Com. v. Galford

• Decision Date: 13 August 1992
• Citation: 413 Mass. 364,597 N.E.2d 410
• Parties: COMMONWEALTH v. Kevin GALFORD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 410

597 N.E.2d 410

413 Mass. 364

COMMONWEALTH v. Kevin GALFORD.

Supreme Judicial Court of Massachusetts,

Barnstable.

Argued May 5, 1992.

Decided Aug. 13, 1992.

Charles W. Rankin, Boston, for defendant.

Russel J. Wilson, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH and GREANEY, JJ.

ABRAMS, Justice.

Convicted of murder in the first degree on the ground of extreme atrocity or cruelty, the defendant, Kevin Galford, appeals. The defendant also appeals from his convictions of kidnapping and unarmed robbery. The defendant alleges error in the denial of his motion to suppress. The defendant also asserts that the instructions to the jury were erroneous and require reversal of his convictions. Last, he asks that we exercise our power under G.L. c. 278, § 33E (1990 ed.), to order a new trial. We conclude that the convictions should be affirmed and that we should not exercise our power under G.L. c. 278, § 33E, in the defendant's favor to order a new trial or enter a verdict of a lesser degree of guilt on the conviction of murder in the first degree.

Facts. We summarize the facts that the jury could have found. ¹ On the morning of June 2, 1987, the falling tide uncovered the body of the victim on the south-side riprap of the Cape Cod Canal. A tool box had been attached to a set of automobile jumper cables which, in turn, were wrapped around the victim between his knees and ankles and then reconnected to the tool box. The victim had been bound with wire.

The autopsy revealed that the cause of death was drowning associated with blunt impact trauma or blunt impact injury. The victim suffered numerous bruises and abrasions on his head, face and body, including a black eye and a broken nose. In the opinion of the medical examiner for the Commonwealth, there was no evidence of strangulation, and the victim was alive and conscious until the time of drowning.

The police learned that the victim's BayBank automatic teller machine (ATM) card had been used in the early morning hours of June 2 to withdraw money from an ATM machine. Photographs taken by a surveillance camera at the ATM machine were developed. The man in the photographs was identified as one Robert Ferreira. ²

In a conversation two or three weeks prior to June 1, the defendant told Ferreira "about a scam at a gay rest area where they could beat up the gay men and take their money." On the night of June 1, friends of the defendant and Ferreira drove the two men to the Route 140 rest area in Taunton. The defendant and Ferreira told their friends that they were going to the rest stop to collect money owed them and that the person from whom they were going to collect would drive them home. The defendant and Ferreira went there with the expressed intention of robbing homosexuals, who, according to the testimony, used the rest area as a place to meet. The defendant's friends saw the defendant and Ferreira walk into the woods. The defendant sat on a bench in the woods near the rest area while Ferreira hid behind some trees. The victim approached the defendant, and they talked for several minutes. At that point, Ferreira came up from behind the victim, put an electrical cord around the victim's neck, and pulled him to the ground.

On the morning of June 2, the defendant and Ferreira were driving together in an automobile that matched the description of the victim's automobile. Both the defendant and Ferreira stated to friends that the automobile's owner had given them $200 to burn it. The defendant said that he had "paid some bills" with his half of the $200, that he and Ferreira had driven the automobile to Cape Code, ³ that he and Ferreira had used cocaine and "had been partying all night," and that they had thrown the automobile's registration and other papers out the window as they drove. ⁴ Both front seats of the automobile were soaking wet on the morning of June 2.

After the murder, the defendant admitted to a friend that he had "beaten somebody up very badly," but he denied killing anyone. Sometime after June 2, the defendant saw Ferreira driving an automobile similar to the victim's automobile. There was a brief argument, during which the defendant told Ferreira to "get rid of the car[;] [b]urn it." Also sometime after June 2, the defendant asked an acquaintance to aid him in locating someone to beat up Ferreira.

