In 1991, a Superior Court jury found the defendant, Michael P. Caputo, guilty on two indictments of murder in the first degree by reason of deliberate premeditation and extreme atrocity or cruelty. The victims were his estranged wife and his mother-in-law. The trial judge sentenced the defendant to consecutive life sentences.
On appeal,
1. Facts. We summarize the evidence in its light most favorable to the Commonwealth, reserving certain details for discussion in connection with the issues raised.
In the early morning of November 2, 1989, two Boston police officers responded to a radio call dispatching them to a residence on Boylston Street in the Jamaica Plain neighborhood of Boston. They were directed to a second-floor apartment, where the defendant’s estranged wife and their two children had been living since some time that year.
In the apartment’s bedroom, the police found the body of the
The police noted an open kitchen window that led to the back porch, and discovered that the telephone wires to the apartment had been cut. There was no sign of forced entry. On the dining room table, the police found a protective order dated July 31, 1989, ordering the defendant to refrain from abusing his wife and to stay away from the Jamaica Plain apartment. The order contained the defendant’s address in Plymouth.
Shortly thereafter, at the request of the Boston police, six Plymouth police officers located the defendant at the Plymouth address. After the defendant gave several statements to the police, in circumstances we describe in some detail below, he was arrested. Later that same afternoon, the police executed a search warrant at the defendant’s residence. They recovered a knife set from his home; one knife was missing.
2. Motion to suppress. Prior to trial, the defendant moved to
At approximately 6:25 a.m., after the Plymouth police had been informed by the Boston police that the defendant was a suspect in a double homicide, six officers from the Plymouth police department, including Sergeant Thornton Morse and Sergeant Richard Dorman, arrived at the defendant’s house. In an attempt to ascertain whether anyone was home, the police officers knocked repeatedly on the front and rear doors. After the police knocked for five minutes, the defendant opened the front door. Morse and Dorman introduced themselves, inquired as to the defendant’s name, and asked whether they could enter the house to speak to him. The defendant responded, “Come on in.”
Inside the house, Dorman informed the defendant that the police were investigating a double homicide, and then immediately read the defendant his Miranda rights from a printed card, the first of six occasions during that day that the defendant was advised of his rights. See Miranda v. Arizona, 384 U.S.
Morse testified that, after a brief interval, he asked the defendant whether he could use his telephone to call the police station.
Dorman and Morse then went outside, leaving two officers inside the house. The defendant did not ask the remaining two officers to leave. Dorman and Morse examined the automobile in the defendant’s driveway, which matched the description given to the Plymouth police. The hood was warm to the touch, and a registration plate other than the defendant’s registration number covered the automobile’s assigned registration plate.
Dorman and Morse reentered the house, without objection from the defendant. Dorman again asked whether he could use the defendant’s telephone to call the Plymouth police station. The defendant again agreed. Dorman informed the lieutenant (within the defendant’s hearing) that the defendant was at his residence, that the engine of his automobile was warm, and that there were two different registration plates on his vehicle. The defendant spontaneously stated, “I don’t want to incriminate
The defendant agreed to the officers’ request to accompany them to the police station. At the station, Morse and a detective once more advised the defendant of his Miranda rights, and provided him with a written copy delineating each right. Morse again read each right to the defendant. The defendant himself read the form, making a check mark after the listing of each right. Asked whether he wished to talk to them, the defendant replied, “I’m not sure, I don’t know if I should say anything or not. What should I do?” Morse responded, “I can’t tell you that, but I want you to be aware of your rights and that you do not have to say anything to me.”
Morse once again informed the defendant of his Miranda rights, ascertained that he understood them, and again asked the defendant whether he wished to speak to the police. Then, and only then, the defendant elaborated on the statement he earlier had given to police in his home. Among other things, the defendant now told the officers that he remembered having blood on him, throwing an object out of his automobile and, at some point during that night, being outside his mother-in-law’s home.
At approximately 9:20 a.m. Sergeant Detective Charles Horsley of the Boston police department arrived at the Plymouth police station. Informed that the defendant had received his Miranda rights, he interviewed the defendant for approximately forty-five minutes. When asked whether he had anything to do with the murders, the defendant became upset and stopped talking. The defendant asked to leave the police station, and was informed that he was under arrest.
