Com. v. Larkin

Citation708 N.E.2d 674,429 Mass. 426
PartiesCOMMONWEALTH v. Robert F. LARKIN, Third.
Decision Date16 April 1999
CourtUnited States State Supreme Judicial Court of Massachusetts

James F. McNiff, II, Georgetown, for defendant.

Robert C. Cosgrove, Assistant District Attorney, for Commonwealth.



The defendant, Robert F. Larkin, III, was convicted of murder in the first degree, as well as aggravated rape and unarmed robbery. We affirm the convictions and decline to exercise our power under G.L. c. 278, § 33E, to order a new trial or reduce the murder verdict.


On November 20, 1994, police recovered a body from a submerged ledge on the face of the Granite Rail Quarry in Quincy. The body was wrapped in a blanket and was weighted down with cinder blocks. Removal of the blanket revealed the body of a young woman, bound and gagged, in torn clothing. An autopsy determined that the woman, identified as Sonia Leal, had died of asphyxia, either as a result of the gag or of tape found wrapped tightly around her neck.

The defendant was first interviewed regarding his possible connection with Leal's murder on March 15, 1995. He had been arrested earlier that day on an outstanding probation surrender warrant. The defendant was taken to the Norfolk County district attorney's office by State police Sergeant Joseph Flaherty. He was advised of his Miranda rights and he waived those rights by signing, after reading, the Miranda card in the presence of Sergeant Flaherty and Troopers Kevin Shea and Gerald Mattaliano. 1 The defendant was then questioned by Sergeant Flaherty, who took notes of the interview on a laptop computer. After approximately one hour he asked permission to call his family at home and was permitted to do so. The interview revealed nothing incriminating. At the conclusion of the interview, the officers completed the booking process and the defendant was transported to the Norfolk County house of correction.

On March 22, 1995, the defendant was once again interviewed by Sergeant Flaherty and Trooper Shea in connection with the Leal murder. The defendant, who was still at the Norfolk County house of correction, was brought down to an interview room and signed a waiver indicating his willingness to speak with the troopers. Once the waiver was signed, Trooper Shea read the defendant his Miranda rights and he again signed a Miranda card. The defendant was then questioned for approximately one hour and fifteen minutes, during which time he admitted that, at some time during November, 1995, he had assaulted and robbed a prostitute. He contended that the woman then fled and he denied any involvement in the murder of Leal. During the interview Trooper Shea took handwritten notes.

On July 21, 1995, Sergeant Flaherty received information from the Federal Bureau of Investigation that a fingerprint recovered from the tape wrapped around Leal's mouth had been positively identified as that of the defendant. The troopers then obtained an arrest warrant and returned to the house of correction to speak to the defendant.

The defendant was brought to the office of correction officer Dennis F. Casey. Casey told the defendant that the troopers were there to talk to him. The defendant expressed reservations about speaking with the troopers and Casey explained to him that he did not have to see the troopers and could return to his cell block without talking to them. He told the defendant that, if he wanted to speak with the troopers, he could do so on signing a law enforcement special agency waiver form. The defendant then indicated to Casey that he wished to speak to the troopers.

The defendant was brought into the interview room where he reviewed and signed the waiver in the presence of Casey and Sergeant Flaherty and Trooper Shea. Casey indicated to the defendant that, should he wish to terminate the interview and return to his cell, he could do so by signaling the officer, whose desk was directly across from the interview room visible from where the defendant was sitting.

Before advising the defendant of his Miranda rights, the troopers and the defendant engaged in a conversation which lasted approximately ten minutes. The defendant indicated his displeasure that he had been denied parole several times and indicated that he was due to be released soon. Flaherty told the defendant that he should be more concerned about ever getting out of prison, and that an arrest warrant had been issued charging him with the murder of Leal. Flaherty explained to the defendant that the authorities were in possession of indisputable evidence that would link him to the Leal murder. Flaherty refused to disclose the nature of the evidence but told the defendant that if he decided to give a statement regarding what happened the night of Leal's death, Flaherty would reveal the evidence at the conclusion of the statement.

