Com. v. Maltais

• Decision Date: 04 August 1982
• Parties: COMMONWEALTH v. Andre O. MALTAIS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 847

438 N.E.2d 847

387 Mass. 79

COMMONWEALTH v. Andre O. MALTAIS.

Supreme Judicial Court of Massachusetts Bristol.

Argued May 4, 1982.

Decided Aug. 4, 1982.

Joseph I. Macy, Fall River, for defendant.

Phillip L. Weiner, Asst. Dist. Atty. (William E. McKeon, Jr., Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C. J., and WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.

LYNCH, Justice.

Andre O. Maltais was convicted of murder in the first degree of Barbara Ann Raposa. He appeals his conviction, alleging errors of law and seeking relief, in addition, pursuant to G.L. c. 278, § 33E. Since we find no error and see no reason to grant relief under § 33E, we affirm the judgment of conviction.

Evidence introduced at trial tended to show the following facts. On the evening of Wednesday, November 7, 1979, one David Cowen picked up Raposa and her infant son Eric at her apartment in Fall River. They left Eric at a babysitter's apartment so they could attend a movie. They stopped briefly at a restaurant in Fall River. Raposa, in need of money, decided instead to spend the evening "working the street" as a prostitute. She had Cowen drop her off on a street in Fall River and arranged to meet him later at a nearby saloon. Cowen waited in the saloon until 1 A.M. the next morning, venturing out to look for her at intervals; she did not appear. Her father reported her disappearance to the Fall River police department the next evening, Thursday, November 8, 1979. On January 26, 1980, Raposa's body, with hands bound and skull crushed, was discovered in the woods near R. E. Smith Company's (RESCO) plant in Fall River.

Robin Murphy, the chief prosecution witness, met Andre Maltais in a bar in Fall River at approximately 12 midnight on the date of Raposa's disappearance. Murphy and the defendant proceeded to a local diner to pick up Raposa. As they drove there, Maltais told Murphy that he intended to kill Raposa for dating David Cowen. ¹ When the three of them left the diner, Raposa was in the front seat of the defendant's car with the defendant, and Murphy was in the back seat.

Maltais gave his passengers a marihuana cigarette, and all three smoked it. Murphy and Raposa started fighting. The fight continued until the defendant stopped the car in the woods near RESCO and pulled Raposa away from Murphy. Maltais and Raposa talked outside of the car, while Murphy remained inside.

Maltais returned to the car, got the keys, and opened the trunk. He removed two paper bags and went into the woods with Raposa. Murphy observed the defendant and Raposa having sexual relations. Murphy remained in the car listening to the radio. She heard Raposa scream. She turned toward the wooded area and saw Maltais sitting on Raposa, holding a rock above his head with both hands. Murphy turned away and continued listening to the radio. The defendant subsequently returned to the car and placed the two paper bags in the trunk. He told Murphy that he wanted the victim to "crawl away." He drove Murphy to her mother's home. Murphy testified the defendant threatened that someone would "get her [Robin]" if she ever "said anything against" him.

During the course of the investigation into Raposa's disappearance, the defendant frequently talked to police officials, ostensibly to offer information and assistance. On February 7, 1980 (nearly two weeks after Raposa's body was discovered), he was arrested and charged with her murder. At trial, the defendant took the stand to testify that he had been at home with his mother on the evening of November 7. His mother, who also testified, corroborated her son's alibi. On January 30, 1981, a jury found Maltais guilty of murder in the first degree. He was sentenced to life imprisonment.

Other evidence will be discussed as it bears on the defendant's claims of error.

1. Before the trial, Maltais moved to suppress statements he had made to police on various occasions after Raposa's disappearance. A motion judge of the Superior Court conducted a hearing and subsequently denied the defendant's motion, making written findings of fact. The trial judge, who conducted a voir dire of each of the police officers called to testify regarding the defendant's statements, adopted the motion judge's findings and also concluded that the defendant's statements were made voluntarily. On appeal, the defendant claims that the motion judge's denial of his motion to suppress was error. There is no basis for such a claim. In order to make this clear, however, we must discuss at some length the defendant's voluntary involvement in investigations conducted by the Fall River and the Massachusetts State police.

