Com. v. Rogers

• Decision Date: 04 January 1967
• Citation: 351 Mass. 522,222 N.E.2d 766
• Parties: COMMONWEALTH v. Ralph E. ROGERS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 766

222 N.E.2d 766

351 Mass. 522

COMMONWEALTH v. Ralph E. ROGERS.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Nov. 7, 1966.

Decided Jan. 4, 1967.

Max L. Glazer, Boston, for defendant.

William A. Doherty, Asst. Dist. Atty., (James M. McDonough, Legal Asst. to Dist. Atty., with him), for the Commonwealth.

Before WILKINS, C.J., and SPALDING, CUTTER, SPIEGEL and REARDON, JJ.

CUTTER, Justice.

Rogers was indicted for the murder on November 6, 1964, of Mrs. Patricia Campbell. Trial took place from January 11 to 18, 1966, under G.L. c. 278, §§ 33A--33G, as amended. The jury returned a verdict of guilty of murder in the first degree with a recommendation that the death sentence be not imposed. Rogers was sentenced to life imprisonment. He appealed. The assignments of error which have been argued are outlined below.

THE PRINCIPAL EVENTS OF NOVEMBER 6, 1964.

There was little dispute concerning what took place on or before November 6, 1964, except with respect to (a) the activities of Rogers and an acquaintance named Tony between about 3 P.M. and 6 P.M. on that day, and (b) if relevant, the extent of Tony's acquaintance with Mrs. Campbell prior to that date. There was evidence from which the following facts could have been found.

The hideously mutilated, nude corpse of Mrs. Campbell, a woman nearly thirty-seven years of age, was found shortly after 6 P.M. on November 6, in a room rented by Rogers on the third floor of a Boston lodging house. There was evidence from occupants of the house that about 5:55 P.M. to 6 P.M. Rogers left his room (rented a week before), surrendered his key, and departed from the building, saying to the janitor that his mother was sick and that he had to go to the Cape right away. One Gage, whose room was adjacent to that of Rogers, testified that about 6:15 P.M. Rogers knocked on his door. He had stains which looked like blood on his ear and on his hands. Rogers said to Gage, 'I had a fight.' One Raymond who lived on the floor 'right below' Rogers' room was not in the building from 3 P.M. to about 5 P.M. He heard 'quite a rumpus' on the floor above him for some ten minutes just about 5 P.M. He recognized Mrs. Campbell's voice. His door to the hall was open, and about 5:45 P.M. to 6 P.M. he saw Rogers come from the floor above, step into the bathroom for five minutes, and then go downstairs. While Raymond was in his room no one went upstairs prior to the noises he heard and no one went downstairs before Rogers left.

Rogers testified that he was in his room with Mrs. Campbell as late as 2:45 P.M. to 3 P.M. Rogers gave testimony (for convenience hereafter called the alibi testimony) that he went to Tony's room in another building so that Tony could go to Rogers' room to meet Mrs. Campbell and that Tony left him for that purpose. Rogers also claimed that he returned to his own room after dark, found Mrs. Campbell's body, 'got frightened,' and fled. Tony was identified by Rogers in the court room during the trial. He was not called as a witness either by Rogers or by the Commonwealth.

Rogers testified that, on the morning of November 6, Tony had introduced him to Mrs. Campbell, and that before that day he, Rogers, had seen Tony and Mrs. Campbell together on several occasions. The evidence concerning the extent of Tony's acquaintance with Mrs. Campbell was inconclusive.

Rogers admitted that he had been a heavy drinker for some time and that he and Mrs. Campbell drank frequently together during November 6. The evidence, wholly apart from the testimony (mentioned below) concerning Rogers' statements on November 17 and 18 after his arrest, warranted the conclusion that Rogers had been constantly in his room with Mrs. Campbell for at least three hours prior to 6 P.M. on November 6.

ARREST OF ROGERS AND POST-ARREST INTERROGATION.

On the evening of November 17, 1964, Rogers was arrested between 8 P.M. and 8:30 P.M. by two officers in a Boston cafe. He gave his name as James Perry. He was taken to Station 4, and was then transferred to police headquarters for fingerprinting. Later Rogers admitted his identity. ¹ The testimony concerning what happened after Rogers left police headquarters to return to Station 4 is conflicting.

