399 Mass. 820 (1987), Commonwealth v. Shipps

Citation:399 Mass. 820, 507 N.E.2d 671
Party Name:COMMONWEALTH v. William M. SHIPPS, Jr.
Case Date:May 12, 1987
Court:Supreme Judicial Court of Massachusetts

Page 820

399 Mass. 820 (1987)

507 N.E.2d 671

COMMONWEALTH

v.

William M. SHIPPS, Jr.

Supreme Judicial Court of Massachusetts, Norfolk.

May 12, 1987

Argued Jan. 5, 1987.

[507 N.E.2d 674] Joseph F. Krowski, Brockton, for defendant.

Judith A. Cowin, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

Page 821

ABRAMS, Justice.

Convicted on two indictments charging murder in the first degree, the defendant, William M. Shipps, Jr., appeals. He also appeals two convictions of armed assault in a dwelling house, see G.L. c. 265, § 18A (1984 ed.), and

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two convictions of armed robbery, see G.L. c. 265, § 17 (1984 ed.). The defendant asserts error in (1) the denials of his various motions to suppress incriminating statements, identification evidence, scientific tests, and evidence seized pursuant to a search warrant; (2) the denial of his motion for a mistrial based on evidence of unrelated crimes allegedly intentionally introduced by the prosecutor; and (3) other instances of prosecutorial misconduct. The defendant also requests that we exercise our power under G.L. c. 278, § 33E (1984 ed.), and reverse his convictions of murder in the first degree and order a new trial, or, at a minimum, vacate the consecutive life sentence imposed on the second conviction of murder in the first degree. We conclude that there was no reversible error. We decline to exercise our power under G.L. c. 278, § 33E, in favor of the defendant.

We summarize the evidence. In the early morning hours of July 24, 1982, an elderly brother and sister were murdered in their home in Stoughton. The victims, John J. Lucey and Esther L. King, were fatally wounded during an armed robbery. Ballistics evidence showed that the weapon used was one capable of firing .38 caliber ammunition, either a .38 or a .357 caliber weapon.

A few hours prior to the murders, the defendant was in his home in Stoughton with a friend, Darren Carey. Carey 1 said that he arrived at the defendant's home sometime after midnight on July 24, 1982. When Carey arrived, the defendant showed him a pair of car speakers which the defendant stated that he had taken "from a car up the street." The defendant also produced a gun which he said he had stolen from the home of a police officer in Easton. 2 Carey stated that the weapon he had seen the defendant with was a black revolver with a brown handle. Shortly after Carey arrived at the defendant's home, the gun accidentally fired into the wall in the defendant's bedroom.

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In the early morning hours, Carey stated that he and the defendant went into the garage of a residence near the defendant's home. There they found barbells and weights, which they decided to steal. The two men removed the weights to nearby woods. While Carey continued this process, the defendant went across the street and broke into two cars. Carey did not see the defendant steal anything from these cars. Shortly thereafter, Carey and the defendant went into the garage of the victims' [507 N.E.2d 675] residence. Carey stated that the defendant tried to open a window at the front of the house. Carey told the defendant that there were people inside. According to Carey, the defendant stated that only one old man lived in the house. The defendant then made a punching motion and said, "One ... and he's out."

The two men parted and Carey started toward his own home. He changed his mind and headed back to the hiding place and began assembling the weights. As he was assembling the weights, Carey saw the defendant walking up the street in the general direction of the victims' home. Carey left the woods with the weights and went in the opposite direction from that which the defendant had taken. 3

At approximately 11:15 A.M. on July 24, 1982, victim King's son-in-law arrived at the victims' home. The son-in-law testified that he found King lying face up in her blood-stained bed. The contents of her bureau drawers were strewn about the room. King was still alive at this time. The son-in-law then entered the bedroom of Lucey and found no apparent signs of life. The contents of Lucey's bureau drawers were also strewn about his room. When the police and ambulance arrived, King was taken to a local hospital. King died shortly after her arrival at the hospital.

