Com. v. Silva
| Citation | 447 N.E.2d 646,388 Mass. 495 |
| Parties | COMMONWEALTH v. James E. SILVA, Jr. |
| Decision Date | 21 March 1983 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Francis M. O'Boy, Taunton (Lawrence Moniz, Taunton, with him), for defendant.
Phillip L. Weiner, Asst. Dist. Atty. (Patricia O. Ellis, Asst. Dist. Atty., with him), for the Commonwealth.
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.
The defendant, James E. Silva, Jr., was indicted by a Bristol County grand jury on February 12, 1979, for murder, kidnapping, and three counts of larceny of a motor vehicle. On October 18, 1979, the defendant was found guilty by a jury of murder in the second degree, kidnapping, and one count of larceny of a motor vehicle. The trial judge imposed the mandatory life sentence on the murder conviction and, on each of the other charges, imposed sentences of not less than three nor more than five years, to be served concurrently with the life sentence. The defendant filed a notice of appeal and we transferred the case to this court on our own motion.
On this appeal the defendant claims error in that (1) the judge denied his motion to suppress certain statements he had made to the police; (2) the judge did not instruct the jury that the felony-murder rule applies only if the jurors find, from the circumstances of the underlying felony, that the defendant consciously disregarded risk to human life; (3) the judge failed to instruct the jury with regard to the defendant's belief as to whether the victim was alive or dead; (4) the judge did not exclude evidence of other crimes; and (5) the prosecutor made improper remarks during closing argument. The defendant also argues that he should receive relief under G.L. c. 278, § 33E. We conclude that there is no reversible error, and that the defendant is not entitled to relief under § 33E. Accordingly, we affirm the judgments.
On January 12, 1979, Beatrice Miller met her sixty-two year old mother, Diane Dion, and drove her to a doctor's appointment, then to the supermarket to do some shopping, and finally to Haskins Pharmacy in Norton. At approximately 10:45 A.M., Miller parked her automobile next to the pharmacy and left the engine running. She entered the pharmacy and remained there only a few minutes. As she was returning to her vehicle, she observed it being driven off by a young man wearing a dark jacket with a beige or tan fleece collar. Her mother was still seated in the vehicle. Miller ran back into the drugstore and notified the police.
The following day, the vehicle in which the victim was abducted was found in Norton on the grounds of the Paul A. Dever School. The vehicle had been burned and was parked near several other burned vehicles. The remains of the victim's body and her personal effects were found in the trunk of the vehicle. Doctor George Katsas, a medical examiner, testified at trial that the victim was alive when the fire started and died as a result of that fire. He based his conclusion on the presence of smoke in the deep recesses of the lungs and on the level of carbon monoxide found in the blood. There was no medical evidence as to whether the victim was conscious while she was in the trunk.
On January 14, 1979, in the late evening hours, the defendant was brought to the North Attleborough police station for questioning regarding his possible involvement in the victim's death. At approximately 12:05 A.M., Bruce Gordon, a State police trooper, advised the defendant of his Miranda rights. Gordon also informed the defendant that, if he agreed to speak, the conversation would cease at any time at his request. The defendant responded that he understood his rights and was willing to speak. Gordon then presented a North Attleborough police department waiver of rights form to the defendant and asked him to read it. After the defendant finished reading the form, Gordon asked him whether he understood it. The defendant responded affirmatively and signed the form as Gordon requested him to do. 1 In addition to signing his name, he was asked to write on the waiver form that he was a "homicide" suspect, which he did. Gordon questioned the defendant for approximately ten to fifteen minutes. The defendant admitted that on the morning of January 12, 1979, he was standing in front of Haskins Pharmacy but denied any role in the kidnapping and death of the victim.
Gordon then asked the defendant, who had not yet been placed under arrest, whether he was willing to accompany the police officers to the Norton police department for further questioning. The defendant agreed to go with them. During the trip to the Norton police department, which lasted approximately twenty minutes, the defendant sat in the rear of an unmarked police cruiser with Detective Brugliera while two State police troopers sat in the front seat. No questioning occurred during this trip.
