*1
A judgment to be entered by single justice declaring pursuant to St. 1969, 800, c. 6, § interim rate is to be to the paid plaintiff the freeze during period of 22, November 1969, through 1970. June
So ordered. George Wayne vs. Mahnke. February Suffolk. 1975. October 1975. C.J.,
Present: Tauro,
Hennessey, Kaplan,
Reardon,
Braucher,
Quirico,
& Wilkins,
JJ.
Evidence,
confessions,
Homicide.
Admissions and
Acceptance or
rejection
Law,
of testimony. Constitutional
Admissions and
confessions,
counsel,
law,
Assistance of
process
Due
Waiver of
Practice,
rights.
Criminal,
constitutional
counsel,
Assistance of
case,
Capital
Findings by judge. Waiver.
persons
give
Failure of
who were not law enforcement officers to
Arizona,
warnings
(1966),
set
made *2 any harmful to the defendant vehemently conduct opposed who liberty, prosecute anyone to interfering with his threatened law, plan, foreknowledge no of the abduction had violated the had the abductors. spoken never to and at the time thereof [677- 678] kept citizens under surveillance group” that a “concerned of Evidence and him boyfriend missing girl the of a took finally
and abducted remote, him six questioned cabin for over isolated and there to a him in the by implicating and obtained coercion statements hours death, unspeci- to girl’s proposal and a lead the abductors the to interrogation stopped and all body, fied of her that the then site ceased, left the hostility and that when the abductors intimidation vanished and he was vestige with him even of coercion cabin fear,” he op- free from that eschewed numerous “completely soon on to portunities public trip and to draw attention escape site, there, holding only weapon the burial and that then evidence, gave he a abductor to the site and friendly directions a fear to incriminating with bravado and lack of made statements abductor, a dire by judge, another warranted conclusions a voir for of that hearing prior boyfriend girl, to trial murder incriminating his by statements made defendant to abductors leaving products his actions after cabin were not of coer- and voluntary [679-686]; J., were Kaplan, cion but and admissible [705]; dissenting, J., joined J., with whom Wilkins, Hennessey, appellate with a standards of review dissenting, statement of the . [723-725]. a boyfriend missing girl by that the had been Evidence a abducted remote, a group” “concerned of citizens and taken to isolated by implicating where coercion obtained him they cabin statements accidental, death, he was “had girl’s in the which declared that he get things very wish to off his . . and after a chest . relieved” statements, he made the that all coercion then ceased and left boyfriend, subsequently abductors the cabin with the culpability” no fear of and disclaimed fear “evidenced murder, statements would lead to his conviction of coerced friendly he had become with one of the abductors warranted by at a dire of the judge, hearing prior conclusions voir trial murder, leaving incriminating for boyfriend that after the cabin his in- by made the defendant to abductors were not statements by a he had duced belief that because of coerced statements voluntary admis- already cat-out-of-the-bag, let the but were J., dissenting, J., whom [686-691]; Wilkins, with Kaplan, sible [705]; J., dissenting joined Hennessey, [722].
Commonwealth v. Mahnke. An appellate may findings court not disturb facts subsidiary made
by evidence, trial and supported or draw inferences contrary to those of the trial judge which were derived from his Incriminating statements in a hospital subsidiary findings and from oral testimony. police by [691] boyfriend
girl whose had body just dead been found properly sup- were pressed at a hearing prior voir dire to trial the boyfriend for purposes prosecution’s murder case in chief reason of conduct, particularly respect with but uncon- available counsel, tacted clearly inconsistent with the standards established Voluntary by the Miranda case. trustworthy [691] but incriminating statements made in a
hospital murder, to police by a subsequently indicted for suppressed which were properly pre-trial at a voir dire hearing *3 chief, for prosecution’s of the case purposes ruled properly were by judge hearing the at such be impeach to available to the de- testimony fendant’s if he should take stand the at the trial where it appeared that before the the questioning police gave him warnings, the Miranda his parents that knew that had but, engaged attorney an represent halting to him of instead the inquiry, intermittently asked for his parents and continued to arrive, questions selectively answer when they did not and that he gave response attorney an uncertain when informed that his wished [691-697]; J., dissenting, to see him with whom Wil- Kaplan, J., joined [705]; J., dissenting [722]. kins, Hennessey, e murder, hearing finding a dire prior by At voir to a trial for a th incriminating hospital statements defendant in the a police after shortly body voluntary the victim’s was found were was warranted appeared where it that the statements were not the product of previous coerced statements or of a feeling having let the cat-out-of-the-bag, that before questioning commenced the police rights informed the defendant and he of Miranda had an opportunity intelligent, consult with his he was family, that educated, alert, and and physically mentally that the were and questioning unduly protracted, courteous the was not and that the defendant maintained some control the session chose over and questions which he reply; judge properly would ruled voluntary impeach statements were available to de testimony if he should take fendant’s the stand at trial [697- 700]; J., dissenting, J., joined with whom Kaplan, Wilkins, [705]; J., [722], dissenting Hennessey, 33E, capital review of a case c. Upon under G. L. this court § decided that justice required the verdict murder the second degree be and a of guilty manslaughter vacated verdict be where entered the thrust the evidence indicated that killing
Commonwealth t>.Mahnke. argument occurred after an aforethought, lacked malice and defendant, when she boyfriend, her between the victim and and slap impulsively which he answered provoked him with a hand, fell whereupon she angrily single blow of his with curb, hit it appeared her head and where was killed when normal, intelligent mature reasonably defendant was violent or previously student had never manifested who lawless tendencies. [700-704] Superior Court in the found and returned Indictment 15, 1971.
on December suppress were heard Pre-trial motions to evidence McLaughlin, him. and the case was tried before C.J., sought Appeals Court,
After review in the Supreme Court, initiative, ordered on its own Judicial appellate direct review. (Mario him)
Gerald Alch Misci with for defendant. Flanagan, Attorney, A. Newman Assistant District the Commonwealth. issues The events which frame central Tauro, C.J. illegal legal
in this arise from case efforts family victim) young (the and friends of a woman provide explanation mysterious disappearance for her an September body 9, 1971, her of 1970. On December parking grave lot was discovered in a shallow near the *4 Fenway (Sears) Sears, Roebuck and Co. store boyfriend defendant, area of The of the Boston. degree. victim, was indicted for her murder in the first suppress, alla,1 trial, Before the defendant moved to inter 1971, (1) 9, statements he had on December made group” members of a “concerned of citizens who had interrogated imprisoned (2) him, and certain abducted, light through evidence which had come to information (3) statements, in the contained aforementioned given hospital the fol- from a bed statement lowing judge day. lengthy dire, voir the trial After a part granted them and denied the defendant’s motions mention of motions are not at issue in suppress which We omit appeal. this
Commonwealth v. part. The defendant was convicted of murder in the degree second imprisonment. was sentenced to life present appeal, In the under G. 278, 33A-33G, L. c. §§ argues specific assignments four error, chiefly judge related to the refusal of the to exclude from the trial all evidence obtained as a result of his abduction subsequent police interrogation. We delineate these assignments of error particularity with more below.2 assignments Other error, included in the defendant’s “Assignment Errors,” argued have not been briefed or appeal in this and must be deemed waived. Common- Baker, ante, wealth v. (1975), 58, 61 and authorities January by cited. 8, On 1975, our order we directed the judge trial supplementary to make findings respect with voluntariness of the statements made the de- fendant on December supplemen- 10, 9 and 1971. These tary findings duly February were filed on 12, 1975, and, on the defendant’s motion, we allowed submission of further briefs directed supplemen- to issues raised tary findings. briefly outset,
At the subsidiary we summarize the facts developed reported at the voir dire and in the careful and supplementary findings detailed expe initial and judge.3 rienced accept, trial must, We as we the trial judge’s conflicting testimony4 (Common resolution of Valcourt, wealth v. 706, Mass. [1956]; Com Femino, monwealth v. 508, 352 Mass. 513 [1967]; D’Ambra, Commonwealth v. 357 Mass. 262-263 2See, however, n. infra. occasion, On we refer to developed additional facts at the voir
dire hearing.
chose to reject
testimony given by
much of the
defendant at voir dire and preferred contradictory testimony given by
captors.
The judge
required
was not
to believe the defendant’s
Rogers,
Commonwealth account.
351 Mass.
(1967),
cert.
*5
Femino,
den.
Commonwealth v.
(1967).
The Police Investigations. On September her the victim’s day following disappearance, parents to the Boston who her reported police, disappearance In the course of undertook an investigation. immediately was twice inter the defendant investigation, early viewed detectives from division of the Boston police. by been The did not that a crime had com suspect mitted, did but the victim was they hiding suspect somewhere in the Boston area and that the defendant had she was which he of where knowledge hiding, were aroused refused to Their divulge. suspicions several stories which the defendant told in inconsistent the events of September interrogation regarding interview, The second held previous evening.6 24 with the defendant’s had September attorney present, whether, and in as its a discussion of purpose primary Court is at least scope Supreme of review the United States Washington, See, e.g., Haynes U. S. 515-516 this broad. Carolina, v. North 741-742 (1963); Davis had not that he and the victim Initially, defendant claimed he questioning, as further night planned. met before Under a ramp he had left her at he had seen her but said that admitted that said, where, have going she was New York of the toll road to further, story of this as he altered details pressed an abortion. When well.
Commonwealth v. might circumstances, what the defendant take a lie fact, detector test. In the defendant never took the test. police investigation The continued, but failed to discover disappearance the cause of the victim’s or her early Stanley December, location. In 1970, Detective (Gawlinski), Gawlinski attached to the office of the attorney County, assigned district for Suffolk case repeated urging on a full time basis. After (the father) victim’s arranged meeting father Gawlinski with the defendant for December 22 in the law office of attorney. presence defendant’s defendant, The in the attorney, relationship of his described his with the victim repeated story police the last he had related to the on September April, again 16. the father’s suggestion, arranged Muddy Gawlinski to have River in Fenway dragged body. area for the victim’s When proved unavailing, this search Gawlinski conceded that consigned he had exhausted his leads and the case to the attorney’s inactive file at the district Thereafter, office. only sporadic Gawlinski maintained contact with the family investigations victim’s and limited his to leads supplied by persons. which were interested Even this August, limited contact ceased in after an un- pleasant reprimanded conversation in which he the father attempt7 by young question for an some men to place defendant at his of work. Throughout Private the course of the Efforts.
investigation, impatient the father and his son were with police investigations unwilling place sole reliance private on them. The father worked with three investi gators voluntary large and utilized the assistance of a 100) family (perhaps many number as as neighborhood group friends, friends. Of these a core styled group” friends, the son’s the “concerned judge, persistent were the most workers. Included in the group Gary Fisher, Ferreri, concerned were Frank James greater p. This is described in somewhat detail at infra. 368 Mass. v. Mahnke. Campbell Joseph (Jay) (Jay)
Fontacchio, John the defendant. participants abduction of Heard, in the principally8 private directed toward were efforts pattern designed program to determine of surveillance *7 Ultimately, the surveil- movements. of the defendant’s put opportunity provide program used to an lance would questions under conditions to the defendant attempts to compel responses. a number of There were September, 1970, question before In the defendant. police, disappearance father and reporting campus sought North- on the of out the defendant son questioned University, student, where he was eastern Fenway district, in on tour of the him, and took him a supposed, which, met or was could be the defendant it night September 15. On of have met the victim on the subsequent occasions, the concerned members of two University group defendant at Northeastern accosted the attempted, unsuccessfully, In to detain him. group, December, 1970, members the concerned two Campbell, appeared reception area Fontacchio and attorney the office the defendant’s while meeting between the defendant and Gawlinski was in progress inquired was within. whether the defendant They later followed the defendant and his mother.
August, were thwarted in Ferreri and Fontacchio attempt an the defendant in the office of to confront Henry Bryant Son, Inc., he was a summer F. & where employee.9 8, 1971, On the defendant
The Abduction. December young College Mt. Ida in order to meet drove to Junior woman He with whom he had date. arrived about occasion, parking was assembled larger group On one clues to scour the area for Fenway lot store in the district Sears body. or the victim’s between the cessation of communication precipitated This incident body discovery of the which lasted until Gawlinski and the father in December.
