Com. v. Nom

• Decision Date: 18 November 1997
• Parties: COMMONWEALTH v. Sarourt NOM.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1017

686 N.E.2d 1017

426 Mass. 152

COMMONWEALTH v. Sarourt NOM.

Supreme Judicial Court of Massachusetts Middlesex.

Argued Oct. 6, 1997.

Decided Nov. 18, 1997.

Mary F. Costello (John McKee, with her), Boston, for defendant.

David W. Cunis, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, MARSHALL and IRELAND, JJ.

LYNCH, Justice.

After a jury trial, the defendant was convicted of murder in the first degree by reason of deliberate premeditation. ¹ On appeal, the defendant contends that the judge erred in: (1) allowing the prosecutor's peremptory challenge of the only black juror in the venire; (2) admitting the defendant's second, third, and fourth statements to the police after suppressing his first statement; (3) ruling that the defendant's Miranda waiver was voluntary; (4) denying the defendant's motion to dismiss based on the destruction by police of potentially exculpatory evidence; (5) declining to instruct the jury on intoxication; and (6) admitting protective orders that the victim obtained against the defendant. The defendant also requests that we exercise our plenary power under G.L. c. 278, § 33E, either to order a new trial or to reduce his conviction to murder in the second degree. For the reasons set forth below, we affirm the convictions, and decline to exercise our power under § 33E.

Facts. We set forth the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with certain issues raised. See Commonwealth v. Nichypor, 419 Mass. 209, 210, 643 N.E.2d 452 (1994); Commonwealth v. Burnett, 417 Mass. 740, 741, 632 N.E.2d 1206 (1994). The defendant and the victim were husband and wife. On the morning of April 17, 1994, the victim's body was found in the defendant's automobile, which was parked on Tanner Street in Lowell. She had suffered a fatal gunshot wound to the head. Later that morning, officers from the Lowell police department spoke by telephone with the defendant, who agreed to accompany them to the police station. Soon after arriving, the defendant told Inspector John Guilfoyle and Trooper James M. Connolly, in response to questioning, that he had remained home throughout the night. He also stated that his wife left at some point with his automobile and that he had not seen her or his automobile since then. The defendant had not yet received Miranda warnings. At approximately 12:35 P.M. the defendant received Miranda warnings, and immediately waived his rights. When the police subsequently requested to test his hands for gunshot residue, however, the defendant stated that he wanted an attorney present. The questioning ceased, and all police personnel left the room. Trooper Connolly then reentered and sat down and did not speak. The defendant shrugged his shoulders, and Connolly did the same. The defendant then said, "I admit it." Connolly replied, "What?," and the defendant stated that, contrary to his first statement, he was out with the victim at the La Lune Restaurant the night of the shooting. Inspector Guilfoyle, who reentered the room after the defendant's admission, then asked the defendant why he wanted an attorney. The defendant replied that he wanted an attorney only for the purpose of witnessing the gunshot residue tests. He further stated that he would continue to speak to the police without an attorney present.

At this point, the defendant received Miranda warnings both orally and by a card which he signed. In the hours that followed, the defendant gave police a second and then a third written statement regarding his involvement in the shooting. In the second, he claimed that, while he was in the restaurant's restroom, the victim and a man with whom she had been "flirting" left with the defendant's automobile. In the third, the defendant stated that he saw the victim leaving the restaurant with the man, followed them to the automobile, and got into an altercation with the man which ended when the man fired a handgun at the defendant and then drove off with the victim. Soon after giving this statement, the defendant was arrested. The next morning, after learning that the police had gathered evidence identifying him as the shooter, the defendant made a fourth written statement, contending that he shot the victim accidentally during an argument.

