Com. v. Mahnke
| Decision Date | 07 October 1975 |
| Citation | 335 N.E.2d 660,368 Mass. 662 |
| Parties | COMMONWEALTH v. George Wayne MAHNKE. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Gerald Alch, Boston (Mario Misci, Boston, with him), for defendant.
Newman A. Flanagan, Asst. Dist. Atty., for the Commonwealth.
Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER, HENNESSEY, KAPLAN and WILKINS, JJ.
The events which frame the central issues in this case arise from legal and illegal efforts of the family and friends of a young woman (the victim) to provide an explanation for her mysterious disappearance in September of 1970. On December 9, 1971, her body was discovered in a shallow grave near the parking lot of a Sears, Roebuck and Co. (Sears) store in the Fenway area of Boston. The defendant, a boyfriend of the victim, was indicted for her murder in the first degree. Before trial, the defendant moved to suppress, inter alia, 1 (1) statements he had made on December 9, 1971, to members of a 'concerned group' of citizens who had abducted, imprisoned and interrogated him, (2) certain evidence which had come to light through information contained in the aforementioned statements, and (3) a statement given to police from a hospital bed the following day. After a lengthy voir dire, the trial judge granted the defendant's motions in part and denied them in part. The defendant was convicted of murder in the second degree and was sentenced to life imprisonment.
In the present appeal, under G.L. c. 278, §§ 33A--33G, the defendant argues four specific assignments of error, chiefly related to the refusal of the judge to exclude from the trial all evidence obtained as a result of his abduction and subsequent police interrogation. We delineate these assignments of error with more particularity below. 2 Other assignments of error, included in the defendant's 'Assignment of Errors,' have not been briefed or argued in this appeal and must be deemed waived. Commonwealth v. Baker,--- Mass. ---, --- a, 330 N.E.2d 794 (1975), and authorities cited. On January 8, 1975, by our order we directed the trial judge to make supplementary findings with respect to the voluntariness of the statements made by the defendant on December 9 and 10, 1971. These supplementary findings were duly filed on February 12, 1975, and on the defendant's motion, we allowed submission of further briefs directed to issues raised by the supplementary findings.
At the outset, we briefly summarize the subsidiary facts developed at the voir dire and reported in the careful and detailed initial and supplementary findings of the experienced trial judge. 3 We accept, as we must, the trial judge's resolution of conflicting testimony 4 (Commonwealth v. Valcourt, 333 Mass. 706, 710, 133 N.E.2d 217 (1956); Commonwealth v. Femino, 352 Mass. 508, 513, 226 N.E.2d 248 (1967); Commonwealth v. D'Ambra, 357 Mass. 260, 262--263, 258 N.E.2d 74 (1970)), and will not disturb his subsidiary findings if they are warranted by the evidence (see Commonwealth v. Murphy, 362 Mass. 542, 547, 289 N.E.2d 571 (1972). However, ultimate findings and conclusions of law, particularly those of constitutional dimensions, are open for our independent review in this appeal. 5 Id. at 551, 289 N.E.2d 571 (Hennessey, J., concurring). See Commonwealth v. Kleciak, 350 Mass. 679, 685--689, 216 N.E.2d 417 (1966); Commonwealth v. Cook, 351 Mass. 231, 235, 218 N.E.2d 393 (1966), cert. den., 385 U.S. 981, 87 S.Ct. 529, 17 L.Ed.2d 443 (1966). Additional facts in the case are discussed below as they become relevant to the several issues of law being considered.
The Police Investigations. On September 16, 1970, the day following the victim's disappearance, her parents reported her disappearance to the Boston police, who immediately undertook an investigation. In the course of the early investigation, the defendant was twice interviewed by detectives from division 4 of the Boston police. The police did not suspect that a crime had been committed, but they did suspect that the victim was hiding somewhere in the Boston area and that the defendant had knowledge of where she was hiding, which he refused to divulge. Their suspicions were aroused by the several inconsistent stories which the defendant told in the September 16 interrogation regarding the events of the previous evening. 6 The second interview, held September 24 with the defendant's attorney present, had as its primary purpose a discussion of whether, and in what circumstances, the defendant might take a lie detector test. In fact, the defendant never took the test.