The police testimony would have warranted the following findings. One police sergeant (now a lieutenant) testified that about 10 P.M. he informed Rogers 'that he didn't have to make any statements, and that he was entitled to counsel, and a telephone call, and that he could stand mute.' At Station 4, Rogers was given a chance to call an attorney. He did speak with the wife of a legislator in Barnstable. Upon failing to reach the legislator, Rogers stated that there was nobody else he would like to call. Between 10:30 P.M. and 11 P.M. another sergeant from the headquarters homicide division began interrogating Rogers. He told Rogers that he 'didn't have to answer' questions and that he, the sergeant would testify to Rogers' answers in court.

A police stenographer was present only after midnight during the later part of the interrogation of Rogers by the second sergeant. Interrogation of Rogers by each sergeant before midnight was not recorded. In the course of the interrogations, Rogers made admissions amounting to a confession and an acknowledgment that the alibi testimony was false. These admissions did not include any admission that Rogers had mutilated Mrs. Campbell's body or any explanation of the circumstances of the mutilation. ² The second sergeant did not advise Rogers that he had 'the right to consult a a lawyer.'

Police witnesses stated that Rogers, on the night of November 17, 'had been drinking,' that he 'was under the influence of liquor,' and that 'his faculties had been impaired.' He was 'conherent in his speech' and there was no difficulty in understanding his answers. He did not fall asleep during the questioning. The police stenographer saw Rogers for about an hour and 'understood him perfectly, although at times he hesitated before answering.' At times during the interrogation, Rogers 'stared into space' or 'at the wall.'

At 2 A.M. on the 18th, Rogers was 'sober,' and he had ceased to be under the influence of liquor about 11 P.M. Police witnesses testified that no liquor was given to Rogers in the police station, although he had been served coffee; that he had not been beaten, slapped, threatened, or physically mistreated; and that no promises had been made to him to induce him to make a statement. There was some conflict in the testimony of various police offcers concerning the details of the interrogation and about who was present at various stages of it.

Rogers' version of the circumstances of his interrogation differed from the police version in two principal respects. First, Rogers denied that he had been advised of his constitutional rights and said that he had been refused permission to make a telephone call to a lawyer whom he knew. Second, he testified (a) that he had been subjected to various forms of physical abuse; (b) that he was 'pretty drunk, (but) not completely'; (c) that he had been served whiskey by the police in his coffee, and had been given the wine which had been taken from him ³ upon his arrest, and (d) that he was falsely told by the first sergeant to question him that a statement was sought from him only as a 'material witness' rather than as a suspect. Rogers claimed not to remember the admissions and statements made by him to the second sergeant to question him but asserted that, because of liquor and the alleged abuse, he 'could have said anything.'

Rogers testified that he made an exculpatory statement (essentially the alibi testimony) on the events of November 6, 1964, to the former sergeant which placed him prior to 6 P.M. on November 6, in Tony's room. He himself (in the alibi testimony) gave before the jury a similar exculpatory account of the afternoon's events.

1. The first group of assignments of error argued relates to the statements obtained following Rogers' arrest, based on the alleged denial to Rogers of the right to consult counsel, the taking of articles from Rogers' room, and the alleged failure to warn Rogers at the police station of his constitutional rights and of his statutory privilege of using the telephone (G.L. c. 276, § 33A, as amended through St. 1963, c. 212). Rogers contends that the evidence should have been suppressed before trial and should not have been admitted at the trial. The short answer to each assignment of error is that the trial judge, after the relevant voir dire examinations (see fn. 2), and the jury, after hearing the testimony before them, were not required to believe Rogers' unsupported testimony tending to show that his confessions were not voluntary. The judge, and the jury as triers of the facts, heard and saw the police witnesses and Rogers. It was for them to appraise the sharply conflicting testimony. They could consider, as affecting Rogers' credibility, his long criminal record, introduced in evidence after he took the stand. The police testimony warranted the conclusion that Rogers (a) was given the opportunity to use the telephone; (b) was repeatedly warned (see Commonwealth v. Kleciak, 350 Mass. ---, - ---, ^a, 216 N.E.2d 417 and cases cited) of his constitutional rights; (c) was afforded fair opportunity to get in touch with counsel; (d) was not induced to confess by physical maltreatment by being furnished liquor, by threats, by promises or inducements, or by any improper method, and (e) made his confession voluntarily.

The jury could reasonably conclude that Rogers, even if influenced by liquor consumed by him prior to his arrest, did not so lose capacity to understand and to make himself understood as to render his statements involuntary. Commonwealth v. Howe, 9 Gray, 110, 112. See Commonwealth v. Chapman, 345 Mass. 251, 254, 186 N.E.2d 818; annotation, 69 A.L.R.2d 361, 365. On this subject the judge instructed the jury that ...