Once at the police station, Detective Brugliera sat alone with the defendant and inquired whether he understood his Miranda rights as previously given and whether he was still willing to speak with him. The defendant responded affirmatively to both questions. Brugliera also told the defendant that he did not have to speak, and the defendant responded that he understood that and was still willing to speak. Brugliera then confronted the defendant with evidence implicating him in the crimes, including the facts that the defendant's father saw him standing in front of the pharmacy on January 12, that the man whom the victim's daughter had seen drive off with her mother wore a coat similar to that of the defendant, and that the defendant was familiar with one of the burned vehicles found on the school grounds.
The defendant made incriminating statements. He stated that he was standing in front of the pharmacy when he observed a vehicle with its engine running parked next to the pharmacy. After the driver left the vehicle and entered the pharmacy, he approached the vehicle, opened the door, and entered. As he started to shift the vehicle into gear, he heard a woman say, "You're in the wrong car." He turned toward the passenger seat and saw a woman, seated next to him, whom he later learned to be Diane Dion. The defendant shifted the vehicle into reverse and drove through the pharmacy's parking lot and onto the street. The defendant stated that he continued to drive and that as he drove he spoke with the victim, who told him that she suffered from high blood pressure and had just returned from the doctor's office. As the defendant drove through the grounds of the Paul A. Dever School, the victim started to slump forward and then passed out. While the defendant was driving, the victim kept falling onto him, so he stopped the vehicle. He attempted unsuccessfully to revive her using mouth-to-mouth resuscitation. He then removed grocery bags from the vehicle's back seat and placed the victim there.
The defendant continued to drive through the school property, and at some point placed the victim in the trunk of the car. He stated that when he did so he was not certain whether she was dead or alive. He then drove the car onto a cart path area. He parked the vehicle to the right of two burned vehicles, which he already knew were there. He then removed papers from the glove compartment and a blanket from the front seat, and placed them on the back seat. He set the blanket and papers on fire and remained at the scene for approximately five minutes until the vehicle became engulfed in flames. He then left the area and returned home.
After speaking with Brugliera, the defendant, at approximately 2 A.M., gave a similar statement to Lieutenant Clarkson of the State police. The defendant stated further, however, that he had gone to the pharmacy to steal an automobile to go "joy-riding."
A short while later the defendant spoke with his parents. After his parents left, the defendant asked to speak with Benton Keene, the chief of police. The defendant knew that the victim was Keene's mother-in-law and wanted to tell him what had happened in his own words. The defendant then made essentially the same statement to Keene.
After the defendant spoke with Keene, the police assembled at approximately 3 A.M. to conduct a stenographic interview with the defendant. At this time Clarkson readvised the defendant of his Miranda rights, and the defendant indicated that he desired to speak with an attorney. Since the police continued the interview notwithstanding the defendant's assertion of his right to speak with an attorney, the judge suppressed the substance of this interview and did not allow its use at trial.
At trial, the defendant basically restated the information which he had given to Brugliera. He also testified that he initially took the vehicle only for a "joy ride." He stated that, after he became aware of the victim's presence in the vehicle, he became scared, began driving, panicked and, consequently, did not stop the vehicle. The defendant further stated that, after the victim became unconscious, he examined her pulse and did not believe that she was still breathing. He testified that he thought she was dead when he put her in the trunk. The defendant admitted that he had taken other vehicles for "joy rides," had subsequently stolen some of their parts, and had eventually sold these parts. He also admitted that he had burned the other vehicles located in the cart path area of the school.
1. The defendant's first argument is that the judge erred in denying his motion to suppress statements made to police officers, since the defendant had not knowingly and intelligently waived his Miranda rights. We disagree. It is clear that the Commonwealth bears a heavy burden in demonstrating that the defendant made a knowing, intelligent, and voluntary waiver of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966)....
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