Com. v. Corriveau

• Citation: 396 Mass. 319,486 N.E.2d 29
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 11 December 1985
• Parties: COMMONWEALTH v. Paul N. CORRIVEAU.

Page 29

486 N.E.2d 29

396 Mass. 319

COMMONWEALTH v. Paul N. CORRIVEAU.

Supreme Judicial Court of Massachusetts,

Essex.

Argued Sept. 11, 1985.

Decided Dec. 11, 1985.

John J. Jennings, Lynn, for defendant.

Robert J. Bender, Asst. Dist. Atty., for the Com.

Before HENNESSEY, C.J., and LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

O'CONNOR, Justice.

The defendant, Paul N. Corriveau, was indicted for assault with intent to commit rape and for murder in the first degree. At the conclusion of the Commonwealth's case, the judge entered a required finding of not guilty as to the indictment for assault with intent to commit rape. The jury returned a guilty verdict on the charge of murder in the first degree and the judge imposed the mandatory term of life imprisonment.

On appeal, the defendant argues that his conviction should be reversed and a new trial ordered because (1) the motion judge incorrectly denied the defendant's motion to suppress statements made to the police, the results of tests performed on his person and on various articles seized by the police, and other evidence relating to items seized from his home, vehicle, and person; (2) the defendant was unfairly prejudiced by remarks made by the prosecutor during closing argument; (3) the trial judge erred in instructing the jury as to circumstantial evidence; (4) the trial judge failed to give an alibi instruction; and (5) the trial judge refused to instruct the jury on manslaughter. The defendant also argues that he is entitled to relief under G.L. c. 278, § 33E (1984 ed.). We conclude that there is no reversible error and that the defendant is not entitled to relief under § 33E. Accordingly, we affirm the defendant's conviction.

For background purposes, we summarize facts found by the motion judge. During the evening of May 6, 1981, the defendant went to a lounge in Salem, New Hampshire, called the "Lodge." At the Lodge, the defendant and the victim, Priscilla Cabral, were observed dancing together between 11 P.M. and midnight and the two were still together at approximately 1 A.M. Less than twelve hours later the victim's body was discovered approximately one and one half to two miles from the Lodge, ten to fifteen feet from Nevins Road in Methuen.

The victim's face and head had been severely beaten, and the victim's face was completely covered with blood. The brown corduroy jacket worn by the victim was torn and the victim was naked from the waist down. A short distance from the victim's body, the police discovered a piece of a dental plate in a blood soaked indentation in the ground. The local medical examiner estimated the time of death as the early morning hours of May 7, 1981.

1. Motion to Suppress.

Prior to his trial, the defendant moved to suppress "any and all physical evidence, tests (scientific or otherwise) performed upon his person and upon various articles seized by law enforcement authorities, and various articles seized by law enforcement authorities, observations made of said various articles seized by law enforcement authorities, and statements made by him," as well as any evidence that was the fruit thereof. After an evidentiary hearing, the judge denied the motion. On appeal, the defendant advances several arguments in support of his position that his motion should have been granted. We shall consider each argument in turn. There was no error.

In a detailed memorandum, the motion judge made the following findings relevant to the motion to dismiss. On May 7, 1981, after the discovery of the victim's body, Methuen Police Officer Shea Baddour interviewed Gene McEvoy of Methuen. McEvoy stated that on the morning of May 7, 1981, at approximately 1:30, he had observed a motor vehicle on Nevins Road where the victim's body was discovered. McEvoy described the vehicle as dark colored, expensive, possibly a Lincoln or a Cadillac automobile, with a square front chrome grill. On May 7, the police were aware that the defendant owned a Lincoln Continental.

By 7 P.M. on May 7, the homicide investigation had focused on the defendant. During the evening hours of that day Methuen Police Officers Richard True and Albert Ange made several trips past the defendant's Lawrence residence in an unmarked cruiser. That night at approximately 10:15, the officers observed the defendant's Lincoln Continental stop in front of his house for about two minutes while his wife got out of the car. The defendant then proceeded toward Methuen and the officers followed him. At a point eighty to one hundred feet inside the Lawrence-Methuen line, the officers activated a flashing blue light concealed in the grill of the cruiser and caused the defendant to pull his vehicle to the side of the road. After the stop but before approaching the defendant's automobile, the officers radioed the Methuen police station to say that they had stopped the defendant.

