Com. v. Pennellatore

• Citation: 392 Mass. 382,467 N.E.2d 820
• Parties: COMMONWEALTH v. Phillip PENNELLATORE.
• Decision Date: 05 July 1984
• Court: United States State Supreme Judicial Court of Massachusetts

Page 820

467 N.E.2d 820

392 Mass. 382

COMMONWEALTH v. Phillip PENNELLATORE.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued March 6, 1984.

Decided July 5, 1984.

Roger Witkin, Boston, for defendant.

John A. Kiernan, Asst. Dist. Atty. (John N. Tramontozzi, Asst. Dist. Atty., with him), for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS and LYNCH, JJ.

LYNCH, Justice.

This case and its companion ¹ stem from a common incident, although each raises for the most part independent questions of law. The defendant was convicted of murder in the first degree, armed robbery, and armed assault in a dwelling with intent to commit a felony. The trial judge sentenced the defendant to concurrent life terms on the latter two convictions, to be served from and after the mandatory life term on the conviction of murder in the first degree. The victim, an eighty-four year old woman, died as a result of between fifty and sixty blows of severe force to her head which fractured her skull. Three days after the crime had been committed, the police received a telephone call from the defendant's partner in the incident, James Costello. As a result of this conversation, the police later arrested both Costello and the defendant. After being informed of his Miranda rights, the defendant confessed to the crime.

On appeal, the defendant makes several arguments. First, he contends that his confession should be suppressed because his request for an attorney was not honored and his attempt to terminate questioning was not heeded. Second, the defendant argues that his motion to compel immunization of an adverse witness, Donna Westbrooks, should have been allowed so as to prevent her from refusing to testify on Fifth Amendment grounds about certain events allegedly related to the crime. Finally, the defendant objects to the sentences imposed by the judge. He argues that, since his conviction of murder in the first degree was based in part upon a felony-murder theory, additional, consecutive sentences for the underlying felonies cannot be properly imposed. Further, the defendant maintains that the sentences imposed effectively forestall the potential for commutation by the Governor, and in this respect they constitute an impermissible judicial intrusion into an executive function. Finally, the defendant requests us to exercise our power under G.L. c. 278, *822s 33E, to direct the entry of a verdict of a lesser degree of guilt or to restructure the sentences received. We decline to exercise our power under G.L. c. 278, § 33E, and we affirm the judgments below.

There was evidence from which the jury could have concluded the following. In March and April of 1981, the second-floor apartment of Donna Westbrooks on Hyde Park Avenue in Boston was occupied at various times by Westbrooks, the defendant, Costello, and a number of other individuals, most of whom were youths of junior high school or high school age. The victim lived alone upstairs in a third-floor apartment. On March 30, Westbrooks observed that the victim owned several valuable items of jewelry, and this fact was communicated to a number of the occupants of her apartment. A subsequent plan was hatched to steal these items. On April 6, 1981, Westbrooks and Costello went to the victim's apartment, ostensibly for a visit. They were invited in and served orange juice by the victim. Costello rose from the table in order to put the glasses in the sink. He then walked up behind the victim, removed a length of heavy black telephone cable from his sleeve, and struck the victim several times with the cable on the back of her head.

Westbrooks returned to her apartment and told the defendant that Costello needed his assistance. By her account, the defendant asked, "What happened? ... Did he hit her yet?" The defendant ran upstairs and saw the victim lying on the kitchen floor screaming in pain. As the victim began to rise up from the floor, the defendant took the cable and by his account struck the victim fifty or sixty times until she lay motionless on the floor.

The defendant and Costello then proceeded to steal items from the victim's apartment. Just prior to their departure, they noticed that the victim was still alive. An attempt was then made to suffocate her with a pillow, and her face was struck several times with a hammer. Finally, her wrist was slit, and the defendant and Costello departed.

