Com. v. Bousquet

• Decision Date: 05 July 1990
• Parties: COMMONWEALTH v. Christopher R. BOUSQUET.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 37

556 N.E.2d 37

407 Mass. 854

COMMONWEALTH v. Christopher R. BOUSQUET.

Supreme Judicial Court of Massachusetts Bristol.

Argued May 9, 1990.

Decided July 5, 1990.

Eileen D. Agnes, Framingham, for defendant.

Beth R. Levenson, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

NOLAN, Justice.

A jury convicted the defendant, Christopher R. Bousquet, of murder in the first degree. The verdict was based on the conclusion that the defendant had killed the victim with "deliberately premeditated malice aforethought" and with "extreme atrocity or cruelty." The defendant appeals from his conviction.

On June 14, 1982, both the defendant and the victim were sixteen years old. The victim had sold some hashish to the defendant and the two of them went into the woods in Swansea to smoke the hashish together. At some point, the victim took out a knife and demanded that the defendant turn over his money. The defendant pulled out his own knife, which had "brass knuckles" attached to it. He punched the victim and, in so doing, cut his own thumb. He then stabbed the victim in the face. The victim tried to flee, but the defendant pursued her. He continued stabbing the victim all over her body, until the knife blade curled over. The defendant then kicked the victim several times and threw his knife into the woods. Before he left, the defendant took the victim's "compact," in which she had placed the money the defendant had given her for the hashish.

Over two years later, the victim's skeletal remains were discovered, along with some clothing and personal items. The victim's parents identified the items as those of their daughter. The skeletal remains were identified as those of the victim.

Joseph Amaral, when he heard about the discovery of the victim's remains, telephoned the police to report that he had found a knife in the same area. Amaral turned the knife over to the police and explained that he had had to straighten out the blade, which was bent like a fish hook when he found it.

In November of 1986, Karl Tyas contacted the police. Tyas was one of several people to whom the defendant had boasted about how he had killed a girl. Detective Robert Furtado of the Swansea police department and Sergeant Natale Lapriore of the State police then went to the defendant's place of employment and asked the defendant if they could speak with him. The defendant agreed and accompanied the police to the Bristol district attorney's office. The officers advised the defendant of his rights in accordance with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). They then told the defendant that there was evidence linking him to the victim's murder. The defendant denied that he was involved. Sergeant Lapriore then said, "Chris, she must have really pissed you off to do that to her." The defendant said, "Yes, she did," and then gave the officers a full account of the murder, as outlined above.

Lapriore and Furtado placed the defendant under arrest. They asked him if he would repeat his confession on videotape, and the defendant agreed. The officers again gave the defendant Miranda warnings and then videotaped his entire confession.

The following day, they obtained a search warrant for the defendant's house. In the defendant's bedroom, Lapriore discovered a compact. The victim's stepsister and one of the victim's friends both identified the compact as one that had belonged to the victim.

Other facts appear in the discussion of the issues raised by the defendant.

1. Transfer from Juvenile Court to Superior Court. Because the defendant was sixteen years old at the time of the murder, he was arraigned in the Juvenile Court. The Commonwealth moved for a hearing relative to transfer to Superior Court pursuant to G.L. c. 119, § 72A. The judge allowed the motion and continued the matter until a later date for a hearing on the transfer motion. Ultimately, he ordered the delinquency complaint dismissed and ordered a criminal complaint to issue pursuant to G.L. c. 119, § 61, set forth in the margin. ¹

General Laws c. 119, § 72A, deals with individuals, such as the defendant, who commit offenses prior to their seventeenth birthday but who are not apprehended until after their eighteenth birthday. ² Section 72A provides that a case within its purview is to be heard and determined in accordance with §§ 53-63. With regard to transfer, however, § 72A specifically provides a different standard from that which is applicable in the ordinary juvenile case. Section 72A expressly provides that the Juvenile Court must determine two things in order to transfer the case to the Superior Court. First, the judge must decide whether there is probable cause to believe that the alleged offender committed the offense as charged. Second, the judge must decide whether it would be proper to discharge the alleged offender or whether the interests of the public require that he be bound over for trial as an adult.

