Com. v. Look

• Decision Date: 04 March 1980
• Citation: 402 N.E.2d 470,379 Mass. 893
• Parties: COMMONWEALTH v. Donald J. LOOK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 470

402 N.E.2d 470

379 Mass. 893

COMMONWEALTH v. Donald J. LOOK.

Supreme Judicial Court of Massachusetts, Plymouth.

Argued Nov. 5, 1979.

Decided March 4, 1980.

Melvin S. Louison, Brockton, for defendant.

John P. Corbett, Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, KAPLAN, WILKINS and ABRAMS, JJ.

QUIRICO, Justice.

On November 1, 1978, a Superior Court jury convicted Donald Look of second degree murder for the killing of his wife on January 28, 1974. Look appeals pursuant to G.L. c. 278, §§ 33A-33G, claiming violation of his right to a speedy trial, and error in the admission of certain evidence. We affirm his conviction.

We summarize the evidence. On January 28, 1974, the defendant and his wife, the victim Susan Look, were at home in Rochester, Massachusetts. Together they operated a dog kennel and a campground, and their home was on the premises of the kennel. Look testified that at approximately 10 P. M. that evening, while the victim was watching television, he went to the basement of his home to obtain a shotgun he wished to clean. He returned to the dining room to clean the gun. Shortly thereafter, the gun discharged and his wife suffered a wound to her abdomen. Look called an ambulance, which took the victim to Tobey Hospital in Wareham, where she died at about 11:30 P. M. as a result of the gunshot wound. Look asked to see his wife, and became extremely upset. Police officers tried to restrain him, and he struck one officer in the face while resisting. Wareham police read Look his Miranda rights at the hospital, and he signed a form waiving those rights. Look was taken to the Wareham police station, where he and the chief of police, Walter A. Pierce, proceeded to the interrogation room. They remained there until 2:45 A. M. Look told Pierce that he had had an argument with his wife, had gone to get his shotgun to clean it, and had shot his wife accidentally. Four officers at the front desk overheard Look's conversation with Pierce via an intercom. Neither Look nor Pierce knew that the officers were listening, and neither expressly consented thereto. Two of the officers said at a pretrial hearing that they heard Pierce tell Look not to tell the State Police that he and his wife had had an argument. The Commonwealth did not offer as part of its case-in-chief at trial any testimony regarding the overhearing of this conversation between Look and Pierce. It did, however, offer Pierce's testimony as to the substance of his conversation with Look. Pierce testified that he told Look, "Don't keep torturing yourself, it was an accident," in response to Look's repeated exclamations that he had killed his wife. Pierce claimed he was attempting to "calm him (Look) down." Pierce neither arrested Look nor charged him with any crime.

Two State police officers, Lieutenants Masuret and Carr, arrived shortly thereafter, and the desk officers told them of the overheard conversation. The two lieutenants went into the room alone with Look, gave him his Miranda warnings again, and questioned him for more than two hours. Look repeated several times that he had shot his wife accidentally, while cleaning his gun to go hunting. He was formally booked at 5 A. M. on January 29. Pierce, Masuret and Carr all testified at trial that Look seemed emotionally upset during many parts of the two interrogation periods.

Look was indicted on May 29, 1974, after a probable cause hearing on May 17 in a District Court. Numerous pretrial motions occupied the parties' time from June, 1974, to March, 1975, and the following occurred thereafter:

(1) On March 17, 1975, a Superior Court judge granted a pretrial motion to suppress certain statements of the victim.

(2) On March 26, 1975, the Commonwealth filed an application in this court for an interlocutory appeal of the suppression order, pursuant to G.L. c. 278, § 28E. A single justice of this court dismissed the application on November 22, 1975, for lack of prosecution, and the Commonwealth did nothing further until November 2, 1977, when it filed a motion to vacate the dismissal. This motion was denied on November 22, 1977.

(3) On March 27, 1978, the Commonwealth filed a request in the Superior Court for a trial assignment. On April 5, 1978, Look filed a motion to dismiss for lack of a speedy trial, the first such action Look took to assert his Sixth and Fourteenth Amendment right to a speedy trial. After a hearing, the trial judge filed findings and rulings denying the motion to dismiss.

Look's trial commenced on October 19, 1978, and about that time Look filed the following three pretrial motions to suppress:

(1) The first such motion sought to suppress the statements Look gave Masuret and Carr, and was based on the grounds of inadequate Miranda warnings and incapacity to waive Miranda rights due to "a highly emotional state."

