Com. v. Osachuk

• Citation: 635 N.E.2d 1192,418 Mass. 229
• Parties: COMMONWEALTH v. Michael Andrew OSACHUK.
• Decision Date: 11 July 1994
• Court: United States State Supreme Judicial Court of Massachusetts

Page 1192

635 N.E.2d 1192

418 Mass. 229

COMMONWEALTH v. Michael Andrew OSACHUK.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued March 9, 1994.

Decided July 11, 1994.

William S. Ahalt, Worcester, for defendant.

David E. Edmonds, Asst. Dist. Atty., for Com.

Before LIACOS, C.J., and ABRAMS, NOLAN, O'CONNOR and GREANEY, JJ.

LIACOS, Chief Justice.

The defendant, charged with manslaughter, appeals the partial denial of his motion to suppress three written statements which he made to the Lowell police regarding the death of Lisa Amrheim. After a hearing, a judge of the Superior Court allowed the defendant's motion as to one of the written statements (chronologically, the second statement) and denied it as to the others. The defendant sought leave to file an interlocutory appeal, Mass.R.Crim.P. 15(b)(2), 378 Mass. 884 (1979); a single justice of this court referred the matter back to the motion judge for reconsideration in light of Commonwealth v. Smith, 412 Mass. 823, 593 N.E.2d 1288 (1992), just then decided by this court. On reconsideration, the motion judge again denied the motion as to first and third statements, but allowed it as to the second statement. The defendant renewed his application for leave to take an interlocutory appeal. The application was granted by a single justice, who referred the case to the full bench. We agree with the defendant that his third statement must be suppressed.

We summarize the facts as found by the motion judge. On April 25, 1991, the defendant was visited in the early morning by Matthew Dowd and Lisa Amrheim, a recent acquaintance of Dowd's. Throughout the morning the three consumed cocaine and watched videotapes. At around 10 A.M., they drove from the defendant's home in Bolton to the defendant's father's office in Chelmsford. The defendant, who was 38 years old, spent around 30 minutes with his father and obtained some money from him. He, along with Dowd and Amrheim, drove to the apartment of Patricia Jaffe on Highland Street in Lowell. Jaffe, they knew, had access to cocaine and heroin.

That afternoon, at Jaffe's apartment, all four consumed heroin and cocaine, although the defendant did not consume as much as the others. At some point, Amrheim injected herself with a combination of heroin and cocaine, commonly called a "speedball." Shortly after injecting herself, Amrheim began convulsing and lost consciousness. In an effort to revive her, the defendant and Jaffe put Amrheim in a bath of cold water. Amrheim did not appear to respond; the defendant then prepared a mixture of water, salt and cocaine and injected it into Amrheim's arm. He and Jaffe laid Amrheim down on Jaffe's bed, apparently with the expectation that she would sleep off the effects of the speedball. At approximately 3:30 P.M., the defendant and Dowd drove to the defendant's home, leaving Amrheim on the bed at Jaffe's apartment. She was unconscious when they left.

Dowd and the defendant returned to Jaffe's at approximately 7 o'clock that evening, intending to pick up Amrheim. They found her still in bed. They attempted to awaken her, to no avail. They then drove her to the emergency room at St. Joseph's Hospital in Lowell. She was pronounced dead on arrival.

Inspector Michael Farnum of the Lowell police department received a call directing him to the hospital at about 7:45 P.M. When he arrived, he went to the emergency room and observed Amrheim's body. The emergency room doctor with whom Farnum conferred would not state the cause of death until he received a toxicology report. Nonetheless, Farnum suspected that she had died of a drug overdose. In the lobby area, Farnum was directed to the defendant and Dowd as the persons who had brought Amrheim to the hospital. He approached the defendant and asked him his name. "Michael" was the defendant's only response. When Farnum asked his last name, the defendant threw a piece of paper to him that bore his full name. Farnum asked the defendant what had happened to Amrheim. The defendant responded that he had found her in a "drug area" of Lowell and driven her to the hospital. ¹

Farnum asked the defendant to accompany him to the police station to file a report. Although he expressed a desire not to be involved, the defendant reluctantly agreed. On the way to the station, Farnum asked the defendant to direct him to the area where he had found Amrheim. The defendant directed him to a location on Spring Street in Lowell.

