Com. v. Collins

• Decision Date: 08 January 1981
• Citation: 11 Mass.App.Ct. 126,414 N.E.2d 1008
• Parties: COMMONWEALTH v. Robert COLLINS.
• Court: Appeals Court of Massachusetts

Page 1008

414 N.E.2d 1008

11 Mass.App.Ct. 126

COMMONWEALTH v. Robert COLLINS.

Appeals Court of Massachusetts, Barnstable.

Argued Sept. 10, 1980.

Decided Jan. 8, 1981.

Alfred Paul Farese, Everett, for defendant.

W. James O'Neill, Asst. Dist. Atty., for the Commonwealth.

Before BROWN, DREBEN and KASS, JJ.

DREBEN, Justice.

The defendant was convicted of possession with intent to distribute cocaine and tuinal (G.L. c. 94C, § 32). Shortly after his arrest in a motel room in which more than 500 grams of cocaine and 1200 capsules of tuinal were found, the defendant stated to the police that all the drugs were his. Prior to the admission in evidence of this and other incriminating statements, the judge at the defendant's request, held a voir dire and ruled that the defendant had been fully advised of his Miranda warnings and that he had made a "knowing, willing and freely voluntary waiver of those rights." Although this conclusion was justified by the evidence at the voir dire hearing, evidence at trial, subsequent to the admission in evidence of the defendant's incriminating statements, raised a substantial question of police coercion. A State trooper testified at trial that he had cornered the defendant while nude in the bathroom, arrested him, pushed a revolver "in his face," "towards his mouth," and had forced the defendant to lie naked and handcuffed, face down on the floor for fifteen minutes. It was during this period, while prostrate and nude, that the defendant was given his Miranda warnings, was questioned by the police, and made his incriminating statements.

The defendant claims the judge erred (1) in admitting the statements in evidence and in finding that the defendant had knowingly and voluntarily waived his right to remain silent; (2) in permitting the Commonwealth on rebuttal to introduce other statements of the defendant, obtained by police eavesdropping; (3) in refusing to order the Commonwealth to reveal the name of an informer who had first led the police to the defendant, and who had been with the defendant when the statements obtained by eavesdropping had been made; and (4) in refusing to allow the defendant to waive a jury trial.

We conclude that the evidence of coercion at trial subsequent to the voir dire hearing raised the issue of the voluntariness of the defendant's statements, and that our "humane practice", required the judge, sua sponte, to instruct the jury to disregard the defendant's incriminating statements if they found them involuntary. Commonwealth v. Vick, --- Mass. ---, --- ^a, 406 N.E.2d 1295 (1980). See Commonwealth v. Harris, 371 Mass. 462, 358 N.E.2d 982 (1976) (Harris I ). The failure by the judge to give such instructions constitutes reversible error and requires a new trial.

We turn to the circumstances in which the defendant's statements were made. Additional facts will be set forth as necessary in discussing those issues which are likely to recur on a retrial.

1. The voluntariness of the defendant's statements. After receiving a tip from an informer that drugs were being distributed in the defendant's hotel room at Dunphey's Hyannis Motor Resort, State police officers, with the permission of the motel management, stationed themselves in an adjoining motel room. From this vantage point, and during the course of an afternoon, they overheard conversations of four or five men and one woman, including conversations of the defendant and the informer. The police procured a search warrant to search the defendant's room. No issues relating to the search warrant are involved in this appeal.

Officer Melia was the Commonwealth's first witness at trial. He testified that when he and other officers entered the defendant's motel room, he saw the defendant running nude across the room into the bathroom area and saw a woman, apparently asleep in bed. The defendant was advised that the police had a search warrant and were going to conduct a search for narcotics. Officer Melia searched the room and found, inter alia, four bags of white powder, twelve bottles containing capsules of tuinal, $6,920 in cash, a microscope, two scales, straws that could be used to ingest cocaine, sifters and mannitol (an agent to dilute cocaine). The powder and capsules were subsequently sent to the State police chemical laboratory for analysis. Officer Melia was asked whether he had had any conversations with the defendant. At this point, defense counsel requested, and the court granted, a voir dire outside the jurors' presence.

a. Evidence at the voir dire hearing. At the voir dire, Officer Melia testified that the defendant was under arrest at the time he made the statements, that Trooper Cummings had advised him of his Miranda rights, that Cummings had "asked him if he understood his rights and the defendant stated yes." Officer Melia was then asked, "(W)ere you interrogating the defendant at that time?" He answered, "(Y)es, I talked to him briefly." When asked about what, he responded, "I had asked him whose stuff it was."

