Com. v. Brant

• Decision Date: 31 October 1979
• Citation: 8 Mass.App.Ct. 558,395 N.E.2d 1320
• Parties: COMMONWEALTH v. Jeffrey A. BRANT.
• Court: Appeals Court of Massachusetts

Page 1320

395 N.E.2d 1320

8 Mass.App.Ct. 558

COMMONWEALTH v. Jeffrey A. BRANT.

Appeals Court of Massachusetts, Norfolk.

Argued May 15, 1979.

Decided Oct. 31, 1979.

Thomas P. McCusker, Jr., Westwood, for defendant.

Charles J. Hely, Asst. Dist. Atty., for the Commonwealth.

Before KEVILLE, BROWN and DREBEN, JJ.

KEVILLE, Justice.

On December 28, 1977, a clerk employed in a market located in Norwood was held up by two armed men who were masked. In the course of the robbery the clerk was shot and seriously wounded. The robbers fled and were not then apprehended. On February 4, 1978, the defendant, Jeffrey A. Brant, and Neil Kampen, Jr. were arrested in Titusville, Florida, after a high speed chase in which shots were exchanged with the police.

Brant appeals pursuant to G.L. c. 278, §§ 33A-33G, from his conviction after a jury trial on an indictment arising out of the Norwood incident charging him with armed robbery while masked. ¹ Brant argues two assignments of error on appeal.

He asserts error in the denial of his pretrial motion to suppress an incriminating statement made by him to police in Florida following his arrest which virtually amounted to a confession to the Massachusetts indictment. He also contends that the trial judge erred in permitting the prosecutor to argue to the jury that Brant had made no response to certain statements made by Kampen to the authorities and that the judge erred in instructing the jury that they could consider that failure to be an admission by Grant.

1. Motion to Suppress.

Whether the judge erred in denying Brant's motion to suppress terms on the resolution of two questions: whether the police scrupulously honored Brant's right to cut off questioning after he declined to be questioned without his lawyer being present, and whether his subsequent waiver of his right to remain silent was voluntarily and intelligently given. While the answers to these questions, as the motion judge acknowledged, are not free of difficulty, we conclude that there was no error.

In reviewing the judge's findings of fact and rulings of law on the motion to suppress, we accept his resolution of conflicting testimony. His subsidiary findings are not to be disturbed if warranted by the evidence. Commonwealth v. Watkins, 375 Mass. ---, --- ^A, 379 N.E.2d 1040 (1978). However, ultimate findings and conclusions of law, particularly those of constitutional dimension, are subject to independent review on appeal. Commonwealth v. Mahnke, 368 Mass. 662, 667, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976).

We summarize pertinent facts drawn from the judge's findings which are supported by the evidence taken at the hearing on the motion to suppress. On February 5, the day following their arrest, Brant and Kampen were brought to court for a probable cause hearing and to fix bail on certain Florida charges. They were represented by a Florida public defender. They were then lodged in a county jail in separate cell blocks and could not communicate with each other.

On February 13 a court order relieved the public defender from representing Brant and Kampen. ² On that day an assistant district attorney of Norfolk County, Tiernan, requested by phone of a Florida deputy sheriff, Hudepohl (who appears to have been in charge of these prisoners), that Hudepohl interview Brant and Kampen concerning the robbery in Norwood. On February 14 Hudepohl interviewed Kampen and informed him of the call from Massachusetts. He stated that he wished to obtain Kampen's side of the story and that he would not inquire about the Florida charges. Hudepohl carefully informed Kampen of his Miranda rights and ascertained that he understood them. Kampen replied "Yes" to Hudepohl's question "Do you wish to talk with me now without a lawyer?" Kampen then gave the Sheriff an inculpatory statement which was recorded on tape and on the following day was transcribed, signed by Kampen and notarized. At the close of the interview Kampen was permitted to talk briefly with Brant. ³

Kampen's inculpatory statement was communicated to Tiernan who promptly secured complaints against him in Massachusetts for armed robbery while masked and for assault with intent to murder and then left for Florida with two police officers. The judge found that Kampen knowingly, intelligently and voluntarily waived his Fifth Amendment rights guaranteed under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and his Sixth Amendment right to have his attorney present.

