Com. v. Borodine

• Decision Date: 23 August 1976
• Citation: 353 N.E.2d 649,371 Mass. 1
• Parties: COMMONWEALTH v. Michael A. BORODINE
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 649

353 N.E.2d 649

371 Mass. 1

COMMONWEALTH

v. Michael A. BORODINE

Supreme Judicial Court of Massachusetts, Middlesex.

Argued May 4, 1976.

Decided Aug. 23, 1976.

Howard J. Alperin, Boston (Barry M. Haight, Milton, with him), for defendant.

Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and BRAUCHER, KAPLAN and WILKINS, JJ.

WILKINS, Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from a conviction of murder in the first degree.

The body of the victim, a girl friend of the defendant, was found in the cellar of her Newton home one afternoon in May, 1974. The defendant and the victim's sister-in-law were the only other adults shown to have been present on the premises at or about the time of the victim's death. The victim had suffered substantial injuries consistent with being punched, struck by an iron, kicked by a shod foot, and strangled with a cord.

The defendant raises several issues. He argues that (1) statements he made to the police in the cellar of the victim's home should have been suppressed, (2) evidence of the victim's state of mind toward him should not have been admitted, (3) various portions of the prosecutor's charge to the jury were highly improper and unfairly prejudicial, (4) certain of the judge's instructions to the jury were erroneous, and (5) in any event, this court should exercise its powers and duty under G.L. c. 278, § 33E, to grant the defendant a new trial, or at least to reduce the degree of guilt. The facts necessary to an understanding and resolution of each issue will be sent forth where necessary as each issue is considered. We affirm the conviction and decline to alter the result pursuant to our powers under G.L. c. 278, § 33E.

1. We consider first the defendant's contentions concerning the denial of his motion to suppress statements which he made to the police.

The defendant challenges the judge's failure to suppress statements made to the police officer who questioned the defendant initially at the victim's home. Officer Wargin (Wargin) of the Newton police department, who was operating an auxiliary ambulance, responded to a radio message relaying a call from the victim's home. When he arrived, the victim's sister-in-law directed him to the cellar, saying, 'they had a fight.' He went to the cellar where he found the victim's body and the defendant. The defendant said, 'help her.' Wargin spent about five minutes checking the victim for vital signs and found none. He asked the defendant if there was any way out of the cellar other than the stairs. The defendant, who knew the house, said there was not. The defendant appeared very upset. Wargin then asked another officer to summon a superior and asked the defendant to come into a laundry room which adjoined the area where the victim lay.

The laundry room, which comprised half the basement, was warm, about eighty degrees, the same temperature as the outside air. The room was lit by a single closed window and an overhead light bulb. The defendant was naked from the waist up and had blood on his left shoulder and on his hands. The defendant was seated in a chair.

Wargin spoke to the defendant for about ten minutes in the laundry room. He asked the defendant his name and home address. In response to other questions, the defendant said that the victim was his girl friend and they were planning to get married. He said that on that day she had arrived at the house after he had and they talked of plans for their marriage. He related that he got mad when the victim said she wanted to adopt 'colored children.' They had an argument, and she left the room. Later he went through the house looking for her. He found her in a crouched position at the bottom of the cellar stairs. He said he moved her to the position in which Wargin found her.

The questioning proceeded slowly. Wargin told the defendant to calm down and relax. In the course of the questioning Wargin suggested that the defendant use some water and wash off, which he did. The defendant was not denied his freedom of movement. No Miranda warnings were given to the defendant by Wargin.

The judge concluded that the questioning of the defendant was not physically or psychologically coercive, that the questioning had not focused on the defendant, and that there was no custodial interrogation. He ruled that the defendant's answers were given freely and voluntarily.

Constitutional considerations do not require the suppression of the statements made by the defendant to Wargin, even though Wargin did not give Miranda warnings to the defendant. The essential consideration has been whether the defendant has been taken into custody or otherwise deprived of freedom of action because suspicion has crystalized on him. Commonwealth v. Valliere, --- Mass. ---, ---, ^a 321 N.E.2d 625 (1974). The questions were preliminary, directed to discovering who the defendant was and what he knew about the circumstances. Wargin did not proceed aggressively in his questioning. He spent the first five minutes in the cellar attending the victim in the defendant's presence. Only when Wargin was certain he could do nothing for her did he turn his attention to the defendant.

