructions to the jury. The defendant argues that it was reversible
error for the judge to (a) refuse to give the defendant's requested instruction
regarding fingerprints; (b) give an
instruction on circumstantial evidence that was "incomplete" compared
to what the defendant had requested; and
(c) fail to define "presumption of innocence" as requested.
A. Fingerprint evidence. The police discovered a fingerprint on the
outside screen of Christina's rear bedroom window in the Jacobsen's home. A State police sergeant gave expert testimony
that he had compared the fingerprint with the known fingerprints of the
defendant, observed nine points of comparison and concluded that the fingerprint on the screen was
that of the right middle finger of the defendant. The defendant objected to admission of this
testimony and made a written [398 Mass. 779] request for a
cautionary instruction (FN12) which stated, in part: "If you find as a fact that the
fingerprint was that of the defendant, then I emphasize to you now that the
fingerprint evidence was admitted into evidence to show only that the defendant
was present at the Jacobsen House at some time, but not necessarily at the time
the alleged crimes were committed.
Commonwealth v. LaCorte, 373
This court stated in Commonwealth v. LaCorte: "Certainly fingerprints found in the
apartment of the victim immediately after the homicide have some tendency to
prove the identity of the killer."
[7] In the present case, as in LaCorte, there was
circumstantial evidence to support the judge's refusal to give the requested
instruction. The defendant emphasizes
the evidence of prior "Peeping Tom" episodes to argue that the
instruction mentioned in the LaCorte footnote was warranted. There was no evidence, however, of
"Peeping Tom" incidents occurring after June, 1981. The victim's daughter testified that the
bedroom window screens, including the screen on which the fingerprint was
found, had been replaced early in 1982.
Further, the testimony regarding the "Peeping Tom" incidents
indicated that they had occurred at the victim's window, not at her daughter's
window where the print was found. There
was no error. The trial judge properly
exercised his discretion in declining to give the requested instruction.
B. Circumstantial evidence. The defendant next contends that the judge's
charge on circumstantial evidence was incomplete[398
The defendant points to no flaw in this instruction and
suggests no way in which his requested instruction differs in substance from
what the jury were told. The defendant
was not entitled to any particular instruction as long as the charge as a whole
was adequate. Commonwealth v. Sherry,
386
C. Presumption of innocence. The defendant's final argument regarding the
judge's instructions to the jury is that his failure to define
"presumption of innocence" was reversible error which entitles him to
a new trial.
The defendant correctly states that "Massachusetts
tradition holds that judges must, upon request, instruct the jury that the
defendant is 'presumed to be innocent'." Commonwealth v. Drayton, 386
The defendant's objection appears to be that the judge
did not define the "presumption of innocence." He cites Commonwealth v. Drayton, supra,
to support this position. We stated in
Commonwealth v. Drayton, supra, 386 Mass. at 46, 434 N.E.2d 997: "We have held that judges need not give
any particular content to the phrase 'presumption of innocence,' if the
instructions make clear that an indictment does not imply guilt, and that the
jury must base their decision on the evidence, and not on 'suspicion or
conjecture.' Commonwealth v.
DeFrancesco, [248
[8][9] Clearly, the judge here instructed the jury in
compliance with the mandate in Drayton.
As the adequacy of instructions must be determined in light of their
over-all impact on the jury, Commonwealth v. Murray, 396 Mass. 702, 705,
488 N.E.2d 415 (1986), we view the charge in its entirety, and we conclude
there was no error in the instructions as given.
5. Review under G.L. c. 278, § 33E. The defendant admits that, from the evidence
presented and admitted, the jury were warranted in returning verdicts of
guilty. He argues, however, that justice
requires a new trial because the verdicts might have been different, had the
judge granted his requests to exclude certain evidence and to give certain
instructions. For the reasons stated, we
conclude there was no error in the judge's evidentiary rulings or jury
instructions. There is no merit to the
defendant's argument that the "cumulative effect of what the defendant alleges
to be error" warrants our ordering a new trial. On consideration of the whole record of this
case, we see no reason to exercise our power under G.L. c. 278, § 33E, either
to order a new trial on the murder indictment or to direct the entry of a verdict
of a lesser degree of guilt.
Judgments affirmed.
(FN1.) Constance Jacobsen and her
daughter lived on Forest Street in Needham.
The defendant lived with his parents and sister approximately one-half
mile from the Jacobsen residence.
(FN2.) The defendant, however, was not in
custody at that time.
(FN3.) The defendant spoke with police
officers twice more during the early hours of September 12, 1982. On both occasions he repeated the story that
a man ran up, stabbed him, and then ran off.
(FN4.) The second warrant, as to which the
defendant claims no error, authorized a search of the defendant's automobile
where a buck knife enclosed in a sheath and an empty sheath were found.
We
summarize the facts regarding execution of the two warrants as to which errors
are claimed in our discussion of the admissibility of photograph albums
discovered during execution of the first warrant.
(FN5.) A forensic serologist
testified that the blood on the cut-off jeans could not have come from the
victim, but could have come from the defendant.
The blood on the gloves could not have come from the defendant but could
have come from the victim. He was unable
to obtain any results from the knife.
(FN6.) The album of photographs was introduced
in evidence, and we have examined it.
(FN7.) According to Corporal Zepf's affidavit
in support of the third warrant, Detective Bolio had observed a collage of
women's photographs while searching the defendant's bedroom pursuant to the
first warrant. Some of the photographs were
missing. He also saw, scattered on the
floor, photographs with masking tape stuck on their backs. Several apparently were cut from larger
photographs. Of the photographs
discovered in the field, several were cut and stuck with masking tape, as were
those in the bedroom. Several were found
to be of the victim. The affidavit also
recited that the victim's former husband informed one of the investigating
officers that the victim's house had been broken into on prior occasions. Family photographs and albums were reported
missing following one of these breaks on January 17, 1978.
(FN8.) The defendant does not contest the
lawfulness of the search of the open field and seizure of the objects
there. His argument is that these
objects were inadmissible on evidentiary grounds. See part 3, infra.
(FN9.) While the defendant
contests the admissibility of all statements made by him, his brief before this
court focuses particularly on his second conversation at the hospital at
The
defendant's claim of error is based on the alleged involuntariness of his
statements, see Commonwealth v. Garcia, 379 Mass. 422, 428, 399 N.E.2d
460 (1980), and not on a violation of his rights under Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
(FN10.) The defendant particularly
objects to having been questioned without first being informed that he was a
suspect in a homicide, or that anyone else had been stabbed that evening. In his view, the discussion shifted without
warning from questions which police officers naturally would have asked anyone
who came to the hospital with stab wounds to an interrogation regarding
Constance Jacobsen's murder. According
to the defendant, knowledge of the charges, or reasons for suspicion, would
affect the accused's decision whether to seek prior advice of counsel or
whether to make a statement at all. He
cites no authority in support of this proposition, however.
(FN11.) As noted above, the defendant's
friend, Mark Rowell, testified that the defendant had told him several times
that he fantasized about sexually attacking the victim.
(FN12.) The defendant made the same request in
his proposed instructions to the jury, and again registered a specific
objection when his request was denied.