Com. v. Femino

• Decision Date: 02 May 1967
• Citation: 352 Mass. 508,226 N.E.2d 248
• Parties: COMMONWEALTH v. Joseph P. FEMINO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 248

226 N.E.2d 248

352 Mass. 508

COMMONWEALTH v. Joseph P. FEMINO.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 6, 1967.

Decided May 2, 1967.

Walter T. Healy, for defendant.

William A. Doherty, Asst. Dist. Atty. (James M. McDonough, Legal Asst. to the Dist. Atty., with him) for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, SPIEGEL, and REARDON, JJ.

REARDON, Justice.

The defendant, Joseph P. Femino, was convicted of murder in the second degree on an indictment which charged him and another with the murder of Rayfield Woods. The case is before this court on appeal pursuant to G.L. c. 278, §§ 33A--33G, with a summary of the record, a transcript of the evidence, and assignments of error.

We review pertinent portions of the testimony. At 4 A.M. on September 8, 1965, Rayfield Woods went with one Cheryl Franco to a restaurant on Boylston Street, Boston, to have breakfast. At he left the restaurant a man later identified as Ralph Russo grabbed him by the arm and put him into the front seat of a car driven by the defendant. Cheryl Franco recorded the registration number of the vehicle as it drove off. Miss Franco testified that Rayfield Woods had $650 in his possession while they were in the restaurant. On the same day, at about 6:50 A.M., Boston police officers observed Woods in a semiconscious condition lying on the side of the roadway at the rear of 400 Rutherford Avenue, Charlestown. He had been shot four times in the head, once in the chest and once in the left thigh. Woods died of these wounds at 12:10 A.M. on September 10.

On September 9, after some investigation into the shooting of Rayfield Woods, the Boston police department requested that the Medford police arrest the defendant, a resident of that city. Shortly after 1:30 P.M. Medford police officers stopped an automobile in which the defendant was riding, placed him under arrest, and took him to the Medford police station where he was fingerprinted and photographed. The defendant was turned over to Boston police officers and taken to Charlestown where he arrived at approximately 2:30 P.M.

At 3:05 P.M. Sergeants Gannon and Nolan of the Boston police, in the presence of a stenographer, commenced questioning the defendant. During this questioning the defendant was permitted to make a telephone call to a relative by marriage. Sergeant Nolan testified that he left the office several times during the questioning, and on returning after one such occasion about 4:15 or 4:30 P.M. was informed by Sergeant Gannon that the defendant had given a statement implicating Russo and himself in the shooting of Woods.

Sergeant Cannon gave evidence that the defendant admitted that on the evening of September 7 he and Russo had been drinking at various bars when Russo expressed a desire at one point to go to Boston to 'get a colored guy' who had 'rolled him.' Early in the morning of September 8 the defendant drove Russo's car to Boston and stopped when Russo told him to pull over. Russo left the car and returned with Woods, placing him in the front seat between the defendant and himself. The defendant then drove to Charlestown and stopped, whereupon Russo pulled Woods from the car, handed the defendant a gun, and ordered him to shoot Woods. The defendant fired four or five shots into the body of Woods, and sometime thereafter the defendant threw the gun from the Mystic River Bridge. He and Russo then proceeded to a restaurant in Somerville where they were seen eating breakfast about 6 A.M.

Following the statement given by the defendant he was booked for assault with intent to murder. At this time Woods was still alive. About 5:15 or 5:30 P.M. the defendant, accompanied by Sergeant Nolan and Detective Ingemi, and several other officers, went to the rear of 400 Rutherford Avenue, Charlestown, where the defendant made some other statements to the officers amplifying certain information which he had previously given to Sergeant Gannon. From Charlestown they proceeded to the Mystic River Bridge where the defendant indicated to the officers the point on the bridge from which he had thrown the gun.

1. Assignment of error No. 1, based on the denial of the defendant's motion to suppress evidence resulting from an illegal arrest, was expressly waived during oral argument before this court on the authority of Commonwealth v. Bowlen, Mass., ^a 223 N.E.2d 391, which decided the same issue adversely to the defendant.

