Com. v. McKenna

• Decision Date: 05 February 1969
• Citation: Com. v. McKenna, 244 N.E.2d 560, 355 Mass. 313 (Mass. 1969)
• Parties: COMMONWEALTH v. Eugene G. McKENNA (and four companion cases).
• Court: Supreme Judicial Court of Massachusetts

Page 560

244 N.E.2d 560

355 Mass. 313

COMMONWEALTH v. Eugene G. McKENNA (and four companion cases).

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 4, 1968.

Decided Feb. 5, 1969.

John C. Collins, Waltham, for defendant McKenna.

Michael A. Molloy, Boston (John J. Riley, Revere, with him) for defendant Riley.

James F. Sullivan, Asst. Dist. Atty., for the Commonwealth.

Before WILKINS, C.J., and WHITTEMORE, CUTTER, KIRK, SPIEGEL, and REARDON, JJ.

KIRK, Justice.

The defendants Eugene G. McKenna and Michael E. Riley were each indicted for the murdr of Jack Landau, and for robbery while armed with a dangerous weapon. Both were indicted for conspiracy to rob. The indictments were tried together subject to G.L. c. 278, §§ 33A--33G. Verdicts of guilty were returned on all indictments. The jury recommended that the death sentence not be imposed. The cases are here on appeals with assignments of error.

The trial, which commenced on January 15, 1968, and ended on January 24, 1968, showed the following:--About 6 P.M. on March 16, 1967, the body of Jack Landau, a television writer, producer and director, was found face downward in his apartment at 388 Beacon Street, Boston. His feet were bound together; his arms were tied tightly behind his back; his face and head had been brutally beaten; he had been stabbed in the back nine times. Four ligatures were tied so tightly around his neck as to shut off his breathing and the circulation of blood to his brain. The apartment, normally neat, was a shambles.

On the morning of March 15, 1967, about 3:30 A.M. three boys, eighteen to twenty years old, were seen. Two of them were standing on the curb directly opposite 388 Beacon Street. The third boy was coming out of 388 Beacon Street, on the steps of which there was a television set. The two boys on the curb crossed the street to join the boy who had come out of the apartment house. One of the boys looked like McKenna. Landau's automobile was found in Revere on March 17. It had been parked there since the forenoon of March 15. In the car was a camera taken from Landau's apartment. The camera bore Riley's fingerprint. In Landau's apartment a medicine bottle was found which bore the palm and fingerprints of McKenna. In the bedroom of the apartment a drinking glass was found bearing the fingerprint of Riley. On March 25, 1967, a portable television set from Landau's apartment was found in Revere. Both defendants lived in Revere. Landau's death was certified to have occurred on or about March 15, 1967.

Several issues are raised by the appeals. The dominant issue is whether there was error in admitting in evidence statements made by the defendants to the police while in custody. The issue arises from the judge's denials of the defendants' motions to suppress the statements on the ground, that when made, the defendants were deprived of their constitutional right to the assistance of counsel. The judge made his decision at the conclusion of a voir dire which lasted several days. He thereafter filed 'Findings of Fact and Rulings on Defendants' Motions to Suppress' in accordance with the practice set out in Commonwealth v. Cook, 351 Mass. 231, 233--234, 218 N.E.2d 393. The findings have been prepared with meticulous care. They are thorough in detail and comprehensive in scope. They occupy ten pages of the printed record.

We shall set out first some preliminary findings made by the judge; second, the subsidiary and ultimate findings on McKenna's motions; and third, the subsidiary and ultimate findings on Riley's motions.

THE PRELIMINARY FINDINGS.

About 7:30 P.M. on March 16, 1967, following the discovery of Landau's body by a business associate, Sergeant Leo W. Gannon of the Boston police went to the apartment and assumed charge of the investigation. About 11 P.M. the same evening McKenna and Riley and a third person were arrested by Officer Chiccolo, also of the Boston police, in the vicinity of the Landau apartment on a charge of assault and battery and robbery of an elderly man. McKenna and Riley were not then suspected of complicity in the Landau murder. At the time of their arrest, the arresting officer advised them not to say anything. On their arrival at the police station they were again advised prior to any questioning that they had a right to use the telephone, that they should not say anything until they saw a lawyer and 'if they didn't have a lawyer the Commonwealth would get them a lawyer.' They were fingerprinted. Each defendant made a telephone call and Riley's parents came to the police station as a result of his call.

