Com. v. Morse

Citation427 Mass. 117,691 N.E.2d 566
Decision Date20 March 1998
CourtUnited States State Supreme Judicial Court of Massachusetts

Robert C. Cosgrove, Assistant District Attorney, for the Commonwealth.

Kevin J. Reddington, Brockton (Lee Garrison, Bridgewater, with him), for defendant.


GREANEY, Justice.

The Commonwealth appeals from an order entered in the Superior Court suppressing statements made by the defendant, Patrick Morse, to law enforcement officers on June 25, 1995. The defendant has been indicted for murder in the first degree and other crimes allegedly arising from events that occurred in Avon on June 23, 1995.

After an evidentiary hearing, a judge entered a memorandum of decision and order in which she ruled that (1) the police failed to give the defendant timely Miranda warnings, (2) incriminating statements made by the defendant prior to his receipt of Miranda warnings were inadmissible, and (3) statements made by the defendant after he had received Miranda warnings were tainted by the earlier interrogation, and thus also inadmissible. A single justice of this court allowed the Commonwealth's application to pursue an interlocutory appeal. See Mass. R.Crim. P. 15(b)(2), as amended, 397 Mass. 1226 (1986). For the reasons next discussed, we reverse that portion of the order that is the subject of the Commonwealth's appeal.

1. We summarize the facts as found by the judge, all of which are supported by the evidence, and which we accept. Commonwealth v. Jung, 420 Mass. 675, 681, 651 N.E.2d 1211 (1995). Commonwealth v. Costa, 414 Mass. 618, 626, 609 N.E.2d 465 (1993). In the early morning hours of Friday, June 23, 1995, Philip Miskinis, approximately sixty-five years old, was murdered in his Avon home. The cause of death was multiple stab wounds (twenty-seven). State police officers assigned to the Norfolk County district attorney's office were interested from the onset of the murder investigation in locating one Michael Freeman. Miskinis had suspected that Freeman had broken into his home a year earlier and stolen a weapon.

On the afternoon of June 24, 1995, after learning that Anna Kaudy was a friend of Freeman, State police Sergeant Kevin Shea went to interview her at her home. Shea told Kaudy that he was investigating a murder and that the police wanted to talk to her companion, Leonard Stanley. The defendant telephoned Kaudy at approximately 4:30 P.M., while she was speaking with Shea. Aware that the defendant was a friend of Freeman, Shea asked to speak with him. Shea told the defendant that he was investigating the murder of an elderly man in Avon and asked the defendant if he could come to the Avon police station to talk with the police. Although the defendant expressed reluctance, telling Shea that his automobile did not have enough gas for him to travel from his home in Middleborough to Avon, he ultimately agreed to meet in Avon after Shea had suggested meeting in Middleborough. The defendant asked Shea if Kaudy could accompany him, and Shea responded that she could. Shea left Kaudy's house shortly thereafter.

At approximately 7 P.M., the defendant and Kaudy arrived at the Avon police station. Kaudy was interviewed in one room by two officers, one of whom was Shea, and the defendant was interviewed in a separate room by two other officers, one of whom was Trooper Brian L. Howe.

a. The first (Howe) interview. The defendant's interview room was small, measuring approximately twelve feet by twenty feet with windows, and containing tables and chairs. During the interview, the defendant was seated in a chair approximately six feet from Howe. He was asked questions by the officers, and he also spoke in narrative form. The defendant was not given Miranda warnings at this time.

Howe told the defendant that the police were interested in his activities on Thursday, June 22, 1995, and that they were looking for Freeman. The defendant responded that after completing work at approximately noon on that day, he had gone to the Brockton home of Amy McCormack, where he met Stanley and Freeman, with whom he spent the remainder of the day. The defendant stated that he left McCormack's house, alone, at approximately 10 P.M., and drove to Middleborough where he met "Chris, Joe and a Jamaican," with whom he traveled to Manomet Beach in Plymouth, arriving at approximately 11:30 P.M. He was unable to provide last names for Chris and Joe, or a name for the individual he described as a "Jamaican." The defendant said that after spending the night in his vehicle on the beach, while the three others slept outside, he woke at approximately noon the following day, returned to Brockton, and when he could not locate his friends, drove home to Middleborough. He returned to McCormack's house between 6 and 7 P.M., where he met Stanley and Freeman, and the three then proceeded to Borderland State Park with seven other individuals where they stayed until midnight, after which the defendant returned to McCormack's house. The defendant was asked whether Stanley carried a knife and he responded that he did, and that the last time he saw Stanley with the knife was four or five days earlier. The defendant also described the clothing Freeman and Stanley were wearing on Thursday.

