Com. v. Donoghue

• Decision Date: 28 January 1987
• Citation: 23 Mass.App.Ct. 103,499 N.E.2d 832
• Parties: COMMONWEALTH v. Edward DONOGHUE.
• Court: Appeals Court of Massachusetts

Page 832

499 N.E.2d 832

23 Mass.App.Ct. 103

COMMONWEALTH v. Edward DONOGHUE.

Appeals Court of Massachusetts Hampden.

Argued Oct. 9, 1986.

Decided Nov. 7, 1986.

Further Appellate Review Denied Jan. 28, 1987.

Maureen B. Brodoff, Committee for Public Counsel Services, Boston, for defendant.

Dianne M. Dillon, Asst. Dist. Atty., for the Com.

Before GREANEY, C.J., and PERRETTA and SMITH, JJ.

GREANEY, Chief Justice.

Before us are the defendant's convictions by a jury in the Superior Court of armed assault in a dwelling (G.L. c. 265, § 18A) and mayhem (G.L. c. 265, § 14). His contentions concern: (1) the denial of his motion to suppress evidence seized in a warrantless nighttime entry of his dwelling; (2) the adequacy of the mayhem indictment to charge a crime; and (3) the correctness of the judge's instructions on the elements of armed assault in a dwelling.

1. Motion to suppress. The judge's findings of fact on the motion to suppress disclose the following. On December 18, 1984, at some time between midnight and 1:00 A.M., Officer Gerald Sulewski of the Holyoke police department was in uniform and on cruiser duty with another officer. The two officers received a radio message to proceed to the Essex House on High Street to meet a Douglas Marsh. Marsh had just reported an emergency by telephone to the Holyoke police station. Officer Sulewski and his partner responded immediately to that message. When the police arrived at the Essex House, Officer Sulewski saw a man, identified as Douglas Marsh, walking toward it from the direction of a nearby cafe.

Marsh opened the door of the Essex House and led the officers to an apartment on the second floor. When Officer Sulewski entered the apartment, he saw the victim sitting on the floor, with his back against one of the walls. The victim's throat had been cut from ear to ear, his face had been slashed, and his abdomen had been cut open. He was still conscious but bleeding profusely and attempting to hold his intestines inside his abdomen with his hands. Officer Sulewski immediately called for back-up police assistance and an ambulance and then tried to assist the victim. He asked the victim who had assaulted him. The victim responded with the name "Eddie" but was not able to provide a surname.

After the ambulance personnel arrived and took charge of the victim, Officer Sulewski asked Marsh what had happened. Marsh also told him that the victim's assailant had been a man named "Eddie." He too was unable to provide a last name but he was able to give a description of the man, and he told the police that he and the victim had been at "Eddie's" apartment that afternoon. He described "Eddie" as being about six feet, two inches tall, weighing about 200 pounds and having a muscular build. He said that "Eddie" had been wearing a tan camel's hair topcoat and a light-colored fedora type hat with a gold ornament on its band. He described the weapon used in the assault as a hunting knife with a green handle. He told the police that "Eddie's" apartment was in a building located at 182 Oak Street in Holyoke.

The building at 182 Oak Street is located about eight city blocks from the Essex House. Officer Sulewski and his partner took Marsh with them in their cruiser and drove to that location. Officer Sulewski opened a hallway door in the building with a knife, and the three men walked up the stairway to the top floor. When they arrived at the landing below the top floor, Marsh pointed to the door on the left and told the officers that that was "Eddie's" apartment. Officer Sulewski rapped loudly on the door and yelled out that he was a police officer. He received no response. As he continued to rap on the door, the door to the adjoining apartment was opened by its occupant, John O'Donnell. O'Donnell told Officer Sulewski that he had returned to his apartment at about 11:30 P.M. and that he had heard someone enter the adjacent apartment some time after that.

O'Donnell allowed Officer Sulewski to use his telephone to call the building's landlord. After a delay, the landlord arrived with a passkey. Officer Sulewski tried to open the door of the apartment but found that it was secured with a chain lock. He then went through O'Donnell's apartment to a rear porch on to which the back doors of both apartments opened. There was also a window through which Sulewski saw an unlit kitchen and a light shining into a hallway from one of the interior rooms. He used the landlord's passkey to enter the kitchen and headed in the direction of the light.

When Officer Sulewski reached the lighted room (which proved to be a bedroom), he saw the defendant lying on a bed. He also noticed a tan camel's hair topcoat lying on the floor near the bed. He then opened the front door to allow other officers to enter and turned back toward the bedroom. As he did so, the defendant ran out of the bedroom, assumed a martial arts stance, and slammed into Officer Sulewski. Other officers subdued the defendant, and he was placed under arrest.

