LePage and Eskedahl were each found guilty of the murder, in the first degree, of Dr. Dalton C. 0 ’Brien and of armed assault with intent to rob him. There was a recommendation that sentence of death be not imposed. Each defendant appealed. On the evidence the following facts could be found.
About midnight of the night of March 10 to 11, 1964, Dr. and Mrs. O’Brien were in their house near Fresh Pond, Cambridge. The lights were out. The front door was secured. About 12:15 a.m. there was a loud knocking at the front door. Dr. O’Brien went downstairs. Mrs. O’Brien heard him say, “Who is it?” A voice replied, “There is somebody hurt. There has been a bad accident. Aren’t you a doctor?”
Mrs. O’Brien then heard “a click and the noise of the chain.” She went from her bedroom to the upstairs hallway “and called her husband’s name.” He replied, “Jus-
Mrs. O’Brien succeeded in reaching the police by telephone. The police, a fire department rescue unit, and a priest arrived. Mrs. O’Brien admitted them. About this time, she picked up a bullet on the stairs. 2
Dr. O’Brien was taken to a hospital. Mrs. 0 ’Brien never saw him again alive. The cause of death was the gunshot wound.
One Hayes, a Cambridge police officer, arrived at the 0 ’Brien house about 12:30 a.m. on March 11. He observed “fresh” footprints in the snow leading in the direction of Huron Avenue. He searched the Fresh Pond area alone for a time. He was joined by another officer named Leonard, who had followed the footprints to the area near High Street and Park Avenue, at first by himself and later with Officer Vaughan of Watertown and a police dog. For a time, about 1:10 to 1:30 a.m. Officers Hayes and Leonard followed a man walking in an area about 600 to 1,500 feet from 28 High Street mentioned below. It was LePage. He said he had come “from Paddy’s Bar on Walden Street,” where he had been drinking with one Johnson.
That night Officer Hayes and Officer Vaughan with a trained police dog followed the trail from the O’Brien house twice to the vicinity of 28 High Street, about 1,000 feet in a straight line from the O’Brien house. The dog stopped at that house and searched around it.
On the same afternoon, Sergeant Davenport went to 28 High Street. He was admitted by Eskedahl’s younger brother. LePage arrived at the house at the same time and in effect was directed to go into the house. Sergeant Davenport, who identified himself as a police officer, then placed Eskedahl and LePage in different rooms and questioned them separately. Eskedahl (who could have been found to have been drinking or drunk) admitted that he owned a “Winchester .30-30” rifle which he had purchased from LePage. He said that it had been stolen and that he had not purchased cartridges for it. LePage told Sergeant Davenport that Eskedahl had not told him that the rifle had been stolen. The defendants, during the afternoon, plainly were trying to talk themselves free of police suspicion. They are not shown to have objected to any police action.
About 4:50 p.m. Sergeant Davenport formally placed both defendants under arrest. LePage was put into a parked police cruiser car until about 6:50 p.m. Sergeant Davenport obtained a warrant and searched 28 High Street until shortly before 7 p.m., when Eskedahl was taken out of the house. The defendants arrived at the police station about 7:15 p.m. and were questioned separately, apparently on an intermittent basis, for several hours. They made oral statements which contained highly incriminating admissions, and, soon afterwards, other statements which
On the night of March 10-11, they had been drinking at Eskedahl’s house at 28 High Street. They were “broke” and “went down to the Fresh Pond area” because Eske-dahl “said he knew where they could get $2,000.” They knocked at Dr. O’Brien’s door and told the doctor when he came to the door that there had been “an accident.” The doctor started to unlock the door. One of them pushed against the door. The doctor was standing behind the door and was knocked over. There was a scuffle between Dr. O’Brien and LePage. Furniture was knocked over. LePage ran into Eskedahl who had the gun loaded and “cocked.” The gun went off and the doctor was hit. LePage and Eskedahl fled along essentially the route later traced by the dog to 28 High Street. Later they saw dogs on High Street. They also admitted that they “got a cab . . . told the . . . driver we were on furlough. We had the rifle in a duffle bag. ’ ’ The driver who identified them at the trial took them to Mt. Auburn Street and University Road. They then walked to the footpath along the Charles River and “threw the gun in.” It was later recovered. Both defendants participated in making the statements and in reenacting the scuffle for the police.