On the night of March 17, 1967, McKenna was still in custody. At approximately 11:45 that night he was questioned about the Landau murder. Prior to any questioning he was advised of his rights by Sergeant John J. Doyle, who read to him a paper a statement of his rights and then handed him the paper to read. McKenna read it and signed that part of the paper entitled 'Waiver of Rights' which read: 'I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand and know what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.' In response to interrogation at that time McKenna made no statements other than to deny any knowledge of the Landau murder.

McKenna and Riley were arraigned in the Boston Municipal Court on the morning of Saturday, March 18, 1967, on charges other than those relating to the Landau murder. A probable cause hearing was held and both defendants were released on bail. At this hearing both defendants were represented by counsel. Mr. John C. Collins represented McKenna. Messrs. Michael A. Molloy and John J. Riley, and uncle of the defendant, represented Riley. No mention was made at this hearing of the Landau murder and Mr. Collins was not aware that McKenna had been questioned about that case. After the hearing both defendants returned to their homes in Revere.

On the afternoon of March 18, as the result of information which Sergeant Gannon received in the course of his investigation, he decided to arrest McKenna and Riley for the murder of Landau. On the evening of the same day, in company with Boston officers, Gannon went to the Revere police station.

THE McKENNA FINDINGS.

Accompanied by officers from both departments Sergeant Gannon went first to McKenna's home, arriving about 6 P.M. McKenna was with his aunt and sister. Sergeant Gannon told McKenna that he was being arrested for the murder of Jack Landau. Sergeant Gannon then told McKenna that under the law he did not have to say anything or answer any questions; that whatever he said could be used against him in a court; that he was entitled to the services of an attorney; that if he could not afford one the Commonwealth would furnish him with one; that he was entitled to have an attorney present at any time he was questioned and at any time he could stop the questioning if he wished and have an attorney present. McKenna asked his aunt to call Mr. Collins. McKenna was then taken to the Revere police station. He was not questioned on the way to the station. He did not ask for a lawyer. Sergeant Gannon left McKenna's house in another car. Upon McKenna's arrival at the Revere police station he was booked on a charge of murdering Jack Landau. He was immediately informed of his right to use the telephone under G.L. c. 276, § 33A as amended. He declined to use the telephone and signed an acknowledgment that he had been advised of his right to use the telephone. He was again advised of his rights to silence and to counsel. The so called Miranda warnings were read to him. McKenna did not at that time request that a lawyer be present at any interrogation. He was then placed in a cell.

A short time later McKenna was removed from the cell and brought into a room at the station. Shortly thereafter Sergeant Gannon, who in the interim had effected the arrest of Riley, returned to the station. McKenna was brought into another room of the station where Sergeant Gannon, another Boston officer and two Revere officers were. Before interrogating McKenna, Sergeant Gannon again gave him the so called Miranda warnings. Sergeant Gannon asked McKenna if he understood and McKenna replied that he did. McKenna did not request a lawyer or the opportunity to talk to a lawyer. Sergeant Gannon then told McKenna that his fingerprints were found at the scene of the Landau crime. In response to questions from Sergeant Gannon, McKenna stated that he would tell 'the story.' McKenna then related the events leading up to the robbery and murder of Landau, describing the murder itself and his own participation in the robbery as well as that of the defendant Riley. His statement was in narrative form and was not simply a response to a series of questions by Sergeant Gannon. He related matters not previously known to the police. This interrogation of McKenna had begun between 6:45 and 6:50 P.M. and lasted in all about twenty-five or thirty minutes.

At some time during the questioning of McKenna, Mr. Collins, who minutes before had been informed over the telephone by McKenna's Aunt that McKenna had been arrested for murder and was being taken to the Revere station, telephoned the Revere station and stated that he represented McKenna and had just been notified of his arrest. Lieutenant McDonough of the Revere police spoke to Mr. Collins on the telephone and told him that the matter was in the hands of the Boston police and that he would have to talk to Sergeant Gannon. At Mr. Collin's request Gannon was summoned to the telephone. Mr. Collins identified himself to Gannon, told him that he was counsel for McKenna, that McKenna had a right to have his lawyer with him before any interrogation and that he, Mr. Collins, would go to Revere or to any other place...