Com. v. Fernette

• Citation: 398 Mass. 658,500 N.E.2d 1290
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Decision Date: 26 November 1986
• Parties: COMMONWEALTH v. Kirk FERNETTE.

Page 1290

500 N.E.2d 1290

398 Mass. 658

COMMONWEALTH v. Kirk FERNETTE.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued Sept. 9, 1986.

Decided Nov. 26, 1986.

Rosemary Ford, Brockton, for defendant.

Mary Ellen O'Sullivan, Asst. Dist. Atty., for Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

ABRAMS, Justice.

The defendant, Kirk Fernette, appeals from his convictions of murder in the first degree, armed robbery, assault with intent to rob a victim over sixty-five years old, G.L. c. 265, § 18(a) (1984 ed.); assault and battery by means of a dangerous weapon on a victim over sixty-five, G.L. c. 265, § 15A (1984 ed.); and three convictions of assault, while armed with a dangerous weapon, with intent to murder, G.L. c. 265, § 18(b) (1984 ed.). On appeal the defendant argues that it was error to deny his motion to suppress his statement to the police, which was tape recorded, because it was not voluntary and because the police stopped the tape recorder at times during the making of the statement. The defendant also argues that he was unfairly prejudiced by remarks made by the prosecutor during closing argument; he was prejudiced by the jury's unrestricted access to his tape recorded statement during deliberationss the jury instructions concerning proximate cause did not permit the jury to consider the medical care given the victim; the instructions defining murder in the first degree were erroneous; the instructions pursuant to Commonwealth v. Dickerson, 372 Mass. 783, 364 N.E.2d 1052 (1977), were faulty; and the instructions on the intent requirement for the assault while armed with a dangerous weapon, with intent to murder were erroneous. The defendant also asks us to grant him relief pursuant to G.L. c. 278, § 33E. We conclude that the defendant is entitled to relief under Commonwealth v. Freeman, 352 Mass. 556, 227 N.E.2d 3 (1967), on the basis of the erroneous instruction regarding the three convictions of assault with intent to murder. The convictions of murder in the first degree, armed robbery, assault with intent to rob a victim over sixty-five years old, and assault and battery by means of a dangerous weapon on a victim over sixty-five years old are affirmed. On the conviction of murder in the first degree, we decline to exercise our power under G.L. c. 278, § 33E, in favor of the defendant.

We summarize the facts. ¹ On September 19, 1983, the defendant and Glen Bourgeois, a codefendant, ² robbed and shot Hollis Jackson, age seventy-five, at his home in Middleborough. The weekend prior to the shooting, the defendant and Bourgeois had visited friends in Middleborough. During the weekend, each man was seen cleaning and loading guns. ³ On Monday morning, September 19, the two men left Middleborough on route to Florida. Both men were armed and had enough money for a bus ticket.

As they headed to the bus station, the defendant and Bourgeois passed the home and barn of the victim. The victim kept his car in the barn. The two men went into the barn and saw the victim's automobile. The victim entered shortly thereafter and offered the two men a ride part of the way to the bus station, which the men accepted. When the victim let the men out of his car, they decided to return to the victim's home and wait for him so that they could take his money and his automobile. On the victim's return, he was blindfolded, gagged and tied to his bed, after having his pockets emptied of money and his automobile keys. According to the defendant, he remained with the victim while his codefendant went to the store to get sodas. The defendant claims that during this period of time he loosened the ties on the victim. As soon as his codefendant returned from the store, the men prepared to leave, taking with them the victim's cash, his shotgun, some supplies, and the keys to his automobile.

As the men were departing from the victim's home, the victim freed himself from his ties and attempted to defend himself and his property. One of the two men ⁴ responded by shooting the victim once in the mouth and once in the back. ⁵ The two men then ran to the victim's automobile.

The victim went to a neighbor's house for aid. The police and an ambulance were summoned. The police pursued the two men, who were fleeing in the victim's car. During the pursuit, the defendant leaned out of his car and fired the shotgun taken from the victim. ⁶ Eventually, the automobile occupied by the men was driven off the road into a field. The defendant fled on foot. The next morning the police apprehended him.