The principal question presented is whether the judge properly admitted in evidence the defendants’ statements given to the police after their arrest. Further facts concerning the arrest, confinement, and interrogation of the defendants and concerning other aspects of the trial are stated in connection with the discussion below of the assignments of error to which they are relevant.
1. The defendants filed in advance of trial motions to suppress their oral admissions or confessions to the police and certain tangible property (including a Winchester rifle).
Commonwealth
v.
Lewis,
In some cases ruling upon such motions in advance of trial will facilitate the administration of justice. That, however, may not always be so. In this instance, examination of the transcript shows that the trial judge, in his discretion, reasonably decided that dealing with the motions during the trial would adequately protect the rights of the defendants and consume less court time than attempting to decide them in advance of trial.
The defendants rely upon Rule 41 (e) of the Federal Rules of Criminal Procedure, 18 U. S. C. Appendix, 3764 (1964), as requiring pre-trial disposition of such motions with respect to tangible property. The Federal precedents, of course, may be helpful guidance in an area where
Mapp
v.
Ohio,
In the opening for the Commonwealth, reference was made to some matters discussed in the defendants ’ motions to suppress evidence. The defendants claimed exceptions to the trial judge’s refusal to strike the references and the opening. The judge appropriately instructed the jury, at once and later, that nothing said in the opening was evidence and that they were not to regard statements in the opening as more than a prediction of what the evidence would be. There was no error.
Commonwealth
v.
Makarewicz,
In a manner consistent with the principle stated in the
Rogers
case the judge determined for himself as a question of law “ [wjhether [the] evidence had been unlawfully obtained. ’ ’ He decided in effect that the defendants had not been deprived of constitutional rights. He also concluded that the statements were voluntary by a process, which, as we read
Jackson
v.
Denno
(at pp. 376-391, esp. p. 378, fn. 8; cf. separate opinion, pp. 403-408), has recently received the approval of the Supreme Court of the United States. Cf.
Sims
v.
Georgia,
The defendants now assert that they were detained and arrested without probable cause (see
Wong Sun
v.
United States,
It is by no means clear that the defendants’ argument (that their arrest was illegal and that all evidence resulting from it should have been excluded), even if raised specifically in the trial court, is presented by any assignment of error. See
Commonwealth
v.
Lewis,
The defendants’ principal contention is that their incriminating statements at the police station were obtained in violation of their constitutional rights. The circumstances in which these statements were made could have been found to have been as described below. Neither defendant testified concerning these events either at the voir dire or before the jury.
When LePage was taken from Eskedahl’s house to wait in a parked police car, he was informed by Sergeant Davenport that he was under arrest and that anything he said would be used against him. Some two hours later, when Eskedahl was taken from the house, Sergeant Davenport in Eskedahl’s presence told a Mrs. Delaney, Eskedahl’s neighbor and an old family friend, that he was being charged with suspicion of murder; that he did not1 ‘have to tell us a
After the defendants had gone to the police station, Mrs. Delaney called Eskedahl’s lawyer, Mr. Andrew, who twice before had represented Eskedahl in criminal matters. He had over fifty years’ experience as a lawyer, was then a county commissioner, and had served as assistant district attorney, assistant attorney general, and district attorney. Mr. Andrew arrived at the police station at 8:15 p.m. and spoke to Captain Grainger, the officer in charge, who said that Eskedahl was at the police station, and “ [i]f you wait a little while, you can take him home with you. ’ ’ Mr. Andrew was at once permitted to confer privately with Eske-dahl for as long as he wished.
