Com. v. Phinney

• Decision Date: 10 November 1993
• Citation: 622 N.E.2d 617,416 Mass. 364
• Parties: COMMONWEALTH v. Roland Douglas PHINNEY, Jr.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 617

622 N.E.2d 617

416 Mass. 364

COMMONWEALTH v. Roland Douglas PHINNEY, Jr.

Supreme Judicial Court of Massachusetts,

Middlesex.

Argued Sept. 13, 1993.

Decided Nov. 10, 1993.

Lawrence R. Glynn, Cambridge, for defendant.

David R. Marks, Asst. Dist. Atty., for the Com.

Before LIACOS, C.J., and WILKINS, ABRAMS, LYNCH, and GREANEY, JJ.

GREANEY, Justice.

On October 5, 1990, a jury in the Superior Court returned a special verdict finding the defendant, Roland Douglas Phinney, Jr., guilty of murder in the first degree both by reason of deliberate premeditation and extreme atrocity or cruelty. The jury's verdict resolved the murder, on February 8, 1980, ten years previously, of the defendant's next door neighbor, a young unmarried woman. At the time of the crime in 1980, the police had considered the defendant as a suspect, but he had not been arrested or charged. The murder investigation remained open until July 26, 1989, when the defendant confessed in writing to the crime. In his confession, the defendant stated that he had looked in the window of the house next door and seen the victim lying on her bed in her nightgown apparently asleep. The defendant entered the house through the front door, which had been left ajar, and went directly to the victim's bedroom. The defendant had taken his camera with a flash attachment because he wanted to take a "picture of [the victim's] pussy ( [h]er [v]agina)." After seeing the victim asleep, the defendant started to open her nightgown and to pull her panties down, possibly ripping them in the process. Just as the victim's vagina became exposed, she woke up, startling the defendant. He picked up his camera (which he had placed on the bed) by the handle of the flash attachment and hit the victim with multiple blows causing massive head injuries. The victim died later in the hospital. The defendant returned to his house where he cleaned blood off the camera, washed his hands, and changed clothes.

The defendant argues that the judge erred in denying his motions to suppress his statements preceding his confession and the confession itself and for a required finding of not guilty. He also argues that he is entitled to relief pursuant to G.L. c. 278, § 33E (1992 ed.). We conclude that there is no error and no basis for relief under § 33E. Accordingly, we affirm the defendant's conviction of first degree murder.

1. The judge held a lengthy hearing on the motion to suppress and made findings of fact and rulings of law in connection with the motion's denial. We summarize the relevant background based on the judge's findings of fact. In early 1989, the Lowell police, after considering new information, reopened the investigation into the victim's 1980 murder. At that time, the police obtained a warrant to search the defendant's home where he lived with his parents to look for the defendant's camera and flash attachment (which the police believed was the murder weapon), and photographs the defendant may have taken of the victim and her housemates. On July 25, 1989, prior to executing the warrant, police officers drove to Wang Laboratories where the defendant worked. There, Lowell police Inspector David Tousignant and State Trooper Edward Forster told the defendant that they would like to speak with him at the Lowell police station. The defendant voluntarily agreed to go with the officers. After arriving at the station at approximately 5:40 P.M., the defendant was escorted to a separate interview room downstairs in the criminal investigation bureau where he was informed of the reopening of the murder investigation.

Tousignant told the defendant that it was his choice whether to answer any questions. The defendant was given a card containing the Miranda warnings and appeared to read both sides of the card. Tousignant also advised the defendant that furnishing the Miranda card was part of police procedure and did not mean that the defendant was under arrest. Tousignant asked the defendant whether he had any questions about the warnings on the card. The defendant stated that he understood what was occurring, and stated that he remembered signing a similar card containing Miranda warnings in 1980. The defendant and the two officers signed the card, which was thereafter left on the table in front of the defendant.

