Com. v. Harvey

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtNOLAN
Citation397 Mass. 351,491 N.E.2d 607
Decision Date17 April 1986
PartiesCOMMONWEALTH v. Robert HARVEY.

Page 607

491 N.E.2d 607
397 Mass. 351
COMMONWEALTH

v.
Robert HARVEY.
Supreme Judicial Court of Massachusetts,
Middlesex.
Argued Feb. 4, 1986.
April 17, 1986.

Page 608

[397 Mass. 352] Daniel J. O'Connell, III, Boston (Eileen D. Vodoklys, Framingham, with him), for defendant.

Karen J. Kepler, Asst. Dist. Atty., for Com.

Before [397 Mass. 351] WILKINS, LIACOS, NOLAN, LYNCH and O'CONNOR, JJ.

[397 Mass. 352] NOLAN, Justice.

On April 5, 1984, a Middlesex County grand jury returned two indictments charging the defendant, Robert Harvey, with larceny from the person, see G.L. c. 266, § 25(b ) (1984 ed.), and civil rights violations under G.L. c. 265, § 37 (1984 ed.). On August 20, 1984, the defendant's trial commenced before a judge and a jury in the Superior Court in Middlesex County. The defendant was found guilty on both indictments. He appealed to the Appeals Court. We transferred the case to this court on our own motion.

The defendant argues that (1) the judgments should be reversed and the indictments dismissed because he was compelled to furnish evidence against himself in violation of art. 12 of the Massachusetts Declaration of Rights; (2) the trial judge erred by admitting in evidence a videotape of the victim; and (3) the defendant was denied due process of law and his right to a trial by jury as a result of the judge's failure to suspend deliberations after the jury requested further instruction on the meaning of proof beyond a reasonable doubt. We find no error and affirm the convictions. The relevant facts are summarized as follows.

On March 21, 1984, the defendant was employed as a police officer by the city of Cambridge. On that date, he was working the midnight to 8 A.M. shift and was assigned to drive police wagon No. 419, which is a small, closed truck that is used by the Cambridge police department primarily to transport prisoners. At approximately 1:30 A.M., the defendant was dispatched to Cambridge City Hospital to pick up a man, later identified as Charles Dayton. Dayton was believed to be intoxicated and was in need of shelter for the evening.

At trial, Dayton testified that, when the police wagon arrived at the hospital, he stepped into the rear, believing that he would be transported to the Cambridge police station and placed in [397 Mass. 353] protective custody for the evening. See G.L. c. 111B, § 8 (1984 ed.). Dayton further testified that, instead of driving him to the station, the defendant drove to a dark area (later identified as the Brown and Ferris Industries' reclamation yards in East Cambridge [BFI] ) where he stopped the police wagon, opened the back door, and requested Dayton to step out. When Dayton complied, the defendant searched him, took approximately $60 in cash from him, and abandoned him. Dayton testified that he was unfamiliar with the area and began to walk in the direction of lights in the distance. After walking for approximately five minutes, he came upon a weighing station operated by a BFI employee. Dayton told the employee that he had just been "robbed by the guy in the wagon," and requested permission to telephone the police.

A short time later, Officers Lester J. Sullivan and J. Michael Walsh of the Cambridge police department arrived on the

Page 609

scene. The officers spoke with Dayton, placed him in their patrol car, and proceeded to the Cambridge police station. While en route to the station, the officers observed their supervisor, Sergeant Edward C. Hussey, Jr., who was in his patrol car at the intersection of Cambridge and Harding Streets. The officers stopped their cruiser and had a discussion with Sergeant Hussey regarding Dayton's allegations. The sergeant also spoke directly to Dayton.

After hearing Dayton's description of what had occurred, Sergeant Hussey radioed the defendant and requested him to report to the intersection of Cambridge and Harding Streets. The defendant complied and upon his arrival was asked by Sergeant Hussey whether he recognized Dayton. The defendant looked at Dayton, who was still seated in the patrol car, and responded affirmatively. The defendant then told the sergeant that he had removed Dayton from the hospital and, at Dayton's request, drove him to the corner of Gore and Fifth Streets in Cambridge. At this time, Dayton identified the defendant as the person who had taken his money. The sergeant requested each of the officers (Sullivan, Walsh, and Harvey) to return to police headquarters to write a report concerning the incident. All of the officers complied. The defendant's written statement was consistent with what he had told Sergeant Hussey orally.

[397 Mass. 354] Upon the officers' arrival at the station, the paperwork to place Dayton in protective custody was completed. This booking procedure was recorded on a videotape that was admitted in evidence at the defendant's trial for the limited purpose of showing Dayton's condition as to sobriety around the time of the alleged incident. While at the station Dayton filed a citizen's complaint with the Cambridge police department regarding the events described above.

The defendant did not testify at trial. He did, however, dispute Dayton's allegations on four separate occasions, the first two occurring, as previously described, on March 21, 1984. The defendant prepared a second written report on March 27, 1984, at the direction of Captain William Burke, the night commander. Captain Burke obtained the report from the defendant at the request of Lieutenant William D. Cummings. Lieutenant Cummings was the officer conducting the investigation of Dayton's citizen's complaint as part of his duties with the inspectional services section of the Cambridge police department. In all material respects, the second report was identical to the report prepared and submitted by the defendant on March 21, 1984.