After interviewing his client, Mr. Andrew told Captain Grainger and Sergeant Davenport that Eskedahl denied any connection with the matter, that he had found Eskedahl truthful on prior occasions, and that he believed him. Mr. Andrew also said that he had advised Eskedahl to comply with the police request that he take a polygraph test, which later Eskedahl declined to do. Captain Grainger “told Mr. Andrew that the defendants were merely suspect, that at that time there was nothing tangible relating to the case, that we would hold them, and if nothing developed, then we would release them.” Sergeant Davenport said to Captain Grainger, in Mr. Andrew’s presence, “I haven’t made up my mind as to what complaint, if any ... to make against . . . them.” It was then agreed that Mr. Andrew would
The interrogation continued. During the course of the evening, the police offered the defendants food and coffee. LePage admitted having lied and, sometime before 11 p.m., made several admissions. Sergeant Davenport told him that he could make no promises with respect to sentencing or to keeping his friend Johnson (fn. 3) out of the investigation. LePage said that he would make a statement, but only if Eskedahl agreed, and asked to speak with him alone.
Shortly after 11 p.m. the defendants conferred privately for about fifteen minutes. About 11:30 p.m., while being taken to a water bubbler in the hall, LePage spoke briefly (out of hearing of the police officers) with his wife, who had arrived at the station in the later part of the evening, and who, before then, had spoken with him “two or three times ’ ’ by telephone. During the evening Eskedahl participated in at least one telephone call. The defendants did not ask to use the telephone. There is no evidence that either defendant asked to see counsel.
Around midnight LePage told Sergeant Davenport that he wanted to make a statement. Eskedahl asked the police what evidence they had, and was told that they were trying
At this point, at some time before 1 a.m., Captain Grain-ger entered the interrogation room and advised the defendants of certain rights. 7 Both defendants said that they had been “told by the sergeants about . . . [their] rights,” and that they would give a formal statement. Captain Grain-ger left the room to arrange for a stenographer to come from the State police. Then, shortly before 1:30 a.m., Captain Grainger told the defendants’ attorney, Mr. Travers (fn. 5), who was then at the police station, that a stenographer was coming to take the defendants’ statement. Mr. Travers conferred in private with both defendants. Captain Grainger’s testimony indicates that it was during a brief interval between the time that he left the interrogation room and the time when Mr. Travers consulted with the defendants, that they gave Sergeant Davenport and other police officers portions of the confession described above.
The defendants argue that Mr. Travers’ presence and activities at the police station show that their confession was illegally obtained. On somewhat conflicting evidence, it could have been found that Mr. Travers arrived at the police station for the second time that night (see fn. 5) at 12:30 a.m.,
8
in response to Mr. Andrew’s call, and informed
There is no suggestion in the record of physical abuse or threats. There was no evidence fairly presenting any issue that the confessions were induced by deception.
United States
v.
Valente,
The interrogation of the defendants occurred before the decision in
Escobedo
v.
Illinois,
There is no evidence that either Mr. Andrew, when and if he called the police by telephone, or Mr. Travers, prior to his talk with the defendants at the police station, requested or demanded of the police that they cease their interrogation of the defendants. Cf. People v. Gunner, 15 N. Y. 2d 226, 231-232, where a majority of the New York Court of Appeal (at pp. 232-233) refused to extend the doctrine of the Escobedo case, but held that a specific request by an attorney that there be no questioning of his client precluded the introduction of the client’s statements made thereafter.
3. There is no merit to the defendants’ exceptions to rulings concerning evidence.
(a) The conversation downstairs, when Dr. O’Brien admitted the intruders, was part of the events constituting the murder. It was admissible. See
Commonwealth
v.
Simpson,
(c) Hayes, a policeman, testified that, when he arrived at the O’Brien house just after the shooting, Mrs. O’Brien said, “My husband’s been shot.” It was merely an assertion of an indisputable fact.
(d) The trial judge, in his discretion, could admit photographs of the defendants taken at the time of their arrest. The pictures of the defendants were not the result of illegal police action. See
Commonwealth
v.
Palladino,
(e) The trial judge admitted against both defendants evidence of the movements of LePage observed by two officers in the early morning of March 11. He carefully limited to LePage alone the evidence of LePage’s oral statements made in Eskedahl’s absence. LePage and Eskedahl later were sufficiently linked with each other so that where they respectively were at various times on the night of the murder was of significance as to each of them.