1. Motion to suppress the incriminating statements. Thirteen months after the murders, on August 25, 1983, the defendant and a friend were arrested in an apartment complex in Stoughton

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and charged with disorderly conduct. The two men had consumed a substantial quantity of alcohol. A Stoughton police officer transported the two men to the police station and the reasons stated on the booking sheet for the defendant's arrest were disorderly conduct, being a minor in possession of alcohol and a controlled substance, and protective custody. 4

During the booking, the defendant saw State Trooper Robert Murphy, an individual whom the defendant recognized as involved in the murder investigation. 5 Murphy was not on duty that evening. When the defendant saw Murphy, he called out that he wanted to talk to Murphy. Murphy responded that he would speak to the defendant later and left the booking area. The defendant called to Murphy to remind him not to leave the station without talking to him (the defendant).

After being booked, the defendant made two telephone calls. He then met with Murphy. Murphy recited the Miranda warnings for a second time and the defendant said that he understood the warnings. Murphy then asked the defendant what he wanted to talk to him about. In the ensuing conversation, the defendant made some damaging remarks. The defendant stated: "[Y]ou've been following me and my friends. You think I killed those people. I didn't kill those people." The defendant told Murphy that he was home asleep on the night of the murders. The defendant further stated that he would have told the trooper earlier, but his lawyer in the firearms matter had advised him not to speak to Murphy. The defendant also said that he was aware that the police were searching for the gun and stated that the police would not be able to find the gun without his help. The defendant then said that the gun they were searching for was a "Three, Five, Seven." The defendant also told Murphy that, although Murphy might know what

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happened, the police could not prove anything. Finally, the defendant [507 N.E.2d 676] said that on the day after the murders he told his sister and girl friend that he had heard that "50G's" had been stolen from the house and that he wished he had made the "hit."

Prior to trial, the defendant moved to suppress those statements. In his motion, the defendant asserted that because of his youth 6 and intoxication, he made these statements without a knowing and voluntary waiver of his rights. The defendant also argued that the police action violated his right to counsel under the Sixth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights because Murphy knew the defendant had been represented by counsel on the firearms charges the year before. Finally, the defendant claimed that the police violated the protective custody statute, see G.L. c. 111B, §§ 8 and 10 (1984 ed.), and as a result his statements should be suppressed. The judge denied the motions. The defendant claims error in that denial.

The judge made the following findings of fact. At the police station, the police recited the Miranda warnings on at least two occasions. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The defendant said that he understood those warnings. The judge found that, even though he had been drinking earlier that evening, the defendant understood the warnings. The police also informed the defendant of his right to take a breathalyzer examination. See G.L. c. 111B, § 8. The defendant declined to do so. The judge further found that the defendant initiated the conversation with Murphy. 7

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The judge found that, after being advised of his right to make a telephone call, the defendant made two telephone calls to a friend's mother. See G.L. c. 111B, § 8; G.L. c. 276, § 33A (1984 ed.). The judge found that the defendant made those telephone calls without any assistance. During the course of the defendant's booking, the defendant's family learned of his arrest. The judge found that the defendant's sister was present at the arrest and that his friend's mother had telephoned the defendant's mother to inform her of his status and whereabouts.

As to the defendant's degree of intoxication, the judge found that, while the defendant appeared glassy-eyed and smelled of alcohol, he had no difficulty walking or speaking. The defendant had no difficulty understanding questions concerning his address, age, telephone number, and mother's maiden name. The judge found that he answered all questions appropriately.

Initially, the defendant argues that his degree of intoxication precludes a conclusion that he voluntarily and knowingly waived the constitutional rights protected by the Miranda warnings. Special care must be taken in assessing a waiver and the voluntariness of the statements where there is evidence that the defendant was under the influence of alcohol or drugs. An otherwise voluntary act is not necessarily rendered involuntary simply because an individual has been drinking or using drugs. Commonwealth v. Doucette, 391 Mass. 443, 448, 462 N.E.2d 1084 (1984). Commonwealth v. Parham, 390 Mass. 833, 839, 460 N.E.2d 589 (1984).

[507 N.E.2d 677] The details of the booking procedure and the circumstances of the defendant's statement do not support his contention that his waiver was involuntary. The officers who saw the defendant that night concluded that, although he had been drinking, he was not drunk. Although the defendant asserted that he was so drunk...

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