Com. v. Kleciak

• Decision Date: 04 May 1966
• Citation: 350 Mass. 679,216 N.E.2d 417
• Parties: COMMONWEALTH v. Leo J. KLECIAK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 417

216 N.E.2d 417

350 Mass. 679

COMMONWEALTH v. Leo J. KLECIAK.

Supreme Judicial Court of Massachusetts, Hampden.

Argued March 7, 1966.

Decided May 4, 1966.

Efrem A. Gordon, Springfield, for defendant.

Leonard E. Gibbons, Asst. Dist. Atty. (Matthew J. Ryan, Jr., Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL, and REARDON, JJ.

SPIEGEL, Justice.

The defendant was tried on an indictment which charged that on June 3, 1964, he 'did assault and beat, one Stella Kleciak, with intent to murder her, by shooting her, and by such assault, beating and shooting, did murder the said Stella Kleciak.' The jury returned a verdict of guilty of murder in the first degree with a recommendation that the sentence of death be not imposed. The case was tried subject to G.L. c. 278, §§ 33A--33G, and is here by appeal. The defendant filed thirty-one assignments of error but in his brief expressly waived fourteen of the assignments. Three other assignments of error were not argued in his brief and are deemed waived. Commonwealth v. Taylor, 327 Mass. 641, 646, 100 N.E.2d 22; Commonwealth v. Griffin, 345 Mass. 283, 284, 186 N.E.2d 909.

A truck driver testified that, while waiting in the cab of his truck for a loading platform to be opened, he saw a woman running in front of his truck 'yelling for help' and (s)omething about a gun.' 'Then she start (sic) running again' and he saw '(s)ome man with a gun who was right behind her, chasing her.' He then got out of the truck on the opposite side and as he was 'getting out of the truck' he heard four or five shots. Subsequently, in a 'lineup' at the police station in Springfield he identified the defendant as the man with the gun.

Frederick, the defendant's son, testified that his father came home on June 3, 1964, and told him that his mother was dead, that 'she was shot all over.' The defendant was holding a gun in his hand. Frederick took the gun, unloaded it, and put it in the dresser drawer. Later that morning the defendant 'found it again' and 'headed towards the woods' to commit suicide. Frederick followed him into the woods and the defendant there 'handed it' back to him. They returned to the house and the defendant said '(h)e wanted to go to the Holyoke Police to give himself up.'

Another of the defendant's sons, Edward, testified that when his father came home that day he 'told us what he did.' Edward asked the defendant '(w)here did you shoot her,' and the defendant pointed to his chest. He had a gun which Edward took from him and gave to Frederick to hide. The defendant found the gun and walked toward the woods. 'He said he was going to shoot himself.' The defendant gave the gun to Frederick, and Edward then went to call the police.

The Commonwealth attempted to introduce in evidence several statements made by the defendant to State police Lieutenant Keeley. Upon objection by the defendant the trial judge held a voir dire hearing on the admissibility of the statements.

At this hearing there was evidence by the Commonwealth that the defendant was apprehended by the State police at about 3 P.M. on June 5, 1964. After spelling his name for State police Lieutenant Keeley, and 'without any more questions' from him, the defendant said, 'Oh, my God, I didn't want to do it this way. I wanted to go in and give myself up.' ¹ On the way to the State police barracks, in response to questions asked by the lieutenant, the defendant said that he did not know how many times he shot his wife; that after he shot her he went home and told his son, 'Mommy is dead'; that he 'was going to call up the police but the boy pulled the phone out.' At the conclusion of the voir dire, the defendant withdrew his objection to the admission of his statements to the lieutenant.

The trial was then resumed and the lieutenant testified to the statements made to him by the defendant. The Commonwealth then attempted to introduce in evidence statements of the defendant to the Holyoke police. The defendant objected, and a second voir dire was held. At this hearing there was evidence that as the lieutenant and the defendant approached the barracks, the lieutenant told the defendant 'that he had an opportunity to call his attorney and that anything could be used against him.' At the barracks, the lieutenant 'told him of his rights and that he could call his attorney * * * (and) told him anything he said could be used against him.' But the lieutenant did not 'tell him specifically he had a right not to say anything.'