(f) There was no error in permitting a police officer to describe footprints in the snow as “fresh.”
Commonwealth
v.
Cataldo,
(g) There was no error in admitting the evidence of the trailing of the intruders by trained dogs. See
Common
4. The exceptions to the charge are without merit. Viewed as a whole and in detail, it was thorough, clear, and informative. Two matters only are worthy of comment.
(a) There was no error in the judge’s explanation of the jury’s function in determining whether the confessions were voluntary. He told the jury to disregard the confessions if they found the “confessions to have been involuntary and coerced by threats, promises, or otherwise.”
(b) In a homicide case, the trial judge should charge on the issue of manslaughter where any view of the evidence will permit a finding that the offence is manslaughter and not murder. See e.g.
Commonwealth
v.
Campbell, ante,
387, 391-392. There was, however, no occasion here for the judge so to charge, for there was no evidence upon which the jury could find that the defendants were not engaged in the commission of a felony when the killing occurred. Although Dr. 0 ’Brien was induced to unlock the door by the ruse of stating that there had been an accident, the uncon-troverted evidence that the defendants were the armed intruders, that their purpose was to take money, and that they began the scuffle with Dr. O’Brien, permitted the inference only that the invaders were committing an armed assault with intent to rob in a dwelling house. Also, if the jury were to find from the evidence of drinking that the defendants came to the 0 ’Brien house drunk, their acts would still not lack the guilty intent necessary for there to have been a felonious assault. See
Commonwealth
v.
Farrell,
5. Other assignments need not be discussed.
6. We perceive no reason in justice for disturbing the judgments. See G. L. c. 278, § 33E (as amended through St. 1962, c. 453).
Judgments affirmed.
Notes
Mrs. O’Brien, -with no other person present, asked her “husband what they wanted, and ... if he knew . . . them, and he said no, there were two in their early twenties, and he didn’t know them.” He also said they wanted “dope.”
Johnson testified that he had not seen LePage for “a good year” before seeing him at the police station after his arrest; that LePage had told him (Johnson) that the police had stopped LePage and searched him for narcotics and had asked Johnson to say that, on the evening of March 10, they had been together at Paddy’s; and that in fact they had not been together.
Dr. O'Brien on his way to the hospital and at the hospital had given descriptions of his assailants and other information which were excluded after a voir dire on the ground that at the time the doctor was not in apprehension of impending death. We need not decide whether the rulings, in the circumstances, were unduly favorable to the defendants. See
Commonwealth
v.
Viera,
Shortly after Mr. Andrew had left the police station in the early evening, Mr. Travers, an attorney, arrived there looking for Mr. Andrew. He said nothing about LePage or Eskedahl, and departed when informed that Mr. Andrew had gone.
Mr. Andrew testified that he spoke to Sergeant Davenport, but the latter denied this.
He told them that they did not have to give a statement, that if they did it would he used against them, that any statement must he voluntary, and that the police could make them no promises.
Mr. Travers testified that he arrived about an hour and a half earlier.
Mr. Travers testified that he returned about 11: 30 p.h.
According to Mr. Travers’ testimony, which, of course, the judge and the jury were not required to believe, he was not “allowed” at this time to see the defendants, but he did not actually try to enter the interrogation room. He saidthat he told Sergeant Norton at 11: 30 p.m. that he “thought it was about time that I saw these boys,” to which Sergeant Norton replied, “[W]e’ve got something going and neither you nor anyone else is going to interfere with it. . . . [B]e patient.” He added, “I’ll let you know when you can see them.” Mr. Travers also testified that he got the same answer a half hour later and that he had told Sergeant Norton that he “was there to represent both defendants.”
Mr. Travers testified that he rose and tried to talk with Captain Grainger about seeing the defendants, but that Captain Grainger ‘ ‘ rushed right by ’ ’ him.
See
Commonwealth
v.
Hampton,