Com. v. Amazeen

• Citation: 375 Mass. 73,375 N.E.2d 693
• Parties: COMMONWEALTH v. Delmer T. AMAZEEN.
• Decision Date: 20 April 1978
• Court: United States State Supreme Judicial Court of Massachusetts

Page 693

375 N.E.2d 693

375 Mass. 73

COMMONWEALTH v. Delmer T. AMAZEEN.

Supreme Judicial Court of Massachusetts,Berkshire.

Argued Oct. 3, 1977.

Decided April 20, 1978.

Thomas J. O'Connor, Jr., Springfield, for defendant.

John C. Bryson, Jr., Springfield, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, LIACOS and ABRAMS, JJ.

ABRAMS, Justice.

Pursuant to G.L. c. 278, §§ 33A-33G, the defendant, Delmer T. Amazeen (Amazeen), appeals his conviction of murder in the second degree on an indictment which charged murder in the first degree. Amazeen argues assignments of error concerning (1) the denial of a pre-trial motion to suppress inculpatory statements made by him; (2) the denial of his motions for a directed verdict of not guilty; (3) the judge's instructions to the jury; (4) the selection of the jurors; (5) the admission of color photographs of the deceased; and (6) the reading of his written statement to the jury. ¹ We conclude that the conviction should be affirmed and that we should not exercise our power under § 33E in favor of the defendant.

We summarize the evidence presented at the trial, which included two incriminating statements made by the defendant. Julia C. Schroeter (Schroeter), the sister of Amazeen's wife, ² and the defendant apparently had a romantic involvement for a number of years. On Sunday, April 14, 1974, the defendant and Schroeter went together to a drive-in theatre. While they were in the defendant's station wagon at the theatre, the defendant hit Schroeter at least three times with a hammer. The defendant then drove a few miles away and stopped to transfer the victim to the rear seat. As he opened the door, the victim fell out onto the road. The defendant stated that he then decided to pull the station wagon up so that he could put the victim in the back of it. As he moved the car forward, he drove over the victim's body with the rear wheel. He then backed the car over the victim again. The defendant next attempted to throw the body into the woods along the road; however, he was unable to do so because of the presence of a barbed wire fence. He then brought the body to a vacant cottage near his home and left it there overnight. The next morning the defendant disposed of the body in a secluded spot in a forest.

Schroeter's son and his fiancee returned to Schroeter's house on the evening of April 14 and found no one home. Schroeter's son attempted to contact his mother by telephone on April 15 and April 16. As a result of his inability to reach her, he called his uncle, Amazeen, to determine if he knew the whereabouts of Schroeter. Amazeen said he had seen Schroeter on Sunday but that she was not with him at present. Approximately forty-five minutes later, Schroeter's son called again and asked if Amazeen knew "where she might have been, who she might have gone with . . . ." Amazeen said "he didn't know or she didn't tell him where she was going." Schroeter's disappearance was reported to the local and State police. A State police officer went with Schroeter's son to Amazeen's home on the evening of April 16. Amazeen told the officer that he had visited Schroeter on Sunday and that Schroeter was at her home at the time he left there.

The body of Schroeter was found on April 18. An autopsy was performed that evening. The autopsy report indicated that Schroeter "came to her death as a result of multiple blows to the body, crushed chest."

Amazeen did not work on Monday, April 15. He worked a full day on Tuesday and Wednesday. On Thursday he worked half a day and after receiving his pay check he left. Amazeen's wife found a note on her return home on April 18. In the note, Amazeen said, "I have to go away for a while to see if I can earn more money to pay my bills. If my check come before I come back sign my name and then yours. They are both yours. I will write or call you. Del."

On April 20, the State police learned that Amazeen's car had been seen at his sister's house in Bradford, Massachusetts. Four State police officers went to Amazeen's sister's house. In Bradford the defendant made an incriminating oral statement, later at one of the State police barracks, the defendant dictated another statement. The defendant moved to suppress both these statements. After a hearing, the trial judge denied this motion.

