Com. v. Azar, 90-P-958

• Decision Date: 27 May 1992
• Docket Number: No. 90-P-958,90-P-958
• Citation: 588 N.E.2d 1352,32 Mass.App.Ct. 290
• Parties: COMMONWEALTH v. David M. AZAR.
• Court: Appeals Court of Massachusetts

Page 1352

588 N.E.2d 1352

32 Mass.App.Ct. 290

COMMONWEALTH v. David M. AZAR.

No. 90-P-958.

Appeals Court of Massachusetts Middlesex.

Argued Oct. 9, 1991.

Decided March 25, 1992.

Further Appellate Review Denied May 27, 1992.

Robert A. George, Boston, for defendant.

David R. Marks, Asst. Dist. Atty. (Elizabeth Keeley, Cambridge, with him) for Comm.

Before WARNER, C.J., and KASS and GREENBERG, JJ.

WARNER, Chief Justice.

On November 27, 1988, the defendant's four month old daughter, Geneva, was found lying in her bedroom, motionless and gray. She had no pulse and was not breathing. She died that day. An autopsy revealed bruises and abrasions on various parts of her body, some of which were inflicted minutes to hours before her death. There were fractures in her arms and legs, consistent with her body having been shaken as she was held by the chest. Some of these fractures occurred from minutes to days before her death. She also had fractures of five ribs, one to six weeks old, in the process of healing. The infant's skull was fractured, and her brain was swollen and flattened. This injury resulted from a great force applied to the side of her head, as it hit a broad, flat surface. It was inflicted from minutes to hours before her death, and was consistent with the victim's having been held tightly by her ankles and forcefully swung so that the right side of her head struck a large flat object, such as a wall or the headboard of a bed. A jury found the defendant guilty of second degree murder in his daughter's death. We recite additional evidence in the course of our discussion of each of the defendant's claims of error.

1. The motion to dismiss the indictment. The defendant's motion for dismissal of the indictment, claiming that the evidence presented to the grand jury was insufficient for an indictment for murder, was denied. There was no error. In order to return a valid indictment a grand jury must hear "sufficient evidence to establish the identity of the accused ... and probable cause to arrest him." Commonwealth v. McCarthy, 385 Mass. 160, 163, 430 N.E.2d 1195 (1982). Probable cause is "reasonably trustworthy information ... sufficient to warrant a prudent man in believing that the defendant had committed ... an offense." Commonwealth v. O'Dell, 392 Mass. 445, 450, 466 N.E.2d 828 (1984).

The grand jury had the requisite probable cause to support an indictment for murder. There was the following testimony: the victim had no bruises when Suzanne Azar, the defendant's wife and mother of the victim, left home at around 8:15 A.M. on the day that she died; the victim suffered multiple injuries before she died; the defendant admitted that he was alone with the victim when she died; the defendant said to Judith Whyte, his wife's sister, when she arrived at the home, "Oh my god, I killed my baby, oh my God, I killed my baby." The defendant said to Suzanne Azar, "I'm sorry, it's my fault. I'm sorry."

In addition, an expert witness testified that the skull fracture was caused when the victim's head struck or was struck by a flat object with great force, and that death was caused by blunt force trauma to the head. The autopsy report also showed that the victim had five fractured ribs in various stages of healing and fractures to both arms and legs. The grand jury examined photos of the bruises and skull injury.

Although some of the grand jury testimony was hearsay, an indictment which is based in part or entirely on hearsay may stand as long as the integrity of the grand jury proceedings has not been impaired. Commonwealth v. McGahee, 393 Mass. 743, 746-747, 473 N.E.2d 1077 (1985). In this case, the grand jury was clearly informed as to whether the evidence they heard was direct or hearsay testimony. There was no showing that the grand jury had been impaired in any way. Further, there was no showing that the testimony was false or deceptive, see Commonwealth v. Waters, 410 Mass. 224, 232, 571 N.E.2d 399 (1991), or vague.

The fact that the defendant was alone with the victim at the time that she sustained the injuries that caused her death, and his admissions that he killed her, were sufficient to show probable cause that the defendant murdered her. See Commonwealth v. Healy, 393 Mass. 367, 383, 471 N.E.2d 359 (1984). The severity of her injuries tended to show that the defendant acted with extreme atrocity or cruelty and with malice and premeditation. See Commonwealth v. Kane, 388 Mass. 128, 134, 445 N.E.2d 598 (1983); Commonwealth v. Hutchinson, 395 Mass. 568, 577-578, 481 N.E.2d 188 (1985); Commonwealth v. Glass, 401 Mass. 799, 803, 519 N.E.2d 1311 (1988); Commonwealth v. Freiberg, 405 Mass. 282, 290 n. 3, 540 N.E.2d 1289 (1989); Commonwealth v. Gallagher, 408 Mass. 510, 520-521, 562 N.E.2d 80 (1990).

