Com. v. Buckley

• Decision Date: 20 May 1991
• Citation: 410 Mass. 209,571 N.E.2d 609
• Parties: COMMONWEALTH v. William E. BUCKLEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 609

571 N.E.2d 609

410 Mass. 209

COMMONWEALTH v. William E. BUCKLEY.

Supreme Judicial Court of Massachusetts,

Norfolk.

Argued April 3, 1991.

Decided May 20, 1991.

Donald A. Harwood, New York City, for defendant.

Judith A. Cowin, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, LYNCH and GREANEY, JJ.

NOLAN, Justice.

On March 18, 1988, a Norfolk County grand jury returned three indictments charging the defendant, William E. Buckley, with murder in the first degree, armed robbery, and assault with intent to rape. The trial commenced on December 5, 1988, and Buckley was found guilty on all charges. He was given a sentence of life imprisonment on the murder conviction, a consecutive life sentence on the armed robbery conviction, and a concurrent nineteen to twenty year sentence on the assault with intent to rape conviction. The defendant now appeals from his convictions and sentences. We affirm.

On the morning of December 14, 1986, the victim was found dead in the Dairy Mart convenience store in Braintree. She had been strangled and stabbed. She was naked from the waist down. Approximately $1,800 was missing from the store's safe. On a paper bag, which was taped to the inside of the locked front door of the store, was written "will open at 7:30."

One witness testified that on December 14, 1986, at approximately 5:50 A.M., he had delivered newspapers to the Dairy Mart and exchanged greetings with the victim. Another witness, Leonard Barnes, who also regularly delivered newspapers to the Dairy Mart, testified that he arrived at the store between 6:30 and 7:00 that morning. He found the door locked and noticed the bag taped to the front door. Barnes testified that a head "popped up and popped down" inside the store. He described it as looking like a "dirty old wino." He also testified that the man he saw was wearing a red hat and that his face was either bearded or dirty. Barnes went back to his truck and a few minutes later, he observed a red van exit the parking lot. Barnes waited a couple of minutes until another person arrived. They went into the store together and found the victim's body on the floor.

Donna Devlin, a Massachusetts State trooper, photographed the crime scene, including the paper bag which was taped to the front door. Devlin tested the paper bag for fingerprints by treating it in a solution of ninhydrin. No fingerprints were found and, in the course of testing, the writing on the bag dissolved.

Buckley was interrogated at the Braintree police station on the evening of December 14, 1986. He was the manager of 3-D Services, a business located just behind the Dairy Mart. Buckley also owned a red van. Buckley told the police that he had been at 3-D Services that morning in his red van to check on the furnace and the company vans. He stated that he went inside the building for approximately five or ten minutes and then went to a local doughnut shop to get coffee at 7 A.M. When asked where he was the prior evening, Buckley stated that he had gone to work at Hendrie's Ice Cream and that he had returned home early the next morning. He admitted to owing money to certain people but it was later determined that he did not tell the police about all of his debts. Buckley told the police that he purchased items at the Dairy Mart several times a day. He knew the owner on a first-name basis and had a charge account at the Dairy Mart.

Later that evening, while Buckley was still being interviewed, the police called Hendrie's and were informed that Buckley was not employed there. As soon as the police learned that Buckley had lied about his job at Hendrie's, they advised him of his Miranda rights. Buckley agreed to continue talking and stated that he had been with his girl friend the prior evening. Buckley was married and had three children. He stated that he had been with his girl friend in a room they rented in Sharon, until 2 A.M. and then returned to his house where he slept on the couch so as not to disturb his wife. Buckley further stated that he had left for work in his red van at 6 A.M. and arrived at 3-D Services at 6:20.

The police officers then asked Buckley to write the words "will open at 7:30." Buckley became very nervous and asked whether he should write or print the words. He was instructed to print. After providing other writing exemplars, Buckley left the police station.

Buckley was interviewed again on December 16, 1986. He was advised of his Miranda rights at the outset of the interview. Buckley consented to a search of his red van. No evidence was recovered from the van. At the December 16 interview, Buckley provided more handwriting exemplars. At some point during the interview, Buckley requested an attorney and the interview was immediately suspended.

