Com. v. Ghee

• Citation: 607 N.E.2d 1005,414 Mass. 313
• Parties: COMMONWEALTH v. Donald W. GHEE.
• Decision Date: 16 February 1993
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1005

607 N.E.2d 1005

414 Mass. 313

COMMONWEALTH v. Donald W. GHEE.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 2, 1992.

Decided Feb. 16, 1993.

James L. Sultan, Margaret H. Carter, Boston, with him, for defendant.

Roger L. Michel, Jr., Asst. Dist. Atty., for Com.

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

WILKINS, Justice.

A jury convicted the defendant of murder in the first degree, unlawful possession of a sawed-off shotgun, and use of a shotgun while committing a felony. On the defendant's motion, the judge reduced the murder verdict to murder in the second degree, and sentenced the defendant to a mandatory term of life imprisonment. See Mass.R.Crim.P. 25(b)(2), 378 Mass. 896 (1979). ¹ The defendant appeals from his convictions of murder in the second degree and unlawful possession of a sawed-off shotgun. The Commonwealth appeals from the order reducing the verdict. We affirm both the convictions and the order reducing the verdict.

On the Fourth of July, 1989, a Connecticut State trooper arrested the defendant on Interstate Route 95 for driving under the influence of alcohol. The trooper took the defendant, who was alone in the vehicle, to a State police barracks. A body was found in the trunk of the vehicle. The defendant challenges the denial of his motion to suppress based on a warrantless police search of the trunk.

Connecticut State police detectives questioned the defendant at a State police barracks after another State trooper had warned the defendant of his rights. The warning given had a defect that, in the circumstances, might have misled the defendant into talking to the police. The trial judge considered and denied the defendant's motion to suppress his statements to the Connecticut police.

The defendant also challenges the admission of expert testimony that tended to prove that he had shot the victim, his former girlfriend, in their Boston apartment. The first expert connected the date and place of manufacture of a plastic bag in which the victim's body was found with that of two plastic bags found in the Boston apartment. The second expert's testimony was that the defendant's fingerprint appeared on a sawed-off shotgun found in the Boston apartment. Additional facts relevant to each issue will be presented in connection with the discussion of it.

1. Relying exclusively on art. 14 of the Massachusetts Declaration of Rights, the defendant argues that the warrantless search of the trunk of his motor vehicle by police officers in Connecticut violated his constitutional right to be free from an unreasonable search. The Commonwealth does not argue that we should not apply art. 14 principles to a Connecticut police search. We shall assume, without deciding, that the same art. 14 principles apply in deciding a motion to suppress evidence obtained in the Connecticut search as would apply if the search had been conducted in Massachusetts. ²

There was evidence at the hearing on the motion to suppress that, shortly before seven o'clock in the morning of July 4, 1989, a Connecticut State trooper was on duty on Interstate Route 95 in East Lyme. He saw a motor vehicle partly on the median strip and the defendant apparently trying to restart it and push it off the median strip. The trooper approached the defendant. The trooper determined that the defendant, alone in the vehicle, was under the influence of alcohol and arrested him. The trooper then called for a tow truck, and Louis Morgillo, an employee of Niantic River Transmission Company, towed the vehicle to his employer's garage. ³ There Morgillo noticed an odor, apparently coming from the vehicle's trunk, that another State trooper had mentioned to him when they were near the vehicle on Route 95. Morgillo opened the trunk, thought that he saw a body, and immediately slammed the trunk shut. He called the police. An East Lyme police officer arrived, opened the trunk briefly, saw the body of a black female, closed the trunk, and then called the State police. Two State police officers arrived, looked in the trunk, and took Polaroid pictures of the body in the trunk. Thereafter a warrant was obtained to conduct a search of the vehicle.