After the defendant brought his vehicle to a stop, the defendant and the officers got out of their respective vehicles and walked toward each other. As the defendant and the officers approached each other, one of the officers said, "Paul, would you mind coming back to the station with us?" The defendant responded, "Sure." At the suggestion of the officers, the defendant moved his vehicle to the side of the road, shut off the engine, and locked the doors. After the defendant secured his automobile, an officer opened a door of the two-door cruiser and the defendant got into the back seat alone. The cruiser then proceeded to the Methuen police station. The motion judge concluded that, even though it could be inferred that the officers followed the defendant into Methuen in order to be in a position to take the defendant into custody if he refused to go to the police station voluntarily, the defendant did in fact voluntarily accompany the officers to the police station.

On several occasions prior to getting into the cruiser and on the way to the station, the defendant asked the officers why they wanted to see him at the police station. The officers responded to each inquiry by saying that Captain O'Rourke would explain the situation when they arrived at the station. At the station the defendant was led to the station's interrogation room, where the defendant waited with a Methuen policeman for the arrival of the officers in charge of the murder investigation. After a few minutes, Methuen Police Captain Hugh O'Rourke and State Police Detective Lieutenant John Burns and Lieutenant Alfred Duemling entered the room and greeted the defendant. Lieutenant Duemling thanked the defendant for coming to the station, introduced himself and Lieutenant Burns, and said, "You probably know Captain O'Rourke." During the introductions, one of the officers observed the defendant's hands and detected no marks on them.

After the introductions were completed, Lieutenant Duemling informed the defendant that the police were investigating the homicide of a young female. Lieutenant Duemling then asked the defendant, "Do you have any objection to answering a few questions?" and the defendant replied, "No." The police then told the defendant the name of the victim and the defendant responded, "Oh my God, I was with her last night." Before asking the defendant any further questions, Lieutenant Duemling informed the defendant of his Miranda rights. At this point, the defendant said, "It's beginning to sound like I need a lawyer." Captain O'Rourke then said to the defendant, "You may use the telephone to call a lawyer and you may leave at any time if you wish to do so." The defendant replied, "I don't want to leave and I don't want a lawyer."

The defendant then gave the following information to the police. The defendant stated that he had arrived at the Lodge at approximately 10:30 P.M. on May 6, 1981. After some small talk with friends he observed the victim enter the Lodge. They had a couple of drinks together. He and the victim danced together and they both left the Lodge at approximately 1:05 A.M. He had a discussion with the victim about his new Mark V Lincoln, and he asked her if she wanted to see it. While she sat on the passenger side, he started the motor so she could observe the dashboard and the car's other features. After about two minutes, she left the motor vehicle and, although he did not see her go to her car, he assumed that she did. He left the parking lot, drove to his home, which is approximately ten minutes away, and arrived home at approximately 1:30 A.M. At that time he spoke to his wife, who was awake. In addition to this statement, the defendant informed the police that he was wearing black pants and a black shirt on the evening of May 6, 1981.

At some point while the defendant was speaking to the police, the judge found, the police towed the defendant's automobile to the station without his permission. During the course of the questioning the defendant was asked to sign a permission slip authorizing the police to search his vehicle, and the defendant signed the slip. The permission slip was not produced by the Methuen police and apparently has been lost. The defendant's vehicle was not searched under the authority of the permission slip, however. The vehicle was searched pursuant to a search warrant obtained later in the evening.

After the defendant related his account of the events that had transpired the previous evening, the police asked him if he would submit to a benzidine reagent test. The defendant was informed that the benzidine test was a chemical test which would reveal the presence of blood. The test, the defendant was told, was harmless and would be administered by rubbing a fluid or paper on his hands and wrists. After listening to the description of the test, the defendant indicated that he was willing to take such a test. A State police chemist, who was at the Methuen police station at the time and who earlier in the day had made examinations of the scene of the crime, was then summoned to the...