Lead Opinion
The events which frame the central issues in this case arise from legal and illegal efforts of the family and friends of a young woman (the victim) to provide an explanation for her mysterious disappearance in September of 1970. On December 9, 1971, her body was discovered in a shallow grave near the parking lot of a Sears, Roebuck and Co. (Sears) store in the Fenway area of Boston. The defendant, a boyfriend of the victim, was indicted for her murder in the first degree. Before trial, the defendant moved to suppress, inter alla,
In the present appeal, under G. L. c. 278, §§ 33A-33G, the defendant argues four specific assignments of error, chiefly related to the refusal of the judge to exclude from the trial all evidence obtained as a result of his abduction and subsequent police interrogation. We delineate these assignments of error with more particularity below.
At the outset, we briefly summarize the subsidiary facts developed at the voir dire and reported in the careful and detailed initial and supplementary findings of the experienced trial judge.
The Police Investigations. On September 16, 1970, the day following the victim’s disappearance, her parents reported her disappearance to the Boston police, who immediately undertook an investigation. In the course of the early investigation, the defendant was twice interviewed by detectives from division 4 of the Boston police. The police did not suspect that a crime had been committed, but they did suspect that the victim was hiding somewhere in the Boston area and that the defendant had knowledge of where she was hiding, which he refused to divulge. Their suspicions were aroused by the several inconsistent stories which the defendant told in the September 16 interrogation regarding the events of the previous evening.
The police investigation continued, but failed to discover the cause of the victim’s disappearance or her location. In early December, 1970, Detective Stanley Gawlinski (Gawlinski), attached to the office of the district attorney for Suffolk County, was assigned to the case on a full time basis. After repeated urging by the victim’s father (the father) Gawlinski arranged a meeting with the defendant for December 22 in the law office of the defendant’s attorney. The defendant, in the presence of his attorney, described his relationship with the victim and repeated the last story he had related to the police on September 16. In April, 1971, again at the father’s suggestion, Gawlinski arranged to have Muddy River in the Fenway area dragged for the victim’s body. When this search proved unavailing, Gawlinski conceded that he had exhausted his leads and consigned the case to the inactive file at the district attorney’s office. Thereafter, Gawlinski maintained only sporadic contact with the victim’s family and limited his investigations to leads which were supplied by interested persons. Even this limited contact ceased in August, 1971, after an unpleasant conversation in which he reprimanded the father for an attempt
Private Efforts. Throughout the course of the police investigation, the father and his son were impatient with police investigations and unwilling to place sole reliance on them. The father worked with three private investigators and utilized the voluntary assistance of a large number (perhaps as many as 100) of family or neighborhood friends. Of these friends, a core group of the son’s friends, styled the “concerned group” by the judge, were the most persistent workers. Included in the concerned group were Gary Fisher, James Ferreri, Frank
The private efforts were principally
The Abduction. On December 8, 1971, the defendant drove to Mt. Ida Junior College in order to meet a young woman with whom he had a date. He arrived about
Interrogation of the defendant commenced on the return of Ferreri with Jay Campbell about 6 a.m. Questioning by the group
Alone in the room with these two, the defendant, after receiving assurances that he would not be harmed, related facts pertaining to the victim’s death: He met her on the night of September 15 at a bus stop near the Sears store. When she told him that she was pregnant and that he was the father, he denied the responsibility and accused her of having relations with a man in California. She slapped him and he struck her in retaliation. She fell, hit her head on the curb, and lay motionless. After mouth-to-mouth resuscitation failed to revive her, the defendant realized she was dead. He carried her down a
The interrogation ceased once the defendant had made these statements. The judge found that a spirit of relative friendliness supplanted the former hostile, strained relationship between the defendant and his captors. The defendant expressed relief at having finally disclosed his secret and referred to Ferreri and Campbell as friends. When the rest of the group returned, Ferreri persuaded the others to trust the defendant to lead them to the body. They tidied up the cabin and departed for Boston about 4:15 p.m.
As the group emerged from the cabin with the defendant it encountered two hunters, David Tyler, the chief of police of Worthington, and Reino Liimatainen. Earlier in the day, Tyler had stopped at the cabin and, without identifying himself, had questioned Fisher about his occupation of the cabin. Though Fisher had partially satisfied Tyler as to his right to be there, Tyler had remained somewhat suspicious. At 4:15 p.m. Tyler questioned Fisher once again. Liimatainen, who harbored his own suspicions, slipped shells into the chambers of his shotgun and, in a loud voice, said, “If there is any funny business I will blow your guts out.” The judge
The defendant directed Ferreri to drive to the Sears parking lot. They arrived in darkness at approximately 6:30 p.m.
The defendant described the gravesite to Ferreri as an overgrown area near an abandoned railroad spur below a grouping of three windows in a Metropolitan District Commission maintenance shed. Ferreri, alone, walked down a hill to the tracks. Unable to find the gravesite, he returned to the parking lot, where the others had remained, and told the defendant, “You will have to come down with me.” The defendant refused and stated that the place was “spooked” and that they would kill him if he went down there. Heard handed the defendant a pocketknife for protection. Whereupon, Ferreri started down and was followed by the defendant, who held the open knife. The defendant refused to proceed the full distance to the grave, but he did point out its location. The defendant then returned to the parking lot. Ferreri, joined by Fontacchio and Campbell, ascertained that a body was buried at the place indicated. Ferreri then drove the defendant to a point a short distance from his home.
