The defendant, Paul N. Corriveau, was indicted for assault with intent to commit rape and for murder in the first degree. At the conclusion of the Commonwealth’s case, the judge entered a required finding of not guilty as to the indictment for assault with intent to commit rape. The jury returned a guilty verdict on the charge of murder in the first degree and the judge imposed the mandatory term of life imprisonment.
On appeal, the defendant argues that his conviction should be reversed and a new trial ordered because (1) the motion judge incorrectly denied the defendant’s motion to suppress statements made to the police, the results of tests performed on his person and on various articles seized by the police, and other evidence relating to items seized from his home, vehicle, and person; (2) the defendant was unfairly prejudiced by remarks made by the prosecutor during closing argument; (3) the trial judge erred in instructing the jury as to circumstаntial evidence; (4) the trial judge failed to give an alibi instruction; and (5) the trial judge refused to instruct the jury on manslaughter. The defendant also argues that he is entitled to relief under G. L. c. 278, § 33E (1984 ed.). We conclude that there is no reversible error and that the defendant is not entitled to relief under § 33E. Accordingly, we affirm the defendant’s conviction.
For background purposes, we summarize facts found by the motion judge. During the evening of May 6, 1981, the defendant went to a lounge in Salem, New Hampshire, called the “Lodge.” At the Lodge, the defendant and the victim, Priscilla Cabral, were observed dancing together between 11 p.m. and midnight and the two were still together at approximately 1 a.m. Less than twelve hours later the victim’s body was discovered approximately one and one-half to two miles from the Lodge, ten to fifteen feet from Nevins Road in Methuen.
1. Motion to Suppress.
Prior to his trial, the defendant moved to suppress “any and all physical evidence, tests (scientific or otherwise) performed upon his person and upon various articles seized by law enforcement authorities, and various articles seized by law enforcement authorities, observations made of said various articles seized by law enforcement authorities, and statements made by him,” as well as any evidence that was the fruit thereof. After an evidentiary hearing, the judge denied the motion. On appeal, the defendant advances several arguments in support of his position that his motion should have been granted. We shall consider each argument in turn. There was no error.
In a detailed memorandum, the motion judge made the following findings relevant to the motion to dismiss. On May 7, 1981, after the discovery of the victim’s body, Methuen police Officer Shea Baddour interviewed Gene McEvoy of Methuen. McEvoy stated that on the morning of May 7, 1981, at approximately 1:30, he had observed a motor vehicle on Nevins Road where the victim’s body was discovered. McEvoy described the vehicle as dark colored, expensive, possibly a Lincoln or a Cadillac automobile, with a square front chrome grill. On May 7, the police were aware that the defendant owned a Lincoln Continental.
By 7 p.m. on May 7, the homicide investigation had focused on the defendant. During the evening hours of that day Methuen police Officers Richard True and Albert Ange made several trips past the defendant’s Lawrence residence in an unmarked cruiser. That night at approximately 10:15, the officers observed the defendant’s Lincoln Continental stop in front of his house for about two minutes while his wife got out of the car.
After the defendant brought his vehicle to a stop, the defendant and the officers got out of their respective vehicles and walked toward each other. As the defendant and the offiсers approached each other, one of the officers said, “Paul, would you mind coming back to the station with us?” The defendant responded, “Sure.” At the suggestion of the officers, the defendant moved his vehicle to the side of the road, shut off the engine, and locked the doors. After the defendant secured his automobile, an officer opened a door of the two-door cruiser and the defendant got into the back seat alone. The cruiser then proceeded to the Methuen police station. The motion judge concluded that, even though it could be inferred that the officers followed the defendant into Methuen in order to be in a position to take the defendant into custody if he refused to go to the police station voluntarily, the defendant did in fact voluntarily accompany the officers to the police station.