(2) The second motion was to suppress the testimony of one Vivian Ivers, the victim's stepmother. The defense had called Ivers at the 1974 probable cause hearing. Ivers had begun to testify about a telephone call she received from the victim on the night the victim died. The Commonwealth objected and defense counsel, while first arguing against admissibility of the victim's statements to Ivers, said, "(I)f there is going to be some evidence that it is admissible . . . then I think the whole picture should be before the Court." The judge sustained the Commonwealth's objection. At the trial, however, the Commonwealth sought to introduce Ivers' testimony about the substance of the telephone conversation.

(3) The third motion to suppress involved the conversation between Pierce and Look, and "evidence derived therefrom," on the grounds that the desk officers electronically intercepted the conversation in violation of State and Federal wiretap statutes. G.L. c. 272, § 99, and 18 U.S.C. §§ 2510 et seq. (1976).

The judge, after hearings, denied all three motions. At trial, Ivers testified that at approximately 10:30 P. M. on January 28, 1974, she received a call from the victim, who said, "Why did you tell Donald that I had a baby at Tobey Hospital," and, "I don't think it's fair(;) I'm getting out of here." ¹ She also testified (with corroboration from another witness) that the victim, shortly before her death, had talked of divorcing Look.

1. Look asserts that he was denied his Sixth Amendment right to a speedy trial, as applied to the States through the Fourteenth Amendment, Klopfer v. North Carolina, 386 U.S. 213, 222-223, 87 S.Ct. 988, 993-994, 18 L.Ed.2d 1 (1967), and his analogous right under art. 11 of the Massachusetts Declaration of Rights. Commonwealth v. Green, 353 Mass. 687, 690, 234 N.E.2d 534 (1968). The analysis of this claim necessitates a balancing of four factors: (1) length of the delay, (2) reasons for the delay, (3) assertion of the right, and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-533, 92 S.Ct. 2182, 2191-2193, 33 L.Ed.2d 101 (1972). Commonwealth v. Dabrieo, 370 Mass. 728, 735, 352 N.E.2d 186 (1976). Commonwealth v. Gove, 366 Mass. 351, 361-365, 320 N.E.2d 900 (1974).

a. Length of delay. In the present case the right to a speedy trial attached at the time Look was indicted, since he was not in custody prior thereto. United States v. Marion, 404 U.S. 307, 320-321, 92 S.Ct. 455, 463-464, 30 L.Ed.2d 468 (1971). Gove, supra, 366 Mass. at 357, 320 N.E.2d 900. Commonwealth v. Campbell, 5 Mass.App. 571, ----, ----, 366 N.E.2d 44 (1977). ^a The length of delay from that date, May 29, 1974, to the commencement of trial on October 19, 1978, is unquestionably sufficient to "trigger" further inquiry into whether Look was denied a speedy trial in violation of his constitutional rights. See Commonwealth v. Beckett, 373 Mass. 329, --- ^b, 366 N.E.2d 1252 (1977) (fifty-five month delay); Commonwealth v. Boyd, 367 Mass. 169, 179-180, 326 N.E.2d 320 (1975) (fourteen month delay); Commonwealth v. Horne, 362 Mass. 738, 739, 743, 291 N.E.2d 629 (1973) (forty-eight month delay). In looking to the other three factors delineated in Barker, supra, we weigh each in the circumstances of this case, keeping in mind that the defendant bears the burden of showing prejudicial delay sufficient to warrant dismissal of the indictment against him. Commonwealth v. Gilbert, 366 Mass. 18, 22, 314 N.E.2d 111 (1974). Commonwealth v. Jones, 360 Mass. 498, 502, 275 N.E.2d 143 (1971). The length of delay here is clearly to be weighed against the Commonwealth, absent an adequate explanation for that delay b. Reasons for delay. The Commonwealth has offered no reasons whatsoever for the inordinate delay in this case, and thus the defendant was apparently forced to resort to speculation in order to meet his burden on this question. ²

The judge found that "(t)he Commonwealth, through the Plymouth County District Attorney's Office . . . was responsible for the delay in bringing the defendant to trial. There is no explanation of the delay in the record." ³ Accordingly, he concluded that, in the absence of evidence of intentional or wilful action, the delay "fits into the category of negligence on the part of the prosecution." Although weighing this factor against the Commonwealth, the judge concluded that such negligent delays "are neutral and are weighted less heavily" than intentional delays.

We agree with the judge that the failure to prosecute the application for interlocutory appeal, and the subsequent delay of two years in bringing a motion to vacate the dismissal of that application, constituted negligence in the handling of this case. While we agree with the judge that this delay is to be weighed less heavily than one calculated to frustrate the defense of an accused, see Barker, supra, 407 U.S. at 531, 92 S.Ct. at 2192, we believe, nevertheless, that it should be weighed quite heavily against the Commonwealth. ⁴ Commonwealth v. Blaney, 5 Mass.App. 96, ---- ^c, 359 N.E.2d 958 (1977).

c. Assertion...