Com. v. Harmon

• Decision Date: 18 June 1991
• Citation: 573 N.E.2d 490,410 Mass. 425
• Parties: COMMONWEALTH v. Raymond HARMON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 490

573 N.E.2d 490

410 Mass. 425

COMMONWEALTH v. Raymond HARMON.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued April 2, 1991.

Decided June 18, 1991.

Stanley W. Norkunas, Lowell, for defendant.

Michael Fabbri, Asst. Dist. Atty., for Com.

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

ABRAMS, Justice.

The defendant, Raymond Harmon, was convicted of murder in the first degree and armed robbery in the beating death of Frederick Slavin. On appeal, the defendant claims that the trial judge erred (1) by admitting the testimony of a fellow prison inmate concerning inculpatory statements made by the defendant; (2) by failing to suppress the defendant's statements to police and certain physical evidence; and (3) by denying defense counsel's request to recall two State witnesses. We affirm. The defendant also asks that we exercise our power under G.L. c. 278, § 33E (1988 ed.), to reverse his conviction for murder in the first degree. ¹ We conclude that there is no reason to exercise our power under G.L. c. 278, § 33E, in the defendant's favor.

The jury could have found the facts as follows. Frederick Slavin, who was seventy-five years old at the time of his death, worked for a package store in Lowell. He stocked supplies and delivered goods to customers. Slavin also made a practice of cashing checks for friends and customers. It was thus not unusual for Slavin to be carrying several thousand dollars in cash as he made his deliveries. Slavin cashed checks for the defendant on at least two occasions. On the morning of November 14, 1985, the package store received a telephone order for a case of beer to be delivered to the rear door of 241 Pawtucket Street. Slavin left the package store shortly after 1 P.M., and stopped at a bank. He withdrew $8,000, and left the bank with the cash in a brown paper lunch bag. Shortly after 2 P.M., Slavin's body was discovered at the rear of 241 Pawtucket Street. His death was caused by several blows to the head. The paper bag containing $8,000 in cash lay near the body, but Slavin's front pant pockets had been turned inside out and were empty.

At 10:30 on that evening, the defendant was at the apartment of David Mullamphy with John Tarrant, Barbara Peaslee, and Raymond Grenier. Police Inspector Durkin arrived at the apartment with three other police officers. Durkin knocked on the door, and the defendant admitted the officers. He had been drinking, but did not appear intoxicated. Durkin noticed a pair of dungarees draped over a washing machine in the kitchen. The dungarees were wet, and had a brown stain on one leg. The defendant indicated that the pants belonged to him. After a short time, Durkin asked the defendant if he was willing to go to the police station, and the defendant agreed to go. At one point, the defendant began staggering as he walked from the police car to the police station. Durkin told him to "knock it off," and the defendant walked normally the rest of the way to the police station. When they reached the police station, Harmon signed a card acknowledging that he had been given and understood the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Durkin then questioned the defendant about his movements during the day. Durkin asked if he could retrieve the wet dungarees from the apartment, and the defendant replied, "Go ahead." He signed a consent form authorizing the police to perform a chemical test on the pants. Testing later showed the stain to be blood of the same type as the victim's blood. The defendant signed a second "Miranda" card, and then gave a statement to Durkin. Durkin typed out the statement and the defendant signed it. The defendant left the police station early the next morning.

In May, 1986, the defendant was indicted for the murder of Slavin. At that time, he was serving a sentence at the Massachusetts Correctional Institution, Cedar Junction (Cedar Junction) on an unrelated charge. While at Cedar Junction, the defendant encountered a fellow inmate, Jose Otero, whom he had met during a previous incarceration. The two held several conversations, and the defendant told Otero that he had committed the murder. Otero took some notes on the information revealed by the defendant, and telephoned Durkin to tell him what he had learned. Otero testified for the Commonwealth at trial.

1. Testimony of Jose Otero. Before trial, the defendant moved to suppress Otero's testimony. ² The motion was denied. On appeal, the defendant claims that admission of Otero's testimony as to their prison conversations violated his State and Federal rights to counsel.