Commonwealth v. group, consisting 7:30 A surveillance father, p.m. Fisher, Fontacchio, Ferreri and followed him in two cars. parked After the defendant had his car and entered a building, Ferreri and Fontacchio concealed themselves in heavy foliage near the defendant’s car. When the emerged defendant returned to car, Ferreri from the grabbed bushes, question the defendant, and demanded to struggled him. As the himself, Ferreri, to free “big, strong, husky youth,” described aas struck him eye. near the glasses. left The defendant fell and lost his approached guided Fontacchio and he and Ferreri de- fendant into the back seat an Oldsmobile. The father, who had moved from the Oldsmobile to the second engine car, raced the to divert attention from the help. defendant’s calls for While Fisher drove the Olds- *8 mobile, Ferreri maintained a headlock on the defend- ant so that his head was below the level of the front seat. With the restraint, under defendant secure Fisher hunting drove to Worthington, his uncle’s cabin in part Massachusetts, State, in the western the miles College. Though from Mt. Ida the surveillance Junior night undoubtedly for the of December had been prearranged, judge persuaded the was and found the that remote, idea to remove the defendant to isolated hunting “spontaneous unpremeditated.”10 cabin was and reaching gained cabin,
On the Fisher entrance breaking pane glass. placed was The defendant on door, in a couch the room from the front and ice farthest packs applied and snow were to the severe bruises on his ap- face which had resulted from Ferreri’s blow. At proximately departed 11:30 Ferreri and Fontacchio p.m. 10In respect, judge convincing this the found evidence that the neither Ferreri nor Fontacchio knew where he was when Fisher going cabin, locked, to group drove to the that cabin was that had entry, “knee-deep force an and that the entire area was snow.” thought” The “the father to judge concluded that Fisher was Worthington. take the defendant 368 Mass. v. Mahnke. he knife11which Fisher, a bread armed with
for Boston. the room with defendant, remained exhibited to the they dozed interm judge found that the defendant. The ittently. Interrogation on the commenced the defendant Jay Campbell 6 a.m. Ques- about return of Ferreri with tioning by group13 six hours. for over continued nothing. The During time, the defendant admitted that repetitious questioning The inter- and insistent. was occasionally rough language rogators extremely used satisfied, was the defendant’s life. threatened Finally, applied. physical at however, that no force he the defendant said that approximately 12:30 p.m. Camp- speak Ferreri alone. Ferreri wanted wanted to present and the defend- bell further conversation finally agreed. ant defendant, two, with these after
Alone in room receiving harmed, be re- assurances he would pertaining her death: He met lated facts victim’s stop night September near Sears on 15 at a bus pregnant and store. she told him she was When responsibility father, he was the denied having California. accused her of relations with a man in slapped She and he her retaliation. She him struck lay curb, After fell, motionless. hit her head on the her, failed revive mouth-to-mouth resuscitation her realized she was dead. He carried down *9 group. weapon by any 11 This was the first used member testimony There was some that either Ferreri uncorroborated gun, judge had had a disbelieved it. Fontacchio but found, amply justified, his judge appears The trial and conclusion impossible. The defendant escape that at that time would have been glasses. vision his Even if he had succeeded poor had without attention, drawing he would from the cabin without Fisher’s escaping in an iso problem securing faced the intractable assistance have lated, night. snowbound area on a cold breakfast a.m. Heard arrived with Jay
13 Fontacchio Commonwealth v. Mahnke. hill to wrapped tracks, some abandoned railroad her in a dug grave there, blanket he found a shallow with his shoes, specify and buried her. The defendant declined to body say only the exact location of would gravesite was in the area near the Sears store. How- willing ever, group body.14 he was to lead interrogation The ceased once defendant had made judge spirit these statements. The found that a supplanted hostile, relative friendliness the former strained relationship captors. between the defendant and his The expressed having finally relief at disclosed his Campbell secret and referred to Ferreri and as friends. group persuaded When the rest returned, Ferreri the others to trust the defendant to lead them to the body. They up departed tidied the cabin and for Boston about 4:15 p.m. group emerged
As the from the cabin with the defend- Tyler, hunters, ant it encountered two David the chief of police Worthington, and Reino Liimatainen. Earlier day, Tyler stopped and, in the had at the cabin without identifying questioned himself, had Fisher about his occupation Though partially of the cabin. Fisher had Tyler right Tyler there, satisfied as to his to be had suspicious. Tyler remained somewhat At 4:15 p.m. questioned again. Liimatainen, Fisher once har- who suspicions, slipped bored his own shells into the chambers shotgun and, voice, said, of his in a loud “If there is funny your guts will blow business I out.” dire, In his testimony at voir the defendant having denied made that, the incriminating He statements. admitted as a means of getting Boston, back he said had that he would take the young men to the body. He nothing testified that fact had known body about the implied men its young seeking knew location and were guilt sought explain to fasten on He him. some of his conduct testimony they holding the concerned had said group were hostage. brother p.m. p.m. 15 The time roughly interval from to 4:15 is not well accounted for the voir dire record. *10 Mass. 662 v. Mahnke. including defendant, party, found that the entire group hunters’ under the was hear this and that the could allayed Tyler’s evidently point. Fisher at this “control” episode again, ended with suspicions for the once they driving away left, group’s As in two cars. gotten “See, Ferreri, I have could
defendant remarked to away to, I didn’t.”16 if I wanted but Sears Ferreri to drive to the
The defendant directed approximately parking They arrived in darkness lot. 6:30 p.m. gravesite as an to Ferreri
The defendant described spur overgrown below a railroad area near an abandoned Metropolitan grouping District in a of three windows Ferreri, alone, walked shed. Commission maintenance gravesite, find the a hill the tracks. Unable to down parking had lot, where the others he returned to the defendant, have to remained, and told the “You will refused and stated come down with me.” The defendant they place “spooked” kill was and that would him if he there. Heard handed the defend- went down pocketknife protection. Whereupon, Ferreri ant defendant, started down was followed who proceed open refused to held the knife. The defendant grave, point but he did out its the full distance to the parking then returned to the location. The defendant Campbell, joined Ferreri, ascer- Fontacchio and lot. body place buried at the indicated. tained that a point a to a short Ferreri then drove the distance from home. searching track area the Ferreri had been
While momentarily time, the defendant found himself first acknowledged casually had that he alone with Heard and question Heard, response from to a killed the victim. consequences about the he said that he was not worried witnesses would be hostile whose because the abductors on Ferreri’s finding respect principally in this based The judge’s testimony.
Commonwealth v. Mahnke. testimony up court, would not stand and because his grandmother lawyer would hire a certain well-known get who would expected him off. Asked how he had to get away replied time, with it the the defendant that thought September he had the rainfall on 15 would prevent police dogs discovering body. from
Subsequent Events: Police Reinvolvement. Sometime evening, group family notified the victims body her had been found. About 11:30 the father p.m. telephoned just Gawlinski, who had returned home from attending studying University, classes and at Northeastern body, gave described the location of the a somewhat cryptic, incomplete leading up account events to discovery. telephone After Gawlinski finished his father, conversation with the his wife informed him that attorney the defendant’s had tried several times to reach night. attorney’s him that Gawlinski did not return the partner private calls. He informed his in the case a investigator body the father had hired had been delay, gravesite. and, discovered after some drove to the About 3 a.m. Gawlinski and other officers to went they proceeded there, defendant’s home.17 From to the Hospital, Massachusetts General where the defendant had patient. hospital, been admitted a as At the after se- curing permission speak to defendant, two officers police stenographer went to his room18 with a while Gawlinski remained downstairs. interrogated
The defendant was from 3:30 a.m. until questioning police gave 7:30 a.m. him, Before warnings. defendant the Miranda The defendant did request respond precise question counsel or to warnings. whether he understood the at On least four 17The defendant’s mother told in the of other presence Gawlinski officers that the defendant’s attorney speak wished to Gawlinski. During questioning, the course the defendant was moved from corridor, three patients room shared with other and thence private room. Mass. 662 o. Mahnke. parents present. Never- occasions, have his he did ask to questioning. The theless, their continued questions; respond others were some did not halting found that manner. The answered in a intelligent and some discrimination defendant showed interrogation.19 Ultimate- control over the course *12 which, ly, allegedly a statement defendant made the story to the he had related substance, reiterated the group the cabin. concerned interrogating 10, December the About 7:30 on a.m. hospital Gawlinski at and met
officers left Daley, Sergeant them, 8:30 a.m. one of entrance. At the defendant’s statement. down his recollection of wrote morning, following 11, was December the defendant The discharged hospital. was on from the He indicted December 1971. Principal Assignments After Error.20 Motions and of judge hearing suppress, the
the voir dire on motions to had made ruled that all statements which the defendant prior departure party kidnappers from to his suppressed at 4:15 and inad- the cabin were to be p.m. they product coer- trial were the missible at because significance respect, judge no cion. this attached by private coerced was defendant that the fact to the persons by police. However, later he ruled that and not kidnappers actions and “statements and statements to the discovery body leading of the deceased to the evening early of Decem- . . . Sears [the in] near store ber be admissible. These statements 1971” would voluntary and the result be actions he found to stenographer’s pres objected For example, ence and he was dismissed. of error which assignments numerous We omit mention of the 666, supra. p. See argued have been and are deemed waived. not which, though of error it assignment of one We also omit mention court, found to be with by considered us and before this argued merit, herein below. has not received extended discussion out
Commonwealth v. Mahnke. exercise of the defendant’s “free will.”21 The defend- assigns ruling ant this as error. suppress
The defendant also moved to
the statement
allegedly
police
made
him to the
at the Massachusetts
Hospital
morning
General
on the
of December
1971.
knowingly
that,
ruled
as the
had
denied
the defendant the benefit of
counsel,
advice of his
statement was not admissible in the Commonwealth’s
Nevertheless,
case in
authority
chief.
he ruled on the
York,
(1971),
Harris v. New
I. Miranda
the Concerned
*13
disagree
We
with the defendant’s contention that the
kidnappers
apprise
failure of his
him of his Miranda
rights requires suppression of all statements made on
December 9.
Arizona,
436,
Miranda v.
(1966),
Supreme
444, 461
Court formulated a series
prophylactic
Michigan
(see
Tucker,
rules
v.
417 U. S.
[1974]), designed
433, 443
privilege
“to secure the
against
overreaching
self-incrimination” from
and coer-
during
interrogation.
interroga-
cion
custodial
Custodial
“questioning
tion was defined as
initiated
law enforce-
person
custody
ment
after
has been taken into
officers
deprived
or
otherwise
of his freedom of action in
significant way” (emphasis supplied).
v.
Miranda
supra,
Arizona,
White,
at 444.
v.
Commonwealth
353
(1967),
409,
Mass.
415-416
cert. den.
