12 Mass. App. Ct. 841 | Mass. App. Ct. | 1981
The Commonwealth, having obtained leave to appeal from a single justice of the Supreme Judicial Court (G. L. c. 278, § 28E, and Mass.R.Crim.P. 15[b][2], 378 Mass. 884 [1979]), claims error in the order of a judge of the Superior Court which allowed the defendant’s motion to suppress a confession made by him while in police custody.
Various tips led Officer Bartlett of the Marlborough police department, the officer investigating the shooting, to the defendant’s home. Bartlett and two other officers were allowed to enter. The defendant and his wife were given Miranda warnings. Both the defendant and his wife told the police that they had been at “The Ranch,” but that they did not know anything about the shooting. Both were arrested. They were taken in separate cars to the police station where they were kept apart.
While at the police station, the defendant was questioned by Bartlett after having again been advised of his Miranda rights. He understood those rights. Bartlett took the defendant’s photograph which he carried to the hospital with eight other pictures of males of similar appearance. The victim made a photographic identification of the defendant. Bartlett returned from the hospital and informed the defendant of the positive identification. The defendant expressed concern about his wife.
The judge found that:
“Bartlett told the defendant that if he confessed to the shooting and said Mrs. Hunt was not involved she would be released. Otherwise, because the couple had come recently from Florida, high bail would be sought and Mrs. Hunt would probably be sent to Framing-ham. Mrs. Hunt had been detained in another room but at one point had been brought in to defendant in tears.”2
The judge ruled that at the time of the statements by the officer to the defendant concerning his wife, “Mrs. Hunt was being held with no evidence in the possession of police even approaching probable cause.”
The standard of review in these cases requires us to accept the subsidiary findings of fact of the trial judge absent clear error. Commonwealth v. White, 374 Mass. 132, 137 (1977) , aff’d, 439 U.S. 280 (1978). Commonwealth v. Moon, 380 Mass. 751, 755-756 (1980). Also, the judge’s ultimate legal conclusions as to the defendant’s intelligent and voluntary waiver of Miranda rights, or the absence thereof, or as to the voluntariness of his statements are “entitled to substantial deference.” Commonwealth v. White, 374 Mass. at 138. Commonwealth v. Tabor, 376 Mass. 811, 822 (1978) . Commonwealth v. Doyle, ante 786, 795 n.3 (1981).
Using that standard of review, we should not interfere with the judge’s conclusions in this case. See Commonwealth v. Meehan, 377 Mass. at 567-568. The judge heard
We reject the Commonwealth’s suggestion that a threat or promise concerning the defendant’s wife, and not the defendant himself, is insufficient to invalidate a confession. See State v. Gibilterra, 342 Mo. 577, 586 (1938). See also dictum of Morton, J., in Commonwealth v. Knapp, 9 Pick. 496, 504 (1830). A concern for one’s family may be as significant in inducing an involuntary confession as a concern
Order affirmed.
The defendant was charged with unlawfully carrying a firearm, assault with a dangerous weapon, assault with intent to murder and defacing the serial number of a firearm.
Officer Bartlett’s testimony was more graphic: “I advised him that there is a good chance where they come from Florida that there would be
This conclusion does not appear erroneous. There was nothing in the initial police report or any information received subsequent thereto by the police which indicated anything more than that a woman left the scene of the shooting with the defendant. Thus, at the time of the defendant’s confession, the officers had no knowledge linking her to the shooting, and the only evidence against Mrs. Hunt was that she was present at a shooting and left with the defendant. See Commonwealth v. Haas, 373 Mass. 545, 555 (1977). See also G. L. c. 274, § 4.
See, in connection with making false statements to a defendant, Commonwealth v. Meehan, 377 Mass. 552, 563 (1979), and Commonwealth v. Jackson, 377 Mass. 319, 328 n.8 (1979).
The authorities relied on by the Commonwealth are, for the most part, distinguishable, as in those cases the fact finder did not find the existence of a threat or promise. This is not a case where the police, without making any promise to release the defendant’s wife if he confessed, truthfully informed the defendant that his wife would be released if there appeared to be no evidence to hold her. State v. Ferguson, 119 Ariz. 55, 60 (1978). People v. Abbott, 156 Cal.App.2d 601, 605-606 (1958). See also Commonwealth v. DiStasio, 294 Mass. 273, 284-285 (1936), cert. denied, 302 U.S. 683 (1937). Nor is this a situation governed by the principle that “where no express or implied promise or threat is made by the police, a suspect’s belief that his cooperation will benefit a relative will not invalidate an admission.” People v. Steger, 16 Cal.3d 539, 550 (1976). Jones v. State, 229 Md. 165, 171-172 (1961).