Com. v. Bui

• Decision Date: 01 February 1995
• Citation: 645 N.E.2d 689,419 Mass. 392
• Parties: COMMONWEALTH v. Tam S. BUI.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 689

645 N.E.2d 689

419 Mass. 392

COMMONWEALTH v. Tam S. BUI.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Nov. 7, 1994.

Decided Feb. 1, 1995.

Wendy Sibbison, Greenfield, for defendant.

David R. Marks, Asst. Dist. Atty. (David E. Meier, Asst. Dist. Atty., with him) for Com.

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

WILKINS, Justice.

On November 25, 1989, the bodies of Ngoc Le (older victim) and her fifteen-year old daughter Dixie Poulin (younger victim) were found in their basement apartment in Everett. There was evidence that each had been stabbed to death four days earlier and that the younger victim had received blunt force injuries. Jewelry and cash were missing from the apartment.

In the summer of 1990, the police received information that led to the arrest of the defendant and two other men. ¹ After a long trial in April, 1992, slowed by the need in many instances for the use of interpreters of Vietnamese, the jury found the defendant guilty of murder in the first degree of both the older victim (based on deliberate premeditation and felony murder) and the younger victim (based on the same grounds and on extreme atrocity or cruelty). The jury also found the defendant guilty of armed robbery.

The defendant raises numerous issues in his appeal. (1) He challenges the denial of his pretrial motion to suppress a gun that had been seized in his parents' apartment. (2) He challenges the denial of his motion to suppress statements that he had made to the police that could have been viewed as evidence of consciousness of guilt. (3) He objects to the judge's limitation on the cross-examination of two important witnesses who testified that the defendant had confessed to the murders and had made various admissions. The defendant argues that these two witnesses, Linh Nguyen and her husband (according to Vietnamese custom) Thinh Trinh, had a bias against him that, in violation of his constitutional rights, the judge prevented him from pursuing. (4) The defendant raises objections to the prosecutor's closing argument, to several trial rulings, and to the judge's charge on reasonable doubt.

We affirm the convictions and see no basis under G.L. c. 278, § 33E (1992 ed.), for relief from the convictions of murder in the first degree.

1. Suppression of the gun. The judge did not err in denying the defendant's motion to suppress a handgun found in a search of an apartment in the Dorchester section of Boston where the defendant's parents and other family members lived. The gun, introduced in evidence at trial, was important because it was identified as being similar to one that the defendant had had and as a gun that could have inflicted marks found on the skull of the younger victim.

The motion judge concluded that the defendant lacked standing because he had not proved, as was his burden (Commonwealth v. One 1985 Ford Thunderbird Auto., 416 Mass. 603, 608, 624 N.E.2d 547 [1993] ), that he had an objectively reasonable expectancy of privacy in the place where the gun was found. The defendant made a limited showing of his involvement with his parents' apartment and may not now rely on facts not presented to the judge as part of the proceedings on the motion to suppress the gun. We shall assume, without deciding, however, that the defendant had standing to challenge the seizure of the gun, and shall conclude that the police were entitled to seize it, based on the facts found by the judge.

Shortly after sunrise on August 18, 1990, the police entered the apartment pursuant to a "no-knock" warrant that authorized them to search the defendant and a warrant for the defendant's arrest. The police were seeking a gun believed to have been used in the course of the crimes. They recognized the possibility that other weapons might be found. When several police officers broke into the Dorchester apartment, the first officer into the apartment entered the first room to the left of the front door, where there were three people, two women and a man. There were two mattresses on the floor. The first officer, accompanied by another officer, directed one of the women to get off one of the mattresses and then kicked it over, thereby uncovering the gun.