368 Commonwealth v. not law were case, the kidnappers In the instant em- citizens were private They
enforcement officers. The Miranda rules do an illegal enterprise. barked on See United States v. to their activities. not extend Antonelli, au- 335, 337 Cir. 1970), F. 2d (2d 434 Bolden, States v. 2d United 461 F. cited; thorities Casteel, United States F. 2d 152 v. Cir. 1972); (8th Cir. 1973). (10th the “connec-
Nevertheless, defendant argues father, Gawlinski the kidnappers, tion” among with police “clothed the actions kidnappers course, Of the police we disagree. authority.” Again, what they proxies may through private accomplish had shown that If the defendant cannot do directly. instrument was as an “functioning of kidnappers group Brown, (United States 466 F. 2d v. police” Coolidge Hampshire, New Cir. cf. 1972]; [10th an U. S. as acting agent [1971]), statements from to a scheme to elicit police pursuant Commonwealth coercion or guile e.g., (cf., Martin, supra, White, 416; be would have to Mass. statements [1970]), Miranda How- for failure to give warnings. suppressed ever, facts we with the subsidiary agree dire the conclusion that at voir developed supported It defendant did not establish such a connection. worked with the victim’s is true that Gawlinski closely father in the initial of his investigation. (This stages *14 of the is true that he was aware to be It also expected.) and undertaken the concerned group surveillance and frustration of the father’s bitterness deepening aware awareness, order that, he did not and his despite from further investiga- to refrain father and associates himself to follow willing professed tion repeatedly Yet, when efforts uncovered. leads which private circumstances, these facts are insuf- in all the considered in, connivance and responsibility ficient to establish police vehe- for, 8 and Gawlinski the events of December 9. Commonwealth v. Mahnke. mently opposed any conduct which would harm the defendant or interfere with his He liberty. cautioned the father stuff” and threatened to against any “rough prose- cute who violated anyone the law. In August, after the incident at F. Son, Inc., Henry & Bryant Gawlinski the father. The reprimanded two harsh had words, and them, communication between which had been since sporadic April, until lapsed Decem- completely Moreover, ber 9.22 Gawlinski was not shown to have had foreknowledge and first kidnapping plan learned of its occurrence at 11:30 p.m. on December 9. In these circumstances, whatever despite encouragement have felt kidnappers may had received from they Gawlinski’s leads, talk about we possible cannot say acted as they agents instruments statements from extracting the defendant and that absence of Miranda warnings required suppression those statements.23 lapse attributed this disgust Gawlinski’s over the
incident. States, The defendant’s reliance on Gambino v. United Associates, (1927), Knoll Inc. v. Federal Trade Commn. 397 Gambino, 1968), misplaced. F. 2d 530 Cir. (7th In New York troopers cooperated extensively government State had with the Federal a period liquor over of months to control traffic at United States challenged border. The search and seizure in the case had been “solely undertaken purpose aiding for the the United States in the States, of its supra, enforcement laws.” Gambino United at 317. In Knoll Associates the court set aside an order the Federal Trade through because it was Commission based on evidence obtained “theft of on behalf of corporate government documents for use in against a then pending proceeding corporate owner of what was Associates, Commission, supra, stolen.” Inc. v. Knoll Federal Trade case, at 535. instant cooperation group between the concerned sporadic and Gawlinski had been at best. At the time of the abduc tion, he had spoken group never to members of the who abducted the had not spoken to the father for over three months. It could said not be that the abduction had as purpose its sole aid to the proceeding pending enforcement the law. There was no Indeed, against time officially defendant. no crime was then investigation. under Moreover, each of the cases relied on the defendant is a Fourth *15 679 662 368 Mass. v. Commonwealth of Post-4: 15 Statements II. Voluntariness Abductors. to the rules are not apposite 1. Since the Miranda abductors, to his made statements24 at trial of statements governed these admissibility Delle Chiaie of voluntariness. the due standard process v. 527, Davis Commonwealth, 367 Mass. 533 v. (1975). v. Carolina, 737, 384 U. 740 Procunier North S. (1966). 446, A conviction founded 400 U. 453 S. Atchley, (1971). are which the product in whole or in on statements part defend- of coercion deprives or psychological physical under the Four- of his to due of law ant right process and, as a is invalid. teenth Amendment consequence, Richmond, 534, 365 U. 540-541 v. S. (1961). Rogers Denno, 368, See v. 376 (1964). Jackson 236, Harris, v. 364 Mass. Commonwealth (1973). are of invalid the truth irrespective Such convictions case, right range protection for a implicating Amendment the full above, the rules are dimension. As noted Miranda constitutional of con- safeguard rights only prophylactic rules which themselves do not Amendment cases magnitude. stitutional These Fourth in this support extension of Miranda case. p.m. 4:15 made after the statements 24 The found that they did because only “amounted to admissions not confessions ‘acknowledgment guilt the entire crime to an not amount s v. in the See Commonwealth charged’” (emphasi original). 16, settled Massachusetts (1923). Mass. Under Haywood, 247 law, respect safeguards with a defendant is entitled to lesser he would admissibility exculpatory admissions and statements than if had amounted to a confession. Common have the statements 251, See Common Chapman, (1962). 345 Mass. wealth v. Dascalakis, (1923); Commonwealth 243 Mass. wealth Gleason, 17-18; Mass. supra, Haywood, (Com has been criticised Though this distinction Wallace, consider [1963]), we do not 346 Mass. monwealth v. deem correct the case because we continuing validity its in the instant post-4:15 concerning the defendant’s at trial of evidence admission appli stringent the more standards and actions even under statements de opinion, we refer to Thoughout this cable to confessions. as fendant’s admissions “statements.” *16 680
Commonwealth o. of the statements falsity admitted. “The use of coerced confessions ... is forbidden because the method used to extract them offends constitutional v. principles” (Lego 477, 404 U. S. Twomey, 485 [1972]) because “decla- rations procured torture other coercive [or means] are not from premises which a civilized forum will infer Oklahoma, v. guilt.” Lyons 596, 332 S.U. 605 (1944). Richmond, See v. Rogers 540-541; v. supra, Jackson Denno, at 385-386. supra, York, Cf. Stein v. New 346 156, U. S. 192 (1953). There is no acid test for easy voluntariness. Judicial
determinations must rest on more than a “mere color- matching” comparison Pate, cases. analogous Reck v. 433, 367 U. S. 442 case, (1961). each the court must assess the totality relevant circumstances to ensure that the defendant’s confession was a free and act voluntary and was not the product inquisitorial which activity had overborne his Texas, will. 707, Clewis v. 386 U. S. 708 Procunier v. 400 (1967). U. Atchley, 446, S. 453 and cases (1971), cited. Commonwealth, Delle Chiaie v. 527, 367 Mass. 533 See (1975). Schneckloth v. Busta- monte, 412 218, U. S. 225-226 The burden of (1973). is on the proof government show such voluntariness preponderance Denno, evidence. v. Jackson 368, 376-377 v. 404 Lego (1964). Twomey, 477, U. S. 489 (1972).25
2. These
even
the statements
principles apply
though
were extracted
coercion,
by private
with
unalloyed
official
involvement. We have
government
not squarely
decided this
our
but
it
point previously,
implicit
White,
decisions
Commonwealth v.
Mass.
417-418
cert. den.
Commonwealth v. Mahnke.
inadmissible
were
which
statements
after two
Wallace,
Mass.
Commonwealth
under Miranda),
to Canadian police),
92, 96-97 (1969) (statements
Martin,
Mass.
States has not
the United
spoken
Court of
Supreme
usual analysis
but
it has invoked
to the question26
while
was exerted by private persons
where pressure
See Thomas
in official custody.
was nominally
*17
citizen, a
Arizona,
U. S. 390
v.
356
(1958)
(private
who later confessed
of a
abused
prisoner
member
posse,
courts have
A number
State
to the authorities).
circumstances
due
analysis
process
applied
to a confession
claimed coercion leading
which
only
State, 244
227
Palmore
See,
v.
Ala.
private.
e.g.,
10 Ariz.
169 (1969);
v. Christopher,
State
App.
(1943);
Lawton v.
v.
Underlying is fundamental recognition tion and other jurisdictions coercion and intro- that a statement obtained through standards duced at trial is bit as offensive to civilized every flows from private when the coercion adjudication as elicit a confession. hands when official depredations mob or a lawless lynch Statements extracted aby howling terrorized, from vigilantes pliable private pack mandates of funda- are due suspect repugnant process self- against mental fairness and compulsory protection Berve, 286, 2d See v. 51 Cal. 290 People incrimination. (1958). When, case, statements
3. as in the instant several must be evalu- at different times the defendant given voluntariness, a that an earlier statement ated for finding does not suppression was involuntary necessarily require “The of the later admissibility the later statements. 26 Bram implicit is v. position Court’s Arguably, Supreme States, Com strongly which resembles United (1897), Wallace, supra. monwealth v. 368 Mass.
Commonwealth o. Mahnke. — confession the same depends upon test is it voluntary. Of course fact that the earlier statement was obtained from the coercion prisoner by be considered in the character of the appraising later confession. The effect of earlier abuse be so clear as to forbid may other inference than that it dominated the mind of the accused to such an extent the later confession is White, . .” . involuntary. 353 Mass. cert. den. 391 U. (1967), S. 968 (1968), quoting Oklahoma, from Lyons 322 U. S. It true, however, is equally have may been under no compulsion at time of the later state- ments and may have felt no effect earlier abuse at the time. The statements, then, later would be admis- sible. The United States Court has never held Supreme a confession under “making circumstances which use, its preclude disables the perpetually confessor from a usable one after those have making conditions been removed.” United States Bayer, U. S. *18 (1947).
Two lines of analysis from the case law emerge guide analysis our of the voluntariness of the defendant’s statements. are post-4:15 We still to look to the required Texas, of Clewis the circumstances.” v. “totality 386 Connecticut, 707, U. S. Darwin 710 v. 391 (1967). 346, U. S. 349 United States See v. Bayer, (1968). However, at 540-541. supra, these lines of analysis convenient, furnish commonsense to approaches ordering elements of the circumstan- evaluating necessary ces which bear on the voluntariness of later state- ments. In the line of first court must look analysis, events,” “break in the coercive cir- stream statements, cumstances which extracted earlier “sufficient to insulate the statement from the effect of [subsequent] Texas, all that went before.” Clewis v. at 710. supra, The focus of this line of is on external con- analysis straints, new, which have over- may continuing borne no the defendant’s will. When circumstances Mass. 662 v. Mahnke. defendant, has a break the stream coerce longer looks more line of analysis The second occurred. on the confession the effect of previous specifically admissible, state- To be subsequent defendant’s will. the erroneous product not be “merely ments may of the bag” out (Dar- that the cat was already impression win v. Connecticut, 391 U. S. [1968] [Har- coerced because one lan, concurring dissenting]) J., United let the secret “out for States good.” confession has Bayer, 8, 1975, the our order of judge Pursuant January the issue addressing has filed findings supplementary lines of analysis. as elucidated these by voluntariness and the recitation of the evidence facts After detailed p.m. state- him, he concluded that the found by post-4:15 his were made the defendant abductors ments such conclusion and admissible. We believe voluntary was warranted. events. The quite
a. Break the stream the concerned ruled that statements obtained by correctly from the departure from the defendant prior group threats, because “induced involuntary cabin were duress, intimidation, fear, and at some violence least (the at Mt. The de- striking Ida).” original held incommunicado v. Rich- fendant, Rogers (see, e.g., mond, violent, law- U. S. 536 [1961]) by Brown e.g., Mississippi, breaking captors (see, cabin, in a was sub- U. remote hunting S. 278 [1936]) and threats (see, continuous rough questioning jected Illinois, U. S. designed 528 [1963]) e.g., Lynumn extract his resistance and by psychological to overcome *19 These cir- freely. what he would give compulsion . . “so coercive . cumstances are inherently [their] the is irreconcilable with possession existence very . . . . . whom . against freedom [by mental person] bear.” force is brought full coercive [the] Ashcraft Pate, 143, 154 Reck v. Tennessee, S. 322 U. (1944).
U. S. 442
Commonwealth o. Mahnke. However, judge as the trial found on sufficient evidence, once the defendant had admitted his connec- hostility death, tion with the all and intimidation ceased. captors longer The defendant’s no threatened him or sought through rough to elicit further information their persistent questioning. peculiar relationship A of friend- ship and mutual trust seems to have arisen between though Ferreri and Thus, the defendant. the defendant captive group remained while the concerned discussed atmosphere move, their next of coercion had been dispelled large ato extent. group
After the vestige cabin, had left the even the group’s coercion inherent in the control over person opportunities defendant’s vanished. Numerous for escape presented were defendant. The defend- opportunities, though, ant eschewed these as the trial ample evidence,27 found on he “knew he could escape.” have an effected The defendant could have protest sign group made some range when the was within guns. warning “funny of the hunters’ about business,” Liimatainen, issued was an invitation outcry by the defendant. Yet he chose not to seek Similarly, trip assistance. Boston, on the back to attempt defendant made no to attract attention at the Turnpike through Massachusetts toll booths which the group passed. Campbell, While Fontacchio and group car, dozed, other members of the concerned in the friendly the defendant conversed in a manner with Ferreri, toll, the driver. At the Weston necessary part payment contributed because group Ferreri lacked sufficient funds. When the reached pass parking again lot, the Sears the defendant let example testimony One is Ferreri’s concerning defendant’s to him the incident with the As statements after hunters. recounted Ferreri, of, these statements reflect the defendant’s awareness of, express rejection opportunity escape presented by appearance of the hunters. *20 685 Mass. 662 368 o. Mahnke. escape attempt escape. opportunities He did not for mingle shoppers nearby with station or to MBTA not traversing parking have but did He could lot. public drawn have which would create disturbance plight. his attention to sufficiently in felt
Rather, like a man who he acted In- free choice. circumstances to make control of his go site, he itially, burial but down to the he refused to only weapon evi- agreed then in when armed with the will and halted short then, dence. he exercised his Even gave precise He Ferreri directions of the site.
