Com. v. Sanna

Decision Date13 January 1997
Citation424 Mass. 92,674 N.E.2d 1067
PartiesCOMMONWEALTH v. Michael J.F. SANNA.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Donald A. Harwood, Dorchester, for defendant.

Robert C. Thompson, Assistant District Attorney, for the Commonwealth.


LYNCH, Justice.

A Superior Court jury found the defendant guilty of murder in the first degree by reason of extreme atrocity or cruelty. On appeal, the defendant contends that the motion judge improperly denied his motion to suppress evidence, and that the trial judge committed reversible error by improperly instructing the jury on the third prong of malice aforethought and omitting instructions on involuntary manslaughter and criminal responsibility. The defendant also argues that the prosecutor's closing argument was improper. Last, the defendant asks that we reduce the verdict pursuant to G.L. c. 278, § 33E (1994 ed.). We affirm the judgment and decline to exercise our power under G.L. c. 278, § 33E.

1. Background. We summarize the facts as the jurors could have found them, in the light most favorable to the Commonwealth. Commonwealth v. Judge, 420 Mass. 433, 435, 650 N.E.2d 1242 (1995). On October 12, 1991, the police found the body of the victim lying in a pool of blood in his apartment. The seventy-four year old victim lived in an elderly housing project in Abington and was a great-uncle of the defendant. An autopsy revealed that the victim died from thirty-four knife wounds and from more than fifteen blunt impact wounds to his head. The apartment was in disarray, but the police found no evidence of a forced entry.

Sergeant Paula Loud of the State police was given the responsibility of investigating the homicide. During the inspection of the crime scene, the police found a number of fingerprints throughout the apartment. On October 14, 1991, State police positively matched at least one of the fingerprints found with the defendant's fingerprint card on file with the bureau of criminal investigation. In the course of their investigation Sergeant Loud and Richard Franey, the Abington chief of police, went to the home of the defendant's parents without a search warrant or an arrest warrant. 1 They parked their unmarked police automobile in the driveway behind a red Audi automobile, which was occupied by the defendant's father. The defendant's father left the Audi and approached the officers, who were in plain clothes. He recognized Chief Franey whom he had known for years. Sergeant Loud introduced herself as a police officer.

The defendant's father led the officers into the living room of the house. 2 The officers found the defendant reclining on a couch, a blanket covering his legs, speaking on the telephone. He ended his telephone conversation shortly after the arrival of police, whereupon Sergeant Loud removed the blanket from the defendant's legs and asked him to stand up and show his hands. Sergeant Loud saw cuts on the defendant's forehead and hands, and on closer inspection, numerous other cuts and scratches on both sides of his hands. 3 At this point, Sergeant Loud arrested the defendant.

After being read his Miranda rights the defendant said he understood them. 4 The police escorted the defendant to a police cruiser. The defendant neither requested a lawyer nor told the officers that he had a lawyer at any time after the arrest. 5

The defendant was then taken to the Abington police station, where Sergeant Loud again read him his Miranda rights and he again acknowledged he understood them. She further asked whether he wished to use the telephone and he declined. 6 After booking, the police took the defendant to the detective's room where, during interrogation, he denied having used any drugs, alcohol, or medication that day and he described the events of October 11, 1991, finally admitting to killing the victim.

According to the defendant's statement, he was addicted to cocaine but had been "clean" for 120 days. On October 10, 1991, however, he "slipped." On October 11, 1991, he telephoned the victim and visited at about noon, during which the victim gave the defendant $10 as a birthday present. The defendant left in his mother's Buick automobile and later consumed between two and one-half to three grams of cocaine while in the car. At about 7 or 8 P.M., he returned to the victim's apartment to use the bathroom. As he was leaving, the defendant took the victim's wallet, and used money he found in the wallet to buy more cocaine. The defendant returned again to the victim's apartment, where an argument ensued over the stolen wallet. At that time, the defendant was carrying a knife that he had taken from his parents' house because he had been contemplating suicide.