In such circumstances, involving the attempted execution of a warrant to arrest someone for committing two murders and involving a reasonable belief that weapons might be present on the premises, the police were entitled to act for their own safety. At the time the mattress was kicked over, the apartment had not been secured, and it was not known who was in it. It developed that the defendant was not present. He was arrested that morning pursuant to the arrest warrant at another location. The police were entitled, however, to protect themselves from an apparent risk, and it does not matter that in retrospect that the peril was not as great as it had initially appeared. ²

Our conclusion that the officer was entitled to protect himself and his associates from the threat of any readily accessible weapon, before the search of the premises for the defendant was completed and before the apartment's occupants were immobilized, is supported by the reasoning of Maryland v. Buie, 494 U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990). In the Buie case, the protective sweep was permissible, even though conducted after the person arrested pursuant to a warrant was in custody, if it was justified by articulable facts that "would warrant a reasonably prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene." Id. at 334, 110 S.Ct. at 1098. In our case, the concern was weapons--not the possibility that the defendant or some confederate was under the mattress. The relevant safety concerns, however, are similar. In our case, the officer acted "to take reasonable steps to ensure their safety." Id. The search was limited in scope and occurred at a time when the suspicion of danger had not been dispelled. The officer could not have known whether events in other parts of the apartment might distract him and his colleague, leaving the occupants of the room with access to any weapon under the mattress.

2. Suppression of statements. The defendant challenges the denial of his motion to suppress statements that he made to the police shortly after his arrest. He argues that his Miranda rights were violated. There was no error.

We summarize the judge's findings and rulings made after he heard the testimony of police officers, interpreters, and the defendant. After an interpreter in Vietnamese repeated Miranda warnings that a State trooper read in English, the defendant signed a card with Miranda warnings written in Vietnamese and said that he knew of his rights. ³ The defendant had lived in this country and attended public schools since 1983. The judge concluded that the defendant had an adequate comprehension of English and that he had understood his rights when they were given to him both in English and in Vietnamese. The judge was warranted in finding that the defendant was sober, alert, and responsive during the police interview. The judge was not required to believe the defendant's testimony that he had requested an attorney after he had received Miranda warnings. The judge concluded that, beyond a reasonable doubt, the defendant was adequately advised of his Miranda rights, that he knowingly and voluntarily made statements after the waiver.

On appeal, the defendant argues that the Commonwealth's evidence was insufficient to prove that he waived his right to counsel and his right to remain silent. There was no evidence that, after giving Miranda rights, the police asked the defendant if he wanted a lawyer. The defendant understood that he was entitled to counsel, and the judge was warranted in finding that he did not ask for a lawyer. The law does not require that the police must go beyond the furnishing of Miranda rights and ask a person who understands his or her rights if he wants a lawyer. See Commonwealth v. Corriveau, 396 Mass. 319, 330, 486 N.E.2d 29 (1985).

The defendant exercised his right to remain silent as to certain questions asked of him, and the trial judge excluded those portions of the defendant's statements from the trial. On the other hand, the defendant volunteered answers to other questions. The defendant thus selectively declined to answer some questions and answered others. The evidence did not require the judge to find as a fact that the defendant was interrogated after he had asserted his right to remain silent. The judge did not err in ruling that the defendant's constitutional right to remain silent was not violated. ⁴

3. Motive to lie. The defendant sought to show, through cross-examination of Linh Nguyen and Thinh Trinh, that Linh Nguyen's father had gone to California in early 1990, when Linh Nguyen, Thinh Trinh, and the defendant were there; that while there, and in the presence of other individuals involved in the illegal distribution of drugs, her father had asked the defendant to carry drugs back to Boston; and that the defendant had refused. The defendant argued to the judge that he was entitled to inquire into this incident because it supported his argument that the testimony of Linh Nguyen and Thinh Trinh was given in retribution for the defendant's embarrassing refusal to cooperate. Defense counsel offered the evidence solely on the question of bias and motive to lie.

Linh Nguyen was an important witness for the prosecution because she testified that the defendant admitted to her that he and another man had killed the victims and that he had used a knife to kill people. She also testified that the defendant and the other man had given her jewelry which, the jury could have found, had been taken from the victims' apartment.

The defendant first raised the subject of the bias and motive to lie of the principal witnesses against...