1. Motion to Suppress the Defendant's Statements.

We summarize the judge's findings. On April 20, 1974, four State police officers arrived at the home of the defendant's sister and asked for the defendant. The police officers identified themselves to the defendant and his sister. The defendant and the officers then proceeded to the driveway in front of the house. One of the officers asked the defendant if he could read and then gave him a card containing the Miranda warnings. The officer asked the defendant if he understood the card, and he replied that he did. The officer then read each of his rights to the defendant and asked him whether he understood each of them. The defendant again answered that he did understand. The police officer then asked the defendant if he wanted to talk to the officer, and the defendant replied that he did. Before the defendant made his oral statement, the police officer had also commented that he guessed the defendant knew the reason for the police visit; the defendant stated that he did. The defendant then made an incriminating statement to the police.

The police next took the defendant to a police barracks. In the yard of the barracks, one of the officers informed him that he was under arrest for the murder of Schroeter. At the barracks, he was advised of his right to use the telephone, and he signed a waiver of that right. An officer again went over the defendant's Miranda rights with him. Then the officer read the Massachusetts State police interrogation form, which also contained Miranda warnings, to the defendant. The defendant replied that he understood each of his rights and that he would answer questions without the presence of an attorney. The defendant signed the interrogation form. He then dictated a statement to the officer which was typed as it was dictated. Amazeen signed this statement.

The judge found that complete Miranda warnings were given in the driveway and again at the barracks and that, in response to questions whether he understood his rights, the defendant replied each time that he did understand them. The judge also found that the defendant appeared to be intelligent, well spoken, and cooperative; his conduct with the police made it strongly appear to the judge that the defendant was aware at all times of what was going on. The judge concluded that the defendant made a voluntary, knowing, and intelligent waiver of his rights. ³

The defendant contends in this court that his first statement should have been suppressed because he could not knowingly waive his rights unless he was informed that he was charged with a crime or that he was a suspect. Miranda does not require the police to provide a defendant with such information. See Miranda v. Arizona, 384 U.S. 436, 467-473, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Commonwealth v. Lewis, --- Mass. --- ^a, 371 N.E.2d 775 (1978). And we decline to impose an additional requirement that police officers must advise a defendant that he is charged with a crime or that he is a suspect before a valid waiver may be obtained. See Commonwealth v. Borodine, --- Mass. ---, --- ^b, 353 N.E.2d 649 (1976), cert. denied, 429 U.S. 1049, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977). See also Commonwealth v. Lewis, supra.

The evidence presented at the suppression hearing amply supported the judge's findings and his ruling that the defendant had made a valid waiver of the rights protected by Miranda. ⁴ To the extent that the defendant's argument on this issue is directed to trickery or deception on the part of the police, it is also without merit. Although Amazeen was not explicitly informed that he was to be charged with murder before he made his first statement, the officer who gave the Miranda warnings had commented to the defendant that the defendant probably knew why the police were there, and the defendant replied that he did. The defendant's own testimony indicates that after being warned in accordance with Miranda he "remembered" telling the officer that he understood his rights and "wanted to tell . . . (the officer) what happened in Becket with Julia Schroeter." No argument has been made by the defendant that he would not have made his first statement if he had been told that he was charged with murder or that he was a murder suspect. Indeed, in view of the absence of such a claim in the defendant's own testimony, such an argument would not be supported by the transcript. The transcript is devoid of any evidence to support a contention of unfairness, deception, or trickery on the part of the police toward this defendant. There was no error in the denial of the defendant's motion to suppress this statement.

The defendant also argues that his written statement should have been suppressed because this statement was the product of his impression that the cat was already out of the bag. See Commonwealth v. Haas, --- Mass. ---, --- - --- ^c, 369 N.E.2d 692 (1977); Commonwealth v. Mahnke, 368 Mass. 662, 686-687, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). However, for a subsequent statement to be excluded on this ground, the prior statement must have been one requiring exclusion. See Commonwealth v. Mahnke, supra. Since we have concluded that the defendant's first statement was properly admitted, his argument for excluding his second statement falls.

2. Denial of Motions for a Directed Verdict.

At the close of the Commonwealth's case, and again after the defense rested, the defendant moved for a directed verdict of not guilty on so much of the indictment as charged murder in the first degree and...