While Ferreri had been searching the track area the first time, the defendant found himself momentarily alone with Heard and casually acknowledged that he had killed the victim. In response to a question from Heard, he said that he was not worried about the consequences because the abductors would be hostile witnesses whose
Subsequent Events: Police Reinvolvement. Sometime that evening, the group notified the victims family that her body had been found. About 11:30 p.m. the father telephoned Gawlinski, who had just returned home from attending classes and studying at Northeastern University, described the location of the body, and gave a somewhat cryptic, incomplete account of the events leading up to the discovery. After Gawlinski finished his telephone conversation with the father, his wife informed him that the defendant’s attorney had tried several times to reach him that night. Gawlinski did not return the attorney’s calls. He informed his partner in the case and a private investigator the father had hired that the body had been discovered and, after some delay, drove to the gravesite.
About 3 a.m. Gawlinski and other officers went to the defendant’s home.
The defendant was interrogated from 3:30 a.m. until 7:30 a.m. Before questioning him, the police gave the defendant the Miranda warnings. The defendant did not request counsel or respond to the precise question whether he understood the warnings. On at least four
About 7:30 a.m. on December 10, the interrogating officers left the hospital and met Gawlinski at the entrance. At 8:30 a.m. one of them, Sergeant Daley, wrote down his recollection of the defendant’s statement. The following morning, December 11, the defendant was discharged from the hospital. He was indicted on December 15, 1971.
Principal Motions and Assignments of Error.
The defendant also moved to suppress the statement allegedly made by him to the police at the Massachusetts General Hospital on the morning of December 10, 1971. The judge ruled that, as the police had knowingly denied the defendant the benefit of advice of his counsel, the statement was not admissible in the Commonwealth’s case in chief. Nevertheless, he ruled on the authority of Harris v. New York,
I. Miranda Warnings by the Concerned Group.
We disagree with the defendant’s contention that the failure of his kidnappers to apprise him of his Miranda rights requires suppression of all statements made on December 9. In Miranda v. Arizona,
Nevertheless, the defendant argues that the “connection” among the kidnappers, the father, and Gawlinski “clothed the actions of the kidnappers with police authority.” Again, we disagree. Of course, the police may not accomplish through private proxies what they cannot do directly. If the defendant had shown that the group of kidnappers was “functioning as an instrument of the police” (United States v. Brown,
1. Since the Miranda rules are not apposite to the statements
There is no easy acid test for voluntariness. Judicial determinations must rest on more than a “mere color-matching” comparison of analogous cases. Reck v. Pate,
2. These principles apply even though the statements were extracted by private coercion, unalloyed with any official government involvement. We have not squarely decided this point previously, but it is implicit in our decisions in Commonwealth v. White,
Underlying the above-cited decisions in this jurisdiction and other jurisdictions is the fundamental recognition that a statement obtained through coercion and introduced at trial is every bit as offensive to civilized standards of adjudication when the coercion flows from private hands as when official depredations elicit a confession. Statements extracted by a howling lynch mob or a lawless private pack of vigilantes from a terrorized, pliable suspect are repugnant to due process mandates of fundamental fairness and protection against compulsory self-incrimination. See People v. Berve,
3. When, as in the instant case, several statements given at different times by the defendant must be evaluated for voluntariness, a finding that an earlier statement was involuntary does not necessarily require suppression of the later statements. “The admissibility of the later
Two lines of analysis emerge from the case law and guide our analysis of the voluntariness of the defendant’s post-4:15 statements. We are still required to look to the “totality of the circumstances.” Clewis v. Texas,
Pursuant to our order of January 8, 1975, the judge has filed supplementary findings addressing the issue of voluntariness as elucidated by these lines of analysis. After a detailed recitation of the evidence and the facts found by him, he concluded that the post-4:15 p.m. statements made by the defendant to his abductors were voluntary and admissible. We believe such a conclusion was warranted.
a. Break in the stream of events. The judge quite correctly ruled that statements obtained by the concerned group from the defendant prior to the departure from the cabin were involuntary because “induced by threats, duress, intimidation, fear, and at least some violence (the original striking of the defendant at Mt. Ida).” The defendant, held incommunicado (see, e.g., Rogers v. Richmond,
After the group had left the cabin, even the vestige of coercion inherent in the group’s control over the defendant’s person vanished. Numerous opportunities for escape were presented to the defendant. The defendant eschewed these opportunities, though, as the trial judge found on ample evidence,
Rather, he acted like a man who felt sufficiently in control of his circumstances to make a free choice. Initially, he refused to go down to the burial site, but he agreed when armed with the only weapon then in evidence. Even then, he exercised his will and halted short of the precise site. He gave Ferreri directions to the body and, while Ferreri searched, engaged in casual incriminating conversation with Heard. His statements to Heard exhibited a bravado and lack of fear which were indicative of mental freedom of action.