1. As noted above, the defendant confessed to the crime, and the circumstances of this confession are now contested on appeal. The details of the confession merit close examination. After the defendant and Costello were arrested by police, Miranda warnings were read to the defendant both on the way to the police station and again at his booking on arrival. After listening to the latter warnings, the defendant stated that he understood them, and he declined an offer to use the telephone. Some minutes after the defendant's arrival at the police station, while he was awaiting interrogation by a member of the homicide unit of the police force, the booking officer, who had administered the second set of Miranda warnings, spoke further with the defendant. After the officer indicated to the defendant that he was in some difficulty, the defendant said, "I guess I'll have to have a lawyer for this." The officer responded, "Yes, you will. All of these charges are very serious." The officer then suggested that the defendant use the telephone to call his family, and when the defendant refused to do this the officer offered to call the defendant's family himself. The defendant again refused.

About twenty minutes later, the defendant was taken to the detectives' room to speak with an officer from the homicide unit. Again, he was informed of his Miranda rights. The defendant indicated that he understood these rights, and expressed a willingness to speak with the detectives. The defendant gave a tape-recorded statement to the detectives, in the course of which he described the incident in some detail and confessed to his participation. At one particularly emotional point during the questioning, the defendant requested that the interrogation stop and apparently a short break was taken in order to get the defendant a can of soda. The questioning then resumed, with the defendant again indicating a willingness to proceed.

The defendant argues that his confession should have been excluded from evidence at trial on two basic grounds. First, he contends that his reference to a lawyer at the time of his booking constituted a request for a lawyer and there should have been no subsequent questioning without one present. In addition, the defendant contends here for the first time that questioning should not have resumed after he said, "Can we stop please?", at which time a break was taken and the can of soda procured.

Regarding the defendant's first argument, the judge found that the defendant never manifested an unwillingness to talk nor did he ever affirmatively request an attorney. Further, the judge determined that the defendant's tape-recorded confession was given absent any duress or coercion. The judge found that at the time of his confession the defendant was sober, that he understood the questions posed to him, and that for the most part he answered them in a calm and articulate manner.

It has long been beyond dispute that "an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation." Miranda v. Arizona, 384 U.S. 436, 471, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694 (1966). Further, once such "warnings have been given [as they were in the instant case] the subsequent procedure is clear: If the individual states that he wants an attorney, the interrogation must cease until an attorney is present.... The rule is that the defendant's decision to cut off questioning must be 'scrupulously honored.' " Commonwealth v. Brant, 380 Mass. 876, 882, 406 N.E.2d 1021, cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980), quoting Miranda v. Arizona, supra 384 U.S. at 479, 86 S.Ct. at 1630.

A criminal defendant may choose to waive his right to an attorney during interrogation. It is true that " 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights," Commonwealth v. White, 374 Mass. 132, 137, 371 N.E.2d 777 (1977), aff'd, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978), quoting Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938). However, this natural predilection must yield to the well established principle of appellate review that where, as here, there has been a determination by a trial judge that a voluntary waiver was made, "the judge's subsidiary findings will not be disturbed, if they are warranted by the evidence, and his resolution of conflicting testimony will be accepted." Commonwealth v. Tavares, 385 Mass. 140, 144-145, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982), quoting Commonwealth v. Santo, 375 Mass. 299, 303, 376 N.E.2d 866 (1978). See Commonwealth v. Tabor, 376 Mass. 811, 822, 384 N.E.2d 190 (1978); Commonwealth v. Murphy, 362 Mass. 542, 550, 289 N.E.2d 571 (1972) (Hennessey, J., concurring). "Such findings as to intelligent and voluntary waiver, or the absence thereof, are entitled to substantial deference by this court." Commonwealth v. White, supra 374 Mass. at 138, 371 N.E.2d 777.

The finding that the defendant voluntarily waived his right to have an attorney present during questioning satisfies this standard. The defendant's isolated statement, "I guess I'll have to have a lawyer for this," when viewed in context, appears to be an acknowledgment of the serious nature of the charges facing him, directed in response to the police officer's comment regarding the crimes listed on the booking sheet, rather than a request for an attorney during...