Borodine v. Douzanis, CA 77-749-T.

• Decision Date: 09 August 1978
• Docket Number: No. CA 77-749-T.,CA 77-749-T.
• Citation: 455 F. Supp. 1022
• Parties: Michael A. BORODINE, Petitioner, v. Edward DOUZANIS, Respondent.
• Court: U.S. District Court — District of Massachusetts

455 F. Supp. 1022

Michael A. BORODINE, Petitioner, v. Edward DOUZANIS, Respondent.

No. CA 77-749-T.

United States District Court, D. Massachusetts.

August 9, 1978.

Barry M. Haight, Milton, Mass., Howard J. Alperin, Boston, Mass., for petitioner.

Robert V. Greco, Asst. Atty. Gen., Boston, Mass., for respondent.

MEMORANDUM

TAURO, District Judge.

On May 15, 1975 petitioner was convicted in the Middlesex Superior Court of murder in the first degree and sentenced to life imprisonment. Petitioner's conviction was affirmed by the Supreme Judicial Court¹ and his subsequent petition for a writ of certiorari to the United States Supreme Court was denied. He now seeks a writ of habeas corpus² challenging the constitutionality of his conviction on the grounds that:

1) Before he received any warning as to his constitutional rights he made incriminating statements, later used at trial, during a custodial interview.

2) After being apprised of his rights, he made additional incriminatory statements, used at trial, without having waived such rights knowingly and voluntarily.

3) He was deprived of his right to a fair trial by prejudicial remarks made by the prosecutor during closing argument.

I.

Testimony at the suppression hearing and at trial disclosed the following sequence of events. At about 3:00 p. m. on May 17, 1974, petitioner's girlfriend, Joan, was found dead at the foot of the cellar stairs in the basement of her parents' home in Newton. She suffered substantial injuries "consistent with being punched, struck by an iron, kicked by a shod foot, and strangled with a cord." Commonwealth v. Borodine, Mass.Adv.Sh. (1976) 2156, 353 N.E.2d 649, 651.

Earlier that day, at about 11:30 a. m., petitioner had come to the house in Newton to visit Joan, who was still at work at the time. While waiting for her return, petitioner watched television and lunched with her sister-in-law, Judith. They were the only adults on the premises during that period.

Shortly before Joan's return, petitioner went out into the backyard, where Judith was sunning herself, and asked if the maid were home. Judith replied that she was not. When petitioner said he had heard a noise in the house, Judith commented that it was probably the wind. When Joan returned at about 1:15, she and petitioner talked alone in the house, while Judith remained out in the yard with her son. Approximately one-half hour before Joan was found dead in the basement, Judith again saw petitioner in the backyard for a brief period of time, this time accompanied by Joan.

At about 3:00, Judith came in from the backyard to watch a television program. Upon entering the house, she heard a loud crash. She immediately turned her head and saw petitioner standing at the head of the cellar stairs. She followed him as he ran to the bottom of the steps where Joan lay battered and lifeless. Petitioner said, "I told you someone was in the house," and instructed Judith to call the police.

When Judith returned, petitioner told her that he and Joan had just had a fight and that he had gone out the front door. Judith noticed that petitioner had moved Joan's body and that he had dried blood on his bare chest. Petitioner asked Judith whether she had seen anyone go out the back door and added that he had not seen anyone go out the front. Judith testified that although she was somewhat hysterical at the time, petitioner was quite calm and his tone was conversational.

Within several minutes, Newton police officers Wargin and Peterson arrived at the house, where they found Judith waiting outside with her young son. She directed them to the cellar saying, "She's downstairs in the cellar covered with blood. I think they had a fight."

Wargin proceeded downstairs where he saw petitioner kneeling beside the victim. He observed a steam iron with a bloody handle and an Air Force bag showing bloodstains beside the victim. Petitioner asked Wargin to help Joan, but on examining her, Wargin found no vital signs. Wargin asked petitioner to accompany him into the adjoining laundry room so they would not be in the immediate vicinity of the body. The room was small, approximately half the size of the basement, and contained the usual laundry and household equipment. It was a warm afternoon and the temperature in the basement was about 80 degrees. Light came from a window in the room and from a bare electric bulb hanging overhead. Petitioner was naked from the waist up and there was blood on his upper torso and on his hands.