The police investigation continued, but failed to discover the cause of the victim's disappearance or her location. In early December, 1970, Detective Stanley Gawlinski (Gawlinski), attached to the office of the district attorney for Suffolk County, was assigned to the case on a full time basis. After repeated urging by the victim's father (the father) Gawlinski arranged a meeting with the defendant for December 22 in the law office of the defendant's attorney. The defendant, in the presence of his attorney, described his relationship with the victim and repeated the last story he had related to the police on September 16. In April, 1971, again at the father's suggestion, Gawlinski arranged to have Muddy River in the Fenway area dragged for the victim's body. When this search proved unavailing, Gawlinski conceded that he had exhausted his leads and consigned the case to the inactive file at the district attorney's office. Thereafter, Gawlinski maintained only sporadic contact with the victim's family and limited his investigations to leads which were supplied by interested persons. Even this limited contact ceased in August, 1971, after an unpleasant conversation in which he reprimanded the father for an attempt 7 by some young men to question the defendant at his place of work.
Private Efforts. Throughout the course of the police investigation, the father and his son were impatient with police investigations and unwilling to place sole reliance on them. The father worked with three private investigators and utilized the voluntary assistance of a large number (perhaps as many as 100) of family or neighborhood friends. Of these friends, a core group of the son's friends, styled the 'concerned group' by the judge, were the most persistent workers. Included in the concerned group were Gary Fisher, James Ferreri, Frank Fontacchio, John (Jay) Campbell and Joseph (Jay) Heard, participants in the abduction of the defendant.
The private efforts were principally 8 directed toward a program of surveillance designed to determine the pattern of the defendant's movements. Ultimately, the surveillance program was used to provide an opportunity to put questions to the defendant under conditions that would compel responses. There were a number of attempts to question the defendant. In September, 1970, before reporting the disappearance to the police, the father and son sought out the defendant on the campus of Northeastern University, where he was a student, questioned him, and took him on a tour of the Fenway district, in which, it could be supposed, the defendant met or was to have met the victim on the night of September 15. On two subsequent occasions, members of the concerned group accosted the defendant at Northeastern University and attempted, unsuccessfully, to detain him. In December, 1970, two members of the concerned group, Fontacchio and Campbell, appeared in the reception area of the office of the defendant's attorney while the meeting between the defendant and Gawlinski was in progress and inquired whether the defendant was within. They later followed the defendant and his mother. In August, 1971, Ferreri and Fontacchio were thwarted in an attempt to confront the defendant in the office of Henry F. Bryant & Son, Inc., where he was a summer employee. 9
The Abduction. On December 8, 1971, the defendant drove to Mt. Ida Junior College in order to meet a young woman with whom he had a date. He arrived about 7:30 P.M. A surveillance group, consisting of the father, Fisher, Ferreri and Fontacchio, followed him in two cars. After the defendant had parked his car and entered a building, Ferreri and Fontacchio concealed themselves in heavy foliage near the defendant's car. When the defendant returned to his car, Ferreri emerged from the bushes, grabbed the defendant, and demanded to question him. As the defendant struggled to free himself, Ferreri, described as a 'big, strong, husky youth,' struck him near the left eye. The defendant fell and lost his glasses. Fontacchio approached and he and Ferreri guided the defendant into the back seat of an Oldsmobile. The father, who had moved from the Oldsmobile to the second car, raced the engine to divert attention from the defendant's calls for help. While Fisher drove the Oldsmobile, Ferreri maintained a headlock on the defendant so that his head was below the level of the front seat. With the defendant under secure restraint, Fisher drove to his uncle's hunting cabin in Worthington, Massachusetts, in the western part of the State, 128 miles from Mt. Ida Junior College. Though the surveillance for the night of December 8 had undoubtedly been prearranged, the judge was persuaded and found that the idea to remove the defendant to a remote, isolated hunting cabin was 'spontaneous and unpremeditated.' 10
On reaching the cabin, Fisher gained entrance by breaking a pane of glass. The defendant was placed on a couch in the room farthest from the front door, and ice packs and snow were applied to the severe bruises on his face which had resulted from Ferreri's blow. At approximately 11:30 P.M. Ferreri and Fontacchio departed for Boston. Fisher, armed with a bread knife 11 which he exhibited to the defendant, remained in the room with the defendant. The judge found that they dozed intermittently. 12
Interrogation of the defendant...
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