Com. v. Shine

• Decision Date: 26 November 1986
• Citation: 500 N.E.2d 1299,398 Mass. 641
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: COMMONWEALTH v. John SHINE.

Page 1299

500 N.E.2d 1299

398 Mass. 641

COMMONWEALTH v. John SHINE.

Supreme Judicial Court of Massachusetts Suffolk.

Argued Sept. 9, 1986.

Decided Nov. 26, 1986.

Judy G. Zeprun, Asst. Dist. Atty. (Charles M. Campo, Jr., Boston, with her), for the Com.

Carol A. Donovan, Committee for Public Counsel Services, Boston, for defendant.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and O'CONNOR, JJ.

LIACOS, Justice.

On November 14, 1983, a Suffolk County grand jury returned indictments charging the defendant, John Shine, with murder in the first degree, and with armed assault with intent to rob. Following trial, a jury returned a verdict of guilty on each indictment. The defendant was sentenced to the Massachusetts Correctional Institution at Walpole (now Cedar Junction) for the term of his natural life on the murder conviction, and for a concurrent term of eighteen to twenty years on the conviction of armed assault with intent to rob. The defendant appeals to this court pursuant to G.L. c. 278, § 33E (1984 ed.).

The defendant raises numerous claims of error and seeks a new trial. Alternatively, he asks that we direct that the degree of guilt be reduced to murder in the second degree and armed assault. There is no ground for reversal of the conviction of murder in the first degree. The record does not warrant our ordering under § 33E either a new trial or a reduction in the degree of guilt. Additionally, we affirm the conviction of armed assault with intent to rob for the reasons stated later in this opinion.

We summarize the evidence. At approximately 2 A.M., August 27, 1983, several witnesses heard loud screaming and saw the victim, Ronald Bruce Cummings, running down a Revere street into a minipark followed by a slim, blond man. Someone was yelling, "Bobby, Bobby, where are you?" The victim's mother heard the victim calling, "Ma, Ma." She ran outside, where she saw the blond man stabbing her son. She yelled to the stabber to leave her son alone. The assailant looked at her, stabbed the victim two or three more times, and fled the scene. Shortly thereafter, Revere police officers arrived and found the victim lying in the park, bleeding profusely, with a wide long gash on his neck. Emergency medical technicians found part of a watch under the victim and placed it in the victim's pocket. The victim had been stabbed seventeen times. He died three hours later.

The defendant spent the evening before the stabbing with his girl friend, Allyson Vaczy Hoyt, and Robert Sweeney, at whose home he had been staying since August 22 or 23. That evening, the defendant tried unsuccessfully to borrow money from his girl friend. The defendant and Sweeney left Sweeney's home at 1:15 A.M. and returned between 2:15 and 2:30 A.M. Hoyt testified that the defendant did not appear to be intoxicated when he returned. He took a knife out of his back pocket and placed it on the kitchen window sill. The defendant told Sweeney that he had lost Sweeney's watch; Sweeney asked, "Where did you lose it?"; the defendant answered, "Where do you think?" Hoyt repeated Sweeney's question; the defendant said, "Never mind." Over the defendant's objection, Hoyt testified that the conversation stood out in her mind because Sweeney and the defendant were "really upset and nervous about losing a watch that wasn't very expensive or anything." About 8 A.M., Sweeney, Hoyt, and the defendant drove to the scene of the stabbing at the minipark.

At the voir dire, ¹ State trooper Lawrence Colson testified that he was searching for evidence, including a knife, in the minipark at approximately 8 A.M. He was dressed in plain clothes, wearing his badge and a gun on his belt. Sweeney approached him and asked whether he had found his watch. Trooper Colson told Sweeney that he was a police officer; that there had been a murder in the minipark the prior evening; and that a watch had been found under the victim's body. Sweeney said that he knew nothing about a murder. Pointing to Shine sitting in the parked automobile with Hoyt, he said that he had loaned the watch to his friend who had lost it in the park the night before. The trooper asked Sweeney to stay where he was so that he could speak to the defendant without Sweeney present.

As the trooper approached, Shine stepped out of the automobile, and the trooper noticed that his height, weight, hair color, and hair length fit witnesses' descriptions of the victim's assailant. He also noticed blood on the defendant's sneakers. The trooper said, "Come here, kid," and they stepped to the rear of the automobile. Asked, "What's all over your shoes," the defendant answered, "Blood." Asked why he was in the park, the defendant said that he came to look for a watch which he had lost at 9:30 the night before when he had gone to the park to "cool off" after an argument with his girl friend.