Given the opportunities for escape, the lack of physical restraint, and the defendant’s possession of the weapon, we believe that the judge had ample justification for his findings that the defendant’s statements and actions were not products of coercion exerted after he left the cabin. These factors separate the later statements from the coercive circumstances surrounding the earlier ones. Cf. Clewis v. Texas,
b. Cat out of the bag. The cat-out-of-the-bag line of analysis requires the exclusion of a statement if, in giving the statement, the defendant was motivated by the belief that, after a prior coerced statement, his effort to withhold further information would be futile and he had nothing to lose by repetition or amplification of the earlier statements. Such a statement would be inadmissible as the direct product of the earlier coerced statement. The primary exposition of the underlying proposition by the United States Supreme Court occurs in United States v. Bayer,
Mr. Justice Harlan returned to the point in his opinion (concurring in part and dissenting in part) in Darwin v. Connecticut,
The evidence supports the supplementary finding of the judge that there was “no cat out of the bag’ aspect to . . . [the defendant’s post-4:15 p.m.] statements and actions.” The judge was warranted in finding that the defendant did not yield further information out of a conviction that his first coerced statement had damned him and in finding that subsequent admissions were not attributable to a feeling that nothing further would be lost by repetition. As the judge found, the defendant “evidenced no fear of culpability” after the statements in the cabin and did not believe what he said in the cabin would have serious adverse effects.
In these circumstances, we cannot say, contrary to the judge’s findings, that the post-4:15 statements and actions were involuntary because they were products of earlier statements. Cf. United States v. Gorman,
4. In holding the post-4:15 statements made to the abductors admissible, we do not in any way approve the illegal and reprehensible manner in which they were
Having said this much, we must add that it is also the duty of this court to follow settled rules of law in its review of the facts of the case found by the trial judge. It is settled (and undisputed) that an appellate court cannot disturb the judge’s findings of subsidiary facts if they are supported by the evidence. In like manner, this court may not draw inferences contrary to those of the trial judge which were derived from his subsidiary findings and from oral testimony. See Glover v. Waltham Laundry Co.
In the instant case, none of the dissenters is willing to say that the judge below was plainly wrong in his findings. Each purports to accept the basic “historical or subsidiary facts” found below but then reaches a result inconsistent with the trial judge’s factual finding that the defendant was “completely free from fear” after the encounter with the hunters. Justice Kaplan returns to the record in order to divine the defendant’s state of mind throughout the period following the departure from the
Is it now open to this court to disregard the trial judge’s findings and to come to a contrary conclusion? We think not. A decision as to the voluntariness of the defendant’s admissions involves determination of his state of mind at the time they were made. State of mind is a question of fact. See Kelley v. Jordan Marsh Co.
This is not to say that merely because the judge disbelieved the defendant’s testimony he could, without additional evidence, find the reverse to be true. His finding of the reverse must be supported by other relevant evidence. Here there was extensive testimony, as fully delineated elsewhere in this opinion, tending to demonstrate the change of mood and relationship found by the judge below. It was more than sufficient to sustain the government’s burden of proof. The judge’s finding of voluntariness must stand.
III. Statement to the Police at Hospital — the Harris os. New York Problem.
1. The judge quite properly suppressed all statements made to the police in the Massachusetts General Hospital on December 10 for purposes of the prosecution’s case in chief. Police conduct at the hospital was clearly inconsistent with the standards for custodial interrogation established by Miranda v. Arizona,
The Miranda safeguards encompass more than a simple explanation to a suspect that he has a right to remain silent and a right to counsel. The suspect must “be afforded the opportunity to exercise these rights throughout the interrogation. . . . [H]e . . . [is] entitled to know of his counsel’s availability and, with that knowledge, to make the choice [to forgo the benefits of counsel] with intelligence and understanding.” Commonwealth v. McKenna,
Nevertheless, we hold that the defendant’s statements, if voluntary and trustworthy,
In Harris v. New York, the defendant took the stand and denied having sold heroin to an undercover officer. On cross-examination, he was asked whether he had made certain statements
In Oregon v. Hass, the court again spoke to the issue whether evidence obtained by the police without strict compliance with Miranda standards was admissible for impeachment purposes. After his arrest for bicycle theft, Hass was given the Miranda warnings. He admitted that he had stolen two bicycles but was uncertain which one was the subject of the investigation. He and a police officer then departed for the place where he had left one of the stolen bicycles. On the way, Hass commented that he “was in a lot of trouble’” and wanted to telephone his attorney. The police officer replied that Hass could use the telephone after they returned to the “office.” Thereafter, Hass guided the police officer to the bicycle and pointed out the locations of the houses from which he had stolen the two bicycles. At trial, Hass’s statements to the police officer after his request for counsel were admitted only as to the credibility of his testimony. The Oregon Court of Appeals reversed his subsequent conviction and the Supreme Court of Oregon affirmed the reversal. The United States Supreme Court, on the authority of Harris v. New York, reversed. The court reiterated its concern that exclusionary rules could “free [the defendant] from the embarrassment of impeachment evidence from . . . [his] own mouth” (Oregon v. Hass,
We believe the Harris and Hass exception to the exclusionary rule of Miranda and like cases permits introduction of the defendant’s statements (if they are voluntary and trustworthy) to impeach his direct testimony. Functionally,
We are not persuaded that factual distinctions between the instant case and Harris and Hass are sufficient to shift the balance struck in the two Supreme Court cases between impeachment of perjurious testimony and deterrence of improper police conduct. The exclusionary rules fashioned in Miranda and like cases
Accordingly, we hold that, as in Hass, the interest in impeachment of perjurious testimony here outweighed the interest in deterrence of police misconduct and that those of the defendant’s statements which were voluntary and trustworthy were properly available to impeach his testimony if he had taken the stand.
2. We think the judge was warranted in finding that the statements made by the defendant to the police at the hospital were voluntary.
