Com. v. Harris

• Decision Date: 15 December 1976
• Citation: 358 N.E.2d 982,371 Mass. 462
• Parties: COMMONWEALTH v. Jack Alton HARRIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 982

358 N.E.2d 982

371 Mass. 462

COMMONWEALTH

v. Jack Alton HARRIS.

Supreme Judicial Court of Massachusetts, Middlesex.

Argued June 7, 1976.

Decided Dec. 15, 1976.

Margaret D. McGaughey, Boston, for defendant.

Bonnie H. MacLeod-Griffin, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

LIACOS, Justice.

The defendant was found guilty by a jury on indictments charging murder in the first degree (G.L. c. 265, § 1) and armed assault with intent to rob (G.L. c. 265, § 18). He was sentenced to death on the murder charge. After his trial, which occurred in January, 1964, the defendant filed a claim of appeal, but no further action was taken on it. However, in March, 1975, a consent decree was entered before a single justice of this court vacating the sentence of death (with the trial court directed to resentence the defendant to life imprisonment) and allowing the defendant full rights of appeal under G.L. c. 278, §§ 33A--33H. His appeal is now before us on that basis.

On appeal, the defendant claims that the following constitute reversible error: (1) the trial judge's failure to provide a voir dire hearing and judicial ruling on the admissibility of the confession and his failure to instruct the jury properly on the issue of voluntariness after evidence had been introduced that the defendant had been beaten by the police prior to making a confession; (2) the trial judge's failure to exclude that confession from evidence; (3) the admission of certain evidence produced by a search of the defendant's apartment pursuant to an allegedly inadequate search warrant; (4) the admission of certain testimony that the defendant had refused to answer the police when they questioned him after he had been arrested; (5) the trial judge's failure to instruct the jury on the elements of the underlying felony necessary to support conviction on a felony-murder theory; and (6) the ineffectiveness of trial counsel. Finally, the defendant argues that, even if we should find no legal error in the proceedings below, we should exercise our powers under G.L. c. 278, § 33E, and either direct a verdict of not guilty or enter a verdict of guilty to a lesser offense than murder in the first degree. We conclude that the trial judge's failure to order a voir dire hearing and properly to instruct the jury on the voluntariness of the defendant's confession constitutes reversible error. We state the evidence relevant to the issues considered herein.

On the night of July 21, 1962, three gunmen entered a bunkhouse in Lexington, Massachusetts, where the victim and twelve other migrant farm workers were sleeping. The victim was mortally shot. Police who arrived on the scene shortly thereafter found that the farm workers spoke only Spanish. At that hour, the police could produce an interpreter who spoke only Italian and English. Nevertheless, the police felt they gathered enough information to put out a radio alert for three men.

On July 23, four Puerto Rican suspects were arrested by the police. After they were interrogated for approximately five hours they were released. One of these suspects then accompanied two police officers to the South End of Boston looking for an individual named Hector Vieira. Sometime later the police located Vieira. They arrested him on the basis of an outstanding warrant in New Bedford on an unrelated matter and took him to the police station for questioning. Vieira told the police that guns were concealed under the floor of a closet in apartment 2 of 31 Concord Square, Boston. Vieira also told them that a man named Jack Harris had committed the murder at the bunkhouse. Vieira gave the police a description of Harris.

On the basis of the information received from Vieira, a person previously unknown to the police, eleven plainclothes policemen went to 31 Concord Square and Stationed themselves at various points around the apartment building. Three of the officers then went to the home of a judge of the Municipal Court of the City of Boston and obtained a warrant to search apartment 2 and to arrest anyone found inside. ¹

When these three officers returned to 31 Concord Square, they entered apartment 2 (which was unlocked) after knocking and receiving no answer. The police found a young woman, later identified as the defendant's girl friend, asleep in bed. After she was taken upstairs to another apartment the police ripped up the closet floor and wall paneling and found two rifles, a revolver, a mask and certain other items. No fingerprints were found on any of these articles.

