Commonwealth v Sok

• Decision Date: 01 February 2002
• Docket Number: SJC-08165
• Citation: 435 Mass. 743
• Parties: COMMONWEALTH vs. VAO SOK. Docket No.:MASSACHUSETTS SUPREME COURT County: Suffolk
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

COMMONWEALTH vs VAO SOK

Docket No.: SJC-08165

MASSACHUSETTS SUPREME COURT

County: Suffolk

October 5, 2001.

February 1, 2002

Summary: Constitutional Law, Assistance of counsel, Admissions and confessions, Waiver of constitutional rights. Practice, Criminal, Assistance of counsel, Voluntariness of statement, Capital case. Evidence, Admissions and confessions, Polygraph test, Expert opinion. Waiver. Committee for Public Counsel Services. Attorney At Law, Canons of ethics. Witness, Expert.

Indictments found and returned in the Superior Court Department on May 28, 1992.

A pretrial motion to suppress evidence was heard by Patrick F. Brady, J.; the cases were tried before Vieri Volterra, J., and a motion for a new trial, filed on March 2, 2000, was heard by him.

Ruth Greenberg for the defendant.

Brian J.S. Cullen, Assistant District Attorney (David E. Meier, Assistant District Attorney, with him) for the Commonwealth.

Present: Marshall, C.J., Greaney, Ireland, Spina, & Cordy, JJ.

SPINA, J.

The defendant was convicted of murder in the first degree of five year old Anmorian Or on a theory of felony-murder predicated on the felonies of rape of a child by force and aggravated rape (by kidnapping). He was also convicted of rape of a child by force, and of kidnapping. His motion for a new trial, which raised all the claims raised on appeal, was denied. The defendant's appeal from the denial of his motion for a new trial has been consolidated with his direct appeal. On appeal he claims that the motion to suppress his statement should have been allowed because police failed to advise him that his attorney was trying to communicate with him during their interrogation.¹ He claims error in the exclusion at trial of testimony relevant to the question of the voluntariness of his statement. Finally, the defendant claims that he was denied the effective assistance of counsel, based on trial counsel's alleged abandonment of the defense of identity in favor of evidence of so-called diminished capacity. We affirm the convictions and decline to exercise our power under G. L. c. 278, § 33E.

On May 15, 1992, the grandmother of Anmorian Or was taking care of her while her parents were at work. The child was last seen at about 1:30 P.M. playing on the sidewalk outside the family's apartment at 146 Shirley Avenue in Revere. Her parents rushed home that afternoon after the grandmother telephoned them to report that Anmorian was missing.

Anmorian's father looked for her in the apartment building where they lived. Several apartments were locked, including apartment no. 3A. He also accompanied police, who looked for Anmorian throughout the neighborhood. The next morning he again went through the apartment building, but this time apartment no. 3A was unlocked. He entered and found Anmorian lying on the bedroom floor in a semiconscious state. He carried her back to their apartment, where relatives telephoned for an ambulance. She was taken to Massachusetts General Hospital where she died on May 19, 1992.

Anmorian suffered brain damage, consistent with a depletion of oxygen caused by strangulation. She died from encepholopathy caused by asphyxiation, consistent with strangulation for an extended period of time. She also suffered trauma to her genital area consistent with the insertion of an object into her vagina.

The last person to see Anmorian alive was Joseph James, who waited with his dogs across the street from Anmorian's apartment building while his wife was shopping in a nearby store. For more than one hour he watched Anmorian playing on the sidewalk in front of the apartment building. A man of Asian descent was near her. He wore a multi-colored hat with a turned-up visor, dark pants, and a shirt. He was holding a can of beer in his hand. He was the only adult near Anmorian. James and his wife left the area at about 1:30 P.M., and Anmorian and the man were still in the same area. James picked out three photographs of men who resembled the man he saw from an array of 112 photographs. One of the three photographs depicted the defendant.

The defendant lived in the same apartment building as the Ors, and he was a handyman for the landlord. He had a key to apartment no. 3A, which was known as the "maintenance man's room." It was used to store tools and equipment used in the deleading of other apartments, as well as appliances from apartments being deleaded. Other workers went to the defendant to gain access to apartment no. 3A.

