Com. v. Forde

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; HENNESSEY
• Citation: 466 N.E.2d 510,392 Mass. 453
• Decision Date: 11 July 1984
• Parties: COMMONWEALTH v. Ancil Bentley FORDE.

Page 510

466 N.E.2d 510 392 Mass. 453 COMMONWEALTH
v.
Ancil Bentley FORDE. Supreme Judicial Court of Massachusetts,
Suffolk. Argued April 3, 1984.
Decided July 11, 1984.

Page 511

[392 Mass. 454] Roger Witkin, Boston, for defendant.

Leonard J. Henson, Asst. Dist. Atty. (Paul J. McCallum, Asst. Dist. Atty. with him), for the Commonwealth.

Before [392 Mass. 453] HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

[392 Mass. 454] HENNESSEY, Chief Justice.

The defendant was indicted for the murder of his wife. His motions to suppress evidence and for a required finding of not guilty were denied. The jury returned a verdict of murder in the second degree. The defendant appealed, and we transferred the case here on our own motion. We affirm.

On July 17, 1981, the defendant filed a missing person report on his wife. On July 18, he reported to the police that he had discovered his wife's body on the back porch of their apartment. A police detective found no sign of assault on the victim or of forced entry to the apartment, and was told by the defendant that he had last seen his wife alive two days earlier, when he had dropped her off near her place of work.

On July 22, Sergeant Detective John Doris and Detective Emmanuel Dambreville came to the defendant's apartment. The defendant accompanied them to the police station, where he signed an incriminating statement. The defendant testified, at a hearing on his motion to suppress the statement, that no Miranda warnings had been given, that he had maintained his innocence, and that he had signed the statement at gunpoint. Doris and Dambreville testified that Miranda warnings had been given, that the defendant had made his statement after being told that fingerprints can be taken from a corpse, and that the defendant had not been threatened or coerced. The judge found that Miranda warnings had been given, that the defendant had knowingly, voluntarily, and intelligently waived his Miranda rights, and that the statement was voluntary.

1. Admissibility of Defendant's Statement.

The defendant argues that the Commonwealth has failed to sustain its burden of proving beyond a reasonable doubt that the defendant's waiver of his Miranda rights was knowing, intelligent, and voluntary. See Commonwealth v. Day, 387 [392 Mass. 455] Mass. 915, 920-921, 444 N.E.2d 384 (1983). As a necessary premise to his argument, the defendant challenges as clearly erroneous the judge's subsidiary finding that the defendant initiated the conversation as to whether fingerprints can be taken from a corpse. We assume for purposes of discussion that the finding was erroneous and that Sergeant Doris initiated the conversation which precipitated the defendant's statement. ¹

The defendant argues that Sergeant Doris's question implied that the defendant's fingerprints had been found on the body when in fact no fingerprint analysis had been, or ever was, done on the

Page 512

body, and that the defendant was thus tricked into waiving his right to remain silent. The cases cited by the defendant, however, do not support his conclusion. In Commonwealth v. Jackson, 377 Mass. 319, 325-329, 386 N.E.2d 15 (1979), the false statement made to the defendant was a form of interrogation used to induce the defendant to relinquish his right to remain silent after he had clearly asserted that right. The fact that the police used any form of interrogation after the assertion of the right to remain silent would itself have required suppression of the resulting statement. Commonwealth v. Harvey, 390 Mass. 203, 454 N.E.2d 105 (1983). Commonwealth v. Brant, 380 Mass. 876, 406 N.E.2d 1021, cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980). See Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The fact that the statement was educed by trickery was "relevant but not conclusive." Commonwealth v. Jackson, supra, 377 Mass. at 328 n. 8, 386 N.E.2d 15. See also Commonwealth v. Meehan, 377 Mass. 552, 562-563, 387 N.E.2d 527 (1979), cert. dismissed as improvidently granted, 445 U.S. 39, 100 S.Ct. 1092, 63 L.Ed.2d 185 (1980). In the instant case, the defendant had not asserted his right to remain silent, and thus he is not necessarily entitled to suppression. See Commonwealth v. Doucette, 391 Mass. 443, 448-449, 462 N.E.2d 1084 (1984). Nor do the characteristics of the [392 Mass. 456] accused or the circumstances of the interrogation suggest that the defendant's waiver of his Miranda rights was anything but voluntary, knowing, and intelligent. The use of misinformation by the police does not in itself defeat a showing of voluntary waiver of rights. See Commonwealth v. Meehan, supra, 377 Mass. at 563, 387 N.E.2d 527. Having considered the totality of the circumstances, we conclude that the waiver was valid and that the defendant's statements to the police were admissible. ²

2. Evidence of Malice.

The defendant moved for a required finding of not guilty at the conclusion of the Commonwealth's case in chief and again at disposition. He now claims that it was error for the judge to disallow this motion, as to so much of the indictment as charged murder, because there was insufficient evidence of malice. This contention is without merit. An inference of malice arises from the intentional doing of an act likely to cause death or grievous harm. Commonwealth v. Palmariello, 392 Mass. 126, 142-143 (1984). Commonwealth v. Casale, 381 Mass. 167, 171-172, 408 N.E.2d 841 (1980). Commonwealth v. McInerney, 373 Mass. 136...