Com. v. Santo

• Decision Date: 23 May 1978
• Parties: COMMONWEALTH v. Reinaldo SANTO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 866

376 N.E.2d 866

375 Mass. 299

COMMONWEALTH v. Reinaldo SANTO.

Supreme Judicial Court of Massachusetts,Hampden.

Argued Jan. 3, 1978.

Decided May 23, 1978.

Susan J. Baronoff, Boston, for defendant.

L. Jeffrey Meehan, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and ABRAMS, JJ.

ABRAMS, Justice.

The defendant Reinaldo Santo (Santo) was indicted for murder in the first degree and armed robbery. After a jury trial, he was convicted of murder in the second degree and unarmed robbery. Pursuant to G.L. c. 278, §§ 33A-33G, he appeals his convictions. Santo argues assignments of error concerning (1) a motion to suppress a statement and (2) the refusal of the trial judge to charge on involuntary manslaughter and on two offenses assault with intent to rob and larceny as lesser included offenses of robbery. We find no error and we decline to exercise our authority under G.L. c. 278, § 33E.

We summarize the evidence presented at the trial. Justino Santana (Santana), who occupied a room in a rooming house next to the room of the victim Edward J. Premont (Premont), testified that on September 12, 1974, Premont produced some money from his pocket and gave Santana twenty dollars to purchase groceries and six containers of beer. When Santana returned he gave back three or four dollars to Premont.

That evening Premont, Santana, and two other tenants were in Premont's room eating sandwiches, drinking soda, and watching television. At approximately 9:15 P.M. Santana saw Santo, together with one Jose Martinez (Martinez) in the vicinity of Premont's room. Santana overheard Santo and Martinez talking in Spanish in the hallway outside the room. He testified that Santo said that they had to make some money and that they would take the money from someone and kill him. Premont and the other two tenants did not understand Spanish, and thus they did not know what Santo and Martinez were planning.

When Santo and Martinez appeared at Premont's door, he invited them inside and offered them food and drink. Santana and the other two tenants then returned to their respective rooms, leaving Premont alone with Santo and Martinez.

At some point Premont went to Santana's door and invited him to come back to his room because he was afraid. Santana heard Premont "grunting" and Santo saying that they "were going to kill the old man and take his money and escape." Santana went into the hallway so that he could see inside Premont's room. He observed Santo and Martinez striking Premont and tieing him up. He saw Santo thrusting his hands into Premont's pocket and heard Premont ask them "(n)ot to tie his hands." Santana was afraid of Santo and Martinez so he remained in his room with the door closed until he went to work the next morning.

On September 13, 1974, Premont was discovered dead in his room. He was found in a chair which had been tipped over backwards. He was bound by a belt and an electrical cord, a necktie was stuffed in his mouth as a gag, a pair of trousers was wrapped tightly around his neck, and a pillow was covering his head. The medical examiner testified that Premont died between 9 P.M. on September 12 and 3:00 A.M. on September 13, as a result of asphyxia due to the gag and the ligature around his neck. Premont had several bruises about his head, arms, thighs, lower abdomen, and genitals; he also had several broken ribs. No money was found during a search of the room.

The defendant gave a statement to the police in which he admitted that he was in the rooming house on the night of the killing; he said that he heard Martinez hitting Premont and Premont shouting for help; and he denied participation in the killing and robbery. After a voir dire during the trial, the judge concluded that the statement was admissible. The defendant argues that it was prejudicial error to admit this statement because the Commonwealth did not meet its burden of demonstrating a knowing, intelligent, and voluntary waiver of the rights to remain silent and to the assistance of counsel.

1. Admissibility of the Defendant's Statement.

We summarize the testimony presented at the voir dire and the judge's findings. ¹ On September 24, 1974, Santo was arrested in Hartford, Connecticut, by the Hartford police. On that same day Captain James Williams of the Springfield police arrived in Hartford to speak with Santo. The judge found that the defendant was given full Miranda warnings in English before any interrogation in Hartford. At this time the defendant stated in English that he did not want to discuss the killing. The conversation was then terminated.