A criminal defendant's right to be represented by counsel may be violated by "indirect and surreptitious" interrogations by government agents as well as overt interrogations by uniformed police officers. Massiah v. United States, 377 U.S. 201, 206, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964). See Commonwealth v. Rodwell, 394 Mass. 694, 698-699, 477 N.E.2d 385 (1985). Where the government has entered into an arrangement with a prison inmate agreeing to pay him for incriminating evidence elicited from another inmate, an agency relationship may have been established. See United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). However, an inmate who has not entered into any agreement with the government, and who reports incriminating evidence to police out of conscience or even "an unencouraged hope to curry favor" is not acting as a government agent. Thomas v. Cox, 708 F.2d 132, 136 (4th Cir.), cert. denied, 464 U.S. 918, 104 S.Ct. 284, 78 L.Ed.2d 262 (1983); United States v. Watson, 894 F.2d 1345, 1348 (D.C.Cir.1990); Lightbourne v. Dugger, 829 F.2d 1012, 1021 (11th Cir.1987), cert. denied, 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346 (1988); United States v. Taylor, 800 F.2d 1012, 1016 (10th Cir.1986), cert. denied, 484 U.S. 838, 108 S.Ct. 123, 98 L.Ed.2d 81 (1987). See Commonwealth v. Rodwell, supra 394 Mass. at 698-699, 477 N.E.2d 385. "An individual's actions will not be attributed to the State if no promises are made for that individual's help and if nothing was offered to or asked of that individual." Commonwealth v. Rancourt, 399 Mass. 269, 274, 503 N.E.2d 960 (1987).

At the suppression hearing, the judge heard testimony from Otero and Durkin, as well as from other witnesses. He issued written findings detailing the facts of the relationship between the defendant and Otero and Durkin. On appeal, we accept those findings of fact absent clear error. Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990). However, we make an independent determination as to whether Otero was functioning as a government agent by applying constitutional principles to facts. See Commonwealth v. Rancourt, supra 399 Mass. at 273-274, 503 N.E.2d 960; Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977), S.C., 398 Mass. 806, 501 N.E.2d 1154 (1986).

The judge's findings are as follows. Otero was in prison at the time of Slavin's murder. Durkin had arrested Otero on the charges that led to his sentence. Durkin also had arrested Otero on at least four other occasions during the previous four years. In May, 1986, Otero was transferred from Cedar Junction to the South Eastern Correctional Center (SECC), a medium security prison. From prison Otero called Durkin collect, two or three times a month. Otero had no visitors at SECC, and regarded Durkin as a "friend and advisor." Durkin kept Otero informed about Otero's brothers and sisters in Lowell. Otero was transferred from SECC back to Cedar Junction because of disciplinary infractions. Otero began working as a cook in the kitchen at Cedar Junction. There he encountered the defendant, an acquaintance from a previous incarceration in Billerica, who was also working in the kitchen. During one of his telephone calls to Durkin, Otero mentioned that he was working with "the guy who killed the old man." Durkin told him to "keep his ears open." After the defendant told Otero about the murder, Otero began to keep notes of his conversations with the defendant. In mid-October, the defendant told Otero that he had killed Slavin by beating him, and by hitting Slavin's head against a rock. Two days later Otero telephoned Durkin and told him that the defendant had revealed the details of the murder. Durkin responded that such knowledge was of no use to him unless Otero was willing to testify to it. Otero said that he needed to think it over. The next day Otero called back and told Durkin that he was willing to testify. Durkin arranged meetings with police and an assistant district attorney to take Otero's statement and retrieve Otero's notes. Immediately after meeting with police, Otero was placed in segregation for his own protection.

Otero testified that Slavin had cashed checks for him, and that "the old man didn't deserve what [the defendant] had done to him." He denied having been offered any promises, inducements, or rewards for his testimony. The assistant district attorney stated that he told Otero that he would request that Otero's parole board hearing be moved up from mid-December to late November.

The facts found by the judge are supported by the evidence at the suppression hearing and at trial. Nothing in these facts lends credence to the defendant's conclusion that Otero was functioning as a government agent. Nothing in the record indicates that Durkin or other officials entered into any agreement with Otero. No money or benefit was promised to Otero, expressly or implicitly, as an inducement or reward for information about the defendant. The only action that can be attributed to the government is Durkin's suggestion that Otero "keep his ears open." Such a suggestion, especially when offered after Otero already had come forward with information, does not suffice to establish an agency relationship. See Lightbourne v. Dugger, supra; Commonwealth v....