body engaged searched, in- and, Ferreri casual while criminating His conversation with Heard. statements and lack of fear which were Heard exhibited bravado indicative mental freedom of action. opportunities escape, physical
Given the the lack of for weapon, possession restraint, and the defendant’s of the ample justification we believe had findings and actions were that the defendant’s statements products the cabin. not of coercion exerted after left separate These factors the later statements from the surrounding circumstances the earlier ones. Cf. coercive (1967). Texas, Clewis v. S. This U. Leyra (1954), Denno,
a case
as
Commonwealth v. post-4:15 did not coerce the or defendant render his p.m. involuntary. statements bag. cat-out-of-the-bag b. Cat out the The line of requires
analysis giving the if, exclusion of a in statement statement, the motivated the belief prior that, after a statement, coerced his effort to with- hold further information would be futile and he had nothing by repetition amplification to lose of the earlier statements. Such a would statement be inadmis- product sible as the direct of the earlier coerced state- primary exposition underlying prop- ment. The of the Supreme osition the United States Court occurs in Bayer, (1947). United States 331 U. S. 540-541 Mr. course, “Of wrote: after an accused Justice Jackson bag by has confessing, once let the cat out of the no matter inducement, what the he is never thereafter free psychological practical disadvantages having of the get bag. confessed. He can never the cat back in the good. The sense, secret out for In such a a later con- always may upon fession be looked as fruit of the first.” qualified However, Mr. his statement of Justice Jackson principle: gone “But this Court has never so far as making to hold that a confession under circumstances preclude perpetually use, which its disables the confessor making from a usable one after those conditions have been removed.” point opinion
Mr. Harlan returned to in Justice (concurring part dissenting part) in Darwin v. Connecticut, He wrote: 350-351 principal suspect why might “A reason make a second simply having already that, or third confession is con- might twice, fessed once or think he has little to lose by repetition. If a first confession is not shown to be voluntary, merely I do not a later confession that is think product be a direct earlier one should be held to good voluntary. It be neither conducive to would suspect, to a the erroneous work, nor fair allow nothing impression play major he has to lose to u. Mahnke. speak third a second or decision to a defendant’s role in proceedings, in for further I remand ... would time. prosecution opportunity give to show order to merely product of was not confession that the third already impression cat was out that the erroneous bag.” Id. at 350-351.29 supplementary finding supports of the The evidence bag’ aspect judge “no cat out there was post-4:15 statements and . . defendant’s to . [the p.m.] finding that the was warranted actions.” *22 yield out of a further information defendant did not damned first coerced statement had that his conviction finding subsequent admissions were in that him and feeling nothing further would be attributable to a by repetition. judge found, As the defendant lost culpability” “evidenced no fear of after statements did what he said in the the cabin and not believe cabin In his have serious adverse effects.30 conversation would Heard, fear that the with the defendant disclaimed made under coercion would lead to his con- statements good lawyer (specific) He viction. stated that a would testimony acquittal his abductors’ and secure his discredit thought any subsequent proceeding. may He have (Darwin Connecticut, S. he “little to lose” v. 391 U. had 346, 350 [1968] [Harlan, J.]) through further admis- previous of his sions, but not because he feared the use may thought to lose” statements. He have he had “little he not be con- based on an actual belief that could Perhaps thought kidnappers victed. that the believed story accepted that the victim’s death was acci- and dental. 29 States, See, further, 392 U. 226-228 Harrison United S. Harlan, dissenting J.); opinion and of the court
(1968) (opinion Gorman, (2d 1965), Cir. cert. 355 F. 2d United States Spofford, Cf. (1966). U. S. 1024 den. 384 (1962). Mass. exculpatory and indicated were somewhat Actually his statements accidental. the death was
Commonwealth v. Mahnke. statements post-4:15 actions to be appear attributable to the which the defend- peculiar friendship ant formed with Ferreri or to relief at having divulged his secret at last.31 Neither of these sentiments sentiment which the against cat-out-of-the-bag analysis Fear, would effects, continuation coercive guard. a sense of the cat back in futility attempting “get are the See bag” Darwin v. objects analysis. Connecticut, 350; States, Harrison v. United supra, U. S. 224-226 circumstances, these we cannot say, contrary judge’s findings, statements and post-4:15 actions were because involuntary were they of earlier products statements. Cf. Gorman, United States v. F. 2d 151, 157 Cir. cert. den. 384 (2d U. S. 1024 1965), (1966).32
4. In
statements made to the
holding
post-4:15
admissible,
abductors
we
do not
any way approve
manner
in which
were
illegal
reprehensible
they
31The
found
that the
“had
get things
a wish to
off
*23
. and
very
his chest . .
relieved
he gave
after
his first statement
in Worthington.”
in the cabin
32We
not
here
separately
question
do
deal
with the
whether
the
actions,
post-4:15
including
defendant’s
and
leading
statements
those
discovery
the
body,
to
were the “fruits” of the earlier involun
tary
States,
statements. See Silverthorne Lumber Co. v. United
States,
U. S. 385 (1920);
(1939);
Nardone v. United
obtained. Justice vigil- “dangerous on the focuses attention ment which such which indicates that evident in this case and antism” join vigilantism with him in not be condoned. We must kidnapping vigorous violence, condemnation of the by practiced of the concerned the members intimidation alleged Regardless group. of crime of the nature by defendant, can be there no have been committed conduct, justification conduct. Such for such unlawful illegality, contrary acceptable apart to all from its is It be norms of human behavior. cannot countenanced procedures law must form. The rule of and lawful be followed.
Having much, is said this we must add that it also the duty this in its of court to follow settled rules of law judge. review the the trial It facts the case found undisputed) (and appellate an is settled court cannot findings subsidiary they judge’s if are disturb facts supported manner, In the evidence. like this court contrary may not draw inferences to those the trial subsidiary findings judge which were derived from testimony. oral See Glover v. and from Waltham very Laundry 235 Mass. There is a Co. practical appellate real and reason for the rule: The or dire. court did not conduct the trial the voir It has neither heard the witnesses nor seen all of the evidence. appearance exposure demeanor on the It lacks the judge stand which assiststhe trial in his evaluation witness conflicting testimony. veracity and resolution of willing case, instant none of the dissenters wrong say plainly in his find- below was ings. purports accept Each the basic “historical subsidiary facts” found below but then reaches a result *24 judge’s finding the trial factual that the inconsistent with “completely defendant was free fear” after the en- from Kaplan to the counter with the hunters. returns Justice to divine defendant’s state of mind record in order the following departure throughout period the the the from
Commonwealth v. (contrary cabin. He judge’s concludes to the trial find- ings) that “the defendant remained under the heel of the kidnappers” parking and that his “statements at the Sears lot were . . continuing . made within a constraint and compulsion.” Hennessey, unwilling while to draw Justice these further inferences, nevertheless finds that proved Commonwealth has not the defendant’s voluntary by preponderance admissions were a fair of the judge’s evidence. He refuses to be bound “infer- synonymous . ence . . with voluntariness.” open disregard Is it now to this court to the trial judge’s findings contrary and to come ato conclusion? We think A not. decision as voluntariness of the defendant’s admissions involves determination of his state they mind the time were made. State mind is a question Kelley of fact. See Marsh Co. 278 Jordan (1932); Holiday, Mass. Commonwealth v. Mass. It can be established testimony through defendant’s direct reasonable proved inferences drawn from other facts and demeanor case, evidence. In the instant the defendant testified — directly precise question namely, at issue his state agreed of mind grave- at the time he to disclose the group. site to the concerned He testified he had agreed group body get to lead in order out group He cabin. claimed that members of the had told him that he would never leave the if cabin alive body. did Thus, not tell them the location it was engendered story cooperation his that fear his with his gravesite captors, his disclosure and his other testimony However, admissions. this cannot be of significance employed support here and cannot be contrary judge. The trial inferences to those of the trial judge, opportunity who had the to observe all testimony witnesses, evaluated defendant’s rejected the defendant on the it. observed appearance mannerisms; stand, tone of his and his voice and his attitude as he was examined and cross- *25 Mass.
Commonwealth o. Mahnke. general expressions de- and his examined; facial judge’s primary function on short, the meanor.33 trial defend- (voluntariness) was ascertain the to this issue — telling the truth as mind whether he was ant’s state of gave the decision to reveal he for his to the reasons judge, mind). gravesite trial (and to his The as state of testimony, necessarily found rejecting defendant’s the finding telling This was a he the truth. was not testimony defendant and of based on oral fact appellate court cannot find An other witnesses. contrary. merely judge say because the
This is not testimony could, without defendant’s disbelieved the His evidence, the reverse to be true. additional find finding supported by be other of the reverse must testimony, relevant evidence. Here there was extensive fully opinion, tending as delineated elsewhere in this change relationship found demonstrate the of mood judge the was more than sufficient to below. It government’s proof. judge’s sustain the burden of The finding of voluntariness must stand. — Hospital
III.
to the Police at
Statement
Harris os.
York Problem.
New
quite properly suppressed
all statements
1.
Hospital
General
in the Massachusetts
made
purposes
prosecution’s
case in
on December 10 for
clearly
hospital
incon-
chief. Police conduct at
interrogation
the standards for custodial
sistent with
Arizona,
Commonwealth Mahnke. none of the officers apprised defendant of his lawyer’s *26 efforts to to Gawlinski or speak informed the attorney that a custodial of his client was in interrogation progress. Gawlinski, who was most familiar with the case and who knew both that the defendant had had counsel for many months and that counsel wished to contact a urgently official, responsible police absented himself conspicuously from the The interrogation. stated that “conduct on the part officers heedless, was at least if prosecuting deliberate, not I and can conclude it was a only course of conduct calculated to . circumvent . . [the benefit, aid, constitutional to have the rights defendant’s] and counsel of his attorney.”
The Miranda more than safeguards encompass simple explanation to that he has a suspect remain right silent and a to counsel. right The must “be suspect afforded the to exercise these opportunity rights through out the . . . . interrogation. . . entitled to know [H]e [is] and, of his counsel’s with that availability knowledge, make the choice the benefits of with forgo [to counsel] Commonwealth intelligence understanding.” v. McKenna, cases, Mass. (1969). previous we have noted that not thwart police may counsel who seeks to v. Mc confer with client (Commonwealth Kenna, supra, at and have held 325-326) inadmissible statements elicited in the absence of counsel police after an has entered the case when no intention attorney al and waiver of the to counsel was knowing right proved v. (Commonwealth Murray, 359 Mass. 544-546 Cain, Commonwealth Cf. v. [1971]). Mass. 227-229 instant case, in the Similarly, defendant’s statements in were inadmissible hospital for the case in chief. prosecution’s
Nevertheless, we statements, hold that the defendant’s if were available trustworthy,34 voluntary impeach question considered The defendant voluntariness infra. on availability these statements explicitly challenge does 368 Mass. York, New testimony the stand.35 Harris if he took
his Oregon S. 714 Hass, 420 U. (1971), controlling. (1975), are York, the stand defendant took
In Harris v. New having undercover officer. heroin to an and denied sold he had cross-examination, asked whether he was On shortly police after made certain statements36 interrogation transcript showed arrest. The right to of his had not advised the defendant infringement Despite appointed at this counsel the time. supra, safeguards Arizona, (Miranda v. of Miranda Supreme 444), had Court that the statements held impeach properly testi- the defendant’s been admitted to *27 rejected argument mony. under The court against in the “evidence inadmissible an accused Miranda purposes.” prosecution’s for all case in chief is barred supra, York, view, Harris New at 224. In the court’s v. policy possibility consideration, a valid might testimony, outweighed perjurious deliver police measure of unconstitutional the extra deterrence to by might exclusion of such action which be achieved total Burger evidence. Mr. Chief wrote for the court: Justice “Every privileged testify in his criminal defendant is Indeed, the other evidence in they untrustworthy. are ground that Nevertheless, them. a claim untrustworthi- the case corroborates law, At common ness is in the claim of involuntariness. implicit of their were excluded from evidence because coerced confessions Evidence, p. 330 Wigmore, (a), untrustworthiness. 822 inherent § See, Gray Morey, v. e.g., 1970). rev. (Chadbourn 530, Myers, Commonwealth v. 160 Mass. (1854); 462-463 Though California, (1941). Lisenba (1894); of coerced con- for exclusion principal justification this is not Amendment, of the Fourteenth process due clause fessions under the of confessions unreliability probable Court has noted “the Supreme Denno, coercive.” in a manner deemed that are obtained Jackson S. 378 U. testify jury. at the trial before He did not prosecu purposes suppressed had been The statements case in chief. tion’s
Commonwealth o. Mahnke. own defense, or to refuse privilege to do so. But that cannot right be construed to include the to commit perjury provided by .... The shield Miranda cannot be perverted perjury way into a license to use of a defense, prior free from the risk of confrontation with inconsistent utterances.” Id. at 225-226. The court noted, however, that there had been no claim that the police involuntary statements made to were coerced or and that “the trustworthiness of the evidence [must] satisf[y] legal standards.” Id. at 224. Oregon again spoke Hass, the court issue police
whether evidence obtained without strict compliance with Miranda standards was admissible for impeachment purposes. bicycle theft, After his arrest for given warnings. Hass was the Miranda He admitted bicycles that he had stolen two but was uncertain which subject investigation. police one was the He and a departed place officer then for the where he left had one bicycles. way, of the stolen On the Hass commented that he in a “was lot of trouble’” and wanted to tele phone attorney. police replied officer that Hass telephone they could use the after returned to the guided “office.” Thereafter, Hass officer to bicycle pointed out the locations of the houses *28 bicycles. from which he had stolen the trial, two At police request Hass’sstatements to officer after his for only credibility counsel were admitted as to the of his testimony. Oregon Appeals The Court of reversed his subsequent Supreme Oregon conviction and the Court of Supreme affirmed Court, the reversal. The United States authority York, on the of v. New Harris reversed. The exclusionary court rules reiterated its concern that could [the defendant] “free from the embarrassment of impeachment . evidence from . . own mouth” [his] empha (Oregon [1975]) Hass, 420 U. S. 723 Harris, sized, as it had the valuable aid which the in provide jury in defendant’s statements would to assessing credibility. his Id. at 721. The court found no 695 Mass.