Further, we believe that the trial judge found correctly that the police interrogation, itself, did not overbear the defendant’s will and did not extract an involuntary statement from him. The trial judge found the following significant subsidiary facts on ample evidence. The defendant is an intelligent and educated young man. See Commonwealth v. Pratt,
In these circumstances, we cannot say that the statements which finally emerged were involuntarily given. Accordingly, the statements were properly ruled available for impeachment of testimony under the rule of Harris and Hass.
IV. Review Pursuant to G. L. c. 278, § 33E.
Having determined that there was no constitutional error in the admission of evidence at trial, we turn now to the additional review of the record and law which is our duty in all capital cases.
The record before us contains little direct evidence from which a finder of fact could construct an account of the events which immediately preceded the victim’s death. There were no witnesses to the conversation and violence between the victim and the defendant. The jury undoubtedly reached their verdict, a verdict warranted by the evidence, by drawing a chain of inferences from the relationships among the witnesses, the defendant and the victim and from the defendant’s statements and actions immediately before and simultaneously with the discovery of the body. The principal direct evidence concerning the killing, the defendant’s admissions to members of the concerned group in the cabin and to the police in the hospital, was, of necessity, excluded from the trial and had no place in the jury’s deliberations. This evidence, itself, is suspect because of the coercive circumstances in which the admissions were elicited (see Jackson v. Denno,
Nevertheless, despite this relative paucity of reliable direct evidence concerning the victim’s death, we believe that justice requires that we reduce the verdict of murder in the second degree to manslaughter. The thrust of the evidence is that the killing lacked the element of malice aforethought necessary to support a verdict of murder.
In reaching this conclusion, we rely in large measure on the account of the killing given by the defendant to the concerned group in the cabin. Although this evidence was correctly excluded from the jury’s consideration, it may be considered by us in the exercise of our
Although other reconstructions of the events of that night are possible and some will support a finding of malice, we have accepted the defendant’s story, in so far as it precludes a finding of malice aforethought and suggests an accidental, unintended death, because it comports well with the other evidence concerning the defendant, the victim, and their relationship. The defendant appears to be a reasonably normal, mature and intelligent engineering student.
The case is remanded to the Superior Court where the verdict of murder in the second degree and the sentence previously imposed are to be vacated. A verdict of guilty of manslaughter shall be entered and sentence shall be imposed thereon.
So ordered.
Notes
We omit mention of motions to suppress which are not at issue in this appeal.
See, however, n. 20, infra.
On occasion, we refer to additional facts developed at the voir dire hearing.
The judge chose to reject much of the testimony given by the defendant at voir dire and preferred contradictory testimony given by his captors. The judge was not required to believe the defendant’s account. Commonwealth v. Rogers,
The scope of review by the United States Supreme Court is at least this broad. See, e.g., Haynes v. Washington,
Initially, the defendant claimed that he and the victim had not met the night before as planned. Under further questioning, he admitted that he had seen her but said that he had left her at a ramp of the toll road to New York where, he said, she was going to have an abortion. When pressed further, he altered details of this story as well.
This is described in somewhat greater detail at p. 678, infra.
On one occasion, the larger group was assembled in the parking lot of the Sears store in the Fenway district to scour the area for clues or the victim’s body.
This incident precipitated the cessation of communication between Gawlinski and the father which lasted until the discovery of the body in December.
In this respect, the judge found convincing the evidence that neither Ferreri nor Fontacchio knew where he was going when Fisher drove to the cabin, that the cabin was locked, that the group had to force an entry, and that the entire area was “knee-deep in snow.” The judge concluded that Fisher was “the father of the thought” to take the defendant to Worthington.
This was the first weapon used by any member of the group. There was some uncorroborated testimony that either Ferreri or Fontacchio had had a gun, but the judge disbelieved it.
The trial judge found, and his conclusion appears amply justified, that escape at that time would have been impossible. The defendant had poor vision without his glasses. Even if he had succeeded in escaping from the cabin without drawing Fisher’s attention, he would have faced the intractable problem of securing assistance in an isolated, snowbound area on a cold night.
Fontacchio and Jay Heard arrived with breakfast at 10 a.m.
In his testimony at voir dire, the defendant denied having made the incriminating statements. He admitted that, as a means of getting back to Boston, he had said that he would take the young men to the body. He testified that in fact he had known nothing about the body and implied that the young men knew its location and were seeking to fasten guilt on him. He sought to explain some of his conduct by testimony that the concerned group had said they were holding his brother hostage.
The time interval from roughly 2 p.m. to 4:15 p.m. is not well accounted for in the voir dire record.
The judge’s finding in this respect is principally based on Ferreri’s testimony.
The defendant’s mother told Gawlinski in the presence of other officers that the defendant’s attorney wished to speak to Gawlinski.
During the course of questioning, the defendant was moved from a room he shared with three other patients to a corridor, and thence to a private room.
For example, the defendant objected to the stenographer’s presence and he was dismissed.
We omit mention of the numerous assignments of error which have not been argued and are deemed waived. See p. 666, supra. We also omit mention of one assignment of error which, though it was argued before this court, considered by us and found to be without merit, has not received extended discussion herein below.
He also ruled that these statements “amounted only to admissions” (emphasis in original) and, as such, were not entitled to the full safeguards accorded confessions under Massachusetts law. See n. 24, infra.
The judge attributed this lapse to Gawlinski’s disgust over the incident.