During the argument, the victim shoved the defendant, which made him "really angry." As a result, the defendant attacked the victim with the knife, striking him between the throat and chest area. Shocked at his own actions, the defendant dropped the knife. The victim picked up the knife and asked, "Michael John, what are you doing?" The defendant grabbed at the knife, and the two struggled. Something "banged off [the defendant's] head and really pissed [him] off some more," so the defendant struck at the victim several more times. Finally, the defendant, with the victim lying unconscious on the floor, left the apartment and returned home. When asked why he had killed the victim, the defendant replied, "I don't know. I was coked up when he shoved me. It made a spark." 7

When the defendant had finished giving his statement, he stated that he understood that the information could be used against him. On further questioning by Chief Franey, he revealed that he had a lawyer. However, the defendant declined to make a telephone call to his lawyer, and he declined Chief Franey's offer to find his lawyer's telephone number.

2. Warrantless search and seizure. The defendant argues that his warrantless arrest in his home and the observation of the cuts on his hands exceeded State and Federal limitations on searches and seizures by the police. As a result, the defendant argues that his subsequent statement to the police and any evidence stemming from the arrest should be suppressed under the fruit of the poisonous tree doctrine. 8 We disagree.

The Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights of the Massachusetts Constitution prohibit warrantless arrests in the home or warrantless searches and seizures, "absent exigent circumstances or consent." 9 Commonwealth v. Voisine, 414 Mass. 772, 783, 610 N.E.2d 926 (1993), quoting Commonwealth v. Derosia, 402 Mass. 284, 286, 522 N.E.2d 408, cert. denied, 488 U.S. 980, 109 S.Ct. 528, 102 L.Ed.2d 560 (1988). When police seek to justify a warrantless arrest or entry on the basis of consent, the Commonwealth must show "consent unfettered by coercion, express or implied, and also something more than mere 'acquiescence to a claim of lawful authority.' " Commonwealth v. Voisine, supra, quoting Commonwealth v. Walker, 370 Mass. 548, 555, 350 N.E.2d 678, cert. denied, 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976). The voluntariness of an individual's consent to a warrantless entry is an issue of fact, and must be examined in the circumstances of the case. See Commonwealth v. Voisine, supra; Commonwealth v. Harris, 387 Mass. 758, 766, 443 N.E.2d 1287 (1982); Commonwealth v. Aguiar, 370 Mass. 490, 496, 350 N.E.2d 436 (1976).

When reviewing the denial of a motion to suppress evidence, we accept the motion judge's subsidiary findings of fact absent clear error. Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990). As we stated in Commonwealth v. Yesilciman, "[t]he determination of the weight and credibility of the testimony is the function and responsibility of the judge who saw the witnesses, and not this court." Id., quoting Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980). Moreover, the clear error standard is a "very limited form of review," and when we are presented with conflicting evidence, "a judge's resolution of such conflicting testimony invariably will be accepted." Commonwealth v. Yesilciman, supra, quoting Commonwealth v. Spagnolo, 17 Mass.App.Ct. 516, 517-18, 459 N.E.2d 1256 (1984).

The motion judge found that the police officers had first asked the defendant's father for permission to enter the house to ask the defendant about the victim's death. In response, the defendant's father had invited the officers into the house, telling them, "Come on inside," gesturing toward the door of the house, and leading the officers through the front door, into the living room where the defendant was talking on the telephone. Based on this evidence and the absence of credible evidence to the contrary, the motion judge found that the defendant's father had freely and voluntarily given consent to the police to enter his house and we accept this finding. 10 Furthermore, there is no question here that the defendant's father, who was the owner of the house and present at the time of the entry, could give a valid consent. See Commonwealth v. Ortiz, 422 Mass. 64, 70, 661 N.E.2d 925 (1996) (father validly consented to search of son's bedroom in home); Commonwealth v. Walker, supra at 554, 350 N.E.2d 678 (defendant's fiancee owned apartment; gave valid consent to police to enter in order to arrest defendant).

The defendant further argues that, even if the consent were voluntary, it was invalidated by the deceptive practices used by the police to obtain the consent. He alleges that the police had gone to his home to arrest him and that their request to question him was mere pretext used to induce his father to consent to their entry. As a preliminary matter, we do not necessarily agree with the premise of the defendant's argument that consent is rendered invalid when the...

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