On several occasions prior to getting into the cruiser and on the way to the station, the defendant asked the officers why they wanted to see him at the police station. The officers responded to each inquiry by saying that Captain O’Rourke would explain the situation when they arrived at the station. At the station the defendant was led to the station’s interrogation room, where the defendant waited with a Methuen policeman for the arrival of the officers in charge of the murder investigation. After a few minutes, Methuen police Captain Hugh O’Rourke and State police Detective Lieutenant John Bums and Lieutenant Alfred Duemling entered the room and greeted the defendant. Lieutenant Duemling thanked the defendant for coming to the station, introduced himself and Lieutenant Bums,
After the introductions were completеd, Lieutenant Dueml-ing informed the defendant that the police were investigating the homicide of a young female. Lieutenant Duemling then asked the defendant, “Do you have any objection to answering a few questions?” and the defendant replied, “No.” The police then told the defendant the name of the victim and the defendant responded, “Oh my God, I was with her last night.” Before asking the defendant any further questions, Lieutenant Dueml-ing informed the defendant of his Miranda rights. At this point, the defendant said, “It’s beginning to sound like I need a lawyer.” Captain O’Rourke then said to the defendant, “You may use the telephone to call a lawyer and you may leave at any time if you wish to do so.” The defendant replied, “I don’t want to leave and I don’t want a lawyer.”
The defendant then gave the following information to the police. The defendant stated that he had arrived at the Lodge at approximately 10:30 p.m. on May 6, 1981. After some small talk with friends hе observed the victim enter the Lodge. They had a couple of drinks together. He and the victim danced together and they both left the Lodge at approximately 1:05 a.m. He had a discussion with the victim about his new Mark V Lincoln, and he asked her if she wanted to see it. While she sat on the passenger side, he started the motor so she could observe the dashboard and the car’s other features. After about two minutes, she left the motor vehicle and, although he did not see her go to her car, he assumed that she did. He left the parking lot, drove to his home, which is approximately ten minutes away, and arrived home at approximately 1:30 a.m. At that time he spoke to his wife, who was awake. In addition to this statement, the defendant informed the police that he was wearing black pants and a black shirt on the evening of May 6, 1981.
At some point while the defendant was speaking to the police, the judge found, the poliсe towed the defendant’s automobile to the station without his permission. During the
After the defendant related his account of the events that had transpired the previous evening, the police asked him if he would submit to a benzidine reagent test. The defendant was informed that the benzidine test was a chemical test which would reveal the presence of blood. The test, the defendant was told, was harmless and would be administered by rubbing a fluid or paper on his hands and wrists. After listening to the description of the test, the defendant indicated that he was willing to take such a test. A State police chemist, who was at the Methuen police station at the time and who earlier in the day had made examinations of the scene of the crime, was then summoned to the interrogation room. At the completion of the test, the chemist informed the defendant that the purplish color appearing on portions of his hands indicated the presence of blood. At this point the defendant stated that he wished to call an attorney and he did so. He stated further that he would not answer any more questions, and he revoked his permission to search his vehicle. The defendant then contacted an attorney who came to the police station. No further questions were put to the defendant, and at approximately midnight the defendant was placed under arrest.
At approximately 11 p.m. the police had summoned a magistrate to the station. After the magistrate arrived, Lieutenant Bums presented three search warrant applications along with copies of an affidavit to the magistrate for his consideration. The applications sought permission to search the defendant’s home, vehicle, and person. The magistrate issued the warrants, and shortly thereafter the police seized various articles of evidence including blood scrapings from the defendant’s vehicle and a pair of stained shoes from the defendant’s house.
On appeal, the defendant attacks several of the motion judge’s findings and mlings. At the outset we note that, in the absence of clear error, we accept the judge’s subsidiary findings.
Commonwealth
v.
Monteiro, ante
123, 131 (1985). Furthermore, we give substantial deference to the judge’s ultimate findings.
Id.
However, “we make our own independent determination on the correctness of the judge’s ‘appliсation of constitutional principles to the facts as found . . . .’”
Commonwealth
v.
Haas,
The defendant argues first that his initial encounter with the police and his subsequent journey to the Methuen police station constituted an arrest without probable cause in violation of the United States and Massachusetts Constitutions.
1
According to
A determination of when a person has been placed under arrest is governed by an objective standard.
Commonwealth
v.
Avery,
“[T]he threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled” are examples of circumstances that might indicate a seizure. United States v. Mendenhall, supra at 554. There was no evidence in this case, however, that before the completion of the benzidine test the police touched the defendant or in any way used or threatened to use force against him.
The defendant argues that our decision in
Commonwealth
v.
Haas,
Next, the defendant contends that his statements should have been suppressed because the warnings given to him by the police did not comply with the requirements of
Miranda
v.