Trooper Cummings was the second witness at the voir dire. He testified that after the police had forced the door open, the defendant ran toward the bathroom. Cummings confronted him there and advised him of his rights from a card. When asked on cross-examination what the defendant did after the card was read to him, Cummings' answer was, "I believe I searched his clothes and gave him his clothes to put on."

The last witness at the voir dire was the defendant. He stated that he had not been given any warnings, that he did not really recall, but he was sure that the police had asked him some questions. He testified, on cross-examination, that there were a "bunch of people," including the prosecuting attorney (see notes 2 and 6 infra), asking all kinds of questions, that "there was a lot of confusion", and that "there were seven, eight of them, guns drawn. I was on the floor with no clothes on. They put handcuffs on me with no clothes on ...." The defendant also stated that Trooper Cummings was holding a gun in his hand, not a card, and that Cummings had the gun in his, the defendant's mouth.

After defense counsel argued that there had been no intelligent waiver and referred to the defendant's testimony about the gun, the district attorney stated, "There is no testimony from the police that any gun was pressed to the defendant's head at the time he was being advised of his rights, and I suggest that the testimony of the defendant is tantamount to an outright lie." The judge ruled, "I find that he was fully advised of his rights, so-called Miranda warnings, and that he made a knowing, willing and freely voluntary waiver of those rights in the conversation he had immediately following that." The judge reserved the right to make specific findings "if necessary or appropriate" at a later time. We note that he should have done so at the time of the voir dire or before the end of the trial. Commonwealth v. Garcia, --- Mass. ---, --- ^b, 399 N.E.2d 460 (1980).

b. Evidence at trial. Subsequent to the judge's ruling, the jury were brought back into the courtroom, and Officer Melia testified to the following. After finding the narcotics, and after the defendant had been advised of his rights, he had a conversation with the defendant in which the latter stated that the narcotics belonged to him, and not to the sleeping woman, and that the cocaine "should come back a strong seventy-five percent". ¹ Cross-examination disclosed that six police officers had entered the motel room (by force) and that an assistant district attorney ² had arrived "a few minutes" later. The Commonwealth's second witness, Trooper Cummings, confirmed that the defendant had stated that the drugs were all his.

On cross-examination, the evidence which raised the question of the voluntariness of the defendant's statements was elicited. Trooper Cummings testified that he had had his gun drawn when entering the room, that when he confronted the defendant who was naked, the gun was "probably right in his face", and "towards his mouth", and that Cummings told the defendant, "You are under arrest." When asked when he gave the defendant Miranda warnings, Trooper Cummings answered that he told the defendant to come out of the bathroom. "I said, 'Lie face down on the floor, okay? Put your hands behind your back'. At that time, I holstered my revolver, handcuffed him, got my identification, took my Miranda warning card out of it and read the warnings to Mr. Collins." ³ When asked how long the defendant remained on the floor naked with his hands cuffed behind him, Cummings stated, "Approximately fifteen minutes." He also testified that the defendant was not a threat to anyone at that time. Although asked, Cummings gave no reason why the defendant was kept naked for so long a period. It is apparent that the defendant was interrogated and made his incriminating statements during this fifteen minute interval.

c. Discussion of legal issues. The testimony of Trooper Cummings, which in large part corroborated the testimony of the defendant at the voir dire, if believed, evidences a striking disregard of Miranda's requirement "that police procedures must scrupulously respect the suspect's free choices ...." Commonwealth v. Garcia, --- Mass. at --- ^c, 399 N.E.2d 460, and also raises a substantial question as to the voluntariness of the defendant's statements (and the waiver) in the traditional due process sense. See Miranda v. Arizona, 384 U.S. 436, 457, 86 S.Ct. 1602, 1618, 16 L.Ed.2d 694 (1966), and also at 511, 524, 86 S.Ct. at 1647, 1653 (Harlan, J., dissenting); Michigan v. Tucker, 417 U.S. 433, 442-443, 94 S.Ct. 2357, 2362-2363, 41 L.Ed.2d 182 (1974). See also Commonwealth v. Garcia, supra at --- - --- ^d, 399 N.E.2d 460.

The coercive effect of being nude ⁴ during custodial interrogation is well settled. In Bram v. United States, 168 U.S. 532, 561-563, 18 S.Ct. 183, 194, 42 L.Ed. 568 (1897), the Supreme Court...