The defendant’s reliance on Gambino v. United States,
Moreover, each of the cases relied on by the defendant is a Fourth
The judge found that the statements made after 4:15 p.m. “amounted only to admissions and not confessions because they did not amount to an ‘acknowledgment of guilt of the entire crime charged’” (emphasis in the original). See Commonwealth v. Haywood,
This proposition is now established as a constitutional right. The different view expressed in Commonwealth v. Johnson,
Arguably, the Supreme Court’s position is implicit in Bram v. United States,
One example is Ferreri’s testimony concerning the defendant’s statements to him after the incident with the hunters. As recounted by Ferreri, these statements reflect the defendant’s awareness of, and express rejection of, the opportunity for escape presented by the appearance of the hunters.
See Goldsmith v. United States,
See, further, Harrison v. United States,
Actually his statements were somewhat exculpatory and indicated that the death was accidental.
The judge found that the defendant “had a wish to get things off his chest . . . and was very relieved after he gave his first statement in the cabin in Worthington.”
We do not deal separately here with the question whether the defendant’s post-4:15 statements and actions, including those leading to the discovery of the body, were the “fruits” of the earlier involuntary statements. See Silverthorne Lumber Co. v. United States,
“The smile, the blush, the harsh or soft voice, the shrug, even the dilation of a pupil may send a message and alter the tone of the trial. Myriad subtle communications of our bodies are lost in the stenotype machine.” Weinstein & Berger, Weinstein’s Evidence (1975) iv.
The question of voluntariness is considered infra. The defendant does not explicitly challenge the availability of these statements on the
He did not testify at the trial before the jury.
The statements had been suppressed for purposes of the prosecution’s case in chief.
In Michigan v. Tucker,
The facts in Hass bear strong resemblance to those in Escobedo v. Illinois,
We emphasize the functional similarity of the rights at issue because the cases, though analogous, proceed on a variety of different theories. In the instant case, the defendant claims abridgment of rights under the Fifth, Sixth, and Fourteenth Amendments. Hass was decided on Fifth and Fourteenth Amendment grounds. The Harris opinion mentions only Miranda (and no specific constitutional amendment) and seems to foreshadow the description of Miranda warnings as prophylactic rules in Michigan v. Tucker. See n. 37, supra.
Compare, however, the rationale for exclusion of coerced confessions given at p. 680, supra.
See the opinion of Jackson, J., in Watts v. Indiana,
In Hass, the Supreme Court termed this a “speculative possibility.” Oregon v. Hass, supra, at 723.
In the interest of brevity, we limit our examination of the balancing test to Hass. However, we note that Harris also supports our holding here. See United States ex rel. Wright v. LaVallee, 471
There was no claim of involuntariness or coercion in either Harris v. New York,
This is the discussion of Westover v. United States, one of the consolidated cases.
The statute defines a “capital case” as one in which “the defendant was tried on an indictment for murder in the first degree and was convicted of murder either in the first or second degree.” G. L. c. 278, § 33E.
We have said repeatedly that the statute “requires us to consider the whole case broadly to determine whether there was any miscarriage of justice” (emphasis supplied). Commonwealth v. Cox,
“But where death ensues from acts or means which, under the circumstances, could not have been supposed to endanger life or to inflict great bodily injury, the law will not imply malice, because it cannot be reasonably inferred that the party charged intended the consequences which flowed from his act. If therefore death should ensue from an attack made with the hands and feet only, on a person of mature years and in full health and strength, the law would not
The judge below implicitly found this.
Statements about the defendant’s prior life must be limited by the state of the record, which is relatively uninformative in this respect. We assume the accuracy of the statements in the text in the absence of contrary information.
At trial, the assistant district attorney termed the killing a “cold, calculated murder” and asked the jury to return a verdict of murder in the first degree. In support of his request, he directed the jury’s attention specifically to the love beads worn by the victim (acquired while she was in California), to the lengths of rope which bound the body in two places, to the blanket in which the body was wrapped, to the grave in which the body was buried and to the defendant’s silence for fifteen months about the circumstances of the victim’s death. While these facts may support an inference of premeditation and preparation, they certainly do not provide substantial proof of an intentional killing.
Dissenting Opinion
(with whom Wilkins, J., joins, dissenting). The record of this case discloses a dangerous vigilantism, not to be condoned even if it began out of understandable feelings of frustration. The response of the police detective in charge of the official investigation to these private activities was maladroit or worse.
I
This case must be the first in our jurisprudence in which incriminating statements, made by a kidnapped person to his kidnappers while still in their grip, have been adjudged to be acts of free will. How does the court justify such an extraordinary conclusion here?
All members of this court accept the basic facts — the historical or subsidiary facts — as found below. The dispute is as to the conclusions to be drawn from those facts, a matter on which this court, as an appellate court dealing with constitutional rights, is required to make its own independent judgment. See Commonwealth v.
That the statements given up to 4:15 p.m. of December 9 were coerced, is not disputed. But we have to sum up the circumstances of that coercion because they bear on the defendant’s situation when he made the further statements two hours later.
A large number of hostile pursuers, all the more fearsome because not quite identifiable, had been harassing the defendant over a period of fifteen months, making threatening appearances at unpredictable times at his home, school, and places of work. The insistent surveillance broke out into episodes instinct with violence. Toward the end the defendant would have ground for believing that his tormentors had already convicted him of murder and sought only an opportunity to enforce their own law. Finally came the kidnapping at Mt. Ida. The physical hurt was compounded by the uncertainties of a long trip to an unknown destination. Arrival in the dead cold of winter at an isolated, snowbound place must further have shaken the defendant. The threat of the bread knife was upon him throughout the night.