Trooper Colson asked the defendant to come with him to his automobile so that Colson might ask him some questions. The defendant said, "[A]ll right," and walked toward Colson's unmarked cruiser. Later, Colson went inside a neighbor's house to call the police station. He did not tell the defendant to stay where he was, and he left the defendant and Sweeney alone on the street. The defendant testified that he did not see the badge on Colson's belt, his holster, or his gun, and that he did not learn that Colson was a police officer until "just before [they] went down to the police station."

Colson did not advise the defendant of his rights or tell him he was under arrest at the minipark. Colson testified that he had not made up his mind to arrest or to take the defendant into custody at the minipark, but that he would have taken him into custody had he tried to walk away. The defendant and Sweeney both agreed to go to the Revere police station. Sweeney and the defendant's girl friend drove in Sweeney's automobile; the defendant went--unrestrained and without protest--in an unmarked police cruiser.

At the police station, the defendant was advised of his Miranda rights. He agreed to talk to the officers and signed a written waiver. At the outset of a half-hour, tape-recorded statement, Trooper Colson told the defendant that he was not under arrest and that he was free to leave at any time, although the trooper admitted at trial that he was misleading the defendant by his statements. In this first statement, the defendant described and identified the watch which he had lost the prior evening, admitted that he owned a knife which was in Sweeney's kitchen, and denied that he had stabbed Cummings. He elaborated on, but did not contradict, the statements he had made to Trooper Colson at the minipark regarding his activities the previous evening. At the end of this interview, the officers informed the defendant that he was under arrest.

The defendant then spoke with his girl friend alone, after a Revere police inspector told him that they had conflicting statements from Sweeney and that, "if he wanted to help himself, now is the time to tell the truth." Hoyt asked the defendant if he did it. After twice responding, "What do you think," the defendant banged his head against the wall and said that "Bob [Sweeney] had put him up to it," that he had done it, but that he did not remember too much about it. She told the defendant to go upstairs and tell the truth.

Two hours after his first interview at the station, the defendant had an unrecorded conversation with Officer Michael Cutillo. The defendant was readvised by Officer Cutillo of his Miranda rights, but nothing in the officer's handwritten notes reflected the fact. The officer stated that the defendant signed a waiver which had been "lost in the paper work." The defendant said that he would tell the truth. The defendant then explained that he and Sweeney were out driving in Sweeney's automobile and needed money to buy gas. Seeing a man on foot who, in Sweeney's words, "look[ed] like he's an easy target," Sweeney said, "Let's roll him." The defendant got out of the automobile and followed Cummings. He came up behind Cummings and tried to reach into his pocket. The victim turned and hit him with what the defendant thought was an elbow. According to the officer's testimony, the defendant then said, "I think I stabbed him. I don't know. I blacked out." The officer then asked the defendant if he would be willing to make a statement on tape, and he agreed.

Lieutenant John MacDonald and Inspector Joseph Marshall testified that the defendant was reinformed of his Miranda rights prior to the third and final fifteen-minute conversation, but the warnings do not appear on the tape recording. The defendant repeated what he had told Officer Cutillo in the unrecorded conversation, adding that he had had two drinks and had taken two capsules of what he thought were "speed" at a bar before he and Sweeney spotted the victim. He claimed that he could not remember if he did anything after the victim elbowed him; and that the next thing he remembered was running back across the highway and getting into Sweeney's automobile. He stated that he did not recall taking a knife out of his pocket; that he did not remember how he had gotten blood on his arm; and that he and Sweeney returned to the park the next morning to retrieve the watch for "sentimental reasons." At the end of the interview, the defendant agreed, in response to questions, that his rights had been explained to him, that he had chosen to make the statement without an attorney, and that no promises were made to him.

After the defendant's second statement to police officers at the station, Officer Cutillo obtained search warrants for Sweeney's home and automobile. After obtaining the warrants, Officer Cutillo and Lt. MacDonald went to Sweeney's house and found a black-handled folding knife and towels, newspapers, and a face cloth, all stained with blood.

1. Admissibility of the defendant's statements at the minipark. A. Miranda. The...