The defendant gave several statements to the police between May 17 and May 21. On May 17 he told police that, although he had heard "a kid was missing," he did not know who it was. He also told police that he spent the afternoon of May 15 drinking beer on the front steps of the apartment building, starting at about 1 P.M. He said his roommate, Map Sem, was with him. The Commonwealth offered evidence that, contrary to his claim of ignorance on May 17 that Anmorian was missing, the defendant asked her father on May 16 if he had found his daughter. The Commonwealth also offered evidence that Map Sem had been working all day on May 15, and thus could not have been drinking with the defendant. On May 21, the defendant admitted that he choked Anmorian because she would not give him money. He said he could not recall whether he also had raped her. He attributed his conduct to the use of cocaine.

Pubic hair found in Anmorian's vaginal area matched samples provided by the defendant. PGM enzyme blood-grouping tests conducted on seminal fluid found on Anmorian's shorts excluded over ninety-three per cent of the male population as a possible source. Similar tests were performed on blood samples provided by the defendant. He was not excluded.

The defendant presented psychiatric testimony at trial that he was mildly retarded, that he had a history of substance abuse, and that he suffered from posttraumatic stress disorder, and that these factors impaired his ability deliberately to premeditate and act with malice. The jury rejected theories of deliberately premeditated murder and extreme atrocity or cruelty, but found him guilty of felony-murder.

1. Motion to Suppress.

The defendant contends that his statements should have been suppressed because police failed to advise him that his counsel wished to be present and failed to offer him the opportunity to speak with counsel in violation of art. 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Mavredakis, 430 Mass. 848 (2000). The defendant further argues that an assistant district attorney who directed the police to continue interrogating the defendant after being informed that he was represented by counsel both in the murder case and in another matter, violated art. 30 of the Massachusetts Declaration of Rights and Mass. R. Prof. C. 4.2, 426 Mass. 1402 (1998). We summarize the facts found by the motion judge, and supplement those facts with testimony that was not contested at the hearing on the motion to suppress. See Commonwealth v. Melvin, 399 Mass. 201, 202 (1987).

On May 17, 1992, Sergeant Detective Steven Pisano of the Revere police department, who was in charge of the investigation of the rape of Anmorian Or, questioned the defendant at the Revere police station. He first checked probation records and learned that the defendant was released on bail on a rape charge in Essex County.² Speaking through a Khmer interpreter, Pisano asked the defendant if he would be willing to talk to him about Anmorian Or. The defendant agreed to speak with him.

Pisano read the defendant his Miranda rights from a card through the interpreter. The defendant signed the card, acknowledged that he understood his rights, and agreed to speak. Pisano then spent several hours interviewing the defendant, repeatedly telling him both that he was free to leave and that he was free to stop the interview. The defendant told Pisano that he had been arrested in Lynn for rape and kidnapping. Pisano asked if he had a lawyer for that case. The defendant said that he was represented by John Andrews and produced his business card. Pisano asked if he would like to call Andrews for advice, but the defendant declined and said that he wanted to continue without a lawyer. Pisano asked the defendant to describe what he had been doing over the previous two days. The defendant denied any involvement in Anmorian Or's disappearance. During the interview, Pisano informed the defendant that a foreign pubic hair was found on Anmorian, and asked the defendant if he would agree to provide a pubic hair sample. The defendant obliged. Pisano then conducted a second interview of the defendant, this time with Sergeant Steven Wallace of the Revere police department. The interview was tape recorded, and began with a renewal of the Miranda warnings. After the second interview, the defendant left the Revere police station.

As a result of Anmorian's death on May 19, Sergeant Pisano was no longer a primary investigating officer. Lieutenant William Gannon, a detective in the homicide unit, became involved in the investigation for the Revere police, along with Sergeant Wallace. Lieutenants John Perry and John McDonough of the State police also became involved. That evening, the defendant agreed to return to the Revere police station for an interview with Gannon and Perry. He came to the station with his roommate, Map Sem. Gannon arranged for the services of a certified Cambodian court interpreter. When the defendant arrived, Gannon advised him of his Miranda rights through the interpreter. The defendant waived his rights and gave a statement that was tape recorded. During the course of the interview, Gannon asked the defendant for permission to search his apartment. He also asked the defendant if he would agree to take a polygraph examination. The defendant agreed to both requests. During a search of the defendant's apartment, several items of clothing were seized. While officers were searching...