The defendant was transported to the Middleborough State police barracks. After being warned pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the defendant made a statement which was tape recorded. ⁷

1. Pretrial motion to suppress. The defendant challenges the admission of his taped statement on two grounds. First, the defendant asserts that the statement was not voluntarily given due to his lack of food and sleep. Second, the defendant asserts that the police action in stopping and starting the tape recorder violated his due process rights. After an evidentiary hearing, ⁸ the judge denied the defendant's motion to suppress the statement. There is no error.

"A conviction founded in whole or in part on statements which are the product of physical or psychological coercion deprives the defendant of his right to due process of law under the Fourteenth Amendment and, as a consequence, is invalid." Commonwealth v. Mahnke, 368 Mass. 662, 679, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). If the voluntariness of a confession is raised, the Commonwealth bears the burden of proving voluntariness beyond a reasonable doubt. Commonwealth v. Tavares, 385 Mass. 140, 152, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982). Evidence of voluntariness must affirmatively appear in the record. Commonwealth v. Parham, 390 Mass. 833, 460 N.E.2d 589 (1984). Because there is no "acid test" of voluntariness, this court must look to the totality of circumstances to ensure that the confession is a voluntary act and not the "product of inquisitorial activity which had overborne [the defendant's] will." Mahnke, supra, 368 Mass. at 680, 335 N.E.2d 660.

In reviewing a judge's determination of voluntariness, we accept the judge's subsidiary findings absent clear error. Commonwealth v. Monteiro, 396 Mass. 123, 131, 484 N.E.2d 999 (1985). While we give substantial deference to a judge's ultimate findings and conclusions of law, we must make an independent review of the correctness of the judge's application of constitutional principles to the facts found. Commonwealth v. Corriveau, 396 Mass. 319, 486 N.E.2d 29 (1985). Mahnke, supra, 368 Mass. at 667, 335 N.E.2d 660. If the judge finds that the defendant's statement is voluntary beyond a reasonable doubt, "that conclusion 'must appear from the record with unmistakable clarity.' " Commonwealth v. Tavares, supra, 385 Mass. at 152, 430 N.E.2d 1198, quoting Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967).

The judge made the following findings relevant to the voluntariness of the defendant's confession. The police arrested the defendant in the morning of September 20, 1983. The police chase occurred during the afternoon of September 19, 1983. During these hours prior to arrest, the defendant eluded capture by remaining under a piece of plastic for eight hours. After leaving that hiding place, the defendant fled into some woods, where he spent the night in a tree. The next morning the police caught the defendant standing near a shed and arrested him.

The judge found that the defendant's last full meal before his arrest was breakfast on September 19. During the rest of that day, the defendant consumed two cookies and part of a raw zucchini. ⁹ After arrest the defendant was given water, soda, and a doughnut. ¹⁰ During the questioning, several breaks were taken, allowing the defendant to smoke a cigarette and collect himself.

The judge found that even if the defendant were tired and hungry on the morning of his arrest due to a lack of sleep or food, that did not necessarily make the statement involuntary. Based on an assessment of the manner of the defendant's speech on the tape, the defendant's responses to questions and his demeanor on the witness stand, the judge concluded that the statement was voluntary. The judge also found that the defendant was not under the influence of alcohol or drugs at the time of questioning, and that the defendant was not threatened or harmed by police during the questioning. ¹¹

The judge concluded that the defendant's mental process was unimpaired and his will was not overridden in the questioning. The judge found "beyond a reasonable doubt, that the statements ... were given voluntarily and were the product of a rational intellect...." ¹² After review, we conclude that the totality of circumstances supports the judge's conclusion that the statement was voluntary.

We turn to the defendant's arguments concerning the manner in which his statement was taped. The defendant contends that the admission of a tape recorded statement which has been stopped and started during the course of the questioning violates the due process clause of the Fourteenth Amendment to the United States Constitution. It is undisputed that the tape recorder was stopped on several occasions. The judge found that the tape was stopped six or seven times. Because the interview lasted for approximately two hours, the tape had to be turned over or changed at various times. On another occasion, the tape was stopped due to construction noise in the hallway near the interview room. The tape recorder was stopped while the defendant was given food and water. The tape recorder also was turned off while thedefendant smoked a cigarette. Finally, the...