This series of natural preliminary questions put to the defendant did not constitute custodial interrogation. See Commonwealth v. Cutler, 356 Mass. 245, 246--247, 249 N.E.2d 632 (1969); Commonwealth v. Doherty, 353 Mass. 197, 214, 229 N.E.2d 267 (1967), cert. denied, 390 U.S. 982, 88 S.Ct. 1106, 19 L.Ed.2d 1280 (1968); Commonwealth v. O'Toole, 351 Mass. 627, 630--631, 223 N.E.2d 87 (1967). The defendant's various answers were not inculpatory on their face and hence during the questioning no occasion arose requiring Marianda warnings. The fact that the circumstances may have changed during subsequent questioning does not affect the nature of the preliminary interrogation. See United States v. Hall, 421 F.2d 540, 545 (2d Cir. 1969), cert. denied, 397 U.S. 990, 90 S.Ct. 1123, 25 L.Ed.2d 398 (1970).

The Supreme Court of the United States has recently indicated that the basic consideration in determining whether questioning is 'custodial' is whether the situation presents elements which are inherently coercive. Beckwith v. United States, --- U.S. ---, ---, 96 S.Ct. 1612, 1616, 48 L.Ed.2d 1 (1976). The judge was warranted in concluding that Wargin's questioning of the defendant was free of coercion. Our conclusion on the largely undisputed facts, as found by the judge, is that the situation was not inherently coercive.

The defendant also argues that his statements should be suppressed because the provisions of G.L. c. 276, § 33A, were violated. Section 33A, as amended through St.1963, c. 212, provides that '(t)he police official in charge of the station or other place of detention having a telephone wherein a person is held in custody, shall permit the use of the telephone' for certain purposes. The arrested person must be 'informed forthwith upon his arrival at such station or place of detention of his right to so use the telephone . . ..' We agree with the ruling of the judge that 'the basement of the (victim's) home, in the circumstances of this case, was not a 'place of dtention' within the meaning of the statute.'

The defendant next contests the judge's failure to suppress statements made to other police officers who arrived in the cellar of the victim's home immediately after the questioning by Wargin. Miranda warnings were given to the defendant before he made any further statement. These subsequent statements largely confirmed the defendant's earlier statements, although he said for the first time that, after the victim and he had the argument, he left the house, walked to the Newtonville Square and back, and then found the victim. The defendant explicitly denied killing the victim.

The judge found that the Miranda warnings were clear, complete, and valid. He found that the defendant understood his rights and knowingly and intelligently waived them before questioning began. He found that the questioning was fair, dignified, and restrained and that there was no physical or psychological coercion. He concluded that the Commonwealth had sustained its heavy burden of demonstrating that the defendant knowingly, freely, and intelligently waived his rights.

The judge's findings on this point are fully warranted. ¹ The voluntariness of the defendant's action is tested by examining the totality of all the surrounding circumstances. See Commonwealth v. Hosey, --- Mass. ---, --- ^b, 334 N.E.2d 44 (1975); Commonwealth v. Daniels, --- Mass. ---, --- ^c, 321 N.E.2d 822 (1975); Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The defendant was twenty-three years old and of above average intelligence. He had attended high school and had earned a high school equivalency certificate during four years in the Coast Guard, where he studied navigation. After leaving the Coast Guard he studied computer programming. It was not necessary to informed consent that the defendant be told that he was a suspect. Indeed, it is inconceivable that, after being given Miranda warnings, the defendant did not realize that he was a suspect. His expressed willingness to tell the police 'anything you want to know' supports the judge's finding of a knowing, voluntary waiver of rights.

The defendant also objects to the admission of testimony concerning his appearance and his actions while he was answering questions from the police. The defendant's demeanor and behavior in the course of police interrogation certainly was relevant because it helped the jury in assessing the answers given. This is not a case where the prosecution introduced evidence of the defendant's silence at a time when the deendant had no obligation to speak.

2. The defendant next argues that evidence of the victim's state of mind toward him shortly before her death was admitted...