In the ordinary juvenile case, transfer is governed by the standards of G.L. c. 119, § 61. Section 61 is one of the sections generally applicable to § 72A cases. Since the Legislature provided specific standards for transfer in § 72A, however, these specific standards preempt the § 61 standards in this case. In other words, the specific provisions of G.L. c. 119, § 72A, relative to transfer are applicable to a § 72A transfer hearing and the standards set forth in § 61, despite the general incorporation of §§ 53-63 are not controlling. Cf. Koller v. Duggan, 346 Mass. 270, 273, 191 N.E.2d 475 (1963) (particular phrases limit general phrases which might embrace related conduct). If the Legislature had intended the § 61 standards to govern § 72A transfer hearings, it would not have included partially repetitive, partially different standards governing transfer in the text of § 72A itself.

Common sense supports this interpretation of § 72A. The Appeals Court has recognized that some of the § 61 requirements are irrelevant in the context of a § 72A case. See Commonwealth v. A Juvenile, 16 Mass.App.Ct. 251, 257, 450 N.E.2d 1089 (1983). We agree. It would be irrational to conclude that the Legislature sought to require the Juvenile Court to determine such things as whether an adult defendant is subject to rehabilitation as a juvenile. To require the Juvenile Court to make such irrelevant findings would be to require a useless and barren act, an intention we choose not to impute to the Legislature. See Insurance Rating Bd. v. Commissioner of Ins., 356 Mass. 184, 189, 248 N.E.2d 500 (1969). The statutory scheme is reasonably clear that in a § 72A case, transfer is to be governed by the specific standards provided in § 72A.

The Juvenile Court judge, after a hearing, determined that there was probable cause to believe that the defendant committed murder. The record amply supports that conclusion and the defendant does not argue otherwise. Thus, the first prerequisite to transfer under § 72A is clearly satisfied.

The second prong of the § 72A test required the judge to decide whether the defendant should "be discharged, if satisfied that such discharge is consistent with the protection of the public," or whether the complaint should "be dismissed, if the court is of the opinion that the interests of the public require that such person be tried for such offense." The judge expressly found that "the interests of the public require that this defendant be tried ... instead of being discharged." The judge relied on the heinous nature of the crime, the details of which he related in his order. See Commonwealth v. Costello, 392 Mass. 393, 397, 467 N.E.2d 811 (1984) (appropriate to rely heavily on seriousness of crime in deciding whether to transfer). The judge had a sufficient basis to conclude that the interests of the public required transfer. The defendant received the benefit of the judge's discretion on this issue, and the judge did not abuse that discretion. ³

2. The grand jury. The defendant contends that the integrity of the grand jury was impaired as a result of an incomplete and misleading presentation of the evidence. The defendant also contends that, in the circumstances, the prosecutor should have been required to instruct the jurors on the differences between murder in the first degree and the second degree and manslaughter and the relevance of intoxication to an indictment. We find the defendant's contentions to be without merit.

Because the defendant raises these issues for the first time on appeal, we review the alleged errors in the grand jury proceedings to determine whether they create a substantial risk of a miscarriage of justice. Commonwealth v. Mayfield, 398 Mass. 615, 622 n. 4, 500 N.E.2d 774 (1986). We have reviewed the record. The defendant was afforded a fair trial and, therefore, we find no substantial risk of a miscarriage of justice.

3. Voluntariness of confessions. The defendant moved to suppress his confessions to the police on the grounds that (1) he did not understand the waiver of his rights and (2) the confessions were involuntary. The judge held a hearing, at which he heard testimony from the defendant, Sergeant Lapriore, and Detective Furtado. The judge also viewed the videotaped confession. The judge ruled that the defendant's waiver of his Miranda rights was knowing and intelligent beyond a reasonable doubt. He also found, beyond a reasonable doubt, that both confessions to the police were voluntary. The defendant challenges these conclusions on appeal.

Sergeant Lapriore and Detective Furtado both testified that, on the day of the confession, they found the defendant at work and asked to speak with him. The defendant agreed, but first made a telephone call to someone. When they arrived at the district attorney's office, the officers read the defendant his rights in accord with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)....