Commonwealth o. Harris, which situation in between the “valid distinction” of a a violation defective Miranda warnings, involved Hass, rule,37 which and the situation prophylactic full constitu- failure to afford suspect involved the that to exercise his attempt tional to counsel after right “ however, added, [i]f, that given The court right.38 case, abuse, that case, conduct amounts to the officer’s duress, be taken care may like those coercion involving standards the traditional of when it arises measured by Id. at and trustworthiness.” voluntariness evaluating 723. to the exclu- believe the Harris and Hass exception
We introduc- and like cases rule Miranda permits sionary are voluntary tion of the defendant’s statements they (if Func- to his direct testimony. and trustworthy) impeach in the the violation of the defendant’s rights tionally,39 in Harris instant case to analogous closely from case, In each stems rights Hass. the deprivation with counsel the failure of to provide suspect Tucker, held the court Michigan (1974), abridge did re “police at issue ... conduct [in case] compulsory self-incrimina privilege against spondent’s constitutional tian, standards later laid departed only prophylactic from the but privilege.” The Miranda safeguard down ... in Miranda requirement but are a constitutional warnings are not themselves “provide reinforcement for the “safeguards” designed practical Id. at 444. right against compulsory self-incrimination.” strong bear resemblance to those Escobedo The facts in Hass Illinois, argued which was on a Sixth and U. S. 478 (1964), counsel, theory. right Amendment The which the Fourteenth under the Fifth and Fourteenth sought defendant in Hass Amendments, is, to effectuate course, dignity. equal constitutional rights issue emphasize similarity the functional We cases, analogous, variety on a of different though proceed because case, abridgment the defendant claims theories. In the instant Fifth, Sixth, Fourteenth Amendments. Hass rights under the grounds. Fourteenth Amendment decided on Fifth and *29 specific no constitutional only Miranda opinion (and mentions Harris description of Miranda and seems to foreshadow amendment) 37, v. Tucker. See n. Michigan rules in warnings prophylactic as supra.
696
Commonwealth v. whom he was entitled. as Harris received no assist- Just ance from the counsel to whom he appointed was entitled and Hass did not have a timely to consult opportunity counsel whom he had so the requested, defendant here did not benefit from the assistance of counsel who wished urgently to reach him.
We are not that factual persuaded distinctions between the instant case and Harris and Hass are sufficient shift the balance struck in the two Court cases Supreme between impeachment and deter- perjurious testimony rence of improper conduct. The police rules exclusionary fashioned in Miranda and like cases40 deter “impermis- sible York, v. conduct” Harris police New at (see supra, from trial 225) evidence excluding any which was obtained. Tucker, 417 improperly U. S. Michigan 433, 447 Cf. United (1974). Calandra, States v. 414 U. S. An exception exclusionary rules in the instant case is no more an encouragement such misconduct of the deterrent slackening effects (or than are the rules) exceptions in promulgated Harris and Such Hass. be encouragement may thought to arise from the officer’s that a police knowledge lawyer will advise his client to make likely no statement while in and the further that a custody41 statement knowledge elicited in the be absence counsel will at least available Yet, Hass,43 for where impeachment testimony.42 and, thus, had counsel suspect actually requested however, Compare, con rationale exclusion of coerced fessions given p. supra. Indiana, opinion Jackson, See U. J., Watts S. “[A]ny lawyer will tell the (1949): suspect worth salt no terms no uncertain to make statement under circum stances.” 42 Hass, In “speculative possi Court termed this a Supreme Hass, bility.” supra, Oregon v. at 723. brevity, we limit the bal interest our examination of However, supports we note that Harris also ancing test to Hass. LaVallee, ex holding Wright our here. See United States rel. *30 697 662 Mass. 368 v. interrogation without for continuation incentive requirements, if were an there to constitutional adherence exclusionary exception rule, impeachment would to the maximum, held the interest the court be at a outweighed by deterring police conduct was such testimony. perjurious impeachment general interest police by contrast, not could case, In the instant attorney. see his ask to know that the defendant would attorney see his wished to If he had been informed that proceed might have chosen to him, — reject all, the the offer. After counsel to without warnings. police “given” the defendant his Miranda had parents engaged his an He aware of the fact that had represent open attorney him him. It was attorney. request inquiry In- time to halt the intermittently parents stead, asked his the defendant they questions and continued to answer when did uncertainty in the defendant’s arrive. view response attorney to the information that his wished exception exclusionary him, an rule in the see police presents instant case lesser incentives to misconduct present correspondingly Hass, and there is a than were exclusionary in an rule for deter- less substantial interest rence.
Accordingly, Hass, that, we as in interest in hold impeachment perjurious testimony outweighed here police the interest in deterrence of misconduct and that voluntary those of defendant’s statements which were trustworthy properly impeach were available to testimony had if he taken the stand. finding
2. think was warranted in We made the statements defendant to the at the voluntary.44 hospital were
F. 2d 414 S. United (2d 1972), (1973); 123 Cir. cert. den. U. 867 Russell, Pa. Padgett (E. 1971). rel. F. D. Supp. States ex in either Harris was no claim of involuntariness or coercion There Hass, York, Oregon U. (1971), S. New o,
Commonwealth Mahnke. Having post-4:15 concluded defendant’s p.m. statements separated to his abductors were from his earlier statements them a break in the stream of *31 events and that these later statements were not made bag, because the cat was out we believe that the hospital statements sufficiently in the separated were also from the coercive conditions which had extracted the statements in product the cabin and were also not the cat-out-of-the-bag effect. The statements in the hospital people, police were elicited different officers original place. uninvolved in the abduction, in a different Lyons Oklahoma, See v. 322 (1944). 596, U. S. 602 Cf. By Arizona, Miranda v. 384 (1966).45 436, U. S. 496 questioning hospital, the time of his in the the defendant opportunity had family had an (cf. to consult his v. Reck Pate, [1961]) 433, 367 U. S. 441 and had been out of the captors quite control (cf. of his some time Beecher v. Alabama, 35, U. S. 38 389 [1967]; Darwin v. Connecti- cut, [1968]). 346, 391 appear U. S. 349 It does not from the evidence that the statements in the cabin caused him police. to make admissions to the above, As noted the defendant did not believe his statements could be against interrogation used by police, him. In the he did immediately might confess, as a man who felt he had Hass, 714, However, above, Supreme U. S. 722. as noted “If, case, given Court wrote: in a the officer’s conduct amounts to abuse, case, duress, involving may like those coercion or be taken care of when it arises measured traditional standards for evalu- Id. at 723. We assume ating voluntariness and trustworthiness.” we deciding without the circumstances of this case would not distinguish involuntary admissions confessions for involuntary from Harris, Commonwealth v. See purposes impeachment. 364 Mass. 236, hence, Involuntary untrustworthy) 241 confessions (1973). (and, Common- are not to impeach testimony. admissible a defendant’s Kleciak, 679, wealth v. v. (1966). 350 Mass. 690 Harris, supra. States, This is the discussion of Westover United v. one of consolidated cases.
368 Mass.
Commonwealth v. control Rather, maintained some lose. nothing selected questions. answered only the session and over correctly found the trial Further, judge we believe that itself, did not overbear that the interrogation, state extract an involuntary did not defendant’s will and the following found The trial ment from him. evidence. on facts subsidiary ample significant man. See educated young an intelligent 708, Pratt, 713-714 360 Mass. (1972); Commonwealth v. 219, 239-241 314 U. S. (1941). Lisenba California, Alabama, 352 U. S. Cf., Fikes v. (1957); e.g., Arkansas, At the Payne nor neither dazed of his he was time interrogation, Denno, U. S. bewildered Leyra (cf. Alabama, 389 U. S. Beecher v. nor
[1954]), drugged (cf. *32 35, sick weak to resist questioning 38 nor too or [1967]), Sousa, 591, Mass. 598 v. 350 Commonwealth
(see [1966] ; cf. Reck v. Pate, 367 U. S. 433, 443 [1961]; Alabama, He was Beecher v. physically supra). to his eye, alert. Aside from
mentally
injury
or
showed no evidence of
disability
impairment
physical
mental
functions.
Before questioning
or
physical
commenced,
defendant of his
the officers informed the
Carolina, 384 U. S.
See Davis v. North
rights.
Miranda
737,
446,
400 U. S.
v. Atchley,
740
Procunier
(1966);
officers
During
questioning,
the defendant
did not
threaten
were courteous.
They
(cf.
Harris v. South
Carolina,
338 U. S.
68, 70
[1949]
mother]; Beecher
concerning
[threat
Alabama,
to induce admis
or attempt
supra,
36)
York, 360 U. S.
v. New
Spano
sions by deception (cf.
unduly
315,
was
questioning
[1959]).
Tennessee, or
(cf.
lengthy
prolonged
Ashcraft
Indiana,
S.
338 U.
Watts v.
143, 153-154 [1944];
U. S.
707,
Texas,
Clewis v.
49, 53 [1949];
[1967]
)
and,
throughout
questioning,
the defendant
control over the
the above mentioned
proceed
maintained
231,
Cook,
351 Mass.
ings (see
Commonwealth v. Mahnke.
[1966], cert. den.
In these say circumstances, we cannot that the state- finally emerged ments which involuntarily given. were Accordingly, the properly statements were ruled available impeachment testimony under the rule Harris and Hass.
IV. Review 278, to G. L. c. § 33E. Pursuant Having determined that there was no constitutional error in the admission of trial, evidence at we turn now to the additional review of the record and law which is duty capital our in all cases.46 General Laws c. 33E, through provides § as amended St. c. part, capital supreme judicial relevant “In a case . . . the court shall transfer court the whole case for its Upon consideration of the law and the evidence. such may, consideration the court if satisfied that the verdict against weight evidence, the law or the newly because of discovered evidence, or for other justice may require (a) reason that order a new trial or (b) degree guilt, entry direct the of a verdict a lesser *33 superior imposi- and remand the case to the court for the “gives power tion of sentence.” The statute us and duty by exercised a trial on a motion for new a (Commonwealth Baker, 107, trial” v. 346 Mass. [1963]) but also reserves for our consideration the represents a broader issue whether the verdict rendered degree guilt miscarriage justice of or a lesser of whether 46The defines a case” as one in which “the de “capital statute degree fendant was tried on an indictment for murder in the first and L. degree.” was convicted of murder either in the first second G. 278, c. 33E. § 368 Mass.
Commonwealth v. Mahnke. justice. Commonwealth consonant with would be more supra. Williams, 364 Mass. Baker, v. v. Commonwealth Jones, (1973). v. 366 Mass. 145, See Commonwealth power power (1975). is which This latter Baker, not have. Commonwealth trial court does supra. Bearse, 358 Mass. little direct evidence record before us contains
The an of construct account from which finder of fact could immediately preceded the victim’s the events which the conversation and no witnesses to death. There were The and the defendant. the victim violence between undoubtedly verdict, jury a verdict reached their by drawing by evidence, a chain warranted among relationships witnesses, inferences from the and defendant’s state- defendant and the victim from the simultaneously immediately ments and actions before discovery body. principal of the direct with the killing, concerning evidence the defendant’s admis- group cabin sions to members of the concerned in the necessity, hospital, was, in the place jury’s from the trial and had no in the excluded suspect evidence, itself, This because deliberations. the admissions were the coercive circumstances which (see Denno, U. 386-388 elicited S. Jackson implicit repudiation [1964]) subsequent testimony. his voir dire the defendant in admissions paucity despite reliable Nevertheless, this relative concerning death, we believe direct the victim’s evidence justice requires reduce the verdict of murder that we that in degree manslaughter. the second The thrust of killing of malice evidence is that the lacked the element necessary aforethought support verdict of murder. rely large reaching conclusion, measure this we killing given by the defendant to on the account of the Although group this in the cabin. the concerned correctly jury’s from the considera- evidence was excluded may exercise our tion, it be us in the considered *34 702
Commonwealth v. authority under 278, G. L. Common- § c. 33E.47 Cf. repeat (1970). Smith, wealth v. 168, 357 To Mass. 182 (see p. supra), story 671, that, the after defendant’s was argument, provoked an slap the victim him with a which impulsively angrily answered and with a return blow. unexpected Her death then followed in an manner as she fell and hit her head on the curb. This version of the support finding aforethought. events will not of malice specific The defendant never formed a intention kill to Rather, the victim. response he struck in almost-reflexive provocation, passion to her and such as he felt did not intensity Though achieve the aof desire to kill. undoubtedly injury intended inflict some on “palliated by deceased, this intention was mitigating (Com- existence . . . [the] circumstances” Mangum, repre- [1970]) 76, monwealth v. 357 Mass. 85 prior slap provocation. sented Nor could reasonably expected death be the defendant’s to follow “ ‘ ” [According experience’ blow. to common there is no “plain strong likelihood that will death follow’” a simple blow with the healthy hand administered — standing adult48 even if slippery, the victim is on 47 have repeatedly “requires We said that the statute us to consider broadly whole case determine whether there mis any was Cox, supplied). Commonwealth carriage justice” (emphasis v. 609, Gricus, Accord, Mass. Commonwealth (1951). Baker, 403, (1944); Commonwealth Mass. 346 Mass. Williams, (1963); 364 Mass. Moreover, 33E, provides G. L. c. this specifically that court § may entry direct the of a of a “if degree guilt verdict lesser satisfied weight law the evidence against verdict or other reason require” sup ... or for justice may (emphasis plied). which, “But where death from ensues acts means under circumstances, could have been life supposed endanger or to malice, bodily inflict will not great injury, imply law because it be inferred reasonably party charged cannot intended the If consequences which flowed from act. therefore death should ensue from an attack the hands and feet on a only, person made with full years strength, mature health and the law would not *35 703 Mass. 662 368 Mahnke. Commonwealth o. pavement. v. Man
rain-spattered See Commonwealth 245, Chance, gum, supra; 174 Mass. v. Commonwealth Gordon, 155, Mass. v. 307 (1899); Commonwealth 252 Gricus, 317 Mass. v. (1940). Cf. Commonwealth 158 battery is causes death (1944). which 403, 411 Such a Sostilio, manslaughter. 325 Mass. Commonwealth Campbell, 352 (1949). 143, generally, (1967). Perkins, A Re 387, See, Mass. Aforethought, 43 Yale L. of examination Malice J. (1934).