The defendant moved to suppress evidence subsequently seized, including evidence obtained pursuant to search warrants. He also moved to suppress statements that he made following the warrantless search. These motions to suppress were based on asserted violations of his rights because of the warrantless search of the trunk. The motion judge ruled that the police had probable cause to search the vehicle and that exigent circumstances justified conducting that search without a warrant. The exigency, as the judge saw it, was that the defendant or someone on his behalf might at any time come to retrieve the vehicle. The judge denied the defendant's motions to suppress. ⁴

The defendant makes no claim that Morgillo, the tow truck operator, was acting on direction of the police or was an agent of the State when he opened the vehicle's trunk. Therefore, Morgillo's brief search of the trunk presents no basis for an art. 14 challenge to the search of the trunk. The defendant's argument thus comes down to whether an unreasonable search occurred when, having probable cause to believe that a human body was in the trunk of a motor vehicle to which they had lawful access, the police should have obtained a search warrant before opening the trunk and taking pictures of its contents. We think not. The circumstances were exigent because prompt investigation of the report of a dead body in the vehicle's trunk was warranted. This search did not involve the kind of police conduct that we would hope to deter by suppressing evidence found in the trunk, found as a result of subsequently issued search warrants, or obtained from the defendant in the course of police interviews.

2. The defendant argues that statements that he gave to Connecticut State police detectives should have been suppressed because he was not given proper warnings under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We reject his claim that the warnings that one State trooper gave at 7:23 A.M. on July 4, 1989, assuming they were adequate at that time, were not sufficient to advise the defendant of his rights when other officers began questioning him at 9:00 A.M., at which time he told the two detectives that he had already been advised of his rights. See State v. Usry, 205 Conn. 298, 307, 533 A.2d 212 (1987). The defendant does not argue that, solely because the interviewing officers did not advise him that they were investigating a murder, his rights were not adequately protected. See Colorado v. Spring, 479 U.S. 564, 577, 107 S.Ct. 851, 859, 93 L.Ed.2d 954 (1987). Nor does the defendant seriously argue that, apart from the asserted Miranda violation, on the facts the motion judge found, he did not knowingly, intelligently, and voluntarily agree to talk to the Connecticut detectives. There is no basis for any claim that the Connecticut detectives tricked the defendant into talking to them about the body in his vehicle.

The problem concerning the Miranda warnings is that the rights given to the defendant, set forth on a form used for certain purposes in Connecticut, included the warning that "[y]ou are not obligated to say anything, in regard to this offense you are charged with but may remain silent" (emphasis supplied). In all other respects the warnings were adequate. The form, which the defendant signed, indicated that the offenses charged were (a) driving under the influence and (b) operating a motor vehicle without a license. We are concerned here solely with the asserted failure to comply with the requirements of the United States Supreme Court concerning Miranda warnings and the consequences of a failure to give an adequate warning. ⁵

No prescribed set of words must be used to provide the warnings required by the Miranda case. See Duckworth v. Eagan, 492 U.S. 195, 202-203, 109 S.Ct. 2875, 2879, 106 L.Ed.2d 166 (1989) (inquiry is whether warnings reasonably convey rights to a person); California v. Prysock, 453 U.S. 355, 359, 101 S.Ct. 2806, 2809, 69 L.Ed.2d 696 (1981) (no "talismanic incantation" required). Here, the warning arguably implied that, although he did not have to talk about offenses with which he was charged, the defendant did have to talk about offenses with which he was not charged. If the defendant reasonably could have concluded that the warning had that implication, he may have spoken about certain subjects believing that he was compelled to do so. ⁶ There was evidence, but no finding by the judge, that the defendant said that he was aware that he did not have to speak with the detectives.

Because there are no findings bearing on whether the warnings given reasonably conveyed his rights to the defendant, we are not willing to conclude that the Commonwealth met its burden of showing that the defendant received adequate warnings. We are, however, persuaded that any error was harmless beyond a reasonable doubt. A harmless error analysis is appropriate as to the admission in evidence of statements obtained in violation of the Miranda rule. See Commonwealth v. Perez, 411 Mass. 249, 259-260 n. 7, 581 N.E.2d 1010 (1991); United States v. Batista-Polanco, 927 F.2d 14, 21 (1st Cir.1991).

The defendant's statement to the Connecticut detectives could not have been a significant factor in his conviction. He argues that his statement that no one else was allowed to use his car and that he had only one set of keys undercut his defense that the victim's husband had killed her and placed her body in the defendant's car. He also claims that the Commonwealth was able to rely on certain allegedly false exculpatory statements he made to the Connecticut detectives to the effect that he lived in Florida, had no permanent Boston address, and had not lived with, nor seen, the victim...