On February 15 Kampen and Brant, new and separate counsel having been appointed to represent each of them, were arraigned on the Florida charges. ⁴ The Massachusetts officials and Hudepohl were present in court at the arraignment and knew that Brant and Kampen were represented by counsel. They intended to interrogate Brant later that day. That afternoon Brant and Kampen were brought to an interview room in the jail, where the Massachusetts officials and Hudepohl had gathered. Hudepohl turned on a tape recorder and began to read to Brant his rights from a document entitled "Brevard County Sheriff's Department Interrogation Preamble". Included therein was the question, "Are you willing to proceed without an attorney being present to represent you?" In the document this question is followed by a blank space for the response of the person being interviewed. When Hudepohl read the question to Brant, Brant replied "No". Hudepohl then wrote that response on the document. ⁵ One of the Massachusetts officials then mentioned the fact that Kampen had already given a statement to the police. Hudepohl stated that this was so and that Kampen's statement had been signed and notarized. Hudepohl then turned off the tape recorder. At that juncture, Kampen remarked that his statement was "all lies." Brant then requested a moment to speak with Kampen privately. That request was granted. ⁶

Fourteen minutes later Brant and Kampen returned to the interview room. Brant asked that the tape recorder be turned back on as he wished to make a statement. Hudepohl complied with his request and again directed Brant's attention to the interrogation preamble and specifically to the question of Brant's willingness to proceed without an attorney being present to represent him. Brant himself crossed out the earlier response "No", wrote in "Yes", and signed his name indicating his willingness to make a statement without his attorney being present.

There followed questions by Hudepohl and answers by Brant. At some point, Kampen volunteered a response to a question and one of the Massachusetts officials joined the dialogue. At this point, Hudepohl reminded Kampen of his Miranda rights, ascertained that he understood them and obtained an affirmative answer when he asked Kampen whether he still wished to talk without having his attorney present. Other questions to Brant and Kampen followed with their responses, the latter virtually amounting to confessions to the Massachusetts offenses. ⁷

Contrary to Brant's assertion, we cannot say that the judge erred in his conclusion that Brant's right to cut off questioning was scrupulously observed when, on February 15, having indicated that he did not wish to be questioned without his attorney being present, he was informed that Kampen had given a signed statement to the police. The judge was not confronted here with an evaluation of police conduct such as that in Commonwealth v. Jackson, --- Mass. ---, --- ^B, 386 N.E.2d 15 (1979), where a suspect's statement was induced by a deliberate false representation that the suspect's girl friend had implicated herself in the crime, or that in Commonwealth v. Taylor, 374 Mass. ---, --- - --- ^C, 374 N.E.2d 81 (1978), where subtle and persistent police persuasion induced an incriminating statement. See United States v. Olof, 527 F.2d 752, 753 (9th Cir. 1975); Commonwealth v. Dustin, 373 Mass. 612, 615, 368 N.E.2d 1388 (1977); United States v. Davis, 527 F.2d 1110, 1111 (9th Cir. 1976); Blackmon v. Blackledge, 396 F.Supp. 296, 298-299 (W.D.N.C.1975); United States ex rel. Doss v. Bensinger, 463 F.2d 576, 578 (7th Cir. 1972). Compare United States v. Barnes, 432 F.2d 89, 91 (9th Cir. 1970); Commonwealth v. Andujar, 7 Mass.App.Ct. ---, --- ^D, 390 N.E.2d 276 (1979). Compare also Commonwealth v. Watkins, 375 Mass. ---, --- ^E, 379 N.E.2d 1040 (1978), where a defendant's statements made immediately following his initial request for counsel were suppressed because detectives continued to question him until he made a second request to see a lawyer.

The judge found that, following Brant's response that he did not wish to proceed without his attorney being present, the police did not further solicit him or apply coercion or pressure. While, as the judge found, Brant's questioners "hoped and expected" that he would make a statement, no questioning of him followed the factual disclosure that Kampen had given the police a statement until Brant, having at his request been given an opportunity to confer with his companion, changed his mind and initiated the resumption of interrogation. Brant was then facing the prospect of criminal charges against him in two jurisdictions. It was obviously to his advantage, before responding to questions in regard to the Massachusetts charges, to know that his companion had given the police a statement and whether he had been implicated therein. Where an accomplice has in fact made an inculpatory statement to the police it is permissible and, as in this instance, it may be informative rather than coercive for the police to make that fact known to a suspect who has invoked his right to cut off questioning in order that he may make a realistic evaluation of his position in light of the change in circumstances. Commonwealth v. Jackson, supra at --- n.7 ^F, 386 N.E.2d 15. See Hill v. Whealon 490 F.2d 629, 631 (6th Cir. 1974). Compare United States v. Mearns, 443 F.Supp....