Starting in the early morning and for some six to eight hours the defendant was questioned by three and then five antagonists whose determination to break him may have been intensified by an apprehension that they could not “justify” the kidnapping, if called to account for it, unless they managed to extract some tangible results. This may have underlain the severity of the questioning: in any event, it was extended, repetitious, nagging, interspersed with extremely rough language and threats to take the defendant’s life, threats that he would never leave the place alive. In confronting this inquisition, the defendant was alone, without benefit of friends or advice. At length, the defendant’s will was broken. He made incriminating statements to Ferreri and Campbell.
In light of the natural conclusion from the subsidiary facts that the defendant remained under the heel of the kidnappers through the 6:30 p.m. statements, it may be unnecessary to apply those tests which have been used in more doubtful cases to measure how far coercion or illegality has been attenuated by later events. But if those tests are applied here, the conclusion is reinforced.
As to whether there has been an insulating “break in the stream of events” between successive statements, the cases point to certain central, objective considerations. Among these — besides the elementary question of the length of time between the statements, here quite short — are the factors: whether in the interval the defendant
Next, as to “cat-out-of-the-bag,” we observe that by 4:15 p.m. the defendant had already made statements involving himself in the death of the victim; he had not divulged the exact location of the grave, but he had given up its approximate location. The main secret was out. There is nothing to suggest that the defendant knew that under the law his statements to that point were inadmissible; indeed, such mention as the defendant is supposed to have made of his chances in case of trial indicate that he thought his statements could and would be used against him. But if he believed that his first statements were beyond recall — and realistically they were, regardless of their exact legal position at trial — the defendant would see little point in withholding the rest of his story. So the conclusion is well justified that the coercion which produced the pre-4:15 p.m. statements was also the cause of the post-4:15 statements. And here, to repeat, we have the added, overriding factor that the defendant was under great continuing pressure to make the final disclosure of the gravesite as a means of getting free of the kidnappers.
My assessment of the subsidiary facts seems to me within the reasoning of the passage from Mr. Justice Jackson in United States v. Bayer,
There is analogy in a case decided by the Supreme Court last term, Brown v. Illinois,
In the present case, the problem for the trial judge, and for this court in following him, was how to reconcile a conclusion that the defendant’s statements after 4:15 p.m. were voluntary, with (a) the earlier conceded coercion by the kidnappers, (b) the effect on the defendant’s mental state of his having made the initial confession, (c) the determination by the kidnappers, well understood by the defendant, to hold the defendant until he completed his confession by revealing the gravesite, and (d) the kidnappers’ possession and control of the defendant until he actually did so. The trial judge and the
All this behavior does not lead to the inference that the defendant was free of compulsion or of its effects; on the contrary, his behavior is entirely consistent with a broken will and indeed is to be expected from one in that condition. As was said in a case where a defendant had been intimidated and beaten by private parties and shortly thereafter made statements to the police: “Torture destroys not only physically but psychologically. Ele
In evaluating the historical facts to reach a conclusion, we should recall that it is not the defendant’s burden to establish that his statements were coerced; the burden is on the government to prove the contrary, that the statements were freely willed. Jackson v. Denno,
II
The police conduct surrounding the questioning of the defendant at the M. G. H. on the morning of December 10 violated the defendant’s constitutional right to the assistance of counsel. The trial judge so held, and the court concedes the point. When the questioning began, Detective Gawlinski, in charge of the case,
Nevertheless, the trial judge ruled that the statements obtained at the hospital could be used for impeachment purposes if the defendant testified in his own defense, and the court affirms. I think the ruling is not required by the decided cases and is fundamentally wrong. I could, with some difficulty, sympathize with such a decision if the violation of constitutional right involved was accidental or of a minor or technical nature. Here it was deliberate and of serious consequence.
We followed Harris v. New York in Commonwealth v. Harris,
The court argues also from Oregon v. Hass. That case posed the question (in the words of the Supreme Court): “When a suspect . . . states that he would like to telephone a lawyer but is told that this cannot be done until the officer and the suspect reach the station, and the suspect then provides inculpatory information, is that information admissible ... for impeachment purposes . . .?”
The Supreme Court avoided characterizing the police violation of Hass’s rights as either accidental or deliberate. If the sketchy facts are read as implying that the police acted in good faith, or at least without design to evade the Constitution, then the case is like Harris v.
In Michigan v. Tucker,
Emphasis on the importance of good-faith behavior of the police, as a factor in decision as to admitting or rejecting a suspect’s statement, appears also in Brown v. Illinois,
Presumably this court disagrees and sees in Hass more than a casual misprision in that the police continued the patrol car on its course to the area of the crime, rather than turning it back to the station, at the moment when the suspect stated his desire for counsel. This court then takes the Hass case a step further and reads it as covering also as aggravated a situation as we find in the case at bar.
Hass, if interpreted to cover intentional interference by the police with suspects’ access to counsel, would en
It is said that permitting impeaching use of the statement furthers the truth-seeking function because only defendants bent on perjury will refrain from taking the stand through fear of being impeached. But the rule would in practice operate also against suspects who are trying to tell the truth throughout. Even one attempting to be as truthful as possible may recall certain facts incorrectly or fail to recall other important ones: the time after arrest is confused and pressure-filled; there is indeed
This court is, of course, at liberty to adopt a higher standard than that which the Supreme Court has applied to the States under the Federal Constitution. See Cooper v. California,
To conclude: The lawlessness of the “concerned group” is here matched by official lawlessness. Both brands of anarchic behavior deserve solemn rebuke. Out of the welter came a trial so beset by error that the conviction should be reversed and judgment entered for the defendant.