Without citation to authority, the defendant also argues that he was entitled to a dismissal of the case because he did not have access to the instructions to the grand jury on the requirements of murder and manslaughter in order to ascertain the legal foundation of the grand jury indictment. There is no merit to the contention. A defendant is entitled to "the written or recorded statements of a person who has testified before a grand jury" (emphasis supplied). Mass.R.Crim.P. 14(a)(1)(B), 378 Mass. 874 (1979); Commonwealth v. Stewart, 365 Mass. 99, 104-106, 309 N.E.2d 470 (1974); Commonwealth v. Liebman, 379 Mass. 671, 674, 400 N.E.2d 842 (1980). Similarly, G.L. c. 221 § 86, and Superior Court Rule 63 (1974) require only the transcription of testimony before the grand jury. Moreover, the defendant made no showing that the grand jury instructions were transcribed.

2. The motion to suppress the defendant's statements. The defendant argues that the judge improperly denied the motion to suppress his statements to the police, both because he was a "suspect" ¹ at the time he was questioned and because his statements were not voluntarily given.

Sergeant Bruce Noah, an emergency medical technician and veteran police officer of the Sudbury police department, testified that he did not suspect the defendant of committing any wrongdoing when he went to the Azar home on November 27, 1988, after receiving a call from the home requesting assistance with an infant who was not breathing. State police Trooper James Connolly testified that before going to the Azar home with two other officers to investigate a possible incident of sudden infant death syndrome on November 28, 1988, he and Trooper Gary Walsh had learned from Dr. Joann Richmond that the victim's skull had been fractured, that there were fractures of the extremities and healed rib fractures. At that time, the troopers were not told the cause or manner of the victim's death.

Trooper Connolly testified that he and the other officers had a discussion with the defendant in the living room of the Azar home but found that the conversation was frequently interrupted and, therefore, requested that the defendant come to the Sudbury police station, where they could talk without distraction. The defendant and his father, Mitchell Azar, drove to the station in a car separate from the police.

At the station, three officers and the defendant sat around a table in a conference room while the defendant's father waited outside the room. Trooper Walsh told the defendant that he was not under arrest or in custody and that he could leave at any time.

Troopers Connolly and Walsh testified that the defendant was cooperative, coherent and sober during the interview, and he appeared to understand what was happening. After approximately twenty minutes, the defendant's father, who had entered the room upon the defendant's request, was becoming visibly upset at the questioning. Trooper Walsh asked to speak to the father outside, at which time he explained that they had questions about the injuries found on the victim. The father asked if he should call an attorney. Trooper Walsh told him that that was up to him and directed him to a phone.

Upon returning to the conference room, Troopers Walsh and Connolly testified that Trooper Walsh read the defendant his Miranda warnings so that he would know that he was entitled to an attorney. The defendant indicated that he understood his rights. At the end of the recital of the Miranda warnings, the father returned to the room and announced that an attorney was coming. Troopers Walsh and Connolly testified that the defendant acknowledged this information.

After the attorney arrived, the police declined to question the defendant further and the discussion turned to where the defendant would stay for the night. The police said that they would have to make a report of abuse, and that until they completed an investigation, the State Department of Social Services (DSS) would probably separate the other two children of the defendant and his wife from them. Trooper Walsh told the defendant that if he found someplace else to stay, he could probably convince DSS to allow the children to stay at home. ² It was agreed that the defendant would stay with his father. Trooper Connolly testified that the defendant, his father and the attorney then left the station, and that he did not arrest the defendant at that time because he did not have probable cause.

According to the defendant, the statements he made before he was read his Miranda warnings should not have been introduced at trial because of the custodial atmosphere of the questioning. He claims further that even if the Commonwealth successfully established that the defendant was given his Miranda warnings, the statements should have been suppressed because he did not effectively and voluntarily waive his Miranda rights as required by Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), and Commonwealth v. Day, 387 Mass. 915, 921, 444 N.E.2d 384 (1983), and because his statements were not freely and voluntarily given as required by Commonwealth v. Tavares, 385...