Com. v. Painten

Citation429 Mass. 536,709 N.E.2d 423
Decision Date06 May 1999
CourtUnited States State Supreme Judicial Court of Massachusetts

Mary F. Costello, Boston, for defendant.

Elspeth B. Cypher, Asst. Dist. Atty., for Commonwealth.



The defendant was convicted of armed robbery and murder in the first degree by reason of deliberate premeditation, extreme atrocity or cruelty, and felony-murder. On appeal, 1 the defendant claims that (1) the motion judge erred in denying her motion to suppress various statements made to the police; (2) the trial judge erred in denying her motions for a continuance and an updated competency examination filed on the last day of trial; (3) despite her failure to object or to request more favorable instructions, the judge made errors in numerous jury instructions; and (4) trial counsel provided her ineffective assistance. The defendant also asks that we exercise our power under G.L. c. 278, § 33E, to order a new trial or to reduce her murder conviction to a lesser degree of guilt. We affirm and decline to exercise our power under G.L. c. 278, § 33E.

Facts. The evidence construed in the light most favorable to the Commonwealth would warrant the following. On the night of January 19, 1995, the defendant met the victim at a drinking establishment and had a few drinks with him. At some point that evening or early morning the following day, the defendant invited the victim to her apartment. The defendant stole the victim's money and slashed his throat with a knife four times. The victim died from a slash wound to his throat which severed his muscles, esophagus, windpipe, and nicked a cervical vertebrae. The defendant wrapped the victim's body in a blanket and dragged it to the cellar where she covered the body with a mattress and a sheet of plywood.

The defendant's statements. After a hearing of the defendant's motion to suppress, the motion judge found the following facts. On January 20, 1995, at approximately 3 P.M. Lieutenant John M. Souza of the Fall River police department received a telephone call from an attorney. At his request, Lieutenant Souza went to the attorney's office where he met Guy Levesque, a friend of the defendant. Levesque told Souza that, earlier that morning, he had been at the defendant's apartment and observed a rolled-up rug and what appeared to be a large amount of blood on the living room floor and wall. Levesque stated that the defendant had asked him for duct tape, explaining, "I killed him." Levesque said that he immediately left the apartment and drove to the attorney's office, where he recounted this story.

Souza, suspicious of both Levesque and the defendant, went to the defendant's apartment and knocked on her door but received no response. Souza arranged for Detective Sergeant Michael Pleiss and two other officers to secure the apartment while he returned to the police station to prepare an affidavit for a search warrant. After some delay the defendant answered the officers' knocks and let them into her apartment. The officers explained that they had reason to believe that something had happened in her apartment. She was cooperative but nervous, and did not appear to be under the influence of drugs or alcohol. She volunteered to Sergeant Pleiss that she "had a story to tell." Sergeant Pleiss showed her a consent to search form, explained it to her, filled it out, and asked her to sign it. She read the form and signed it.

Meanwhile, Souza returned to the defendant's apartment and asked the defendant whether she understood that, by signing the consent to search form, she was allowing the police to search her apartment. She acknowledged that she understood. Souza then took the defendant into the kitchen where she began to tell what had occurred the previous night.

In her first statement to Souza, the defendant claimed that she had come home with a young man that she had met at a bar the previous evening. She explained that when her friend, Levesque, found them together, he went into a jealous frenzy and attacked the victim with a knife. As the defendant was making this statement to Souza, the other officers returned and informed Souza that they had found a body in the cellar. The defendant was not informed that they had discovered the victim's body.

Souza then asked the defendant to go with them to the police station so that she could make a more detailed statement. The defendant expressed concern about leaving her apartment unattended but the officers assured her that they would secure it. She asked whether she could change her clothes, and the officers agreed. While the officers were still somewhat suspicious of the defendant, the investigation was primarily focused on Levesque. The defendant accompanied the officers voluntarily and was not placed in handcuffs.

