Com. v. Cook

Citation644 N.E.2d 203,419 Mass. 192
Decision Date20 December 1994
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Robert S. Sinsheimer, Boston, for defendant.

Patricia M. Darrigo, Asst. Dist. Atty. (David E. Meier, Asst. Dist. Atty., with her), for Com.


LIACOS, Chief Justice.

The defendant appeals from his convictions on two indictments charging felony-murder in the first degree and one indictment charging unarmed robbery. He claims a variety of errors. We address only the claims of error adequately briefed, namely, that: (1) the arresting officers lacked probable cause to arrest and, hence, certain evidence obtained incident to the arrest should have been suppressed; (2) the trial judge provided inadequate jury instructions; (3) the prosecutor committed prejudicial error in his closing argument; (4) the Commonwealth submitted insufficient evidence to support a conviction based on a joint venture theory of felony-murder; and (5) the judge erred in not admitting in evidence the convictions of his former codefendants. 1 1 Finally, we have reviewed the entire record to determine whether the murder verdicts are "against the law or the weight of the evidence." G.L. c. 278, § 33E (1992 ed.). Dickerson v. Attorney Gen., 396 Mass. 740, 741, 488 N.E.2d 757 (1986). We affirm the convictions.

We summarize the facts which the jury would have been warranted in finding on the evidence submitted at trial. 2 The victims in this case, Jesse McKie and Rigoberto Carrion, were killed when they were attacked by a group of men outside the Newtowne Court housing project in Cambridge in the early morning hours of January 25, 1990. McKie and Carrion, along with a friend, Tracy Williams, were walking together on Windsor Street at about 12:15 A.M. when they were approached by five or six black males, including the defendant. Someone in the group told McKie, "Give up the coat." The men then surrounded McKie and, although he agreed to surrender the leather jacket he was wearing, began to beat him severely as they pulled off his jacket. During the attack, Ventry Gordon, one of the attackers, produced a knife and stabbed McKie several times in the chest. McKie was left in a snowbank and died as a result of his stab wounds.

After leaving McKie lying in the snowbank, the group attacked Rigoberto Carrion. Carrion was also severely beaten by the group and was fatally stabbed in the chest by Ventry Gordon. 3 The group dispersed after the attack. Sean Lee, who now was wearing McKie's jacket, and Ricardo Parks were apprehended near the scene of the crime and were identified by Tracy Williams as two members of the group that attacked McKie and Carrion. Ventry Gordon and Ronald Settles were identified later by Williams when the van in which they were traveling was stopped by police. 4

1. Motion to suppress. Prior to trial, the defendant filed a motion to suppress physical evidence seized during a prearrest pat down of his person as well as physical evidence seized and statements made by him following his arrest. 5 The judge deemed the pat down to be illegal, ordered suppression of the knife, and denied the motion as to the remainder of the evidence. 6 The defendant claims error in the second judge's denial of the motion to suppress his postarrest statements and physical evidence 7 seized after his arrest. He argues that this evidence, which was inculpatory, should have been suppressed because it was obtained following an illegal arrest not based on probable cause. We disagree.

We recite the relevant facts found by the second judge in denying the motion to suppress. Following the stabbings, Lee and Parks were stopped by police near Newtowne Court. Tracy Williams was brought to the location and identified the two men as members of the group that he had seen attack McKie and Carrion. Lee and Parks were arrested and brought to the Cambridge police station for booking. Shortly thereafter, Williams was driven to the Cambridge police station by Detective Stephen Edwards. As the two men got out of the cruiser, Williams saw the defendant in the garage area of the station. He asked Edwards, "Who's that?" Detective Edwards approached the defendant and asked him what he was doing in that area (normally restricted to police personnel). The defendant stated that he was there to bail out his friend, "Ricardo." Edwards directed the defendant to the front door of the station and he and Williams followed the defendant inside.

Williams stated to Edwards that the defendant looked familiar. Once inside the main lobby, the defendant approached the front desk and told the commanding officer on duty, Lieutenant Degou, that he was there to bail out Ricardo Parks, from whom he had received a telephone call. Inquiring into Parks's and Lee's status, Lieutenant Degou learned that they were not through with the booking process and had not yet been allowed telephone calls. 8 The defendant was approached by Detective Edwards who asked him for identification. The defendant had none. Edwards then asked the defendant where he had come from and received no answer. When asked how he had arrived at the station the defendant stated that he had come with his friends in a brown van. Detective Edwards then proceeded to pat down the defendant's clothing and as a result seized a knife from the defendant's person. Edwards then asked the defendant to have a seat in the lobby.