See n. 9, infra.
At part II, section 4, of its opinion, the court chides this dissent for refusing to accept the trial judge’s findings and in effect adopting contrary findings. The criticism is misdirected and ignores constitutional requirements. As will be evident, we do indeed differ from the trial judge in his “finding” (quoted by the court) that the defendant was “completely free from fear.” But to call that and similar statements by the trial judge subsidiary findings and thereby to foreclose reexamination of them here would subvert the process of review in constitutional cases. Those statements are merely reformulations in other words of the judge’s conclusion that the defendant acted voluntarily after 4:15 p.m., and are the very constitutional issue that must be reassessed by this court. Particularly pertinent is the closing remark in the following passage by Hennessey, J., concurring in the Murphy case, cited in the text: “[T]he ultimate findings and rulings of a judge may give rise to a meaningful appeal, even in a case where his subsidiary findings are beyond practical challenge. This is true because the ultimate conclusions of a judge on identification issues may be of constitutional proportions. This court must, where justice requires, substitute its judgment for that of a trial judge at the final stage. . . . The mere recital of appropriate phrases denoting constitutional acceptability may serve only to obscure error in admitting the evidence.”
The court said in Napue: “The duty of this Court to make its own independent examination of the record when federal constitutional deprivations are alleged is clear, resting, as it does, on our solemn responsibility for maintaining the Constitution inviolate. Martin v. Hunter's Lessee,
See the distinction suggested in Commonwealth v. McGarty,
See, further, Stewart, J., in Harrison v. United States,
It may serve in some measure to explain the trial judge’s error in admitting the post-4:15 statements, that in his original findings he omitted entirely to deal with the factor of “cat-out-of-the-bag” and paid insufficient attention to the factor of “break in the stream of events.” Accordingly, this court entered an order directing the trial judge to address himself to these two factors. The judge’s “supplementary findings” do not add to the subsidiary facts and asseverate his earlier conclusions without adding any fresh appreciation of the defendant’s predicament before or after 4:15 p.m.
This court took a similar approach in Commonwealth v. Spofford,
That Brown and Spofford both relate to an inquiry into the lasting effect of a Fourth Amendment violation, while the case at bar involves a Fifth Amendment violation, is of no consequence for our inquiry, as the court appears to recognize. See, supra, 688, n. 32.
This warming of the pursued toward his pursuer appears in imaginative literature in the relation of Jean Valjean to the detective Javert in Les Miserables, and of Raskolnikov to police inspector Porfiri Petrovich in Crime and Punishment.
Gawlinski’s earlier connection with the case sheds light on his actions and motivation during the hospital interrogation.
Gawlinski knew of the extensive surveillance of the defendant by the concerned group and he also became aware of the exacerbated incidents such as the one at Henry F. Bryant & Son, Inc., which ended in a physical encounter, with Ferreri or Fontacchio saying, “George, we know what you did and you’re going to pay for it,” and “You think you got away with it this time but you didn’t — we’ll get you,” or words to that effect. Yet Gawlinski took no decisive action against any of this activity. His attitude is further illustrated by an incident that occurred in July, 1971. Arthur M. Pascal, a private investigator employed by the father of the victim, learned that Erwin
In fact, Detective Sheehan, who did participate in the interrogation, also knew that counsel had been trying to reach Gawlinski.
See Michigan v. Tucker,
See Harris v. New York,
The concurring opinion of Mr. Justice Powell, in which Mr. Justice Rehnquist joined, developed at some length the distinction between “technical” and “flagrant” violations of the Fourth Amendment and the consequences of the distinction on the admission or exclusion of statements later given.
The flagrancy of official misconduct as a determinant of whether a statement should be suppressed is also adopted by the A.L.I.’s Model Code of Pre-Arraignment Procedure (1975 Approved Draft). In § 150.3 (1) and (2), the Code takes the position that “[a] motion to suppress a statement . . . [obtained in violation of the Code’s procedural protections which include right of access to counsel] shall be granted ... if the court finds that the violation upon which it is based was substantial .... A violation shall ... be deemed substantial if . . . [t]he violation was gross, wilful and prejudicial to the accused. . . .” According to § 150.3 (3), a violation, not meeting the foregoing test, may nevertheless be found substantial if it satisfies another definition of which material elements are “the extent of deviation from lawful conduct,” and “the extent to which the violation was wilful.”
Watts v. Indiana,
The egregiousness of Hass, if it is taken to extend to permitting the use for impeachment of statements gained by deliberate denial of the right to counsel, is shown by comparing it with a rule that would apply Harris v. New York to allow impeaching use of statements gained by deliberate denial of proper Miranda warnings. If the latter rule were in force, the police would still have significant incentive to give the warnings, since many suspects give statements, which are fully admissible, after being given warnings. But in the situation of deliberate denial of the right to counsel there is no deterrance whatever of the illegal police conduct, since, as noted, an attorney if given access to his client will advise him to make no statement.