Arizona,
The defendant grounds his argument that he received incomplete Miranda warnings on a statement made by the motion judge in his written decision. The judge stated that, whеn Lieutenant Duemling was asked at the hearing on the suppression motion (on cross-examination) to repeat the precise words he had used in giving the Miranda warnings, Lieutenant Duem-ling failed to state that he had informed the defendant that if he could not afford an attorney one would be obtained for him.
3
The judge nevertheless found that the defendant had been
In addition to arguing that he did not receive complete Miranda warnings, the defendant asserts that even if he did receive complete warnings he did not waive his Miranda rights. In order to determine whether the defendant effectively waived his Miranda rights, it must be determined whether the defendant knowingly, intelligently, and voluntarily waived them, and whether the warnings and procedures required by that decision were scrupulously observed.
Commonwealth
v.
Garcia,
The defendant challenges the motion judge’s finding that he knowingly and voluntarily waived his rights under
Miranda
on the ground that the record is silent as to any waiver of rights. However, there was ample evidence to support the finding. Lieutenant Duemling testified that, after informing the defendant of his Miranda rights, he asked the defendant whether he understood them, and the defendant, who was shown by the evidence to have been an еxperienced and well-educated businessman, responded affirmatively. That is enough. To sustain its burden of proof on the waiver issue, the Commonwealth is not required to show an explicit statement by the defendant that he is waiving his rights.
Commonwealth
v.
Westmoreland,
The defendant contends that, even if his statement did not amount to an affirmative request for a lawyer, the conduct of the police at this point in the interrogation gave no more than lip service to his constitutional rights. He asserts that the detectives “whipsawed him ... by having one state he was not under arrest and could leave while another officer cajoled him into not asserting that right by telling him others had spoken to them for almost two hours or words to that effect.” The judge found on adequate evidence that upon entering the pоlice station the defendant observed his friend talking to the police officer. Thus, the detective verbalized what the defendant, at least in part, already knew. In view of the defendant’s education and experience, the judge properly could have concluded that it was highly unlikely that the detective’s statement had any impact on the defendant’s decision to speak to the police. Therefore, we conclude that the record adequately supports
We turn now to the defendant’s arguments concerning the motiоn judge’s refusal to suppress the results of the initial benzidine test and articles of evidence seized from the defendant’s home, vehicle, and person. The defendant argues first that he did not give informed consent to the performance of the benzidine test. Specifically, the defendant argues that the motion judge improperly foreclosed a line of inquiry concerning the possible carcinogenic effects of benzidine testing. This line of questioning, according to the defendant, was designed to demonstrate that the defendant’s consent to the test was not informed.
As the fruits of a warrantless search, the results of the initial benzidine test properly could have been admitted in evidence only if the defendant voluntarily consented to the test. “When the Commonwealth relies on consent as the basis for a warrant-less search, it must demonstrate ‘consent unfettered by coercion, express or implied ....’”
Commonwealth
v.
Harmond,
The judge permissibly found that the defendant was told that the benzidine test was a chemical test designed to reveal the presence of blood, and he was told how the test would be administered. Furthermore, there was evidence to support the judge’s findings that the defendant desired to at least give the appearance of cooperating with the police. Therefore, there was an abundance of evidence that the defendant willingly submitted to the initial benzidine test. He argues, however, that his consent was not legally effective if at the time he gave
In addition to arguing that his statements and the results of the initial benzidine test should have been suppressed, the defendant contends that the motion judge should have suppressed the evidence seized from his home, vehicle, and person pursuant to the search warrants issued by the magistrate. Relying on
Franks
v.
Delaware,
In Franks v. Delaware, supra, the Supreme Court outlined the limited nature of judicial inquiry into the underlying facts contained in a search warrant affidavit. In Franks, the Supreme Court ruled that “where the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant’s request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance оf the evidence, and, with the affidavit’s false material set to one side, the affidavit’s remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit.” Id. at 155-156. Thus, judicial examination of the veracity of the underlying facts contained in a search warrant affidavit is limited to whether the affidavit did in fact contain misstatements by the affiant and whether the misrepresentations were intentional or reckless. 4 Only if both these inquiries are answered affirmatively will the court consider an appropriate remedy. In his written memorandum, the judge did not specifically address the question whether McEvoy’s description of the vehicle that he saw at 1:30 in the morning was misrepresented in the affidavit by virtue of the affidavit’s omissions. That determination may be made by this court, however, since the credibility of witnesses is not involved.
