Com. v. Hosey

• Decision Date: 09 September 1975
• Citation: 368 Mass. 571,334 N.E.2d 44
• Parties: COMMONWEALTH v. Bennie HOSEY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 44

334 N.E.2d 44

368 Mass. 571

COMMONWEALTH

v. Bennie HOSEY.

Supreme Judicial Court of Massachusetts, Hampden.

Argued May 5, 1975.

Decided Sept. 9, 1975.

William A. Nelson, Boston, for defendant.

William W. Teahan, Jr., Sp. Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN, and WILKINS, JJ.

REARDON, Justice.

This is an appeal under the provisions of G.L. c. 278, §§ 33A--33G, from a conviction of statutory rape (G.L. c. 265, § 23) after a jury trial in the Superior Court in Hampden County. Following proceedings under G.L. c. 123A, the defendant was found to be a sexually dangerous person. On June 7, 1973, he was sentenced to a term of fifteen to twenty years in the State prison.

The incident which gave rise to the proceedings occurred in the early morning hours of November 3, 1972. The victim was the two year old daughter of one Alice Lupien, with whom the defendant had been living at her home in Chicopee for a period of some seven or eight months. The defendant's peregrinations on the night of November 2 need not be recounted in any great detail other than to note that a considerable amount of liquor appears to have been consumed during their course. It appears that Mrs. Lupien spent the latter part of the evening at a friend's house in Holyoke, and that around midnight the defendant and one Ted Chalmers, a friend of Mrs. Lupien's neighbor Sandra Headlee, drove through Holyoke searching for Mrs. Lupien. Unable to find her, Chalmers and the defendant returned to Chicopee about 12:30 A.M. on November 3, 1972.

There was conflicting testimony as to the events which followed. Chalmers and Sandra Headlee testified that the defendant next stopped in at Mrs. Headlee's house and had two drinks before arriving at Mrs. Lupien's house at 12:45 A.M. Some thirty minutes later the defendant returned to Mrs. Headlee's apartment exclaiming that he needed help, that something had happened to Mrs. Lupien's daughter Julie. Blood was observed on the defendant's trousers at this time. Mrs. Headlee went next door to investigate and discovered that Julie had been injured. Soon thereafter Alice Lupien returned from Holyoke, and about ten minutes later the police arrived.

By the defendant's account, when he and Chalmers returned home at 12:30 A.M. Mrs. Headlee was standing in her doorway yelling that Julie had been injured. The defendant talked with Chalmers outside for awhile and then entered the Lupien home. He picked up the child and then noticed that he had gotten blood on his trousers. The defendant next called the police, who arrived about the same time as Mrs. Lupien.

Two police officers entered the Lupien home between 2:20 and 2:25 A.M. They concluded that the child needed immediate medical attention and so drove her, along with Mrs. Lupien and a second daughter Jennifer, to the Holyoke hospital. The defendant arrived at the hospital by taxicab some twenty-five minutes later. A medical examination of the child revealed that there had been forceful penetration of the vagina.

While awaiting the results of the examination two police officers observed the defendant in the waiting room yelling and swearing at Mrs. Lupien. After attempting to quiet him they placed him under arrest for drunkenness and disturbing the peace. At 4:25 A.M. he was taken to the Chicopee police station.

The single issue in this case is the admissibility of a statement given to the police by the defendant on November 3 after his arrest. The statement was made in the absence of counsel but after he had received Miranda warnings. Thus we are concerned with whether the defendant 'voluntarily, knowingly and intelligently' waived effectuation of his constitutional rights. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). A voir dire on this question was held during the trial when it became apparent that Sergeant Bartholomew Sullivan of the Chicopee police department would testify to the content of the defendant's statement. The Commonwealth produced two witnesses only at the voir dire, Sergeant Sullivan and Captain Charles J. Tutty, both of whom were present at the interrogation of the defendant on November 3. The judge made no findings of fact but concluded that, on the basis of the testimony of Sullivan and Tutty, 'there was an intelligent waiver.' We have reviewed this testimony carefully and are of opinion that as matter of law the judge was not warranted in reaching his conclusion. ¹ A full description of the voir dire testimony is necessary here for it is our obligation to examine the totality of circumstances leading up to the waiver, including the conduct and characteristics of the accused and the details of the interrogation. COMMONWEALTH V. DANIELS, --- MASS. --- , 321 N.E.2D 822 (1975)^A. See Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Schneckloth v. Bustanmonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).

