Com. v. Murray

• Decision Date: 19 May 1971
• Citation: 359 Mass. 541,269 N.E.2d 641
• Parties: COMMONWEALTH v. Richard Robert MURRAY.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 641

269 N.E.2d 641

359 Mass. 541

COMMONWEALTH v. Richard Robert MURRAY.

Supreme Judicial Court of Massachusetts, Essex.

Argued April 5, 1971.

Decided May 19, 1971.

Paul Resnick, Beverly, for defendant.

Peter F. Brady, Asst. Dist. Atty., for the Commonwealth.

Before TAURO, C.J., and SPALDING, SPIEGEL, QUIRICO and BRAUCHER, JJ.

TAURO, Chief Justice.

The defendant appeals under G.L. c. 278, §§ 33A--33G, from a conviction of murder in the first degree of Delores Dumas on November 16, 1969. The jury recommended the death penalty be not imposed.

The evidence pertinent to the issues is summarized. On the evening of November 15, 1969, the defendant while in a Salem cafe was introduced to the victim Delores Dumas by one Henrietta MacNeill. Several other witnesses saw the defendant and Mrs. Dumas together on the evening of November 15 and the early hours of November 16. Mrs. Joan Collins, who lived on the second floor beneath Mrs. Dumas's apartment at 22 Liberty Street, Salem, testified that about 3 A.M. on November 16, 1969, she awoke and heard a noise 'somewhere on the back porch' which was connected with a rear entrance. At 3:50 A.M. Police Sergeant Coughlin, while on duty, saw the defendant carrying a bottle of liquor in a bag and walking toward the Lincoln Hotel in Salem. The defendant told Coughlin, who remained in his cruiser, that he had been at his girl's house. On November 16 the defendant, who had been living at the Lincoln Hotel for two weeks, went back to live with his wife at 25 Roslyn Street, Salem. About 7:20 A.M., November 16, firemen who had been called to extinguish a fire in Mrs. Dumas's apartment found her naked body with multiple stab wounds. Wax was found on several areas of the body. Her blood alcohol content indicated acute intoxication at the time of death. The defendant's fingerprint was found on a glass in the Dumas apartment, together with other unidentified prints.

State police chemist Joseph V. Lanzetta performed a benzidine reagent test on shoes and clothing taken from the defendant's apartment and found blood on the shoes, pants and the zippered front surface, sleeves and pockets of a coat. He could not tell if it was human blood. On November 19 a benzidine test was performed on the defendant's body with a positive reaction revealing the presence of blood on the defendant's arms, thighs, stomach, legs and feet. Further tests and examination revealed the presence of wax on the bottom of the shoes consistent with wax found in the victim's apartment.

1. On November 17 three policemen went to the defendant's apartment at Roslyn Street and took him to the Salem police station in a police car. On their way to the station the defendant, who was not then under arrest, was given the warning required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. In reply to questions by Officer Richard McDonald of the State police and Inspector John Moran of the Salem police, the defendant told them that he was with Mrs. Dumas on the night of November 15 but did not go to her apartment. A few minutes after arriving at the station, he called his wife and said, 'Would you get Sam (the defendant's attorney Sam Zoll), and have Sam come down here.' Inspector Moran attempted to question the defendant further but the latter said, 'I will talk with you when Sam Zoll gets here. Do me a favor. Let me talk to Sam first.'

After receiving the telephone call from her husband at 9:30 P.M. on November 17, the defendant's wife attempted unsuccessfully to reach Mr. Zoll. She then went to the police station but the police would not permit her to see her husband who was 'under interrogation.' She later contacted Mr. Zoll who went to the police station.

Mr. Zoll arrived at the police station at approximately 11 P.M. on November 17 to represent the defendant. Inspector Moran spoke to Mr. Zoll at that time and knew that he was representing the defendant. Thereafter the defendant was 'permitted to leave.'