In addition to the tan camel's hair coat, the police also discovered a light-colored fedora type hat with a gold-colored ornament in plain view in the bedroom. They also found a fixed-blade knife with a green handle in plain view in an open drawer near the bed. They seized the coat, the hat, and the knife.

The police took the defendant out of the apartment into the front stairway of the building. At that point, Marsh identified him as the victim's assailant. Marsh also identified the knife as the weapon used in the assault.

Based on these findings of fact, the judge reached the following conclusions:

"At least at the point where O'Donnell informed the police officers that he had heard someone enter the apartment adjacent to his at some time after he had returned home at 11:30 P.M., the police had probable cause to believe that the apartment was occupied and that the occupant had just committed a very violent and possibly fatal attack on the victim. That occupant also had failed to respond to the officer's knocks and calls. It was after one o'clock in the morning. The occupant could have been in the process of destroying evidence of his crime. Considering the violent and bizarre nature of the crime, he could also have been dying as a result of a wound, self-inflicted or otherwise. The circumstances were exigent.

"There was, to be sure, a magistrate on call in the city of Holyoke from whom a warrant could have been obtained. However, the time required to prepare and execute a proper affidavit, to rouse the magistrate, and to perform the other necessary paper work would have been far too long to prevent any mischief that might have been in progress within the apartment. The need of the officers to see what was going on in there was too urgent for that. Their decision to make a warrantless entry was, under the circumstances, entirely reasonable.

"Once inside the apartment they had a right to seize any evidence of the crime which they came upon in plain view. That included the topcoat, the hat and the green-handled knife. It follows that none of that evidence need be suppressed as evidence at the defendant's trial."

The defendant's attack is directed to the finding of exigent circumstances, and to the ruling, flowing from that finding, that the entry of the defendant's apartment was reasonable in the circumstances. ¹ The question whether exigent circumstances excuse a warrantless entry into a dwelling is not a new one in this Commonwealth. See, e.g., Commonwealth v. Forde, 367 Mass. 798, 329 N.E.2d 717 (1975); Commonwealth v. Moran, 370 Mass. 10, 345 N.E.2d 380 (1976); Commonwealth v. LeBlanc, 373 Mass. 478, 483-486, 367 N.E.2d 846 (1977); Selectmen of Framingham v. Municipal Court of Boston, 373 Mass. 783, 785-786, 369 N.E.2d 1145 (1977); Commonwealth v. Boswell, 374 Mass. 263, 269-271, 372 N.E.2d 237 (1978); Commonwealth v. Franklin, 376 Mass. 885, 898-902, 385 N.E.2d 227 (1978); Commonwealth v. Young, 382 Mass. 448, 456-458, 416 N.E.2d 944 (1981); Commonwealth v. Huffman, 385 Mass. 122, 430 N.E.2d 1190 (1982); Commonwealth v. Bradshaw, 385 Mass. 244, 255-257, 431 N.E.2d 880 (1982); Commonwealth v. Pietrass, 392 Mass. 892, 897-900, 467 N.E.2d 1368 (1984); Commonwealth v. Kingsbury, 7 Mass.App.Ct. 51, 54, 385 N.E.2d 1020 S.C., 378 Mass. 751, 393 N.E.2d 391 (1979); Commonwealth v. DiSanto, 8 Mass.App.Ct. 694, 696-703, 397 N.E.2d 672 (1979), cert. denied, 449 U.S. 855 (1980); Commonwealth v. Cricones, 12 Mass.App.Ct. 953, 954, 426 N.E.2d 728 (1981); Commonwealth v. Amaral, 16 Mass.App.Ct. 230, 231-235, 450 N.E.2d 656 (1983). The Commonwealth bears the burden of establishing that the entry was justified. Each case turns on an analysis of its own facts, but certain considerations have generally emerged as guidelines for resolution of the question. ²

The application of these considerations to this case is straightforward. The crime was unusually brutal. Its perpetrator was armed and could reasonably be assumed to be very dangerous. There was clear probable cause and a strong demonstration that the defendant was in the apartment and armed. There could have been reasonable concern that the defendant might have someone else in the apartment or that evidence such as a weapon or bloody clothes, which could prove critical if the victim died, could be hidden or destroyed.

Although the police could have continued to stake out the apartment while a warrant was obtained from the magistrate "on call," their failure to do so does not require a conclusion that their conduct was unreasonable. The availability of a magistrate, and the alternative of the length of any stakeout, are two considerations to be weighed in the over-all picture. Their presence in a case is not preclusive of a finding of exigency. See Commonwealth v. Bradshaw, 385 Mass. at 256, 431 N.E.2d 880; Commonwealth v. DiSanto, 8 Mass.App.Ct. at 700-703, 397 N.E.2d 672. In view of the hour (1:00 A.M.), the police...