Com. v. MacNeill

CourtMassachusetts Supreme Judicial Court
Writing for the CourtBefore HENNESSEY; O'CONNOR
Citation399 Mass. 71,502 N.E.2d 938
PartiesCOMMONWEALTH v. George Christopher MacNEILL.
Decision Date16 January 1987

Page 938

502 N.E.2d 938
399 Mass. 71
COMMONWEALTH

v.
George Christopher MacNEILL.
Supreme Judicial Court of Massachusetts,
Essex.
Argued Sept. 11, 1986.
Decided Jan. 16, 1987.

Page 939

Peter D. Feeherry, Boston, for the defendant.

Lila Heideman, Asst. Dist. Atty. (George M. O'Connor, Asst. Dist. Atty., with her) for the Com.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

O'CONNOR, Justice.

In this appeal from a conviction of murder in the first degree, the defendant argues that the denial of his motion to suppress his signed confession to the police, made in the presence of the defendant's grandfather when the defendant was sixteen years old, was error. The defendant also seeks relief under G.L. c. 278, § 33E (1984 ed.). We affirm the conviction.

The challenged confession is contained in a report prepared by Lieutenant Alfred Duemling of the State police. The report [399 Mass. 72] is signed by the defendant and his grandfather, and by Duemling and Lynn police Lieutenant Joseph Coppinger as witnesses. The contents of the confession bear on the question whether the defendant knowingly, intelligently, and voluntarily waived his rights protected by the Fifth Amendment to the United States Constitution before making the confession. Furthermore, because we answer that question in the affirmative, the confession is relevant to our consideration of the entire case under G.L. c. 278, § 33E, to see whether justice requires a change in the verdict. Commonwealth v. Vanderpool, 367 Mass. 743, 749, 328 N.E.2d 833 (1975). According to the report, the defendant initially denied that he had killed Bonnie Mitchell, the victim. He accounted for his whereabouts during the relevant time period in considerable detail. The report then states that the police told the defendant in the presence of his grandfather that the defendant was not telling the truth, and that several people had told the police that the defendant had shown them the victim's body and had told them that he had killed her. The rest of the report is as follows: "We asked him to stop lying and tell us the truth. He then stated, 'Yes, I killed her, I told her to stay out of my life but she wouldn't.' 'She had other girls beat up my girl.' 'Sunday I thought about killing her and I thought of strangling her with a rope.' 'Sunday I found a rope at Cook Street Park and I was going to use it. I put it in my coat and took it home.'

"I got up at 7:45 A.M., took a bath and left the house about 9:00 A.M. or so and went to my mother's house. On the way down I threw the rope away. I left my mother's about 9:40 A.M. I walked to Frank's house on Rock Avenue. My mother lives at 7 Essex Circle. It took me about 10 minutes to walk there. On the way I picked up another length of rope in a parking lot on Brownville Avenue. It was about two or two and half feet long. It was like clothes line rope. I put it in my pocket. I didn't know if I was going to go through with it or not but I still had the rope. I had thrown the other rope away because I had changed my mind at that time.

"At Frank's house I was talking with Billy and Melissa Bragen. Bill had some pot and we smoked it, Bill and I. Bonnie [399 Mass. 73] came and I asked her to go for a walk with me. I had decided to kill her, we went

Page 940

to the Pine Grove. Sunday I had thought about killing her at the Pine Grove because it was close. At the Pine Grove we walked to the little bathroom and she wanted to see what was inside. I knew the house was there from a while ago. She wanted to stay inside because she was cold. We were in there about 45 minutes talking about why she wanted to beat and kill Tracy. She told me that, 'If she couldn't have me no one could, and if she couldn't beat them up she would get someone to do it for her.' At that time she was sitting on the hopper and I was on the ledge above her with my feet on the opposite window and I was behind her, I had made up my mind to kill her, it was now or never. I took the rope out of my pocket and one foot on the hopper, my left, and my right knee in her back. I had one end of the rope in each hand and put it around her neck. I pulled the rope around her neck and held it for 3-4 minutes. She attempted to get her finger under the rope but couldn't. She didn't make any noise. I let go of the rope and she fell on the floor. The rope was still around her neck and I took the ends and tied them to the hopper seat. I did this because I read in a book that if you strangle someone and don't hold it long enough they are just unconscious. So I thought if I tied the rope from her neck to the hopper and she woke up she would strangle herself. I wanted to make sure I killed her. I didn't hate her, I just loved my girlfriend and I didn't want to lose my baby.

"I told my friends that I killed her and they didn't believe me. So I told them where the body was and they saw her, Tracy, Bill Newhall, Ted, Darryl. I went back to Tracy's house and we met John Davis and I told him that I killed her. He asked me and I told him. Tracy told me that she felt sick."