Compare United States v. Hale,
Dissenting Opinion
(dissenting). I dissent. I cannot concur with the majority of the court in its conclusion that the defendant’s admissions made in and near the Sears parking lot subsequent to 4:15 p.m. on December 9, 1971, were properly received in evidence. Although it is clear from the record that the trial judge conducted the proceedings with extraordinary competence and thoroughness, and with full appreciation of the constitutional issues, I do not believe that his ruling which permitted the introduction of the evidence was constitutionally permissible. Due process of law required the exclusion of the evidence.
As to the second principal issue, whether the defendant’s statements to the police at the hospital were admis
1. In light of some of the differences between the majority view and the dissent of Justice Kaplan, particularly as expressed in part II, section 4, of the majority opinion, I feel compelled to explore the standards of appellate review which should be applied by this court on issues such as are presented here. It is necessary to decide what standards are appropriate, not only in the hope of reaching the correct result in this case, but also for the sake of evenhanded justice in similar appeals. This court must have regard for two obligations in particular: its responsibility as an appellate court to reverse for errors of law, and its responsibility to defer where appropriate to findings of fact as made by the triers of fact at the trial level.
A defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, on an involuntary confession. Rogers v. Richmond,
In order to meet the constitutionally required standards of admissibility the burden is on the Commonwealth to
Where the facts are disputed, the resolution of such conflicts is for the judge and the appellate court must accept his findings. It is not for the reviewers to reconsider decisions of fact, since those decisions concern appraisals of the credibility of witnesses. This author, in a concurring opinion in Commonwealth v. Murphy,
However, the appellate court is bound to review the ultimate conclusions of a judge where those conclusions
Mr. Justice Harlan, quoting from Watts v. Indiana,
2. Examining the ultimate issue of voluntariness here, I conclude that the admissions
The judge found that the defendant was assaulted, kidnapped, threatened, and interrogated for hours. He
It follows that I cannot accept the contention of the majority that this court is bound by the judge’s ultimate conclusion of voluntariness, or any inference of his that is synonymous with voluntariness or so broad as necessarily to import a conclusion of voluntariness (e.g., the finding that the defendant was “completely free from fear” after his encounter with the hunters).
Considering all the circumstances of the more than twenty hours of captivity, and accepting all the judge’s subsidiary findings, I do not believe the case permits a conclusion that the Commonwealth has proved by a fair preponderance of the evidence that the defendant’s statements at any time on December 9 were free of the influence of duress, fear and hopelessness caused by his captors.
The ultimate conclusion as to voluntariness requires the application of constitutional principles to facts. It is a conclusion which partakes of policy considerations and as such “is not a matter of mathematical determination. Essentially it invites psychological judgment — a psychological judgment that reflects deep, even if inarticulate, feelings of our society.” Haley v. Ohio,
As was stated in Lyons v. Oklahoma,
However, although I concur with Justice Kaplan that the admissions of the defendant should have been excluded, I cannot concur in his entire reasoning. It is neither necessary nor desirable for this court to reach affirmative findings of fact, substantially contrary to the findings of the trial judge.
3. I concur in Justice Kaplan’s dissenting reasoning that the statements of the defendant to the police at the hospital should have been excluded, even for impeachment purposes. I do not believe that Harris v. New York,
Both the majority opinion and the dissenting opinion of Justice Kaplan express special concern for the threat to individual rights inherent in vigilantism. This is not to say that the defendant’s rights are any greater because he was a victim of private persons rather than police officers (compare the statement by Kaplan, J., supra, that “constitutional protections should have been accorded to the accused with particular scruple”). Nevertheless, it is a fair inference that the threat of vigilantism to constitutional rights is particularly acute at this time of greatly increased violent crime and resulting widespread fear and frustration. It is worth noting that several of the most popularly received recent books and moving pictures dealt with (and, it can be contended, glorified) violent self-help of the kind shown in the instant case.
The evidentiary and constitutional question of voluntariness is not to be confused with the issue of reliability (truth or falsity) of the confession, which is for the jury’s decision. See Jackson v. Denno,
Similarly, the burden of proof is on the government to establish the reasonableness of a warrantless search (Chimel v. California,
Both the majority opinion and Justice Kaplan’s dissenting opinion in this case refer to this concurring opinion in the Murphy case. See in particular n. 2 of Justice Kaplan’s dissent.
I note that neither the majority opinion nor the dissenting opinion makes any point of distinguishing “admissions” from “confessions” in the constitutional context concerned here. In this I concur; it would be specious to indulge in variant reasoning or results based on such a distinction.
See, e.g., in Justice Kaplan’s dissenting opinion, supra, the following findings: “On these facts, I conclude that the defendant’s acceptance of the condition that he reveal the gravesite was as much coerced as his initial statements”; “His statements at the Sears parking lot were thus made within a continuing constraint and compulsion”; “[T]he defendant remained under the heel of the kidnappers through the 6:30 p.m. statements”; “So the conclusion is well justified that the coercion which produced the pre-4:15 p.m. statements was also the cause of the post-4:15 statements”; “And here, to repeat, we have the added, overriding factor that the defendant was under great continuing pressure to make the final disclosure of the gravesite as a means of getting free of the kidnappers”; “[H]is further remarks to Heard were nothing but self-comforting braggadocio”; “Rather, the most modest conclusion that emerges from the facts is that the post-4:15 p.m. statements were substantially conditioned and influenced by the coercion directed at the defendant throughout the period during which he was held.”
Concededly other courts, including the Supreme Court of the United States, have approached some cases substantially as Justice Kaplan has treated this one.