The motion judge concluded that, although the defendant was not arrested until 1 p.m., his “freedom of action was severely limited from the time that the police arrived at his house,” so
(a) Fifth Amendment and art. 12. The judge was correct to deny the defendant’s motion to suppress evidence of his statements while the Plymouth police were in his house. First, before he made any statement, the defendant received and acknowledged that he understood his Miranda rights.
The defendant argues that by surrounding his house and knocking continuously until he opened the door, the four officers “coerce[d] their way into the house of the extremely nervous prime suspect of a double homicide intent on questioning him, developing other information, and assuring his availability for Boston police.” The evidence is to the contrary, and the motion judge was corred to conclude that the defendant’s statement was “not the result of coercion or intimidation.” Commonwealth v. LeBlanc,
The defendant’s claim that his subsequent statements, made at the police station, were not voluntary is similarly without merit. See Commonwealth v. LeBlanc, supra at 553-555. The motion judge made comprehensive findings of fact that fully support his conclusions. We see no basis for rejecting them. See
Because we reject the defendant’s claims that his statements to the police at his home should have been suppressed, we need not consider his argument that his later statements should have been suppressed as “fruit of the poisonous tree.” See Commonwealth v. Painten,
We also need not consider the defendant’s argument that “the cat was out of the bag” when he gave his statements at the police station. There was no initial unlawful police action and no need to suppress any subsequent statements. See Commonwealth v. Smith,
(b) Fourth Amendment and art. 14. Relying on Commonwealth v. Krisco Corp.,
It is clear from the record that the police sought to enter the house to speak to the defendant and not to search the premises. Assuming, arguendo, that the police presence in the defendant’s house that morning did constitute a “search,” the limitations
In any event the defendant’s claim that his consent to a “search” was limited in scope and later withdrawn is not persuasive. See United States v. Dichiarinte,
All of the evidence obtained from the defendant — his statements to the police and the physical evidence later obtained pursuant to a search warrant — was properly admitted.
3. The prosecutor’s comments. The defendant argues that the prosecutor improperly inquired about and commented on his
Pursuant to the Commonwealth’s humane practice rule, a defendant may seek to convince a jury that incriminating statements he made to the police were not voluntary. See Commonwealth v. Tavares,
It was therefore error for the prosecutor in his opening statement to direct the jury’s attention to the defendant’s invocation of his right to remain silent. See note 12, supra. While the defendant had raised the issue of the voluntariness of his statements in his pretrial motions, the judge had determined that the statements were voluntary and admissible, and the prosecutor could not have known for certain that the defense would make voluntariness a live issue at trial.
As to the prosecutor’s direct examination of Morse, see note 12, supra, at that point in the trial the defendant himself had not placed before the jury any evidence of his invocation of his right to remain silent.
During the cross-examination of Morse, however, defense counsel himself explicitly and pointedly raised the defendant’s invocation of his right to remain silent. In an effort to show that the defendant’s post-Miranda, postinvocation statements were coerced by the police, defense counsel asked Morse, whether, in response to his advising the defendant of his Miranda rights, the defendant had said, “I think I’d better not say anything right now.” Because defense counsel elicited this testimony, and because in his closing argument the prosecutor referred to the statement solely to challenge the defendant’s claim of coercion, we conclude, on the unique facts of this record, that the prosecutor’s reference in his closing statement to the defendant’s invocation of his right to remain silent was permissible. The prosecutor did err in his closing statement, however, when he commented that the defendant had “no good explanation” for the second registration plate on his automobile. See note 12, supra. That comment did not concern the voluntariness of defendant’s statements to the police, and should not have been made. It improperly placed a burden on the defendant to produce evidence. See Commonwealth v. Fowler, supra at 36-42.
Despite the improper comments made by the prosecutor, we conclude that reversal of the conviction is not required, for several reasons. First, we are hard pressed to conclude that the defendant’s exercise of his right to remain silent was in fact used against him. See Greer v. Miller,
4. The judge’s evidentiary rulings and jury charge. We agree with the defendant that certain testimony of a civilian witness, Richard Telford, should have been struck. For a brief period Telford had acted as an informal counsellor to the defendant. He described various conversations he had with the defendant and also testified that he (Telford) had told the defendant’s estranged wife (the victim) that his own wife “had access to a safe house ... if she would make a phone call to my wife,” suggesting that Telford believed the wife was in danger from the defendant.