Nearly all the details of McEvoy’s description of the vehicle he saw were reported in the affidavit.
5
In light of the entire
Finally, the defendant asserts that the affidavit provided the magistrate with insufficient facts to support a finding of probable cause. However, the defendant grounds this argument on the proposition that the information derived from the defendant’s statements should be excised from the affidavit. Our conclusion that the judge correctly refused to suppress the defendant’s statements defeats this argument. Furthermore, we reject the defendant’s contention that the affidavit contained only statements of suspicion and not of fact from which the magistrate could find probable cause. 6 We conclude that the denial of the defendant’s motion to suppress was not erroneous.
2. Prosecutor’s Closing Argument.
The defendant also challеnges several aspects of the prosecutor’s closing argument to the jury as unfair and prejudicial.
The defendant objected at trial to portions of the prosecutor’s summation which suggested thаt sexual activity played a part in the events that transpired in the early morning hours of May 7, 1981.
7
The defendant argues that the judge should have
The record clearly supports the prosecutor’s statements concerning possible consensual sexual activity. The evidence and inferences that can reasonably be drawn from the evidence indicated that the defendant and the victim had socialized with each other at the Lodge, and the couple had been observed dancing, kissing, and holding hands. The defendant himself testified that the victim had gotten into his car. Furthermore, the evidence established that the victim was naked from the waist down when she was discovered. Although the evidence wаs insufficient to support a charge of assault with intent to commit rape, the evidence clearly suggests that some sexual activity took place on the night of the victim’s death. Therefore, the prosecutor’s comments were properly grounded in the evidence.
The defendant also challenges the prosecutor’s rhetorical remark that “Paul Corriveau just wasn’t aware that you can’t wash blood off your hands. That was his mistake.” The remark was based on the testimony of the State forensic chemist that the results of the initial benzidine test performed on the defendant’s hands indicated there had been blood on the defendant’s hands and that the defendant’s hands had been washed. The remark was proper.
During his final argument, the prosecutor commented: “I suggest there’s a reason he didn’t go to the police, because he
During the prosecutor’s summation, the defendant objected to the argument which appears in the margin below. 8 As soon as the judge sustained the defendant’s objection, the prosecutor terminated that line of argument. The defendant now argues that the judge immediately should have given a curative instruction. But no curative instruction was requested. Furthermore, to the extent the defendant’s objection was that there was no evidence to support the argument, any possible prejudice was minimized by the judge’s instruction in the course of his charge that closing arguments were not evidence. Commonwealth v. Ferreira, supra at 317.
The other comment criticized by the defendant was improper. The prosecutor stated, “[Jjust imagine what the floor mаt must have looked like when he picked it up that morning at his house and threw it away someplace. And then when he took the pocketbook that was locked in his car by Priscilla Cabral, as he must have run out of that car for whatever reason, and then he took that pocketbook and threw it away.” The prosecutor was asking the jury to speculate on occurrences not in evidence. However, viewing these remarks in light of the prosecutor’s entire argument, and in light of the judge’s instructions to the jury, we conclude that any prejudice accruing to the defendant as a result of these comments was minimal and therefore no substantial risk of a miscarriage of justice resulted.
3. Jury Instructions.
The defendant’s challenges to the judge’s charge are without merit. First, he argues that the judge misstated the law when he stated that “the law makes no distinction between direct testimony and circumstantial.” While the law does distinguish between direсt and circumstantial evidence, it is well established that there is no difference in the probative value of each type of evidence.
Abraham
v.
Woburn,
The defendant also asserts that the trial judge erred by failing to instruct the jury concerning alibi. We disagree. At trial the defendant did not request an alibi instruction. At trial the defendant testified that, after leaving the victim and her estranged husband at Nevins Road, he began to drive home but after a few minutes decided to make sure the victim was safe. While driving toward Nevins Road on Route 28 he observed the victim’s husband running away. After he got back to Nevins Road, the defendant testified he discovered the victim’s body in the woods. According to the defendant, because he took the witness stand and testified that he was not at the scene of the crime at the time of the murder, he was entitled to an alibi instruction without having requested it. However, the defendant points to no authority and we are aware of none in support of his position. There was no error.