552-555 Although the events other reconstructions of finding night support possible are and will some story, accepted malice, in so far have the defendant’s we aforethought finding precludes as it malice suggests accidental, it death, an because unintended concerning comports the other evidence well with relationship. victim, The defendant, and their reasonably appears normal, mature to be a intelligent prior engineering In his life student.49 evening death,50 of the victim’s he had not manifested any prior had violent tendencies and had not relationship ongoing His with involvement with the law. characterized, duration and was the victim was of some Although by reciprocal the smooth seems, affection. it evidently relationship disturbed continuation of relationship trip California, with by her the victim’s consequent jealousy, there, the defendant’s man feelings record that in the there is no evidence inclination jealousy affectionate overmastered his had so any time have con- that he would the victim toward be malice, ordinarily would not caused imply because death Fox, Commonwealth Gray use of such means.” this. implicitly below found be limited life must prior about the defendant’s Statements record, respect. uninformative in this relatively which state of the absence in the accuracy in the text assume the of the statements We contrary information.
Commonwealth v. taking steps bring sidered Certainly, her about death. there is no substantial indication51 in the record that he meeting night went to their premeditated with the employ against intent to kill or to violence the victim. Cf. Kendrick, Commonwealth v. 351 Mass. 210-211 (1966). Further, there is no indication that their rela- *36 tionship had so deteriorated that he would have under- savagely taken to kill or object attack of his affections even if enraged being he had been asked to bear the — consequences infidelity her pregnancy. of In the relationship, context of story their the defendant’s of one hasty rings unfortunate blow true. Superior
The case is remanded to the Court where the degree verdict of murder in the second and the sentence previously imposed are to guilty be vacated. A verdict of manslaughter shall be entered and sentence shall be imposed thereon.
So ordered. trial, “cold, At the assistant attorney killing district termed the calculated murder” and jury asked the to return a verdict of murder in degree. the first In support request, of his jury’s directed the specifically attention to love beads worn the victim (acquired while in lengths rope she was California), which bound the in body places, two to the blanket body wrapped, which the was grave body which the buried to the defendant’s silence for fifteen months about circumstances the victim’s may death. While these facts an support premeditation inference of and preparation, they certainly provide do not substantial proof an intentional killing. dissenting). joins, Wilkins, (with J., whom J. Kaplan, vigilantism, dangerous case discloses The record of this began understand- it out of even if be condoned not to response feelings The frustration. able investigation to these charge of the official detective Later, private or worse.1 maladroit activities was deliberately counsel’s obstructed others same officer and dire had the defendant the defendant when access to following events, consti- such At a trial need of advice. protections have been accorded should tutional scruple. particular able trial The accused with give conscientiously his constitution- the accused tried faulty. rulings due, I two of his were al but think rulings (I) the defend- were that the statements made parking kidnappers 6:30 around at the Sears lot ant to voluntary and thus December were on p.m. (II) use admissible, the Commonwealth could *37 by impeachment purposes made the for the statements early following hospital police at defendant to the morning, at time the defendant’s counsel was a when being by kept police. court him Because the from rulings, obliged upholds these I to dissent. am
I jurisprudence be in This case must the first in our incriminating by kidnapped statements, which made kidnappers grip, person have to his while still in their adjudged be does the been acts of free will. How extraordinary justify an conclusion here? court such — accept facts All members of this court the basic — subsidiary The as below. historical or facts found dispute be as the conclusions to drawn from those is appellate court, as an court facts, a matter on which this rights, required dealing is to make its with constitutional judgment. v. independent See own 9, See n. infra.
Commonwealth e. Mahnke.
542,
362 Mass.
Murphy,
550-551 (1972)2 (concurring
of
Illinois,
opinion
360 U. S.
Hennessey, J.); Napue
264, 271-272
court
this
reach
(1959).3
majority
II,
At part
section
of its opinion, the court chides this dissent
refusing
for
accept
the trial judge’s findings
in
adopting
effect
contrary findings. The
is
criticism misdirected
ignores
consti
requirements.
evident,
tutional
As will be
we do indeed differ from
judge
trial
in his “finding”
by
(quoted
court)
de
was “completely
fendant
free from fear.” But to call that and similar
statements
judge subsidiary
the trial
findings and
thereby
fore
close reexamination of them here would
process
subvert the
of review
in constitutional cases. Those
are merely
statements
reformulations
in other words of
judge’s
conclusion that
the defendant acted
voluntarily
very
after 4:15
and are the
p.m.,
constitutional
issue that
must be
Particularly
reassessed
this
pertinent
court.
is
closing
remark
the following passage by Hennessey, J., concurring in the
case,
Murphy
cited
the text:
findings
ultimate
and rulings
“[T]he
judge may
give rise to a meaningful appeal, even in a case where
subsidiary
beyond practical challenge.
This is
findings are
true
because
ultimate
of a judge
conclusions
on identification issues
may
must,
be
constitutional proportions. This court
where justice
requires,
judgment
substitute its
for
trial
at the final
stage. . . . The mere recital of appropriate phrases denoting consti
acceptability may
tutional
only
serve
to obscure error in admitting
Frankfurter,
evidence.” 362 Mass. at
See
J.,
551.
in Watts v.
Indiana,
Connecticut,
338 U. S.
(1949),
50-51
Culombe
603-606 3The court
said
“The
Napue:
duty
this Court to make its
own independent examination of the record when federal constitu
clear,
does,
deprivations
alleged
are
resting,
tional
it
as
on our
responsibility
maintaining
solemn
the Constitution inviolate. Mar
Lessee,
Aaron,
[1816];
tin v. Hunter's
Commonwealth v. reasoning declines to by a train conclusion their flowing acknowledge from natural inferences wholly specula- subsidiary instead a facts, and constructs explain theory behavior. the defendant’s tive given up to 4:15 Decem- the statements That p.m. disputed. to sum But have coerced, is not we ber 9 were they bear up because of that coercion the circumstances the further he made defendant’s situation when on the hours later. two statements pursuers, large all the more fear-
A of hostile number harassing quite identifiable, had been not some because making period months, of fifteen the defendant over unpredictable threatening appearances times at his places of The insistent sur- home, school, and work. episodes instinct with violence. broke out into veillance ground the end the defendant would have Toward already believing him his tormentors had convicted sought only opportunity an to enforce murder and Finally kidnapping at Mt. Ida. own law. came the their physical compounded hurt was the uncertainties long trip to an unknown destination. Arrival place isolated, must dead cold of winter at an snowbound further have shaken the defendant. The threat night. throughout upon him bread knife was Starting early morning eight in the and for some six to questioned by hours the defendant was three and then antagonists may to break him five whose determination they apprehension an could have been intensified “justify” kidnapping, it, if called to account for they tangible managed results. unless to extract some questioning: may severity This underlain the have nagging, repetitious, extended, event, it was inter- extremely rough language spersed and threats with life, he would never the defendant’s threats that take inquisition, place confronting leave alive. this alone, of friends advice. without benefit length, broken. He defendant’s will was made At Campbell. incriminating to Ferreri and statements *39 Commonwealth o. Mahnke. It is conceded that these statements were coerced. But still defendant withheld the revelation of the exact body. location of the Instead he offered to lead Ferreri gravesite. kidnappers debated the defend- only offer; argument among ant’s after themselves (Ferreri pressing one view and Fontacchio and Heard the other) they accept did decide to the offer and take the Boston, defendant with them to rather than to continue to hold him the cabin until he revealed the location of gravesite and the information could be verified. But body defendant was not be released until the kidnapping imprisonment Thus, found. were brought to an end the defendant’s initial state- cabin, ments at the but would continue until he satisfied captors’ facts, ultimate demand. On these I conclude acceptance that the defendant’s of the condition gravesite reveal was as much coerced as his initial parking His statements. statements at the Sears lot were continuing thus compul- made within a constraint and sion.4 light subsidiary of the natural conclusion from the
facts that the defendant remained under the heel of the kidnappers through may statements, the 6:30 it be p.m. unnecessary apply those tests which have been used in more doubtful cases to measure far how coercion or illegality has been attenuated later events. But if applied here, those are tests the conclusion is reinforced. insulating As to whether there has been an “break in statements, stream events” between successive point objective central, cases to certain considerations. — Among question elementary these besides length quite statements, of time between the here short — are the whether in the interval the factors: McGarty, Commonwealth suggested See the distinction during an (1948), saying suspect Mass. between officer’s to a beaten, saying he will not be and the officer’s he will questioning that if not be beaten he confesses to crime. See also Femino, 352 Mass. *40 709 Mass. 662 368 v. Mahnke. v. to or friends (Reck had an see family opportunity Pate, 433, 444 consult with S. or to [1961]), 367 U. Connecticut, 346, 391 U. S. counsel v. (Darwin Texas, 709, 707, [1968]; Clewis v. 386 U. S. the period whether he has been throughout
[1967]); obtained the first in the hands of those who continuously Alabama, 35, 38 statement v. (Beecher given and whether the later statement [1967]); statement. (Lyons as the coerced same persons original, Oklahoma, to 604 [1944].) U. S. According indicators, discovering there is no basis for these objective of events. a material break in the stream here Next, we observe that by as to “cat-out-of-the-bag,” statements the defendant had made already p.m. 4:15 victim; he had not himself in the death of involving but he had location of the given exact divulged grave, The main secret was out. its location. up approximate the defendant knew that There is to nothing suggest inadmis- his statements to that were under law point sible; indeed, as the defendant such mention supposed indicate that to of his chances in case of trial have made be used could and would he his statements thought first if believed that his statements him. But against — were, realistically they regard- were recall beyond — the defendant at trial less of their exact legal position of his story. the rest withholding would see little point the coercion which So is well the conclusion justified also the cause p.m. statements was produced pre-4:15 here, we And repeat, of the statements. post-4:15 defendant was added, factor that overriding have make the final under continuing pressure great free of the as means getting disclosure gravesite the kidnappers. seems me facts subsidiary assessment
My
Mr.
from
reasoning
passage
within
Justice
S.
States
331 U.
Bayer,
in United
Jackson
Darwin
Harlan
Mr.
by
remarks
and the
(1947),
Justice
Connecticut,
S.
350-351 (1968), quoted
391 U.
Commonwealth v. Mahnke.
the court.5
United
v. Gorman,
States
Again,
F. 2d 151, 157
Cir.
(2d
cert. den. 384 U. S.
1965),
the Second
(1966),
Circuit considered a “situation in
which, after a first confession has been extracted from a
man
innocence
previously professing
means
calculated
will,
break his
a second confession is more politely
secured.”
wrote,
case,
“In such
Judge Friendly
there is
*41
basis
both
and in
strong
for
logic
the
policy
drawing
inference that
the second confession was the
product
first,
and for
inference to be
permitting
over-
come
such
only by
insulation as the advice of counsel or
of a
Fisher lapse
long
time.”
period
Compare
307,
F. 2d
Scafati,
310-311
Cir.
cert. den.