It appears that the defendant arrived at the Chicopee police station about 4:25 A.M., having been arrested at the Holyoke hospital for drunkenness at approximately 3 A.M. After completion of the booking procedure the defendant attempted to make a telephone call but received no response. Captain Tutty then approached the defendant and asked him if he would talk to the police 'about an assault on a child.' The defendant answered, '(Y)eah, man, let's talk.' He was taken upstairs to the juvenile bureau where he was given a cup of coffee. Sergeant Sullivan testified to the defendant's condition in no uncertain terms. The defendant appeared to him 'extremely emotinal, extremely high,' and 'abnormal.' He was 'doing a great deal of motioning, right on, man, that's it, man'; in other words, he 'wasn't making much sense.' The conversation was 'a haphazard thing.' Sergeant Sullivan's judgment that he was high on something was based on 'his actions,' '(t)he way he talked,' and 'the fact that he was detached from reality, so to speak.' There was 'definitely' 'something wrong with him.' Though he had no trouble walking, his speech ran together. Not until after an hour and a half of interrogation and three cups of coffee was he 'kind of simmering down.' Captain Tutty did not go quite so far in describing the defendant's condition, stating that he thought that the defendant was not drunk but was 'under the influence of something,' alcohol or drugs, or was physically ill.

A period of about fifteen minutes elapsed before the Miranda warnings were given. During this time the defendant 'kept rambling on and on about things, we went drinking, we went here and there, and so forth.' He also told the police he hoped they 'would hurry up and get this over with, that he had a job to go to, he had to be there . . . at 6:00 o'clock in the morning and he was rambling on in this trend.'

The standard Miranda warnings were then given to the defendant with one variation. While Sergeant Sullivan read the warnings from a card, Captain Tutty interjected that 'it was about 5:00 in the morning and it would be tough to get . . . (a lawyer), but if he insisted . . ..' Sergeant Sullivan also read a form waiver to the defendant and asked him if he would like to sign a waiver. The defendant answered that 'he didn't think it would be of any use because he said he neither reads nor writes.' Sergeant Sullivan then asked if he would like to talk about the events leading up to his being taken to the police station. The response was, '(R)ight on, man, let's talk about it. This is what I want to do, I want to talk about it. Let's get this over with.' As to the problem of getting an attorney at that hour, he said 'he didn't need a lawyer and he would talk to us.' The defendant thereupon gave a statement to the police which differed in some respects from his testimony at trial and which contained certain inculpatory elements despite its generally exculpatory nature.

In Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966), the Supreme Court set out the test for waiver as follows: 'If the interrogation continues without the presence of an attorney and a statment is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. . . . This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), and we reassert these standards as applied to incustody interrogation.' It was emphasized in Johnson v. Zerbst, supra, at 464, 58 S.Ct. at 1023, that "courts indulge every reasonable presumption against waiver' of fundamental constitutional rights.' Based on the evidence adduced at the voir dire, we cannot say that the Commonwealth's heavy burden was met in this case. ²

One factor weighting against a finding of waiver is the physical and emotional condition of the defendant during the interrogation. The police were aware that the defendant had been brought to the station under arrest for drunkenness. See Logner v. North Carolina, 260 F.Supp. 970, 976 (M.D.N.C.1966), cert. den. 393 U.S. 857, 89 S.Ct. 110, 21 L.Ed.2d 126 (1968). Cf. Commonwealth v. Rollins, 354 Mass. 630, 635, 241 N.E.2d 809 (1968). Sergeant Sullivan's own observations were that the defendant was 'extremely high,' 'extremely emotional,' and 'detached from reality.' See Commonwealth v. Cain, 361 Mass. 224, 228--229, 279 N.E.2d 706 (1972). Thus the police were well aware that something was wrong with the defendant, that he was not behaving normally.

Knowing what they did, the police should have been sensitive to whether the defendant was genuinely in a position to understanding the significance of a waiver of his rights, in particular the importance of having a lawyer with him during the interrogation. See Miranda v....