On entering the room, Wargin asked petitioner to be seated. He then asked him who he was, what his relationship was to Joan, and what had happened to her. Petitioner appeared upset and nervous to Wargin. He suggested to petitioner that he go over to a sink to wash his hands and face. Petitioner did so and then proceeded to answer the officer's inquiries in a calm tone of voice. He stated that he and Joan had been planning to marry and that while they were having a cup of tea that day they had had an argument over the adoption of black children. He explained that they had cursed at each other and Joan had left in a huff. He finished his tea and then went looking for her, calling out her name. He went down into the cellar where he found her lying in a crouched position from which he removed her to the position, facing up, in which she then lay.

The interview lasted approximately ten minutes. It was interrupted at about 3:25 p. m. by the arrival of Lieutenant Duffy and other officers. Before joining petitioner and Wargin in the laundry room, Duffy inspected the body and the scene of the crime. He observed that the girl's body was badly battered and bruised with a sharp indentation in the head. He noted further that the iron lying near the body had long strands of hair in it of the same color as the victim's. He checked upstairs where he noticed that the sink in the lavatory off the hall had blood in it. He also observed a broken thermos bottle on the floor near a dish cabinet in the hallway leading from the lavatory toward the cellar steps.

When he entered the laundry room Duffy gave petitioner his Miranda warnings and questioned him on his activities since entering the house earlier that day. Petitioner said that he would tell the officer anything he wanted to know. Petitioner again related that he had arrived at the house earlier that day, had waited for Joan's arrival, and had later argued with her over her intention to adopt black children once they were married. During this second round of questioning, however, petitioner added that, after the argument had continued for a while, he left the house. He stated that he had taken a walk up to the square in Newtonville for ten or fifteen minutes. On his return he had looked for Joan on the first floor but couldn't find her. He sat in the kitchen for a time, where he took off his shirt, and then began to yell for Joan. When he got no response he started down to the cellar to look for her, but came back up the steps to turn on the light switch on the outside wall. As he turned on the light at the top of the stairs he saw Joan lying at the bottom. At that time Joan's sister-in-law came in and petitioner said that he asked her to call the police, while he repositioned the body.

Duffy felt that petitioner was calm and coherent during the questioning. He noticed that petitioner's nails were bitten and he asked petitioner how he had received the scratch on his face. Petitioner answered that he didn't realize he had a scratch.

While Duffy questioned petitioner, four other officers came in and out of the room at different intervals. One of them (Cox) asked petitioner several questions when Duffy was out of the room. The combined interrogations by Duffy and Cox lasted for approximately one hour, during which time petitioner steadfastly denied that he had anything to do with Joan's death. When asked if he could help give an explanation of what had happened, he answered, "Boy, I'm in a lot of trouble. I don't know what happened." Transcript, vol. I, at 124. He asked if Cox thought he was responsible. Cox replied "That is what I am here to find out." Id. Petitioner then asked if Cox would contact petitioner's father. He asked Cox to tell his father that he was in a lot of trouble and to get a "damned good lawyer." Id. at 102.

Officer Duffy then readvised petitioner of his Miranda rights by giving him a card with the warnings written on it. Petitioner indicated that he understood his rights and signed the card. He was placed under arrest and taken to the stationhouse.

II.

Petitioner's claim that the statements made to Wargin should be suppressed turns on whether Wargin's questioning is deemed custodial interrogation.

In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the Supreme Court held that the prosecution cannot use statements given by a defendant during custodial interrogation unless the defendant was given warnings effective to secure his privilege against self-incrimination. The Court defined custodial interrogation as "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444, 86 S.Ct. at 1612.

The Court explained that custodial interrogation triggered the need for prophylactic warnings because "(i)t is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries." Id. at 477, 86 S.Ct. at 1629. The Court emphasized, however, that its decision was not intended to hinder the efforts of the police in investigating crime.

General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. . . . In such situations the compelling atmosphere inherent in the process of in-custody

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