The following day Santo was transferred to Springfield and was brought to Captain Williams' office. The judge found that full Miranda warnings were again given in English before any questioning. He also found that Captain Williams informed Santo that Attorney Edward Hurley had called on his behalf and wanted to talk to him. The judge found that the defendant stated he did not want to talk to the attorney, that he indicated a willingness to discuss the murder, and that he then provided the statement in question. He further found that the police interrogating Santo did not understand that he had hired an attorney, and that they did not notify the attorney of the intended interrogation of Santo.

The judge found that Santo understood English and concluded that Santo knowingly, voluntarily, and intelligently chose to waive his right to remain silent and his right to counsel.

To determine whether a defendant voluntarily waived his rights, we consider the waiver in light of the totality of all the surrounding circumstances. Commonwealth v. Borodine, --- Mass. ---, ---, 253 N.E.2d 649 (1976), cert. denied, 429 U.S. 1047, 97 S.Ct. 760, 50 L.Ed.2d 765 (1977). Commonwealth v. Hosey, 368 Mass. 571, ---, 334 N.E.2d 44 (1975). Commonwealth v. Daniels, 366 Mass. 601, 606, 321 N.E.2d 822 (1975). Explicit statements that a defendant understood his rights and voluntarily relinquished them are not essential for a valid waiver. Commonwealth v. Valliere, 366 Mass. 479, 487, 321 N.E.2d 625 (1974).

In reviewing a trial judge's determination 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. Mahnke, 368 Mass. 662, --- - ---, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d 204 (1976). However, the judge's ultimate findings and conclusions of law, especially those of constitutional dimension, are open for our independent review on appeal. Commonwealth v. Amazeen, --- Mass. ---, --- n.3, ^a375 N.E.2d 693. Commonwealth v. Mahnke, supra, 368 Mass., at 375, 335 N.E.2d 660. Commonwealth v. Murphy, 362 Mass. 542, 551, 289 N.E.2d 571 (1972) (Hennessey, J., concurring).

The defendant first contends that there was no voluntary waiver because the Miranda warnings were given in English not his native Spanish, and he therefore did not understand his rights. The judge found that the defendant did understand English and that he therefore comprehended his rights. Ample evidence existed which warranted the judge in reaching this conclusion. Two witnesses testified that they had conducted conversations with the defendant in English, and the officers present at the interrogation stated that he appeared to understand English during the questioning. The defendant's contention that he did not understand English was substantially impeached by the fact that during the voir dire he often answered questions without waiting for the interpreter to translate the question.

The defendant next argues that the fact that he had initially refused to talk to the police in Hartford indicates that he did not voluntarily waive his rights before he gave his statement in Springfield. The mere fact that a defendant at first chooses to exercise his right to remain silent does not preclude a subsequent valid waiver during a later interrogation. See Michigan v. Mosley, 423 U.S. 96, 102-104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The determination whether statements made during a subsequent interrogation are admissible turns on whether the defendant's right to discontinue questioning was honored. Id. at 104, 96 S.Ct. 321. In the present case this right was clearly respected. The police had terminated the prior interrogation after the defendant chose to remain silent; they resumed questioning only after the passage of a significant period of time; and they provided the full Miranda warnings before the start of the second interrogation. See id. at 102-106, 96 S.Ct. 321.

Moreover, the judge explicitly found that the defendant expressed a willingness to discuss the killing with Captain Williams in Springfield. This finding was warranted on the basis of the testimony of the officers who conducted the questioning.

The defendant next contends that the failure of the police to notify Mr. Hurley of the proposed investigation rendered the statement inadmissible. However, the judge found that the police did not understand that the defendant had engaged any attorney in connection with the killing of Premont. This conclusion was warranted by the fact that Mr. Hurley, who had represented the defendant in other actions, called the police station after learning of the defendant's arrest from someone other than the defendant and volunteered his services. Moreover, the judge also found that prior to any questioning during the second interrogation Captain Williams informed the defendant that Mr. Hurley had called and asked to talk to him and that the defendant had stated that he did not want to speak to Mr. Hurley. Although the defendant denied that he refused Mr. Hurley's services, the determination whether he was to be believed was for the judge.

Where, as here, it is unclear that a particular attorney is to represent a defendant and the...