Detective Edwards was suspicious of the defendant because of his statement that he had received a telephone call from Parks. He asked Williams if he recognized the defendant in relation to the stabbings and Williams stated that he "looked like one of them." Without restraining the defendant, Edwards then left the station to search for the van.

Because Edwards did not see a brown van parked outside the police station, he got into his unmarked cruiser and went in search of the van. He soon encountered it going the wrong way on a one-way street not far from the station. At this time a radio communication was broadcast from Officer Ronald Halliday stating that a brown van was observed in the area of Newtowne Court at the time of the stabbings. Detective Edwards stopped the van. After Williams was brought to the scene and identified Settles and Gordon as members of the group that attacked the victims, Edwards arrested them. Detective Edwards returned to the station and then placed the defendant under arrest.

a. Time of arrest. The defendant does not argue that the police lacked probable cause at the time he was placed under arrest by Detective Edwards following the arrests of Settles and Gordon. Rather, he argues that he was arrested when he first entered the police station and was told to sit down by Lieutenant Degou, or, at the very latest, when Detective Edwards performed a pat down of the defendant's person and told him to sit down in the lobby. At neither of these times, argues the defendant, did the police have sufficient probable cause to arrest him. We conclude, as did both motion judges, that the defendant was not under arrest until Detective Edwards returned to the station after apprehending Gordon and Settles and formally placed the defendant under arrest.

In arguing that he was under "arrest" prior to his being formally placed under arrest, the defendant points to the Commonwealth's acknowledgment in its brief that it was Lieutenant Degou's and Detective Edwards's subjective intent not to let the defendant leave the station had he attempted to do so from the time he told Degou he was there to bail out Parks and Lee. The defendant also claims that, in the circumstances, a reasonable person would not have felt free to leave the station and thus the defendant was, under an objective standard, arrested.

It is well established that the undisclosed intentions of law enforcement officers, in and of themselves, are not controlling in determining whether an individual has been arrested. Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991). Commonwealth v. Sanderson, 398 Mass. 761, 766 n. 9, 500 N.E.2d 1337 (1986). Commonwealth v. Stawarz, 32 Mass.App.Ct. 211, 213, 587 N.E.2d 797 (1992). The intentions of the officers are relevant as only one factor in considering whether, in light of all the surrounding circumstances, an arrest has occurred. Commonwealth v. Sanderson, supra, 398 Mass. at 766 & n. 9, 500 N.E.2d 1337. Commonwealth v. Stawarz, supra, 32 Mass.App.Ct. at 213 & n. 4, 587 N.E.2d 797. Before an individual can be said to be "arrested," there must be (1) "an actual or constructive seizure or detention of the person, performed with the intention to effect an arrest and so understood by the person detained." Massachusetts Gen. Hosp. v. Revere, 385 Mass. 772, 778, 434 N.E.2d 185 (1982), rev'd on other grounds, 463 U.S. 239, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983), quoting Hicks v. United States, 382 F.2d 158, 161 (D.C.Cir.1967). The United States Supreme Court has recently held that, before a seizure occurs under the Fourth Amendment to the United States Constitution, there must either be physical force applied against the suspect or an assertion of authority by a law enforcement officer and submission by the suspect to that assertion of authority. California v. Hodari D., 499 U.S. 621, 626, 111 S.Ct. 1547, 1550-51, 113 L.Ed.2d 690 (1991). In our determination of what constitutes a "seizure" under art. 14 of the Massachusetts Declaration of Rights, we have followed the test previously set forth by the United States Supreme Court: Whether, in view of all the surrounding circumstances, a reasonable person would have believed that he was not free to leave. Commonwealth v. Laureano, 411 Mass. 708, 710, 584 N.E.2d 1132 (1992). Commonwealth v. Borges, 395 Mass. 788, 791, 482 N.E.2d 314 (1985), quoting United States v. Mendenhall, 446 U.S. 544, 554, 100...

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