According to police officers, the defendant, when questioned, first stated that he learned that Ferreira had stolen a car only when, days after June 2, he and Ferreira had gone swimming together in a pond. It was then, the defendant originally claimed, that Ferreira first told the defendant that he had stolen the automobile in which they had driven to the pond. As a result of this disclosure, the defendant explained, he walked home from the pond. In a later interview, however, the defendant admitted to having gone with Ferreira to the rest stop on Route 140 to rob men. According to the defendant, when Ferreira began beating and strangling the victim, the defendant told Ferreira to stop and then left the scene and walked home to Taunton. According to a fellow inmate of the defendant's at the New Bedford house of correction, whose girlfriend was a witness in the case, the defendant told the inmate to prevent his girlfriend from testifying or else the defendant would "have her bumped off."

Testifying for the defense, Ferreira outlined the following series of events. As Ferreira started to hit the victim, the defendant told Ferreira "not to hurt him." Ferreira said he continued to "rough[ ] [the victim] up and knocked him out"; "[b]y the time [he] stopped, [the defendant] was gone." According to Ferreira, he alone located the victim's automobile and, after tying the victim up with a cord, locked him in the trunk. Ferreira next drove the automobile to purchase some cocaine, went to an ATM and withdrew $200 from the victim's bank account, purchased more cocaine, and then decided to kill the victim. Ferreira drove to the Cape Cod Canal and threw the victim into the canal. Ferreira said that he drove the victim's automobile to the house where the defendant was staying and picked him up. The two men ingested some of the cocaine Ferreira had purchased earlier, and then, the next morning, visited friends together. ⁵

1. The motion to suppress. We summarize the motion judge's findings of fact with regard to the motion to suppress. On Friday, June 12, 1987, the State police enlisted the assistance of the Taunton police in locating the defendant and bringing him in for questioning. When a Taunton police officer approached the defendant in a shopping mall and identified himself as a police officer, the defendant dropped a plastic bag to the ground. Believing the bag to contain marihuana, the police officer arrested the defendant for possession of a class D substance and brought him to the Taunton police station.

A State police corporal arrived at the station to question the defendant about the murder. After reading the defendant the warnings required by Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1629-30, 16 L.Ed.2d 694 (1966), and assuring himself that the defendant understood them, the corporal questioned the defendant about Ferreira. The defendant explained that he had been at a cookout with Ferreira when Ferreira told the defendant that he had stolen a car and killed a man. When the corporal asked the defendant to turn over his shoes, the defendant was "reluctant to" do so. At that point, the defendant requested a lawyer, the questioning ceased, and the defendant was returned to a cell at the station. Efforts were made to locate a public defender.

Also at this time, Ferreira was brought to the station. As Ferreira was being put in a cell, the defendant asked to speak with police again. The police repeated the Miranda warnings, and the defendant executed a waiver form. The police told the defendant that Ferreira had told them that the defendant had paid Ferreira $200 to burn the stolen car. The defendant denied this and offered to return the next day for a polygraph test. The defendant stated that he was afraid of Ferreira and wanted to consult an attorney. The defendant then left the station.

Based on subsequent statements by Ferreira, the police obtained an arrest warrant for the defendant charging him with murder. On Monday, June 15, ⁶ the defendant was arrested by the Taunton police as he walked to the Taunton District Court to be arraigned on the possession of marihuana charge. He was brought to the station, read the warnings required by Miranda v. Arizona, supra, and again presented with a Miranda waiver form, which he executed. The defendant then made the statements that he sought to suppress: "I'll probably get blamed for the whole thing. I didn't do it. I went with Ferreira from Store 24 to the Route 140 rest area to rob queers. I saw him (Ferreira) pull a white cord around [the victim's] neck, kick and hit him. I left and didn't want any part of it. I didn't go there to kill anyone."

Relying on Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), ⁷ the defendant asserts that the judge erred in refusing to suppress his June 15 statement to the Taunton police because the questioning took place without counsel being present and after the defendant had invoked his right to have counsel present during the June 12 interview. In Edwards, the United States Supreme Court held that, when an accused has invoked his right to have counsel present during police questioning, "a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights." Id. at 484, 101 S.Ct. at 1885. In Commonwealth v. Perez, 411 Mass. 249, 581 N.E.2d 1010 (1991), we took note of the "observation[ ]" of the District of Columbia Court of Appeals that the Edwards rule applies "so long as the defendant...