At approximately 5 P.M., Pleiss read the defendant her Miranda rights, which she acknowledged she understood, and subsequently signed the Miranda form. Pleiss told her that, although she was not a suspect, he wanted her to understand her rights because she was at the police station for questioning. Over the course of police questioning, the defendant made several contradictory statements implicating herself in the victim's death. 2

1. Motion to suppress. The motion judge denied the defendant's motion to suppress the statements she made at the apartment and later at the police station. He concluded that the police were not required to provide Miranda warnings while at her apartment because she was not in custody. The judge also found that, because the defendant "knowingly, voluntarily, and willingly" waived her Miranda rights at 5 P.M., her subsequent statements made four and one-half hours later should not be suppressed.

a. Custody. The defendant contends that her statements made at the apartment should have been suppressed because she was in custody and, therefore, should have received Miranda warnings. The defendant contends that police suspicion and conduct rendered the questioning custodial. She points to the judge's finding that she was a suspect at that time, because Levesque had implicated her and the police had observed blood on her living room floor and wall.

In reviewing the judge's decision, we "accept[ ] the judge's subsidiary findings of fact absent clear error, give[ ] substantial deference to the judge's ultimate findings and conclusions of law, but independently review[ ] the correctness of the judge's application of constitutional principles to facts found." Commonwealth v. Magee, 423 Mass. 381, 384, 668 N.E.2d 339 (1996), quoting Commonwealth v. Mello, 420 Mass. 375, 381 n. 8, 649 N.E.2d 1106 (1995). See Commonwealth v. Mandile, 397 Mass. 410, 412-413, 492 N.E.2d 74 (1986). "Miranda warnings are only necessary where one is subject to 'custodial interrogation.' " Commonwealth v. Morse, 427 Mass. 117, 122, 691 N.E.2d 566 (1998), quoting Commonwealth v. Jung, 420 Mass. 675, 688, 651 N.E.2d 1211 (1995). A person is not in custody where a reasonable person in the defendant's situation would not consider herself in custody. Commonwealth v. Cruz, 373 Mass. 676, 682-683, 369 N.E.2d 996 (1977). "The procedural safeguards of Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966),] are required not where a suspect is merely in police custody, but rather where a suspect is subjected to custodial interrogation." Commonwealth v. Torres, 424 Mass. 792, 796, 678 N.E.2d 847 (1997). "Interrogation 'must reflect a measure of compulsion above and beyond that inherent in custody itself,' and therefore Miranda warnings are only required when 'a person in custody is subjected to either express questioning or its functional equivalent.' " Id. at 796-797, 678 N.E.2d 847, quoting Rhode Island v. Innis, 446 U.S. 291, 300-301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

We conclude that the evidence amply warrants the judge's finding that the defendant was not in custody, despite police suspicion. 3 The judge found that "[t]he police were strongly suspicious of [the defendant's friend, Levesque] even before [the defendant] began her story and regarded her more as a witness than a suspect at this time." The defendant was calm, cooperative, and voluntarily admitted the police to her apartment and consented to the search. The officers never demanded that she give a statement at this time. To the contrary, the defendant volunteered to speak to Sergeant Pleiss after indicating that she had a "story to tell." Although the defendant requested permission to change her clothes before going to the police station, the judge found that she "accompanied the officers voluntarily, to further her own purposes, and without coercion or any intimidation." Therefore, the judge properly concluded that the police had no obligation to give her Miranda warnings and properly denied the motion to suppress the statement she gave at the apartment.

b. Fruit of the poisonous tree. The defendant next argues that the statement she gave to Sergeant Pleiss and another officer shortly after their arrival at the police station should also have been suppressed as "fruit of the poisonous tree" notwithstanding the fact that the police gave the defendant her Miranda warnings on her arrival.

Because we conclude that the defendant's first statement was not the product of a custodial interrogation, and Miranda warnings were not required, the subsequent statements made by the defendant need not have been suppressed under the fruit of the poisonous tree doctrine. See Commonwealth v. Morse, supra at 128, 691 N.E.2d 566.

c. General Laws c. 276, § 33A. Additionally, the defendant challenges the admission of her statements at the police station, including her confession, on the ground that police failed to advise her of her right to make a telephone call pursuant to G.L. c. 276, § 33A. 4 This...

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