On November 12, 1979, Maltais went to the Fall River police station and asked a police officer working in the youth aid and supervision bureau whether she had any information on Raposa. He inquired again of this officer on November 26, and during the first week of December, 1979. The officer was unable to provide him with any information concerning Raposa's disappearance; Maltais, however, reported to the officer various rumors relating to Raposa's whereabouts which he claimed to have picked up on the street.

In late November or early December, 1979, Maltais appeared at the home of State police trooper Lloyd Wheaton, a former classmate, and told Wheaton that he knew two women who might have information about the murder of one Doreen Levesque. Shortly thereafter, the defendant drove to the State police barracks at Dartmouth and asked to speak to someone investigating that murder. Maltais was introduced to Corporal Paul Fitzgerald. They arranged for another meeting to take place. Maltais brought Robin Murphy and Karen Marsden with him to the second meeting. Maltais parked his car at a local coffee shop; Fitzgerald met the trio and drove them to the barracks, where they talked. During the weeks following this meeting, Maltais telephoned Fitzgerald frequently, ostensibly to report on Maltais's attempts to garner information about the Levesque murder.

On Sunday, January 27, 1980, the day after the discovery of Raposa's body, Detective Sergeant Paul Carey and Detective Joseph Phelan of the Fall River police department visited Maltais's apartment at 5:05 A.M. The defendant's mother answered the door, and Maltais soon appeared from the bedroom. The officers identified themselves, notified the defendant that a body had been discovered, and requested that the defendant come to the police station. Maltais asked, "Is it regarding Barbara?" After receiving an affirmative answer, he agreed to meet the officers at the Fall River police station. Maltais dressed, then drove his own car to the station. He was not under arrest.

Maltais arrived at the police station at 5:15 A.M. Detective Carey, reading from a Miranda "rights card," advised the defendant of his right to remain silent, to terminate the questioning at any time, to have an attorney present at public expense if he could not afford one, and that anything he said could be used against him in a court of law. Maltais responded that he understood his rights and did not wish to have an attorney present; he signed a written waiver of his rights. The defendant told Carey that he had telephoned the State police "higher-ups" before leaving home, and said they would arrive later to take over the investigation. The police officers thereafter proceeded to discuss Raposa's disappearance with the defendant.

At approximately 6:30 A.M., Detective Roger St. Pierre of the Fall River police department arrived at the station house. St. Pierre introduced himself to the defendant and again read the defendant his constitutional rights from a departmental form. Maltais repeated that he understood his rights and did not wish to retain counsel. St. Pierre continued to discuss Raposa's disappearance with the defendant. Police officers questioned Maltais until 9:30 A.M., at which time the defendant left the police station, unaccompanied, to attend church services.

Maltais returned to the station at noontime. St. Pierre advised the defendant of his rights for the third time that day; Maltais indicated that he understood those rights. During this interview, at which Corporal Fitzgerald was present, the defendant told officers that he had last seen Raposa on the afternoon of November 6, 1979. After meeting her on a downtown street, he accompanied her to her apartment. She retired to the bedroom while Maltais fed and changed the infant, washed the dishes, and left approximately one hour later.

During the course of the questioning, which continued until 4:30 P.M., the defendant drank coffee with the officers and ate lunch with them. He signed two consent forms to allow officers to search his automobile and his home. Officers who searched the defendant's automobile found two paper bags. At trial, Robin Murphy identified the bags and their contents as those she saw Maltais take from the automobile while it was parked near the RESCO plant on November 7, 1979. ²

Two days later, on January 29, 1980, Fitzgerald telephoned the defendant and asked him if he would agree to meet the district attorney. The defendant assented, drove to the State police barracks in Dartmouth, and met Fitzgerald later in the day. Fitzgerald drove Maltais to the office of the district attorney for Bristol County, where the defendant again was interviewed by Fitzgerald and St. Pierre; also present were District Attorney Ronald A. Pina and a stenographer. St. Pierre recited the Miranda warnings before questioning the defendant. Maltais responded that he understood his rights and did not wish to have an attorney present. He signed a form acknowledging the waiver of his rights.

During this interview, the defendant repeated what he had told police officers on January 27. He also told St. Pierre and the other officers that, in an effort to come up with more information about Raposa's disappearance, "I go to bed at night...