As further background, especially in connection with our duty to determine whether the conviction ought to be reduced, we note that, at trial, several Commonwealth witnesses essentially corroborated, and also supplemented, the defendant's confession. The witnesses testified that on the day of the killing and on the previous day the defendant told his friends that he intended to kill Mitchell, his former girl friend, because she [399 Mass. 74] had threatened his current girl friend whom he believed to be pregnant.

The defendant testified at the trial. He denied that he had killed Mitchell. He said that another person killed her in his presence, and that that person threatened him with a gun and told him to say that he, the defendant, had killed Mitchell. The defendant testified that, later, Mitchell's killer told him that he would kill the defendant's current girl friend if the defendant did not confess to Mitchell's killing.

We now specifically turn our attention to the motion to suppress the confession. The defendant's contention is that the Commonwealth has failed to sustain its heavy burden of showing that he waived his Fifth Amendment rights voluntarily with an understanding of their nature and the possible consequences of waiving them. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Commonwealth v. Cameron, 385 Mass. 660, 664, 433 N.E.2d 878 (1982). Commonwealth v. Garcia, 379 Mass....

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34 practice notes
  • Novak v. Com., No. 1416-92-1
    • United States
    • Virginia Court of Appeals of Virginia
    • May 23, 1995
    ...the confession and evidences the conclusion that the officer was attempting to overcome Novak's free will. See Commonwealth v. MacNeill, 399 Mass. 71, 502 N.E.2d 938, 942 (1987) ("[D]eliberate police avoidance of a parent's participation in an exchange between the police and a juvenile ... ......
  • Com. v. Guthrie G., No. 05-P-47.
    • United States
    • Appeals Court of Massachusetts
    • June 5, 2006
    ...juvenile has understood his rights and the potential consequences of waiving them before talking to the police." Commonwealth v. MacNeill, 399 Mass. 71, 79, 502 N.E.2d 938 (1987). "The `genuine opportunity' for consultation that our cases envision is not merely a theoretical opportunity, th......
  • Commonwealth v. Fernandes, SJC-11586
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 1, 2021
    ...opportunity" must be given, there is no requirement that the opportunity for consultation actually be taken. Commonwealth v. MacNeill, 399 Mass. 71, 78, 502 N.E.2d 938 (1987). Crucially, "the adult who is available to the juvenile must be informed of and understand the juvenile's constituti......
  • Com. v. Berry
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 14, 1995
    ...findings in the absence of clear error. Commonwealth v. Frazier, 410 Mass. 235, 239, 571 N.E.2d 1356 (1991). Commonwealth v. MacNeill, 399 Mass. 71, 76, 502 N.E.2d 938 (1987), citing Commonwealth v. Corriveau, 396 Mass. 319, 326, 486 N.E.2d 29 (1985). In addition, we give substantial defere......
  • Request a trial to view additional results
34 cases
  • Novak v. Com., No. 1416-92-1
    • United States
    • Virginia Court of Appeals of Virginia
    • May 23, 1995
    ...the confession and evidences the conclusion that the officer was attempting to overcome Novak's free will. See Commonwealth v. MacNeill, 399 Mass. 71, 502 N.E.2d 938, 942 (1987) ("[D]eliberate police avoidance of a parent's participation in an exchange between the police and a juvenile ... ......
  • Com. v. Guthrie G., No. 05-P-47.
    • United States
    • Appeals Court of Massachusetts
    • June 5, 2006
    ...juvenile has understood his rights and the potential consequences of waiving them before talking to the police." Commonwealth v. MacNeill, 399 Mass. 71, 79, 502 N.E.2d 938 (1987). "The `genuine opportunity' for consultation that our cases envision is not merely a theoretical opportunity, th......
  • Commonwealth v. Fernandes, SJC-11586
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • July 1, 2021
    ...opportunity" must be given, there is no requirement that the opportunity for consultation actually be taken. Commonwealth v. MacNeill, 399 Mass. 71, 78, 502 N.E.2d 938 (1987). Crucially, "the adult who is available to the juvenile must be informed of and understand the juvenile's constituti......
  • Com. v. Berry
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 14, 1995
    ...findings in the absence of clear error. Commonwealth v. Frazier, 410 Mass. 235, 239, 571 N.E.2d 1356 (1991). Commonwealth v. MacNeill, 399 Mass. 71, 76, 502 N.E.2d 938 (1987), citing Commonwealth v. Corriveau, 396 Mass. 319, 326, 486 N.E.2d 29 (1985). In addition, we give substantial defere......
  • Request a trial to view additional results

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