The judge admitted evidence of the conversation of the defendant with the police from the time the police came to his home on November 17 to the time he telephoned his wife asking her to call his lawyer, Mr. Zoll. The statements admitted consisted substantially of the defendant's denial that he committed the crime although admitting he was with the victim on November 16. The defendant contends that this was error. We do not agree. At the request of the police, the defendant accompanied them to the station. Shortly after being given the Miranda warning, the defendant answered questions by the police. The statements were given freely and voluntarily by him in circumstances which could be found to constitute a waiver of his right to remain silent and to have a lawyer present. Miranda v. Arizona, supra. See Commonwealth v. Scott, 355 Mass. 471, 478--479, 245 N.E.2d 415. No further evidence was offered of conversations, if any, between the police and the defendant on November 17.

On November 19, the police again went to the defendant's apartment. They asked the defendant's wife what clothes her husband was wearing when he came home on November 16. She identified the clothes and the police took them from the closet. In the presence of the policemen the defendant asked his wife to call Mr. Zoll, but she could not make the call then because a policeman was using the telephone. The police took her husband from the apartment and as he was leaving he again told her to get in touch with Mr. Zoll.

After the defendant arrived at the police station on November 19, he had a conversation with Inspector Moran in the men's room during which he made some inculpatory statements, without his lawyer present. ¹ After the voir dire, the court permitted substantially the same testimony to be given by Moran before the jury, over the objections and exceptions of the defendant. These inculpatory statements were made by the defendant in reply to questions put to him by Moran. Moran knew from his participation in the events of November 17 described above that the defendant was represented by a lawyer, and that on that date he had requested the police not to question him until his lawyer arrived. 'The mere fact that he may have answered some questions or volunteered some statements on his own (on November 17) does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.' Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 1612.

Since the inculpatory statements of the defendant on November 19 were made in the absence of his lawyer, their admissibility depends upon whether or not the defendant waived his rights to remain silent and have counsel present at that time. A defendant may waive these rights, 'provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.' Miranda v. Arizona, 384 U.S. at 444--445, 86 S.Ct. at 1612. When inculpatory statements made by a defendant in circumstances such as in the present case are offered in evidence against him, 'a heavy burden rests on the * * * (prosecution) to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.' Miranda v. Arizona, supra, at 475, 86 S.Ct. at 1628.

Considering the record of all of the events which occurred from the moment the defendant was first taken to the police station on November 17 to the time he made his inculpatory statements to Inspector Moran on November 19, the evidence does not permit a finding that the defendant waived his constitutional rights in making the statements on the latter date. The burden of proving such a waiver was on the Commonwealth, and on the record the burden was not sustained. The admission of the defendant's inculpatory statements of November 19 was therefore error which requires a new trial. ² See Commonwealth v. McKenna, 355 Mass. 313, 327, 244 N.E.2d 560. See also People v. Paulin, 33 A.D.2d 105, 110, 308 N.Y.S.2d 883, affd. 25 N.Y.2d 445, 306 N.Y.S.2d 929, 255 N.E.2d 164.

We will now deal with the defendant's other contentions which may be raised at a retrial.

2. The defendant contends that the trial judge erred in denying his motion to suppress the evidence obtained pursuant to search warrants. He claims that the warrants were issued for reasons not authorized by G.L. c. 276, § 1, as appearing in St.1964, c. 557, § 1, which provides in part that a search warrant may issue for 'property or articles which are intended for use, or which are or have been used, as a means or instrumentality of committing a crime, including, but not in limitation of the foregoing, any property or article worn, carried or otherwise used, changed or marked in the preparation for or perpetration of or concealment of a crime.' Section 1 also states, 'Nothing in this section shall be construed to abrogate, impair or limit powers of search and seizure granted under other provisions of the General Laws or under the common law.' The defendant argues that the search warrants could not be used to secure mere evidence, in the form of clothing, for use in a criminal proceeding. This contention has no merit. The Supreme Court recently has held that a distinction prohibiting seizure of items of only evidential value as opposed to seizure of instrumentalities is not required by the Fourth Amendment. Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782. The Fourth Amendment does not bar a search for evidence to prove the commission of a crime provided there is probable cause for the belief that the evidence sought will aid in a particular apprehension or conviction. Id. at 306--307, 87 S.Ct. 1642. The affidavit accompanying the search warrant for 25 ...