The defendant also argues, for the first time on appeal, that the judge erred in certain of his jury instructions. First, the defendant claims that the judge did not give a proper “humane practice” instruction, see Commonwealth v. Benoit,
As to his second challenge, the Commonwealth concedes that the judge gave an incorrect instruction on malice for conviction of murder on a theory of deliberate premeditation. Because the jury were correctly instructed on the elements of murder by reason of extreme atrocity or cruelty, and because the jury convicted the defendant of murder in the first degree for both homicides on that theory, as well as on the theory of deliberate premeditation, the defendant was not prejudiced by the error. See Commonwealth v. Blackwell,
Finally, the defendant argues that immediately after defense
5. Motion for a new trial. In his motion for a new trial, the defendant claimed that his trial counsel was ineffective at his sentencing because counsel did not suggest to the judge that the defendant’s psychiatric condition should be considered as a mitigating factor.
The defendant also argues that the judge should have authorized counsel to retain a psychiatrist to assist him in evaluating the psychiatric records so that counsel could determine whether there were other substantive issues to pursue on appeal. We considered and rejected that argument in Commonwealth v. Serino,
6. G. L. c. 278, § 33E. We have reviewed the entire record in this case as required by G. L. c. 278, § 33E. We conclude that the jury’s verdicts were fully supported by the evidence and the law. The interests of justice do not require either a new trial or the entry of verdicts of a lesser degree of guilt. The verdicts stand.
Judgments affirmed.
Order denying motion for a new trial affirmed.
Notes
Uhis is the defendant’s direct appeal. At oral argument, counsel represented that the prolonged period between trial and this appeal was due, in part, to changes in counsel. In addition, in 1997, the defendant successfully petitioned a single justice of this court for funds for an independent psychiatric evaluation to determine whether the defendant was competent to participate in the prosecution of his appeal.
The medical examiner testified that the wife had knife wounds all over her body, several severed ribs, and perforated organs including her abdomen, liver, lung, and pulmonary artery. He testified that her mother’s wounds included several severed ribs, a severed bone in her arm, and a perforated lung, heart, and abdomen.
The Commonwealth’s forensic expert testified that the missing knife had a ten-inch blade, two inches at its widest part, and that, to a degree of reasonable scientific certainty, the holes in the bed clothing through which one of the victims was stabbed were consistent with having been made by that size knife.
There was also evidence that a life insurance policy, effective October 25, 1989, in the amount of $100,000 had been purchased in the wife’s name for the benefit of the defendant. The application bore the wife’s signature, dated July 3, 1989, and was received by Amex Life Assurance Corporation on October 24, 1989. The parties stipulated that the application had been completed by the defendant, and a handwriting expert testified that, in his opinion, the signature and the date were not in the wife’s handwriting.
The defendant filed five motions to suppress: (1) a motion to suppress his statements made to police; (2) a motion to suppress evidence obtained from a warrantless search of the defendant’s home and car; (3) a motion to suppress evidence obtained with a search warrant on November 2, 1989; (4) a motion to suppress his statements made to a civilian witness, Richard Telford; and (5) a motion to suppress all documents used to analyze the defendant’s handwriting. The motion judge denied each of the motions, except that he ordered that personal papers and notebooks seized from the defendant’s house in the afternoon of November 2, 1989, be suppressed as beyond the scope of the search warrant.
The facts are drawn from the motion judge’s findings, which are fully supported by the record, supplemented by uncontested evidence at the suppression hearing.
Earlier, when the police had informed the defendant that they were investigating a double homicide on behalf of the Boston police department, the defendant had asked who had died. Dorman replied that he did not know. Morse testified that he asked to use the defendant’s telephone, a “land line,” rather than use the police scanner because of the sensitive nature of the case, and the likelihood that the public would listen to police broadcasts. Morse testified he wanted to find out more information about the investigation to pass along to the defendant.
It was later determined that the outer registration plate belonged to a Jamaica Plain resident who lived one-quarter to one-half mile away from the crime scene, while the plate assigned to the defendant’s automobile was underneath.
While at the police station, the defendant was offered cigarettes, coffee, and water. A Plymouth detective testified at the suppression hearing that the defendant appeared to be nervous, but not intimidated.
