Com. v. Aarhus

• Decision Date: 17 December 1982
• Parties: COMMONWEALTH v. Erik AARHUS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1274

443 N.E.2d 1274

387 Mass. 735

COMMONWEALTH v. Erik AARHUS.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Sept. 15, 1982.

Decided Dec. 17, 1982.

William J. Kittredge, Hudson, for defendant.

Susan C. Mormino, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, LIACOS, ABRAMS, NOLAN and LYNCH, JJ.

LYNCH, Justice.

Erik Aarhus was convicted of murder in the first degree of Elaine Tyree and was sentenced to life imprisonment. He appeals from his conviction, alleging errors of law in the admission at his trial of physical evidence seized from his barracks room and statements he made to the police following his arrest. In addition, he seeks review pursuant to G.L. c. 278, § 33E. We find no error or any reason for the exercise of our plenary powers under § 33E. We affirm the judgment of conviction.

On August 13, 1979, the defendant filed a motion to suppress the statements he made on February 13, 1979. This motion was denied on December 10, 1979. On January 16, 1980, the trial attorney who was appointed after the defendant's first attorney had withdrawn, moved to revoke the order denying the original motion to suppress evidence. After a hearing, the motion was again denied. Trial began on January 29, 1980. On February 7, 1980, the jury returned a verdict of guilty of murder in the first degree.

The primary evidence implicating the defendant in this murder is not in dispute, as it primarily arose from his confession. Since the defendant has raised a number of objections about the process by which the police obtained the evidence, we shall review the sequence of events resulting in the defendant's arrest and confession. The following facts appear from the findings of both the trial judge and the motion judge. ¹

On January 30, 1979, Elaine Tyree, a servicewoman in the United States Army stationed at Fort Devens, in Ayer, Massachusetts, was found dead in her apartment. She had been stabbed repeatedly and her throat had been cut. Police suspicion quickly focused on her husband, William Tyree, Jr., also a member of the United States Army stationed at Fort Devens. ² Tyree was acquainted with the defendant, who, like the Tyrees, was an enlisted member of the Army assigned to Fort Devens. In early January, 1979, both Tyree and Aarhus had been subjected to a nonjudicial disciplinary proceeding by their military superiors (referred to as an "article 15" by the military, see art. 15, 10 U.S.C. § 815 [1976] ) because of their alleged involvement in a theft of government property.

During questioning by the Ayer police, the State police, and the Army's Criminal Investigation Division (CID), Tyree attempted to shift the focus of the murder investigation to Aarhus. During an interview at the Ayer police station on Monday, February 12, 1979, Tyree stated that he had arranged a meeting with Aarhus at the Tyrees' apartment on Monday, January 29, 1979, the night before the murder, to discuss their art. 15 disciplinary proceedings. However, Tyree claimed that he had changed his mind and told Aarhus not to come over. Nevertheless, Aarhus went to the Tyrees' apartment on that Monday night. Tyree suggested that Aarhus's behavior made him a likely suspect for the murder. Tyree told the officers, "I think it was Aarhus. I can't explain why he was at my house the night before it happened."

On February 13, 1979, or the previous evening, ³ Tyree informed Chief William Adamson of the Ayer police department that Aarhus had admitted the murder to him. Tyree stated that he could obtain from Aarhus the knife used in the murder. Tyree arranged for the police to be present at a rendezvous he had made with Aarhus at which Aarhus would deliver the murder weapon to him. Early on the afternoon of February 13, 1979, the police "staked out" the area designated by Tyree. However, when Tyree appeared, he informed the police that Aarhus could not then leave the post.

Later that afternoon, Adamson and Lieutenant John Dwyer of the State police were at CID headquarters on Fort Devens discussing the case with Special Agent Joseph Burzynski, one of two CID agents actively involved in the murder investigation. Tyree suddenly appeared and announced that he had just come from Aarhus's barracks. He informed the officers that he had been in Aarhus's room and that he had seen the knife used to murder his wife under Aarhus's pillow. Tyree claimed that previously he had arranged with Aarhus to buy the weapon for $5,000. If the authorities did not move promptly, Tyree asserted, Aarhus would remove the knife from Fort Devens.

