Com. v. LePage

Decision Date27 April 1967
Citation352 Mass. 403,226 N.E.2d 200
PartiesCOMMONWEALTH v. Joseph F. LePAGE (and three companion cases 1 ).
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John P. Forte, Bedford (Frank J. Opie, Ayer, with him) for defendant lEpage.

Robert U. Holden, Ayer (Arthur J. Travers, Cambridge, with him), for defendant Eskedahl.

Richard S. Kelley, Asst. Dist. Atty. (Ruth I. Abrams, Asst. Dist. Atty., with him), for the Commonwealth.


CUTTER, Justice.

LePage and Eskedahl were each found guilty of the murder, in the first degree, of Dr. Dalton C. O'Brien and of armed assault with intent to rob him. There was a recommendation that sentence of death be not imposed. Each defendant appealed. On the evidence the following facts could be found.

About midnight of the night of March 10 to 11, 1964, Dr. and Mrs. O'Brien were in their house near Fresh Pond, Cambridge. The lights were out. The front door was secured. About 12:15 A.M. there was a loud knocking at the front door. Dr. O'Brien went downstairs. Mrs. O'Brien heard him say, 'Who is it?' A voice replied, 'There is somebody hurt. There has been a bad accident. Aren't you a doctor?'

Mrs. O'Brien then heard 'a click and the noise of the chain.' She went from her bedroom to the upstairs hallway 'and called her husband's name.' He replied, 'Justina, don't come down. They have a gun.' Mrs. O'Brien went to the bedroom telephone and tried to dial but received no answer. She heard 'shuffling' downstairs, opened a window on the street side of the house, and shouted. She then heard a voice or two voices downstairs 'with obscenities' and smelled 'fumes or smoke.' She saw her husband standing near 'the top of the stairs with a bullet hole in his abdomen.' He entered the bedroom, and said, 'Don't go out there. They are still downstairs.'

Mrs. O'Brien succeeded in reaching the police by telephone. The police, a fire department rescue unit, and a priest arrived. Mrs. O'Brien admitted them. About this time, she picked up a bullet on the stairs. 2

Dr. O'Brien was taken to a hospital. Mrs. O'Brien never saw him again alive. The cause of death was the gunshot wound.

One Hayes, a Cambridge police officer, arrived at the O'Brien house about 12:30 A.M. on March 11. He observed 'fresh' footprints in the snow leading in the direction of Huron Avenue. He searched the Fresh Pond area alone for a time. He was joined by another officer named Leonard, who ahd followed the footprints to the area near High Street and Park Avenue, at first by himself and later with Officer Vaughan of Watertown and a police dog. For a time, about 1:10 to 1:30 A.M. Officers Hayes and Leonard followed a man walking in an area about 600 to 1,500 feet from 28 High Street mentioned below. It was LePage. He said he had come 'from Paddy's Bar on Walden Street,' where he had been drinking with one Johnson.

That night Officer Hayes and Officer Vaughan with a trained police dog followed the trial from the O'Brien house twice to the vicinity of 28 High Street, about 1,000 feet in a straight line from the O'Brien house. The dog stopped at that house and searched around it.

On March 13, a Lieutenant Keefe of the Watertown police went to LePage's house in Watertown with Captain Grainger and Sergeant Davenport (attached to the detective bureau) of the Cambridge police. They talked with LePage. He told them that he had bought a Winchester .30--30 rifle from a Cambridge pawn shop and had sold it to a friend, Eskedahl. He also repeated his story that on the night of March 10 he had been drinking at Paddy's Bar on Walden Street with Johnson. 3

On the same afternoon, Sergeant Davenport went to 28 High Street. He was admitted by Eskedahl's younger brother. LePage arrived at the house at the same time and in effect was directed to go into the house. Sergeant Davenport, who identified himself as a police officer, then placed Eskedahl and LePage in different rooms and questioned them separately. Eskedahl (who could have been found to have been drinking or drunk) admitted that he owned a 'Winchester .30--30' rifle which he had purchased from LePage. He said that it had been stolen and that he had not purchased cartridges for it. LePage told Sergeant Davenport that Eskedahl had not told him that the rifle had been stolen. The defendants, during the afternoon, plainly were trying to talk themselves free of police suspicion. They are not shown to have objected to any police action.