The first written statement. Once at the station, Farnum and the defendant went into an interview room, where Farnum began to fill out a victim/witness statement form. No Miranda warnings were given at this time. The defendant described the circumstances surrounding Amrheim's death as follows: He, Dowd and Amrheim had gone to Spring Street earlier that evening. The defendant remained in the automobile while Amrheim went into an apartment to purchase heroin and Dowd went into a nearby package store. Dowd returned to the car, and waited with the defendant. When, after about 45 minutes, Amrheim had not returned, they became concerned and began looking for her. The defendant walked down an alley for approximately 100 feet and was approached by an Hispanic male who told him a woman was lying on the ground at the end of the alley. The defendant approached the woman, found that she was Amrheim, and went to retrieve the automobile. He drove the automobile into the alley, put Amrheim in, and drove her to the hospital.

After the defendant had dictated this statement to Farnum, he read it and signed it. Throughout the interview, the defendant was lucid and did not appear to be under the influence of any drugs. He told Farnum that he was not under the influence of alcohol, that he had not consumed any drugs for many hours and that he was no longer affected by those drugs.

The second written statement. After the defendant signed the first statement, Farnum left the interview room and conferred with a detective (Durkin) who had been interviewing Dowd in an adjacent room. Farnum learned that Dowd had related a significantly different course of events. According to Dowd, the incident had not occurred on Spring Street, but rather in an apartment on Highland Street. In addition, Dowd had informed Durkin that a woman named "Pat" (Jaffe) was also involved.

Farnum returned to the room where the defendant was waiting and confronted him with the inconsistencies between the defendant's and Dowd's accounts of the events. Again, no Miranda warnings were given to the defendant. During this interview, which was rather hostile, Farnum aggressively shouted at the defendant and called him a liar. The defendant then revised his account of the day. He explained that earlier in the evening, he, Dowd and Amrheim had gone to Jaffe's apartment, where they consumed heroin and cocaine. Amrheim injected herself with a speedball and appeared to lose consciousness. The defendant and Dowd tried to revive her by placing her in a bathtub of cold water. She did not respond. The defendant and Dowd then put her in bed. At approximately 7:30 P.M., when another attempt to awaken Amrheim failed, they drove her to the hospital.

Farnum typed this statement on the same victim/witness form as the first statement, and the defendant signed it. As Farnum was concluding this interview with the defendant, he received a call from Durkin, who, in the meantime, had gone to Jaffe's apartment. During this call, Farnum was informed that, in an effort to revive Amrheim, the defendant had injected her with a mixture of salt, water and cocaine.

The third written statement. Armed with this information, Farnum returned to the interview room where the defendant, by now, had been for nearly two hours. Farnum read the defendant his Miranda rights from a card, and had the defendant sign the card acknowledging that he received and understood the warnings. Farnum told the defendant of his conversation with Durkin, and asked him what had really happened that evening. The defendant then supplemented his earlier version of events with the detail that, in an attempt to revive Amrheim, he had injected her with a solution of salt, water and cocaine.

Farnum recorded this version of events on a form used to record defendants' (as opposed to witnesses') statements. The defendant signed the statement.

The motion judge's rulings. The judge held that, until the conclusion of the first written statement, the defendant "was not in custody or deprived of his freedom in a significant way," and therefore, not entitled to Miranda warnings. He found that: "the defendant was entirely free to leave" and that "[t]he questioning was informal and nonaggressive." The judge found "beyond a reasonable doubt that the [first written] statement was voluntary."

By the time Farnum took the second statement, he was aware of some serious inconsistencies between the defendant's and Dowd's versions of events. The judge held that the defendant should have been read his Miranda warnings at this point. The judge found that: "Although Farnum still did not know whether a crime had been committed, he suspected that the defendant knew. The questioning became aggressive and the defendant was confronted with inconsistencies in his story. Farnum used the inconsistencies to leverage a further statement. The defendant had been in the station for almost two hours. There was a good deal of shouting. It is reasonable to conclude that the defendant was not free to leave the police station. Indeed, a reasonable person in this atmosphere ... would conclude that he was not free to leave...."

The judge denied the motion to suppress as to the third written statement. In his original memorandum, the judge held that the third statement was not tainted by the illegality of the second statement because the second statement was not inculpatory (and thus, did not let the "cat of the bag"). He concluded further that even if the "cat had been let out...