(1st
1971),
and for this court the defendant’s statements after 4:15 conclusion voluntary, (a) conceded co- were with the earlier p.m. *42 by kidnappers, (b) ercion the effect on the defend- the having of his ant’s mental state made the initial confes- by kidnappers, (c) sion, the the well under- determination defendant, to hold the defendant until he stood completed by revealing gravesite, and
his confession
kidnappers’ possession
(d)
and control of
defend-
actually
did so. The trial
and the
ant until he
Spofford,
similar
in Commonwealth v.
approach
This court took a
involving
admissibility
case
not the
a sub-
(1962),
Commonwealth o. Mahnke. responded challenge by court have simply to this intro- ducing they kind of deus ex machina: assert that a complete change sudden and occurred after the initial statements; with the cessation of overt intimidation on part kidnappers, of the abruptly the defendant friendly became and trustful them, toward so that his actions and statements thereafter were manifestations of previous will, free uninfluenced coercion. attempted support upon inference, of this seizes court a number of incidents after 4:15 With occasion to p.m. cry out to the two hunters or at the toll stations on the way Boston, back to the defendant remained silent. Similarly, attempt the defendant made no to attract the passersby parking lot, attention of at the and did not any opportunities escape seize may presented have descending themselves while he was to the tracks and returning (with advantage open penknife). It is said spoke that the defendant warmed to Ferreri and those to whom he “friends,” first confessed as his he took appealing credit with Ferreri for hunters, change pay he contributed some a toll. before Just reaching parking lot, he volunteered Ferreri an stop figuring indication of the bus confession, in his easily later legal talked to Heard about his chances. so, during Even we encounter the fact the ride to secretly Boston the defendant unscrewed the door lock plunger provide on his side of the car in order to himself physical proof kidnapped; with that he had been complained bugged; that the GTO automobile was path. he resisted the walk down the *43 All this behavior does not lead to the inference that the compulsion effects; defendant was free of or of on its contrary, entirely his behavior is consistent with a broken expected will and indeed is to be from one in condi- was in tion. As said a case where a defendant had been by private parties shortly intimidated and beaten and police: thereafter made statements to the “Torture destroys only physically psychologically. but Ele- v. companionship, craving despair, fatigue, for ments interrogator identifying and source of as a friend one’s guilt present crude, suggestions all in a were aid,8 People Berve, 51 Cal. 2d haphazard this case.” form in easy, reading this record It is all too 286, 292 retrospect, faculties and with of one’s control in with clearly, point or capacity out one think time and might have when the another moment likely in the movies escaped. are more But such heroics ability to had the life. If the defendant than in real thought might escape, it would have think of he also young vigorous only recapture by men the five in result group. ultimately by In all of the concerned others question planning escape probability, was out of bewildering Suffering from the the defendant. already deeply
frightening abduction, and events since his likely pre-4:15 statements, he most committed though might yet incapable resistance, he of further sporadic presence such acts retain sufficient of mind for taking plunger. time, At as the door lock the same beyond facts the defendant was not demonstrate gestures tormentors; ingratiate his some himself with may prevent it be inferred that he felt these a means of ing gaining final release. further mistreatment or his story, “cat-out-of-the-bag” he had his Once told syndrome explains telling again, his and his further it self-comforting nothing but remarks to Heard were Any braggadocio. inference that the defendant was lighthearted thought 4:15 kid after because p.m. story accepted anger, nappers his of a struck blow dispelled that, if when we note even that statement were very believed, defendant would still be in serious part story, admission, trouble: consider here his as of the imagi warming pursued pursuer appears This toward Valjean native in the relation to the detective literature Javert Jean Miserables, Les inspector Porfiri of Raskolnikov Petrovich in Crime and Punishment.
Commonwealth v. Mahnke. deliberately body, that he had concealed the and then suppressed the truth for fifteen months. evaluating the historical facts conclusion, to reach a
we should recall it is defendant’s burden to establish coerced; that his statements were the burden is government prove contrary, on the that the state- freely Denno, ments were willed. 378 U. S. Jackson Lego (1964). Twomey, 368, 376-377 abrupt It is submitted that the inference and hostility total defendant, transformation of the from and voluntary cooperation, resistance to an attitude simply is not made out on the basis of the historical facts. emerges Rather, the most modest conclusion that from post-4:15 facts that the statements sub- were p.m. stantially by conditioned and influenced the coercion throughout period during directed at the defendant which he was held.
II surrounding questioning conduct of the morning defendant at the M. G. H. on the of Decem- right ber 10 violated the defendant’s constitutional assistance of held, counsel. The trial so and point. questioning began, court concedes When the charge Gawlinski, Detective case,9 knew light Gawlinski’s case sheds earlier connection with the on during hospital interrogation. actions motivation Gawlinski knew of the extensive surveillance of the defendant group and he concerned also became aware of the exacerbated Son, Inc., Bryant such F. which Henry incidents as one at & encounter, saying, or physical ended in with Ferreri Fontacchio it,” you’re we did “George, you going pay know what — you get you away “You with it time didn’t we’ll got think this but decisive you,” words that effect. Gawlinski took no action Yet by an against any activity. His is further illustrated this attitude Pascal, private M. July, incident that occurred in 1971. Arthur victim, investigator employed the father learned that Erwin Mass. 662 *45 v. Mahnke. he him. Yet to reach was counsel trying the defendant’s fact defendant of inform the to neither took steps calls; in a highly he tried instead counsel’s nor returned avoid his respon- or to conceal way clumsy) suspicious (if absenting by breach of the Constitution for this sibility knew to be going that he from the interrogation himself was, then, in words of the trial judge, There the on.10 . . . circumvent calculated to “a course of conduct [the on conscious “treading constitutional rights,” defendant’s] circumvention” ice,” and thin “deception constitutional officer. the by principal investigating ruled that the statements Nevertheless, trial the could be used for impeachment at the hospital obtained defense, in his own if the defendant testified purposes I ruling required and the court affirms. think I wrong. decided cases and is fundamentally with such could, with some difficulty, sympathize involved if the violation of constitutional right decision nature. Here it was accidental or of a minor or technical was deliberate and of serious consequence. “kidnap” Katz, “pick up” to person, planning was “concerned” be present. which the father would questioning for the defendant given had Katz the to ask whether Gawlinski
Pascal called Gawlinski pointed to by others); Pascal Pascal had been told “green light” (as indicated that he father. Gawlinsld danger of violence done, simply that there yet be insisted going knew what was to was, said, stuff”; prosecute. he would “rough be no if there should might have in entire situation and violence latent illegality Gawlinski’s independent police an officer. been more evident to however, associa- by his too close impaired had been independence, brother; that Gawlinski’s symptomatic it is tion with the father father’s residence place at the meetings with the father took many — results for hunger for quarters. Gawlinski’s rather than official — legality respect his evidently overcame leads from source then, comes, surprise that Gawlinski as no behavior. It orderly on the seeing his counsel defendant from prevent to engineered December 10. morning of Sheehan, interroga participate did fact, who Detective In reach Gawlinski. trying been tion, that counsel had also knew
Commonwealth Mahnke. cases, its The court Tests on two conclusion Harris (1971), Oregon York, Hass, New S. 222 U. (1975), prop. S.U. is a Neither sufficient (a decision), Supreme Harris five four Court held notwithstanding give that, failure full warnings (Harris right Miranda told of his to coun- right court-appointed sel, counsel), but not of his during interrogation statement obtained custodial could impeachment be used for when Harris testified own Weighing promotion through behalf at trial. of truth *46 allowing impeaching against statement, the use the the possible police added deterrence of misconduct that would thought use, from such flow seeking denial of court the truth- prevailed. ground is interest It for distin- guishing present case Harris from the that Harris did right involve the direct violation of a constitutional only prophylactic safeguarding but violation rule right.11 Beyond that, however, is it vital to observe questioning place in that the took Harris before Miranda right decided, was so that the violation of the defendant’s was unintentional. followed v.
We Harris New York in Commonwealth (1973). doing Harris, 236, 364 so, Mass. 239-240 we objections note of took raised in dissenters quoted York,12 Rhay, v. New from Harris Riddell v. (1971) (Douglas, dissenting 974, 404 S.U. 976 J., from certiorari): possible “[T]he denial use of tainted state- opens by police . . . risk ments the door to a calculated Tucker, (1974); 417 S. 443-444 Michi Michigan v. U. 11 See Payne, (1973). 412 S. 53 gan v. U. York, (Brennan, J., 401 S. at 226-232 dis Harris v. New U. 12 See in Supreme decision commentary on the Court’s Adverse senting). See, e.g., copious and severe. Dershowitz & Ely, Harris Harris Logic on Candor and Anxious Observations v. New York: Some The Su (1971); 80 Yale L. Emerging Majority, Nixon of the J. Court, Term, (1971); 10 Du 85 Harv. L. Rev. preme L. 394 (1971); 40 Fordham Rev. L. Rev. 128 quesne (1971); Rev. 135 Q. L. Pitt. L. Temple (1971); ti. Mahnke. Commonwealth interrogators.” is involved The risk referred to rights hopes violating intentionally constitutional impeach- damaging useful for will be obtained statements require present us to said, “The case does not ment. We entirely dispute. . barren . . record is [T]he enter into this police prosecutor any ‘cal- took indication risk’; an inad- there seems to have been culated rather warnings given.” Thus it defect in the vertent Miranda own is that neither Harris v. New York nor our evident present case which Harris reaches paradigm is the deliberateness and calculation infringing rights. constitutional argues Oregon
The also That case court from Hass. posed question (in Court): Supreme the words suspect . . “When a . he would like to tele- states that phone lawyer but told that this cannot be done until suspect station, and the reach the officer suspect provides inculpatory information, then is that impeachment purposes information admissible ... Supreme . . .?” 420 S. held U. Court 714-715. (six two) long admissible, that it was as “abuse” as no making involuntary occurred the statement or untrust- *47 worthy. bicycle theft, Hass was arrested at his home warnings, agreed and, after full Miranda to show the police bicycle. police he had where left the offi- “[The departed patrol and Hass then in site. cer] a car for the way opined . . . On the Hass he . . would like to that . attorney
telephone replied his .... that [The officer] lawyer [get] telephone could the ‘as soon as we . . . to pointed a the . . . . . . out [Hass] office.’ Thereafter place bicycle S. at . . . where the was found.” 420 U. 715-716. Supreme characterizing police Court avoided rights of Hass’s deliber-
violation as either accidental or sketchy implying ate. as If the facts are read that the police good design faith, acted in at least to or without evade Constitution, the case is like Harris v. then
Commonwealth Mahnke. New York and, case, like that does not reach the present situation. cases, Two recent Court decided Supreme York, Harris v. New since that Hass should be so suggest interpreted. Tucker,
In U. Michigan S. 433 de- a (1974), fendant, not counsel, informed of his to right appointed made a statement which led a to witness. the witness was
holding allowed to properly testify, Mr. wrote that Rehnquist consider it signifi- “[w]e Justice cant our in to decision this case that the officers’ failure to of advise to respondent counsel right appointed occurred in Miranda.” decision He ex- prior “ deterrent plained purpose exclusionary [t]he rule assumes that have in necessarily the police engaged willful, or at the least conduct has very which negligent, the defendant of some deprived right. By refusing conduct, admit evidence as a result of such gained courts to instill those hope particular investigating officers, or in future their counterparts, greater degree of care toward the of- of an accused. Where the rights ficial faith, action was how- complete pursued good ever, the deterrence rationale loses much its force.” S. See 417 U. at 477. the discussion case at 27 U. L. of Fla. Rev. 309-310 (1974). on the behavior
Emphasis importance good-faith as a factor in as re- decision or police, admitting Brown statement, also jecting suspect’s appears Illinois, U. S. 590 This came three months Hass; Mr. after both were written Blackmun. Justice the considerations with out Setting regard admitting made an arrest which statement after vio- excluding Amendment, lated Fourth said Justice “an of Miranda after the arrest was giving warnings *48 . . factor ... . important temporal proximity [b]ut [t]he confession, the of inter- arrest presence and, . . . circumstances vening particularly, purpose official misconduct are all relevant.” flagrancy Commonwealth v. a court It seems that unlikely
Hass, if to cover intentional interference by interpreted counsel, en with access to would suspects’ Powell, in which Mr. concurring opinion The of Mr. Justice distinction Rehnquist joined, developed length at some Justice of the Fourth Amend “flagrant” between “technical” and violations admission or ex consequences and the of the distinction on the ment 606. given. clusion of statements later U. S. at as a determinant of whether flagrancy of official misconduct adopted by also the A.L.I.’s suppressed should be is statement Approved Draft). Pre-Arraignment (1975 Code of Procedure Model motion position the Code takes the (1) (2), 150.3 “[a] § pro Code’s . . . in violation of the suppress a statement [obtained be access to shall right cedural which include protections counsel] upon violation which it ... if the court finds that granted A shall ... be deemed substan was substantial .... violation based to the ac gross, prejudicial violation was wilful and tial if . . . [t]he violation, meeting According (3), . . .” 150.3 cused. § test, if it satisfies may nevertheless be found substantial foregoing elements are “the extent definition of which material another conduct,” which the viola and “the extent to deviation from lawful tion was wilful.”