About 4:50 P.M. Sergeant Davenport formally placed both defendants under arrest. LePage was put into a parked police cruiser car until about 6:50 P.M. Sergeant Davenport obtained a warrant and searched 28 High Street until shortly before 7 P.M., when Eskedahl was taken out of the house. The defendants arrived at the police station about 7:15 P.M. and were questioned separately, apparently on an intermittent basis, for several hours. They made oral statements which contained highly incriminating admissions, and, soon afterwards, other statements which amounted to confessions. The defendants' confessions constituted evidence of the facts stated in the following paragraph.

On the night of Amrch 10--11, they had been drinking at Eskedahl's house at 28 High Street. They were 'broke' and 'went down to the Fresh Pond area' because Eskedahl 'said he knew where they could get $2,000.' They knocked at Dr. O'Brien's door and told the doctor when he came to the door that there had been 'an accident.' The doctor started to unlock the door. One of them pushed against the door. The doctor was standing behind the door and was knocked over. There was a scuffle between Dr. O'Brien and LePage. Furniture was knocked over LePage ran into Eskedahl who had the gun loaded and 'cocked.' The gun went off and the doctor was hit. LePage and Eskedahl fled along essentially the route later traced by the dog to 28 High Street. Later they saw dogs on High Street. They also admitted that they 'got a cab * * *told the * * * driver we were on furlough. We had the rifle in a duffle bag.' The driver who identified them at the trial took them to Mt. Auturn Street and University Road. They then walked to the footpath along the Charles River and 'threw the gun in.' It was later recovered. Both defendants participated in making the statements and in ree nacting the scuffle for the police.

The principal question presented is whether the judge properly admitted in evidence the defendants' statements given to the police after their arrest. Further facts concerning the arrest, confinement, and interrogation of the defendants and concerning other aspects of the trial are stated in connection with the discussion below of the assignments of error to which they are relevant.

1. The defendants filed in advance of trial motions to suppress their oral admissions or confessions to the police and certain tangible property (including a Winchester rifle). Commonwealth v. Lewis, 346 Mass. 373, 382, 191 N.E.2d 753. See Commonwealth v. Jacobs, 346 Mass. 300, 304--305, 191 N.E.2d 873. The trial judge denied these motions without prejudice in advance of trial. He heard the motions upon a voir dire during the trial and ruled that the admissions and confessions were voluntary. He ruled upon the admissibility of tangible items as they severally were offered in evidence.

In some cases ruling upon such motions in advance of trial will facilitate the administration of justice. That, however, may not always be so. In this instance, examination of the transcript shows that the trial judge, in his discretion, reasonably decided that dealing with the motions during the trial would adequately protect the rights of the defendants and consume less court time than attempting to decide them in advance of trial.

The defendants rely upon Rule 41(e) of the Federal Rules of Criminal Procedure, 18 U.S.C. Appendix, 3764 (1964), as requiring pre-trial disposition of such motions with respect to tangible property. The Federal precedents, of course, may be helpful guidance in an area where Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, and other decisions of the Supreme Court of the United States have caused substantial revision of State criminal procedures or where there is no clearly established Massachusetts practice. See Commonwealth v. Monosson, 351 Mass. ---, --- - ---, a 221 N.E.2d 220. The Federal rules and cases, however, do not control Massachusetts procedures, so long as there is no violation of applicable Federal constitutional principles. The defendants have shown no prejudice from the course followed by the trial judge.

In the opening for the Commonwealth, reference was made to some matters discussed in the defendants' motions to suppress evidence. The defendants claimed exceptions to the trial judge's refusal to strike the references and the opening. The judge appropriately instructed the jury, at once and later, that nothing said in the opening was evidence and that they were not to regard statements in the opening as more than a prediction of what the evidence would be. There was no error. Commonwealth v. Makarewicz, 323 Mass. 575, 583, 132 N.E.2d 294. See Commonwealth v. Crehan, 345 Mass. 609, 613, 188 N.E.2d 923.

2. A number of assignments present the question whether the defendants' incriminating statements, and the rifle discovered as a consequence of these statements, were illegally obtained and hence improperly admitted in evidence. The trial judge, in the absence of the jury, conducted a careful voir dire before admitting in evidence the defendants' statements to the police after their arrest or the rifle. See Commonwealth v. Rogers, 351 Mass. ---, ---, ---, b 222 N.E.2d 766; Jackson v. Denno, 378 U.S. 368, 378--391, 84 S.Ct. 1774, 12 L.Ed.2d 908. Certain other items which were the subject of motions to suppress were not introduced in evidence.

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