The defendant asked the troopers if he would go to jail even if he made a statement. Flaherty indicated that he likely would. The defendant asked if he would still be charged with murder, even if he made a statement. Flaherty again responded in the affirmative. The defendant then asked about the different degrees of murder. Flaherty explained that, if the defendant were convicted of murder in the first degree, he would receive a sentence of life in prison without parole and if he were convicted of murder in the second degree, he could be eligible for parole after fifteen years. Flaherty also indicated that the defendant could be convicted of manslaughter or be found not guilty of any of the aforementioned offenses but that, based on the evidence already in the possession of the law enforcement authorities, there was a strong likelihood that the defendant would be convicted of murder. Flaherty also indicated that this result would be affected by what any codefendants might say regarding the defendant's role in the murder, and that, although the defendant was the only one charged with Leal's murder so far, there were two others who would also likely be charged.

Flaherty then told the defendant that, although they could not promise him anything, if the defendant gave a statement and cooperated with the troopers, they would indicate this to the district attorney in charge of the case. The defendant said that he had small children and that he did not want them to have to visit him in jail, and he expressed concern that should he give a statement he would go to jail for the rest of his life. Flaherty told the defendant that he might want to do some soul-searching and make peace with himself or his God and get the matter off his chest by making a statement.

The defendant asked the troopers how he could make a statement without an attorney and Flaherty explained that the decision to speak with or without an attorney was the defendant's to make. Flaherty also explained that the right not to speak and to have an attorney present were among the defendant's rights, which, Flaherty indicated, they were about to read the defendant. Sergeant Flaherty told the defendant that he would have to waive these rights if he wished to give a statement to them and suggested that the defendant take a minute and decide if he wanted to go forward. After a few minutes, the defendant indicated that he wished to give a statement. At this point, approximately ten minutes after the start of the interview, at 9:12 P.M., Trooper Shea read the defendant his Miranda rights from a printed card. The defendant asked Flaherty if he was going to record the statement and Flaherty responded that he had a laptop computer on which he would take notes as the statement was made. The defendant then gave a highly incriminating statement regarding his involvement in the murder of Leal. 2

The entire interview lasted approximately one and one-half hours and consisted of statements given by the defendant and answers to questions asked by Flaherty. At no time during the interview did the defendant signal to the correction officer outside that he wished to end the interview nor did he express to the troopers in the room that he wanted to stop talking. The defendant did not request an attorney nor did he ask to make a telephone call.

At the conclusion of the interview, Flaherty told the defendant that they had recovered a fingerprint from the tape around the victim's mouth and that the fingerprint matched that of the defendant. The troopers again advised the defendant that there was a warrant in effect for his arrest and that he was to be charged with the murder of Leal.

The defendant was indicted for Leal's murder, aggravated rape, and unarmed robbery. The defendant filed a motion to suppress the statements he made to the police on March 15, March 22, and July 21, 1995. A judge in the Superior Court denied the motion. The defendant was tried and was convicted by a jury on all three charges. He was convicted of murder in the first degree by reason of extreme atrocity or cruelty and felony-murder.


The motion judge denied the defendant's motion to suppress the July 21 statement for two reasons: that the defendant, although incarcerated, was not the subject of custodial interrogation, and that in any event the defendant had not been subjected to interrogation prior to receiving Miranda warnings. On appeal the defendant argues that the motion judge erred in denying the motion to suppress his July 21, 1995, statement to the police. 3 He argues that the police improperly failed to give Miranda warnings and that his admissions were involuntary. The motion judge was correct in ruling that the interrogation was not custodial for purposes of Miranda. The judge was wrong to rule that it was clear that there had been no interrogation prior to the administration of the warnings, 4 but the statements are admissible on the affirmative ground, urged by the Commonwealth here and pressed on the motion to...

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