The defendant suggests inferentially that, at some point before he was taken to the police station, he was in “custody.” Because the police informed the defendant of his Miranda rights before he made any statements, and because he immediately invoked his right to remain silent, it is not necessary to decide whether the defendant was in custody at this time. As noted earlier, the motion judge found that the defendant was in custody at 1 p.m. when he was arrested, but that, because the defendant’s freedom of movement was previously restricted, he was entitled to Miranda warnings before any police interrogation. We see no reason to disagree with that conclusion.
The defendant also claims that he was not informed of his right to use a telephone while he was being questioned by the police. The police are not required to inform the defendant that he is entitled to a telephone call until the defendant is arrested. See G. L. c. 276, § 33A. See also Commonwealth v. Painten,
Specifically, the defendant challenges certain statements made by the prosecutor in his opening statement, direct examination of Morse, and closing argument. In his opening statement, the prosecutor said that the police “asked [the defendant] if he’d been home,” adding, “At first he declined to talk to them,” and “you will find that when [the defendant] was confronted by the police he first told them that he wasn’t going to talk to them.” Second, during his direct examination of Morse, the prosecutor first asked Morse to repeat for the jury the Miranda rights read to the defendant. He then asked Morse whether the defendant “respond[ed] in any way.” Morse replied that the defendant “stated he thought it was best if he didn’t say anything at that time.” Last, during his closing argument, the prosecutor commented, “Well, when the police first arrived and said, ‘There’s been a homicide,’ he said: ‘Gee, I think I better not talk to you, I’d better not incriminate myself.’ ” He also told the jury that the defendant had “no good explanation” for the second registration plate on his automobile.
The defendant invoked his right to remain silent before he was arrested, but after he had been advised of his rights. We analyze the prosecutor’s comments as if they referred to the defendant’s postarrest silence. See Commonwealth v. Waite,
During the direct examination of Morse, at a sidebar conference defense counsel told the judge that testimony of “a statement after [the defendant] asserted his Miranda rights” is “inadmissible,” and requested that the prosecutor be instructed to “proceed directly to the part where [the defendant] made his statement, rather than dwell on the invocation of his rights.” The judge ruled that the defendant’s post-Miranda statement to the police was admissible under the humane practice rule because the defendant had asserted “that he wasn’t properly given his Miranda rights.” The judge said that he would instruct the jury that “a person has every right to remain silent.” Defense counsel did not object to the ruling, and agreed that the judge should give such an instruction, but at a later point in time. See note 16, infra.
In his opening statement, defense counsel made no mention of the defendant’s invocation of his right to remain silent, but defense counsel did emphasize the “coercive” tactics of the police force when the two sergeants and four patrolmen arrived at the defendant’s home.
The judge earlier had informed defense counsel that he would explicitly instruct the jury that the defendant had “an absolute right to remain silent” and that they were to draw “no inference from the fact that a defendant elects to exercise that right.” During the trial the judge twice offered to give that instruction. Defense counsel twice declined the judge’s offer, and the judge informed the defense counsel to alert him if defense counsel later sought the instruction. He never did.
Telford also testified that the defendant informed him that he (the defendant) wanted to hurt his wife and became angry when talking about their marriage.
The defendant also challenges the admissibility of Telford’s statement, “I believe he [the defendant] needed professional help and that he should seek it.” That statement was properly admitted as a lay person’s summary description of the defendant’s emotional condition regarding his marriage. See PJ. Liacos, M.S. Brodin, & M. Avery, Massachusetts Evidence §§ 7.4, 7.5 (7th ed. 1999 & Supp. 2003). The judge instructed the jury that the statement was not admitted for the truth of the matter asserted, and we trust that the jury abided by the judge’s instructions. See Commonwealth v. Martinez,
The grand jury testimony, which satisfied the requirements of Commonwealth v. Daye,
Rule 28 (b) of the Massachusetts Rules of Criminal Procedure,
It is apparent from the transcript that the defendant was upset, unruly, and prone to outbursts in the court room. As the verdicts were handed down, the defendant interrupted the proceedings, saying, “The system is guilty. . . . The system is guilty of raping me.” Throughout the trial and pretrial hearings, despite the defendant’s numerous outbursts, his counsel was effective in controlling him. The judge could not have been unaware of this behavior.