1. The peremptory challenge. The defendant first contends that the judge erred in allowing the Commonwealth's peremptory challenge of the only black member of the venire. We disagree. Peremptory challenges are presumptively proper. Commonwealth v. Burnett, 418 Mass. 769, 770, 642 N.E.2d 294 (1994). To rebut this presumption, a moving party must show that: "(1) a pattern of conduct has developed whereby prospective jurors who have been challenged peremptorily are members of a discrete group; and (2) there is a likelihood that they are being excluded from the jury solely on the basis of their group membership." Id. See Commonwealth v. Soares, 377 Mass. 461, 490, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979). A moving party may successfully do so even where only a single juror has been challenged. Commonwealth v. Fryar, 414 Mass. 732, 737, 610 N.E.2d 903 (1993), S.C., 425 Mass. 237, 680 N.E.2d 901 (1997). Once the moving party makes this initial showing, the burden shifts to the challenging party to provide a "group-neutral reason" for the challenge. Commonwealth v. Burnett, supra at 741, 632 N.E.2d 1206. This reason need not be as specific as that required to justify a removal for cause, but general assertions are insufficient. Commonwealth v. Soares, supra at 491, 387 N.E.2d 499. Rather, the challenging party "must give a 'clear and reasonably specific' explanation of his 'legitimate reasons' for exercising the challenges." Commonwealth v. Burnett, supra, quoting Batson v. Kentucky, 476 U.S. 79, 98 n. 20, 106 S.Ct. 1712, 1724 n. 20, 90 L.Ed.2d 69 (1986). These reasons must be "personal to the juror and not based on the juror's group affiliation." Commonwealth v. Young, 401 Mass. 390, 401, 517 N.E.2d 130 (1987).

Although the judge gave no indication that the requirements had been met, he tacitly did so by requiring the Commonwealth to provide a group-neutral reason for the exclusion of the black member of the venire. The Commonwealth did so, citing the admission of the member of the venire that he had a prior "domestic arrest." The stated reason was a specific reference to the member of the venire personally and not to his racial group. Moreover, given the fact that the defendant was charged with the most extreme form of domestic abuse, the judge was warranted in ruling this reason to be legitimate. Accordingly, there was no error.

2. The defendant's statements to police. The motion judge suppressed the defendant's first statement because she found that the defendant was in custody and Miranda warnings were not given. The defendant claims that this irreparably tainted his three later statements. Such taint, he contends, required their suppression as well. Statements made following the violation of a suspect's Miranda rights are presumptively tainted and, thus, inadmissible. ² Commonwealth v. Smith, 412 Mass. 823, 836-837, 593 N.E.2d 1288 (1992). Absent circumstances requiring it to show both, see Westover v. United States, 384 U.S. 436, 494-497, 86 S.Ct. 1602, 1638-1640, 16 L.Ed.2d 694 (1966), the Commonwealth may overcome this presumption by showing that either: "(1) after the illegally obtained statement, there was a break in the stream of events that sufficiently insulated the post-Miranda statement from the tainted one; or (2) the illegally obtained statement did not incriminate the defendant, or, as it is more colloquially put, the cat was not out of the bag." Commonwealth v. Osachuk, 418 Mass. 229, 235, 635 N.E.2d 1192 (1994).

In the case at bar, the defendant's first statement was sufficiently not inculpatory to permit admission of the later statements. In it, the defendant claimed that he had neither seen nor heard from the victim since she left home with his automobile the previous evening. Only after receiving Miranda warnings did the defendant ultimately admit that he accompanied the victim to a local restaurant and shot her accidentally during an argument in the automobile. His initial statement did not place him at the scene of the crime, nor did it link him with the victim close to the time of the shooting. See Commonwealth v. Damiano, 422 Mass. 10, 13, 660 N.E.2d 660 (1996); Commonwealth v. Osachuk, supra at 236, 635 N.E.2d 1192. Moreover, the fact that the police had no evidence contradicting the initial statement when it was made negates the possibility that it was inculpatory because it evidenced consciousness of guilt. Commonwealth v. Smith, supra at 834, 835, 593 N.E.2d 1288. Finally, it is readily apparent that the latter statements were "substantially different from, and even contradictory to, the original statements." Commonwealth v. Osachuk, supra at 237, 635 N.E.2d 1192, quoting Commonwealth v. Watkins, 375 Mass. 472, 482, 379 N.E.2d 1040 (1978). Consequently, the judge did not err in admitting the latter statements.

3. Waiver and voluntariness. The defendant next claims that the admission of his latter statements was erroneous because: (a) the police improperly reinterrogated him after he invoked his right to counsel; and (b) the defendant's later waiver of his right to counsel was involuntary.

(a) Improper reinterrogation. Edwards v. Arizona, 451 U.S. 477, 485, 101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981), requires that, once a suspect invokes his right to counsel, police interrogation must cease immediately, unless the suspect "initiates further communication, exchanges, or conversations with the police." Where the suspect does so, reinterrogation may follow, but "the burden remains upon the prosecution to show that subsequent events indicated a...