Commonwealth v. Mahnke. courage objectionable the “risktaking” by most kind of police. the Mr. qualified said that Justice Jackson lawyer suspect give will tell a not to a statement to the police.15 attempt Hence, suspect faced with an lawyer, see a lawyer Hass, as in or of a client, to see his police here, as the they will have a choice: if accede and meeting they allow a obeying counsel, with will be they get Constitution, but will no statement from the suspect; they deliberately prevent if they contact, will scorning be they the Constitution, but will have the getting suspect chance of a statement from the that can impeach may (and practical uses). be used to have other police nothing sum, will have lose, and much to gain, by intentionally flouting the Constitution.16 A rule presenting temptation police of law such a is radical and unwise. permitting impeaching
It is said that use of the state- truth-seeking only ment furthers the function because de- perjury taking fendants bent on will refrain from through being impeached. stand fear of But rule practice operate against suspects would also who are trying throughout. attempting to tell the truth Even one possible may to be as truthful as recall certain facts incor- rectly important fail to recall other ones: time pressure-filled; after arrest is confused and there is indeed Indiana, Watts 59 (1949) (Jackson, J., con curring part dissenting in part). Hass, egregiousness if is permitting it taken to extend to the use for impeachment gained by of statements denial of deliberate counsel, right is shown by comparing it with a rule that would Harris v. New York to allow apply impeaching use of statements Miranda gained by denial proper warnings. deliberate If the force, rule were in police significant latter would still have in statements, give warnings, many suspects give centive to since admissible, fully being given warnings. which are after But in the right situation of deliberate denial of counsel de there no conduct, since, noted, illegal police whatever of terrance as an if attorney given access to his client will advise him to make no state ment. Mass.
Commonwealth interroga- in all is inherent coercion that a subtle story all not on defendant at trial tells That a tion. *50 police does prior statement his with fours inconsistency committing perjury, but the mean that he devastating may be nevertheless trier evident to the. by possibility even initial error The
defendant’s case. suspect conscientiously embarrass- and the later truthful why will advise his client counsel at trial are reasons ment police. All silent and not to accommodate to remain allowing very qualifies im- much the notion that this peaching search for truth.17 use will further the higher liberty adopt a is, course, at
This court
Supreme
applied
Court has
standard than that which the
Cooper
Federal
See
to the States under the
Constitution.
(1967).
If, indeed, the
v.
62
California,
goes
obtained
case
so far as to hold that
statement
Hass
police
suspect by
ob-
from a
deliberate and calculated
right
may
be admitted for im-
struction of
to counsel
peachment purposes
trial,
at a State court
then we should
adopt
hold,
we
in-
decline to
such a rule and
should
law,
stead, as a matter of Massachusetts
that the state-
any purpose.
ment is inadmissible for
It is instructive
already rejected
milder
that at least two States have
imposed upon
doctrine of Harris v. New
and have
York
protective
a rule
See
themselves
more
of the accused.
Santiago,
(1971);
State v.
Commonwealth Mahnke.
interpreting
protection against
State constitutional
un-
reasonable search and seizure to be broader than the
guaranty
by
found
the Federal Constitution
the de-
Robinson,
cisions of United States v.
with the of the court in its conclusion that the *51 parking defendant’s admissionsmade in and near the Sears subsequent lot to 4:15 9, 1971, on December were p.m. properly Although received in evidence. it is clear from proceedings the record that the trial conducted the extraordinary competence thoroughness, with appreciation full with issues, of the constitutional I do ruling permitted not believe that his which the intro- constitutionally permissible. duction of the evidence was process required Due of law the exclusion of the evidence.1 entirely reasoning I Neither can concur in of Justice Kaplan, dissenting opinion. issue, as to this in his principal issue,
As to second whether the defend- police hospital ant’s statements to the at the were admis- and the majority opinion dissenting opinion 1 Both the of Justice Kaplan express special rights concern for threat to individual say rights in This is the defendant’s vigilantism. inherent not private persons are because he was a victim of rather greater by Kaplan, J., supra, (compare than officers the statement have been accorded to the accused protections “constitutional should Nevertheless, is a fair inference that scruple”). with it particular rights particularly is acute at vigilantism threat of to constitutional resulting widespread increased violent crime and greatly this time of noting It is worth that several of the most fear and frustration. moving pictures (and, dealt with popularly received recent books and contended, kind in self-help violent shown glorified) it can be the instant case.
368 Mass.
Commonwealth and I con- evidence, I with majority sible in disagree conclusion and reasoning Kaplan cur with the Justice this evidence was not viz.: in his dissenting opinion, the limited impeachment admissible even for purpose of the defendant. the ma- differences between
1. In of some light and the dissent of Kaplan, particularly view jority Justice II, in section of the majority as part opinion, expressed re- I feel the standards explore appellate compelled such view which should be this court on issues applied by as here. It is to decide what are presented necessary in the of reach- standards are only hope appropriate, case, correct result but also for the sake this ing This evenhanded similar court must justice appeals. re- have its two regard obligations particular: as an court to reverse for errors of sponsibility appellate law, and its to defer where responsibility appropriate of fact as made the triers of fact the trial findings level.
A defendant in a criminal case of due pro deprived founded, cess of law if his conviction is in whole or in Richmond, on an confession. part, involuntary Rogers 365 U. S. 540-541 The defendant here the constitutional issue motions to presses suppress motions, admissions from evidence. These in issue, herent voluntariness like all as to the questions *52 evidence, of were for the the admissibility judge’s (not jury’s) Lego Twomey, 477, determination. v. 404 U. S. 489-490 (1972).2
In order to the meet standards required constitutionally of is the burden on the Commonwealth to admissibility 2 is not question of voluntariness evidentiary and constitutional The reliability of the (truth falsity) with the issue of to be confused Denno, confession, v. is the decision. See jury’s which for Jackson 477, 484- Twomey, U. S. 368, Lego v. 404 (1964); 385-386 378 U. S. the Also, rule that we note that the Massachusetts (1972). 485 12 n. judge first jury, be if issue is to submitted voluntariness dimensions. is hearing, a constitutional finds voluntariness after Valcourt, La- 706, (1956); v. 333 Mass. 710 See Commonwealth
724
Commonwealth v. evidence, least a prove, by preponderance that a confession was v. voluntary. U. S. Lego Twomey, 477, whether a confession (1972). question admitted voluntarily given rightly presents two-step First, for an analysis court. appellate court appellate must determine whether the trial court’s subsidiary evidence, fact are in findings and are supportable Second, warranted. and of crucial importance, assuming warranted, are findings court must appellate determine whether admission of a independently confes sion is on as constitutionally permissible the facts found and accepted.
Where the facts are resolution such disputed, conflicts for the and the court must judge appellate It is not accept reviewers to findings. recon- fact, sider decisions of since those decisions concern author, of witnesses. This appraisals credibility concurring opinion Murphy, 362 Mass. this it “We (1972),4 phrased way: cannot be asked to revise a properly subsidiary judge’s fact, where are warranted the evi- findings they dence, or review of the evidence related to weight Like the findings.” Court, United States Supreme this court “does not sit as nisi prius contra- appraise dictory factual Ker v. questions.” California, 23, 34 (1963).
However,
court
is bound to
appellate
review the
ultimate conclusions of a
where those conclusions
France v. Bohlinger,
(1st
499 F. 2d
1974),
35-36
Cir.
cert. den.
Meachum,
sub nom.
LaFrance
Commonwealth v. expressed it author This moment. are of constitutional Murphy case, concurring opinion way in the in the this “ judge rulings findings supra: ultimate [T]he meaningful appeal, a case may give even in rise to a findings beyond practical subsidiary chal are where his lenge. of a ultimate conclusions This is true because the may judge constitutional issues be of on identification requires, justice proportions. must, where This court judge judgment that of a trial at substitute its phrases appropriate stage. mere recital . . . The final only acceptability may denoting to serve constitutional admitting 362 Mass. error in the evidence.” obscure quoting Indiana, Harlan, from Mr. Watts Justice expressed principle (1949), as U. S. 51-52 “ any [Tjhere agreement complete follows: has been testimony actually led a con- conflict in as to what arrest] is not this tested confession a contested [or authoritatively Such comes here Court’s concern. conflict judge]” omitted). (citations . resolved . . trial [the (1964) (Harlan, Ohio, dis- Beck v. J., senting). Examining here,
2. voluntariness I the ultimate issue of including defendant, conclude admissions5 of the subsequent made statements 4:15 should have p.m., accept, should, I I been excluded. as must and entirety, subsidiary findings judge’s of fact in their since findings supported adequately in the evidence. these were findings, my However, the basis view it on constitutionally cannot be concluded that Common- proving its wealth has sustained burden of voluntariness. assaulted, found kidnapped, interrogated threatened, He for hours. dissenting opinion opinion 5 I nor majority note that neither the distinguishing from “confessions” point makes “admissions” concur; In this I it would context concerned here. the constitutional reasoning or results based on such indulge be in variant specious distinction.
Commonwealth o. Mahnke. inwas for at least hours between the captivity twenty early 8, 1971, of December and the late after- evening noon December 1971. was He isolated from family, friends and counsel. there was Although opportunity him to the last escape two hours of during approximately time, this an view inference of voluntariness is not my warranted his even as to admissions those final during I few hours. believe this conclusion follows inescapably an from “stream of events” and “cat- application as out-of-the-bag” reasoning carefully explored by Justice in his separate dissenting Kaplan opinion. I
It follows that cannot of the accept contention this court is bound ultimate majority judge’s voluntariness, conclusion of inference of his that is any with voluntariness or so as synonymous broad necessarily a import conclusion voluntariness (e.g., finding from free fear” after “completely his encounter with the hunters). all
Considering circumstances of more than hours of all twenty captivity, accepting judge’s I do case not believe the subsidiary findings, permits conclusion that the Commonwealth has a fair proved by of the evidence that state- defendant’s preponderance ments at time on December 9 were free of the in- duress, fluence of fear and caused hopelessness captors. as ultimate conclusion to voluntariness requires of constitutional facts. It is a
application principles conclusion which considerations and as partakes policy such “is not a matter mathematical determination. — invites it Essentially psychological judgment psycho- inarticulate, reflects even if deep, logical judgment Ohio, of our U. S. society.” Haley feelings 603 (1948) J., concurring). (Frankfurter, Oklahoma,
As was stated in U. S. Lyons case the voluntariness of a second involving (1944), confession twelve hours after a first coerced confes- given subse- sion, “The of whether those confessions question Mass. v. voluntary depends given quently on the are themselves continuing the coercive as to the effect of inferences surrounding may fairly practices be from the which drawn are facts exist which conceded . . When . circumstances. regardless freedom, such irreconcilable with mental *55 contrary fact, whether conclusions of the triers of responsibility jury, for such solely this Court cannot avoid injustice leaving adjudication by in burden of the other hands.” although Kaplan
However, I concur with that Justice have been ex the admissions the defendant should of reasoning. is cluded, I in his entire It cannot concur necessary for this court to reach nor desirable neither substantially findings contrary fact, to affirmative of the findings judge.6 significant the is it that of trial Nor findings approach some of broad as the these were so to they conclusion; affirmative, ultimate constitutional were contrary findings, substantially judge’s the and un making necessary. process findings (of at the Such markedly concluding, appellate level) as is different from lay, light proof have, I where the burden of that in of by inferences the trial were not certain drawn by Also, as him. such warranted on the facts found 6See, e.g., dissenting opinion, supra, Kaplan’s in the follow Justice facts, I the ing findings: accept “On these conclude that defendant’s reveal the gravesite ance the condition that he as much co statements”; parking the Sears erced as his initial “His statements at continuing compulsion”; lot thus made within a constraint were through kidnappers defendant remained under the heel of the “[T]he p.m. statements”; is the justified “So the conclusion well that the 6:30 p.m. the produced pre-4:15 which the statements was also coercion statements”; here, have the repeat, “And we post-4:15 cause of the added, overriding great was under con factor the defendant gravesite to make final disclosure of the as pressure the tinuing further remarks to getting kidnappers”; free of the means of “[H]is “Rather, the self-comforting braggadocio”; but nothing Heard were post- from is the emerges conclusion that the facts most modest p.m. substantially 4:15 were conditioned and influenced statements period during throughout directed at the defendant the coercion which he was held.”
Commonwealth v. Mahnke. process significantly concluding, from as I different have, that the Commonwealth has failed to sustain its proof hope burden of on the issue of voluntariness. Our disposition matters, for evenhanded difficult free such appellate requires whim, that we on not encroach judge’s trial function.7 Kaplan’s dissenting reasoning 3. I concur Justice police statements of
hospital impeach- excluded, should have been even for purposes. I ment do not believe that Harris New proposition (1971), York, 401 U. S. for stands right that wilful violations of the defendant’s permit counsel, such as case, occurred the instant resulting product interrogation use any purpose. particular See S.U. at 226-232 (Brennan, dissenting). Oregon Nor I J., do believe that v. Hass, 420 S. (1975), U. sufficiently modified the *56 holdings of permit the Harris case to the result reached majority. courts, including Court Concededly Supreme other States, substantially some as approached have cases United Justice treated one. Kaplan has this