Shea joined the interview at approximately 7:30 P.M., and, in response to Howe's request, the defendant repeated his story to Shea. After hearing the defendant's version of events, Shea told him that Kaudy had recalled that on Thursday night he had left McCormack's house together with Stanley and Freeman. The defendant responded that, while the three may have left together, "they went their way and I went my way." Shea then left the interview room.

b. The second (Shea) interview. On leaving the defendant's interview room, Shea returned to speak with Kaudy who said that she was sure that the three had left McCormack's house together, and that they stated at the time that they were going to Bickford's Pancake House. She also told Shea that Stanley carried a "Gerber" knife, Freeman carried a knife, and the defendant had a toolbox in his vehicle.

Shea then returned to speak with the defendant. 1 On entering the room, Shea told the defendant what Kaudy had told him. The defendant "hung his head and stared at the floor." This indicated to Shea that the defendant "wanted to get something off his chest, tell us something." Howe then left the interview room. Shea told the defendant that it was "imperative that he be truthful ... because of the seriousness of the crime." The defendant responded that he had given Freeman and Stanley a ride to a Veterans of Foreign Wars Post near Route 24 in an area off Harrison Boulevard in Avon. Freeman and Stanley had told the defendant that they were planning "to do a b & e [breaking and entering] on some old guy's house." Shea told the defendant that he would like to hear the whole story and the defendant agreed to tell him. At this point, which was approximately forty-five minutes after the defendant arrived at the police station, Shea advised the defendant of his Miranda rights.

Thereafter, the defendant made further statements to Shea, some of which were incriminating. When the forty-five minute interview was completed, Shea asked the defendant if he "would mind waiting around in case [the police] had any more questions." The defendant said "ok," left the interview room, and went to the front of the station with Kaudy to have a cigarette. The defendant was not accompanied by any police officer. He eventually went next door to the fire station and watched television. At some point, the time of which is unclear from the evidence, the defendant was told that his car could not leave the station. 2

c. The third (Flaherty) interview. At approximately 2 A.M. on June 25, the defendant was interviewed by State police Sergeant Joseph Flaherty. Shea was present at this interview. After the defendant was again advised of his Miranda rights, Flaherty told the defendant that he had information that the defendant, Freeman, and Stanley were involved in the robbery and murder of Miskinis, and Flaherty asked the defendant if he wanted to make a statement. The defendant agreed to do so, but first left the room to say good-bye to McCormack and Kaudy. The defendant then made additional statements, fully implicating himself, Freeman, and Stanley in the planning and execution of the robbery and the murder. At the conclusion of this interview, the defendant was placed under arrest.

The judge found that during all of the interviews, the defendant was rational and coherent, and responded to questions logically and appropriately. The atmosphere in the interviews was not threatening, and there was no indication that the questioning was anything but courteous and nonaggressive. The officers were in plainclothes, no weapons were apparent, and there was never a large number of officers present. The evidence did not suggest that the defendant was under the influence of any substance or that he did not understand the Miranda warnings when they were given.

d. The judge's rulings. The judge concluded that "the defendant's waiver of his rights each time was made knowingly, voluntarily and intelligently beyond a reasonable doubt." 3 After applying the analysis set forth in Commonwealth v. Bryant, 390 Mass. 729, 737, 459 N.E.2d 792 (1984), 4 the judge concluded that Miranda warnings were not necessary before or during the first interview. 5 She determined that Shea's statement to the defendant concerning the inconsistency between his and Kaudy's versions of events "was not designed to induce an incriminating response, but was merely intended to clarify what might have been a minor, explicable inconsistency."

Applying Bryant to the circumstances of the second interview, the judge concluded that, once Shea heard the...

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