The defendant also alleges that the judge erred by refusing to instruct on manslaughter. According to the defendant, the Commonwealth had taken the position in final argument that, if the defendant’s version of the facts were believed, the defendant was responsible for increased harm to the victim when he failed to call an ambulance after he returned to the scene of the crime. The defendant also points to medical testimony that the victim may have survived several minutes or even an hour or two after the beating. Therefore, the defendant contends, he was entitled to instructions on both voluntary and involuntary manslaughter.
The prosecutor’s argument did not suggest that the defendant was guilty of manslaughter, but only suggested that the defendant intended the victim to die. In any event, we restate the
4. Relief Under G. L. c. 278, § 33E.
We have reviewed the entire record as required by G. L. c. 278, § 33E, and we have considered the defendant’s pro se argument that he was denied a fair trial by the judge’s failure to remove one of the jurors and his failure to question the juror after the juror informed the judge that he had been in the same union as the victim’s husband. Before receiving that information, the judge had conducted a voir dire examination of the juror focusing on another matter and had found the juror indifferent. Neither defense counsel nor the defendant himself requested a further cоlloquy between the judge and the juror after they were made aware of the new information. We find no reason to disturb the judge’s finding that the juror was indifferent, and we find no other ground entitling the defendant to relief under § 33E.
Judgment affirmed.
Notes
In this regard, the defendant does not argue that his rights under the State Constitution are greater than his rights under the Fourth Amendment to the United States Constitution.
The defendant also contends that the motion judge’s finding that the police informed him that he was a suspect prior to issuance of the Miranda warnings is clearly erroneous. We do not address this contention, however, because the
Miranda
decision does not require the police to notify a person that he is a suspect prior to obtaining a waiver of rights.
Commonwealth
v.
Amazeen,
Actually, the judge’s memory of Lieutenant Duemling’s testimony was incorrect. Lieutenant Duemling testified in pertinent part: “I advised the defendant that we were investigating a homicide, stated that he was the last one we knew of that hаd been seen with the young female. I advised him that he didn’t have to say anything if he didn’t want to, that anything he did say could and would be used against him in a court of law, that he did not have to say anything unless a lawyer was present to advise him; that if he couldn’t afford a lawyer, steps would be taken to provide one for him; that if he did agree to speak to us, that he could stop talking at any time and seek advice of counsel. I asked him if he understood what I had just said, and he stated he did.”
The law is clear in this Commonwealth that the suppression of evidence seized pursuant to a search warrant supported by an affidavit containing a negligent misrepresentation is not required even if the misrepresentation is necessary to a finding of probable cause.
Commonwealth
v.
Nine Hundred & Ninety-two Dollars,
The affidavit summarized the information received from McEvoy as follows: “After investigation by Methuen Police and Massachusetts State
The defendant argues that the warrant to search his person, authorizing “certain chemical tests,” inadequately particularizes the authority given. We have concluded that the defendant gave valid consent to the initial
The specific comments to which the defendant objects are set forth below:
“Because is it so easy to believe that an irate husband would have attempted to have sex with his wife in the woods before he beat her [to] death? No. But perhaps somebody who had been with that person at a bar and bought her drinks, having held hands as they leave; perhaps maybe that’s why the pants would be off her, perhaps that’s why the pants were never found, because the pants came off perhapsconsentually [sz'c] and still in his car when he drove away, aftеr having beaten her.”
“They were together. I suggest to you the evidence is that it may have been amorous. You have seen the nature of that area. They drove to that area. The pants were over here, the outer pants, never to be found, not by the dog ‘Lucky’ nor by the police.
“What happened in that car? Who said what to who [sz'c]? What anger started it? She was found — and remember ‘Lucky’ went directly from the spot of her death, where she was found, to a point directly back to the curb. When she mshed out, were the pantyhose ripped off her?”
The prosecutor: ’’Who put the shoes in the ceiling? Was it Mrs. Corriveau? Was it Mr. Corriveau? If you had come home and told your wife this story of what had happened and about a woman lying in the woods, would you have then made the call that evening to the police anonymously? If you had come home and told your husband or wife this story — ”
Defense counsel: “Objection.”
The judge: “I think you had better drop that line of argument.”