On March 29, 1984, the defendant was interviewed by Lieutenant Cummings as part of the investigation of Dayton's complaint. The defendant's presence at the interview was arranged through a letter sent by Lieutenant Cummings to Captain Burke, "requesting that Officer Robert Harvey report to [Cummings's] office on March 29, 1984." The defendant appeared for the interview accompanied by Officer Edward Loder, president of the Cambridge patrolman's association. The interview was tape recorded. The tape was later transcribed and with the defendant's statements of March 21 and 27, 1984, admitted in evidence at the defendant's trial. We now address the defendant's arguments.

1. The motion to suppress. On August 6, 1984, the defendant filed a pretrial motion to suppress each of the statements that he had made regarding the events of March 21, 1984. See Mass.R.Crim.P. 13, 378 Mass. 871 (1979). The motion was heard on the same day and the judge denied the defendant's [397 Mass. 355] motion. On August 10, 1984, the judge issued a detailed order outlining his findings of fact and rulings of law. 1 In denying the motion, the judge ruled that none of the statements given by the defendant was the result of a "custodial interrogation" within the meaning of Miranda v. Arizona, 384 U.S. 436, 444, 86

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S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966). 2 See Commonwealth v. Bryant, 390 Mass. 729, 737, 459 N.E.2d 792 (1984) (factors considered in evaluating whether interrogation is custodial). He further ruled that the defendant's statements were not obtained by coercion under the threat of removal from office as exemplified by the United States Supreme Court's decision in Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967). 3 Relying exclusively on United States v. Indorato, 628 F.2d...

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36 practice notes
  • Com. v. Lavalley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 15, 1991
    ...barred by an exclusionary rule." Commonwealth v. Mahoney, 400 Mass. 524, 527, 510 N.E.2d 759 (1987), quoting Commonwealth v. Harvey, 397 Mass. 351, 359, 491 N.E.2d 607 (1986). We have not, however, yet resolved "the broad issue of the admissibility of fresh complaint evidence appe......
  • Lally v. Volkswagen Aktiengesellschaft, No. 96-P-737
    • United States
    • Appeals Court of Massachusetts
    • August 18, 1998
    ...the discretion of the trial judge. Read v. Mt. Tom Ski Area, Inc., 37 Mass.App.Ct. at 902, 639 N.E.2d 391. See Commonwealth v. Harvey, 397 Mass. 351, 358-359, 491 N.E.2d 607 (1986). In these circumstances, we discern no abuse of that discretion. Rather, we think the challenged evidence was ......
  • People v. Haleas, No. 1-09-3353.
    • United States
    • United States Appellate Court of Illinois
    • October 13, 2010
    ...794 A.2d 806 (2002); People v. Coutu, 235 Mich.App. 695, 599 N.W.2d 556 (1999);344 Ill.Dec. 627, 937 N.E.2d 333Commonwealth v. Harvey, 397 Mass. 351, 491 N.E.2d 607 (1986); People v. Sigman, 42 Ill.App.3d 624, 1 Ill.Dec. 274, 356 N.E.2d 400 (1976). A second line of authority, evolving from ......
  • State v. Brockdorf, No. 2004AP1519.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2006
    ...narrow interpretation. See, e.g., People v. Bynum, 159 Ill. App.3d 713, 111 Ill.Dec. 437, 512 N.E.2d 826 (1987); Commonwealth v. Harvey, 397 Mass. 351, 491 N.E.2d 607, 611 (1986) ("[T]he fact that there existed the possibility of adverse consequences from the defendant's failure to coo......
  • Request a trial to view additional results
36 cases
  • Com. v. Lavalley
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 15, 1991
    ...barred by an exclusionary rule." Commonwealth v. Mahoney, 400 Mass. 524, 527, 510 N.E.2d 759 (1987), quoting Commonwealth v. Harvey, 397 Mass. 351, 359, 491 N.E.2d 607 (1986). We have not, however, yet resolved "the broad issue of the admissibility of fresh complaint evidence appe......
  • Lally v. Volkswagen Aktiengesellschaft, No. 96-P-737
    • United States
    • Appeals Court of Massachusetts
    • August 18, 1998
    ...the discretion of the trial judge. Read v. Mt. Tom Ski Area, Inc., 37 Mass.App.Ct. at 902, 639 N.E.2d 391. See Commonwealth v. Harvey, 397 Mass. 351, 358-359, 491 N.E.2d 607 (1986). In these circumstances, we discern no abuse of that discretion. Rather, we think the challenged evidence was ......
  • People v. Haleas, No. 1-09-3353.
    • United States
    • United States Appellate Court of Illinois
    • October 13, 2010
    ...794 A.2d 806 (2002); People v. Coutu, 235 Mich.App. 695, 599 N.W.2d 556 (1999);344 Ill.Dec. 627, 937 N.E.2d 333Commonwealth v. Harvey, 397 Mass. 351, 491 N.E.2d 607 (1986); People v. Sigman, 42 Ill.App.3d 624, 1 Ill.Dec. 274, 356 N.E.2d 400 (1976). A second line of authority, evolving from ......
  • State v. Brockdorf, No. 2004AP1519.
    • United States
    • United States State Supreme Court of Wisconsin
    • June 28, 2006
    ...narrow interpretation. See, e.g., People v. Bynum, 159 Ill. App.3d 713, 111 Ill.Dec. 437, 512 N.E.2d 826 (1987); Commonwealth v. Harvey, 397 Mass. 351, 491 N.E.2d 607, 611 (1986) ("[T]he fact that there existed the possibility of adverse consequences from the defendant's failure to coo......
  • Request a trial to view additional results

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