After so advising the defendant, the lieutenant dialed the number of the defendant's attorney and handed the telephone to the defendant, who talked to his lawyer. The defendant testified that the lawyer gave him 'some advice,' told him 'what to do' and advised him 'not to say a word.' The defendant said to the Holyoke police that 'my lawyer was supposed to meet me in Holyoke between 5:00 and 5:30, and on his advice I was to wait for him there.'

The Holyoke police brought the defendant to the Holyoke police station at about 5:00 or 5:30 P.M. The defendant's lawyer was not there at that time. The police took the defendant into the interrogation room where they questioned him for about three hours. During the interrogation, the police made no threats or promises to the defendant. They brought him a glass of water when he requested it. The defendant 'did say that he was tired.' The defendant testified that he kept asking for his lawyer throughout the questioning. A police officer stated that the defendant did not ask for a lawyer until he was asked to sign a statement at the end of the interrogation, but another officer said that '(o)n two or three occasions' during the questioning the defendant did ask to see his lawyer. Although the defendant asked to see his lawyer, the defendant made no objection to being questioned.

At the conclusion of the questioning, Sergeant Hennigan read a statement to the defendant. This was not a verbatim transcript of the questions and answers, some of which were not included. The police had composed the first paragraph of the statement which read as follows: 'I, Leo Kleciak, of my own free will and accord, make the following statement voluntarily, without force, fear, promises, or bribes exercised by the police, and it is the truth, so help me God.' When asked to sign the statement, the defendant said, 'I do not want to sign this statement until I see my lawyer.' The defendant was then booked, at which time his lawyer was present. The lawyer made no inquiry of the officer at that time.

After the second voir dire, the judge found that the defendant 'was advised by the police of his right to use the telephone and his rights to engage the services of a lawyer and in fact, that he did so.' The judge also found 'that he received the advice of his lawyer * * * and in this case there was no evidence that the police in any (way) prevented the lawyer from seeing the defendant during the interrogation, if the lawyer had come to the Police Station.' The judge ruled 'that the statements * * * were made voluntarily by the defendant without threats or duress or promises or inducements or hope of favor or reward. * * * (T)hat such testimony * * * presented at the voir dire was believable evidence outweighing beyond a reasonable doubt the evidence offered by the defendant.'

The judge then stated, 'I will not admit * * * (the defendant's statements) as an exhibit in its written form, because I find on the testimony given in the voir dire hearing that the defendant did not say what appears in the first paragraph of the document. But I will admit oral testimony of Sergeant Hennigan of what the defendant told him at the Holyoke Police Station that evening as it relates or appears in the remaining portions (of the written statement).'

When the trial was resumed, Sergeant Hennigan testified that when statements by the defendant's sons were read to the defendant, 'he said, 'If my boy said that, it must have been the truth. '' When the defendant was asked to sign the written statement, he said 'It's the truth,' and then stated, 'I won't sign it. That's on the advice of my lawyer.' ² The sergeant also testified that the defendant said, 'Sure I shot her. She's dead isn't she?' The sergeant stated that '(a) lot of this information he (the defendant) said without asking questions,' and that '(s)ome of the questions I asked him, some of the statements (were) made voluntarily.' ³

The trial judge, in charging the jury with respect to the statements of the defendant testified to by the police, said in part, 'It is your duty, uninfluenced by the ruling of the Court that they were voluntary, to determine whether they were or were not voluntarily made. * * * (I)f you find they were not voluntarily made, you cannot use them as confessions.'

Assignments 8, 9 and 25 relate to the admission in evidence of the oral statements made by the defendant at the Holyoke police station. The defendant contends that these statements were inadmissible because the police did not advise him that he had a right to remain silent.

The Fifth Amendment states in part that 'No person * * * shall be compelled in any criminal case to be a witness against himself' (emphasis supplied). The express language of the privilege does not prohibit self-incriminating statements, but it protects the individual from being compelled to incriminate himself. 'The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement--the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty * * * for such silence.' Malloy v. Hogan, 378 U.S. 1, 8, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653. The failure of the police to give a suspect an official warning of his right to silence is a factor in determining whether a suspect's statement was made...