Shortly thereafter (around 10:30 P.M.), one of the officers noticed a black male, who fit the description given the police by Vieira, walking down the street at a 'normal pace.' The police testified that after this man entered 31 Concord Square he saw one of the officers standing in an unlighted doorway, turned, jumped down six steps and began to run back toward the street. The police testified that they soon apprehended the man, later identified as the defendant, and placed him under arrest.

One of the policemen, an Officer Gavin, testified that he twice asked the man why he had run away from the police. Both times the man refused to answer. He was asked his name and replied that it was Jack Harris. The police took Harris back to 31 Concord Square and there asked him whether the rifles belonged to him. Officer Gavin testified that Harris 'bit his lip and hung his head, but made no verbal reply.' At this point the defendant had not been advised of his rights.

The defendant's version of the arrest was substantially different. He testified that he had been talking to two persons in a car parked on the street when a man in civilian clothing came up to him, brandishing a gun, and asked if he was 'Fernandez.' The defendant responded that he was Jack Harris; he was then placed under arrest.

The police and the defendant arrived at Boston police headquarters in a police van around 11 P.M. The defendamt was questioned by a variety of Boston and Lexington police officers. The police testified that, within an hour and one-half, the defendant admitted his participation in the holdup, but stated that one Fernandez, not he, had killed the farm worker. The defendant was not asked to write out his confession. Instead, the police brought in two stenographers to record two separate statements. These statements, which were read to the jury at trial, were in a question and answer format. Both statements contained responses by the defendant that he had confessed freely and that he had been advised of his rights, including a warning that the statements could be used against him in court. Shortly after these statements were recorded that defendant was put in a lineup, but no identification resulted. Although Vieira was still being held at police headquarters, the defendant was not confronted with him.

The police further testified that the defendant willingly agreed to recreate the crime. The police testified that, on the way to Lexington that same night and while there, the defendant made numerous statements about the crime. When the defendant and the police arrived at the bunkhouse, the police woke up the farm workers and asked them to identify the defendant. None of the workers made an identification. The defendant was returned to Boston and placed in jail.

The defendant's testimony about the police questioning was almost totally at variance with that of the officers. The defendant testified that he had been handcuffed and that he generally refused to answer questions. He stated that, about ninety minutes after the questioning commenced, the police began to beat him between the legs and on his side with a 'flexible' object. The defendant told the jury that eventually he started to talk after becoming dizzy and being 'tired of being beaten on.' He stated that he could remember neither the questions he was asked nor his answers, but that his answers seemed to satisfy the police. The defendant did agree with the police that he had gone with them to Lexington, but disputed their assertion that he had done so willingly.

At no time did the police testify in rebuttal to any of the defendant's statements. The testimony of the police was neither objected to nor excepted to by the defendant's trial attorney. Furthermore, that attorney did not move to suppress or exclude the defendant's confession; nor did he request that the trial judge hold a voir dire on the issue of voluntariness either before or during the trial. The confession was admitted without a finding by the judge that it was voluntarily made. The judge was not requested to instruct the jury on the isse of voluntariness and he did not do so on his own initiative.

The Commonwealth produced only one eyewitness to the crime despite the fact that there had been thirteen farm workers in the bunkhouse when the killing occurred. This witness testified that, although he was awakened by the entry of the three men, he did not see the killing occur.

The defendant's defense was alibi. Five witnesses called by the defendant corroborated his position that he was in Boston during the day of the crime. There was also testimony that the defendant vacated his apartment a few days before the crime and that seven or eight other individuals had access to the keys to apartment 2 during that period. Finally, several of the defense witnesses testified that, at all times since the defendant had moved into apartment 2, one of the closets in which the police discovered the weapons had been nailed shut.

1. Failure of the trial judge to hold a voir dire hearing, properly to rule on the admissibility of the confession and to instruct the jury on the issue of voluntariness. It long has been the law of this Commonwealth that an involuntary or coerced confession is inadmissible in the trial of a criminal defendant. '(C)onfessions made by a party accused, under...