The defendant admitted that, at the time of the murder, he owned a 35 millimeter Yashica camera with flash attachment, and that the camera was still at home in his closet. (The defendant had been told of the search warrant.) The defendant also admitted that he had taken photographs of the victim and the other women living with her, but stated that he had disposed of the photographs. The defendant appeared agitated when the victim's murder was mentioned. Tousignant stated to the defendant the theory that he (the defendant) may have entered the victim's home, become scared, and hurt her. The defendant denied the theory. When shown autopsy pictures of the victim, the defendant became upset and said, "I can't look at them, I won't look at them."

At approximately 7:40 P.M., Tousignant stated that he intended to execute the search warrant. The defendant was asked if he would like to join Tousignant, remain at the station, or go back to work. The defendant gave Tousignant the key to the house. He then used the bathroom and, when he returned, signed another card containing Miranda warnings.

While the search warrant was being executed by the police, the defendant's mother, who was at home, made contact with Attorney Eugene Bernstein. Bernstein, who had represented the defendant in connection with the 1980 investigation, spoke briefly on the telephone to Tousignant about the way in which the search would be conducted. Tousignant did not inform Bernstein, or the defendant's mother that, while the search was being conducted, the defendant was at the police station.

At approximately 9:50 P.M., Tousignant returned to the police station with the defendant's camera and flash attachment. He next proceeded to review the defendant's prior statements concerning where he had been on the night of the murder. When questioned about an allegation that he had stolen female underwear from the house next door (where the victim and other young women lived), the defendant became angry and stated, "If that's what happened, that's what happened. I won't talk about it. Case closed." Again, Tousignant suggested to the defendant that someone had entered the victim's house, become scared and murdered the victim. The defendant stated that no one would believe such a story.

Shortly thereafter, the defendant asked Tousignant for an explanation of the differences between first and second degree murder and manslaughter. A generally accurate explanation was given. At 11:30 P.M., the defendant's watch alarm went off, and the defendant explained that his mother wanted him home by midnight. The defendant was asked if he wanted to go home, make a telephone call to his house, or stay at the police station. The defendant answered, "No, let's try to get this over." Again the defendant was asked if he wished to make a telephone call to his mother, and he declined. ¹

After additional discussion, Tousignant left the room to take a telephone call. In his absence, the defendant stated to Forster that he wanted to leave, that he wanted a lawyer and "what's on this [Miranda] card," referring to the card containing Miranda warnings that had been left on the table. Forster left to inform Tousignant. When the officers returned, they thanked the defendant for his cooperation and told him that he was free to leave the police station.

The defendant got up and left the room, but shortly reappeared and asked, "What's going to happen to me next?" The officers told the defendant that the investigation into the murder would continue and that his camera would be tested for blood. The defendant, without any prompting, requested another explanation of the different degrees of murder and of manslaughter. That explanation was provided, after which Tousignant stated to the defendant, "You say you want to leave, just go, I'd stay to talk to you until next week, it's up to you--you want to go just go--you know the way out."

The defendant returned to his chair and indicated that he wanted to tell the truth. Tousignant once more asked the defendant if he wanted to telephone his home. The defendant again declined. The defendant then explained that he had gone into the victim's bedroom on the night of February 8, 1980, to photograph her while she was asleep. When the victim unexpectedly woke up, the defendant panicked, hit the victim with his camera, and then fled. ² At this time, for the first time, the defendant was told that he no longer was free to leave. The officer proceeded to reduce the defendant's statements to a written confession which the defendant read and signed.

At various times during the questioning, the defendant was asked if he wanted to have something to eat or drink. The defendant refused anything. During the questioning, the defendant did not ask to leave the police station, to stop the questioning, or to confer with an attorney despite having been advised that he could take any of these actions.

Based on the above, the judge made the following additional findings and rulings of law.

"I find beyond a reasonable doubt that at all times up until he was told otherwise, [the defendant] was free to leave, that he understood his rights and when he asked to stop, leave, etc., the two [police officers], Tousignant and Forster, scrupulously honored his request. [A]ny questioning and statements made thereafter were initiated by [the defendant].

"I further find, beyond a reasonable doubt, that [the defendant] intelligently, knowingly and voluntarily waived his rights. Thereafter [the defendant's] statements were slowly reduced to writing and signed.

"While Tousignant was executing the search warrant, he wanted...