2. The defendant bases serveral assignments of error (Nos. 3, 9, 10, 11, 12, 14, 17 and 20) on the alleged involuntariness of his confession. Assignment No. 3 asserts that '(t)he trial judge erred in denying defendant's motion to suppress based on the voluntariness of his confession for the following reasons: First, there was sufficient doubt that the defendant was warned of his right to remain silent, to have counsel present, and of the Commonwealth's right to have any statement introduced into evidence against him; Second, there was evidence that the defendant did not voluntarily, intelligently and knowingly waive his rights; Third, there was evidence that the defendant indicated he wished the services of an attorney; Fourth, there was evidence that the defendant was alone (sic) and indicated that he did not wish to be questioned.' Assignments 9, 10, 11 and 14 also allege error in the admission of statements made to police officers as voluntary because the defendant was not warned of his constitutional rights. The Commonwealth has correctly indicated that in his assignments the defendant has confused two issues. The questions whether a confession has been obtained in violation of constitutional guaranties and whether it is voluntary are distinct issues, substantively and procedurally. Since the assignments raise the issue in this manner, we will treat the constitutional question only as it bears upon the voluntariness of the confession.

The trial judge held two voir dire examinations on the arrest and interrogation of the defendant. The following evidence is relevant to whether the defendant was advised of his constitutional rights while in the custody of the Boston police department. Sergeant Gannon, who conducted the interrogation of the defendant, testified that after introducing himself, Sergeant Nolan and a police stenographer he informed the defendant of the matter under investigation and warned him, 'You do not have to answer any questions I may ask of you. And you are entitled to have the services of an attorney if you wish it.' At the end of the interrogation Sergeant Gannon again said to the defendant, 'Now, I warned you of your rights, that you did not have to talk and that you are entitled to the services of an attorney? * * * You have told me this story voluntarily in spite of the fact that I gave you this warning?' Sergeant Nolan, who was present at the beginning and the end of the interrogation, corroborated Gannon's testimony that the defendant was advised of his right to remain silent and to have the services of an attorney.

Sergeant Nolan further testified that he informed the defendant of his right to use the telephone when he was being booked about 5 P.M. on September 9. As previously stated, the defendant had already telephoned a relative by marriage during his earlier interrogation by Sergeant Gannon.

In contrast, the defendant testified that when he arrived at the police station in Charlestown he was taken into a room where there were three police officers who began questioning him. He testified that the words 'silence' or 'right to a lawyer' were never mentioned to him. On cross-examination the defendant continually mentioned that he did not remember being advised of his rights either at the beginning or at the conclusion of his interrogation by Sergeant Gannon or, for that matter, at any other time.

The trial judge found that on at least two occasions the defendant was advised that he might remain silent, that he did not have to answer any questions, and that he was entitled to the services of an attorney. The judge further found that the officers complied with the defendant's request to make a telephone call during his interrogation, and that the statements made to police officers were not in any way coerced, nor made under duress nor as a result of intimidation, but were made voluntarily by the defendant with full knowledge of his constitutional rights.

We discern no error. On the issue of the voluntariness of the confession the trial judge was not required to believe the defendant's testimony that he had not been advised of his constitutional rights. Commonwealth v. Rogers, Mass., ^b 222 N.E.2d 766. In short, on conflicting evidence the question was for the trial judge. Commonwealth v. Valcourt, 333 Mass. 706, 710, 133 N.E.2d 217. The jury were also given, under appropriate instructions, an opportunity to pass on the facts relative to voluntariness. Commonwealth v. Preece, 140 Mass. 276, 5 N.E. 494; Commonwealth v. Sherman, 294 Mass. 379, 394, 2 N.E.2d 477; Commonwealth v. Sheppard, 313 Mass. 590, 604, 48 N.E.2d 630; Commonwealth v. Valcourt, 333 Mass. 706, 710, 133 N.E.2d 217. ¹

Moreover, the defendant's statements would not be rendered involuntary solely because he was not warned of his rights. Commonwealth v. Buck, 285 Mass. 41, 47, 188 N.E. 613; Commonwealth v. Mabey, 299 Mass. 96, 98, 12 N.E.2d 61; Commonwealth v. Valcourt, 333 Mass. 706, 711, 133 N.E.2d 217. This transcript discloses a complete absence of corecion, duress or other oppressive circumstances attending the statements made by the defendant. He was arrested in the presence of a member of his family. He telephone his wife from the Medford police station before being taken to Charlestown for questioning. During his interrogation Sergeant Gannon placed a telephone call at the defendant's request to a Cambridge police officer, who was related by...