Gerald Dovner, owner of 3-D Services and Buckley's boss, testified that it was not part of Buckley's job to check the building on the weekends and Dovner had never asked him to check it. Dovner also testified that Buckley owed him approximately $2,300. A young woman who worked in the doughnut shop where Buckley claimed he had been at 7 A.M. testified that she remembered Buckley because his van window would not open and he had to open the door. She testified that he was there at approximately 6:15 A.M.

Edward Jerome, who owned the house in Sharon in which Buckley rented a room, testified that Buckley had asked to borrow his .22 caliber rifle to shoot some rats in the warehouse at work. Jerome testified that he saw Buckley on Sunday morning, December 14, at which time Buckley told him that he "didn't need the rifle after all."

Richard Murphy, a former employee of 3-D Services, testified that he had lent Buckley $600 to buy a boat. He also testified that Buckley sometimes wore a red stocking hat.

Frederick Brandolini, an immunized witness, testified that he had sold drugs to Buckley in 1986. Buckley owed Brandolini $1,475. Buckley paid Brandolini on the morning of December 14, 1986. Brandolini testified that Buckley appeared greasy and dirty, and paid him $560.

The victim's husband testified at trial. He testified that in November of 1986, Buckley had asked him how he found the time to look at the tapes from a video camera installed over the cash register. He told Buckley that, because the camera was "fake" he "didn't have to find time to look at the tapes." Buckley knew that the victim's husband was ill on the Wednesday before the murder and was trying to get someone to fill in for him for the weekend. Buckley had actually offered to work in his place that weekend. Buckley admitted at trial that he had seen the victim in the store on Thursday and Friday and that he knew that she was there because her husband was ill.

Handwriting samples of Buckley were admitted at trial. Three expert witnesses testified as to how Buckley's handwriting compared to the writing on the bag that had been taped to the door at the crime scene. The experts based their analysis on a photograph of the bag since the original writing was destroyed. One expert, John Swanson, testified that, in his opinion, the handwriting in the photograph matched the handwriting exemplars written by Buckley. He testified that his analysis was not affected by the fact that he was working with a photograph and not the bag itself. A second expert, Lee R. Waggoner, testified that Buckley "probably" wrote the writing on the bag in question. The third expert, Clarence E. Bohn, testified that it was of the "highest probability," which meant "approaching absolute certainty," that Buckley wrote the note on the bag.

Buckley's defense at trial was that another man, George Baker, had committed the murder. Baker had also been an employee of 3-D Services at the time of the murder. Baker had been at the murder scene that morning, along with a crowd of other people. He had been wearing a maroon hat and was bearded. Baker was also interviewed by the police on the evening of December 14, 1986. During the interview, Baker stated that he had been in the Dairy Mart that morning, but the police later determined that he was confused and had actually been in the Dairy Mart on Saturday morning. Baker testified at the trial that he was not in the Dairy Mart on Sunday, December 14. During the trial, the Commonwealth obtained handwriting exemplars of Baker. Handwriting experts Swanson and Bohn examined handwriting exemplars and other writing samples obtained from George Baker. They testified that Baker's handwriting did not match the writing on the paper bag.

The defendant raises several issues on appeal. We shall discuss each of them in turn.

1. The handwriting exemplars. The defendant argues that the taking of samples of his handwriting by the police constituted a warrantless search in violation of art. 14 of the Massachusetts Declaration of Rights. ¹ We disagree. The judge found that the defendant consented intelligently and voluntarily to giving the exemplars and the record warrants such a finding. See Commonwealth v. Garcia, 379 Mass. 422, 429-430, 399 N.E.2d 460 (1980).

Buckley also argues that the taking of the handwriting exemplars violated his right against testimonial self-incrimination under the Fifth Amendment to the United States Constitution. ^{2 2} Specifically, he contends that, because the trooper dictated the words he wanted Buckley to write, instead of showing him the words, testimonial content was sought because the defendant's choice of spelling, capitalization, and punctuation can be discovered. We disagree. First, the taking of the Buckley handwriting exemplars did not involve a testimonial communication. Second, regardless of whether the samples were testimonial, Buckley had knowingly and intelligently waived his Miranda rights. Third the exemplars were not obtained in a custodial situation.

The United States Supreme Court held in Gilbert v. California, 388 U.S. 263, 266, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178 (1967), that the taking of...