Agent Burzynski immediately telephoned Special Agent Paul Mason, the CID agent in charge of the military investigation of Elaine Tyree's murder. Agent Mason, accompanied by Agent Collins, the CID operations officer, hastened to CID headquarters. Having done this, Agent Burzynski began questioning Tyree about his allegations. Burzynski knew both Tyree and Aarhus since he had been involved in the earlier investigation concerning their alleged theft of government property. Tyree suggested that Aarhus had a motive arising out of this earlier investigation for killing Elaine Tyree. Tyree claimed that Aarhus had threatened to change his earlier statements to the CID agents regarding Tyree's complicity in the theft in order to implicate Tyree further. To prevent this, Tyree stated, he agreed to pay Aarhus for his silence. Tyree declared that he had informed his wife of Aarhus's threats and that on January 29, 1979, she had advised Aarhus that she intended to reveal his conduct to the CID. Tyree alleged that Aarhus killed Elaine Tyree to prevent these revelations.

Tyree's allegations convinced Burzynski that probable cause existed to search Aarhus's quarters. Burzynski left Tyree in the conference room and then, in accordance with military procedure, see Manual for Courts-Martial, United States par. 152 (rev.ed.1969), called Colonel Rittgers, the commanding officer of Fort Devens, to obtain authorization to conduct the search. Burzynski related the details of Tyree's statement to Rittgers. Rittgers carefully examined the grounds for the search with Burzynski. After he was convinced fully that Burzynski had presented adequate grounds for a determination of probable cause, Rittgers gave his oral authorization for the search. Immediately after Rittgers gave permission to search Aarhus's room, Adamson, Dwyer, CID Agents Mason and Jackson, and Trooper Patrick Keane departed for Aarhus's barracks. On their arrival, Mason introduced the civilian authorities to Captain Polcrack, Aarhus's company commander, who had been notified of the impending search. Captain Polcrack led them to Aarhus's room and directed the "charge of quarters" to open the door. Mason entered the room, went to Aarhus's bed, removed his pillow, and discovered a knife and sheath wrapped in two plastic bags. The knife was covered with bloodstains which were later determined to be of Elaine Tyree's blood type.

After finding the knife, Mason detailed Jackson to the barracks where Aarhus was working in order to "secure" him. Burzynski arrived shortly thereafter and placed Aarhus "under apprehension." Aarhus was then transported back to CID headquarters for questioning.

Adamson, Dwyer, and Burzynski conducted the interrogation of Aarhus at the CID headquarters. Adamson informed the defendant that they were investigating the murder of Elaine Tyree and then explained to the defendant his Miranda rights. At the same time, Burzynski informed the defendant of his rights under the military code, including his right to a military lawyer, if he so chose. The defendant refused the offer of a military lawyer, stated that he understood his rights, repeated them for Chief Adamson, and agreed to be interviewed.

Dwyer then suggested that they tape record the interrogation. On the recording Adamson identified the officials present in the interrogation room. In referring to Burzynski, Adamson inaccurately told Aarhus, "He's here to see that your rights are protected." Adamson then repeated the substance of the Miranda warnings. He also told Aarhus that Aarhus could stop the interrogation at any time he wanted. Adamson further elicited an admission from Aarhus that he had previously given Aarhus his Miranda rights. The defendant again acknowledged that he understood his rights and the questioning began anew.

The interrogation continued for approximately two hours. Initially, the defendant denied involvement in the murder. He attempted to explain away the presence of the incriminating knife under his pillow. The defendant admitted that the knife was his but claimed that he had lent the knife to William Tyree around January 27, 1979. Tyree returned the knife, according to Aarhus, on the Saturday following the murder. The police noted that this was not possible as Tyree was then in Maryland at his wife's funeral. The police pointed out this inconsistency in the defendant's story and expressed their disbelief in his denial of culpability.

After being caught in this lie, Aarhus confessed his involvement in the murder. He admitted that Tyree had offered him $5,000 to "extinguish" Elaine Tyree. Tyree was to pay the defendant with part of the insurance money he hoped to collect from his wife's death. On the morning of the murder, Tyree drove Aarhus to the Tyree apartment and left the defendant inside the apartment. In accordance with their plan, Tyree later drove his wife to the apartment and sounded the car's horn twice to signal Aarhus that she was coming. When Mrs. Tyree entered the apartment, Aarhus stabbed and killed her.

1. The search of the barracks room. The defendant has made several arguments against the legality of the search. We shall review each of his arguments separately.

a. The defendant first contends that the motion to suppress should have been granted on the ground that the military personnel, in conducting the search, were acting "as a mere...