Com. v. Sirois

• Citation: 777 N.E.2d 125,437 Mass. 845
• Court: United States State Supreme Judicial Court of Massachusetts
• Decision Date: 23 October 2002
• Parties: COMMONWEALTH v. Brian J. SIROIS.

777 N.E.2d 125

437 Mass. 845

COMMONWEALTH v. Brian J. SIROIS.

Supreme Judicial Court of Massachusetts, Worcester.

Argued December 5, 2001.

Decided October 23, 2002.

James M. Doyle for the defendant.

Anne S. Kennedy, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., SPINA, COWIN, & SOSMAN, JJ.

SOSMAN, J.

The defendant was convicted of murder in the first degree on a theory of deliberate premeditation, and his motion for a new trial was denied. On appeal, he argues error in the denial of his motion to suppress his confession to the police, the trial judge's instruction on voluntary manslaughter, and the denial of his motion for a new trial without an evidentiary hearing. He also contends that trial counsel was ineffective. We affirm the conviction and the denial of the defendant's motion for a new trial, and we decline to grant relief under G.L. c. 278, § 33E.

1. Background. We recite the facts in the light most favorable to the Commonwealth, reserving certain details for discussion in conjunction with the issues raised. On September 4, 1995, the defendant shot his wife three times with a .380 caliber pistol. The couple had been married for twelve years, and lived in a home at 151 Mixter Road in Holden with their three small children. The family had been experiencing considerable financial difficulties; their debts totaled approximately $373,000, and they faced imminent foreclosure on the family home. In addition, the defendant was engaged in an extramarital affair with a life insurance agent he had met the previous winter.

Prior to the shooting, the defendant made extensive notes in his day planner on the subject of "how to disappear and start over again." The plan reflected in those notes included obtaining life insurance in amounts "not to exceed $200,000 each, or it gets too much attention." The defendant and his wife had various meetings with an insurance agent (the same agent with whom the defendant was having an affair) to go over their needs for disability and life insurance. The defendant was in favor of his wife's purchasing additional life insurance. Two months prior to the shooting, the victim purchased a $200,000 life insurance policy, naming the defendant as beneficiary.¹ That policy was delivered on August 29, 1995, one week before the shooting.

The day before the shooting, the defendant staged a break-in at the family's home. The victim reported the break-in to the police, who went to the house that evening to investigate. The defendant showed police a back window where he claimed intruders had pried off a screen and forced open the window to enter the house. Police, however, saw no indication of forced entry; the screen was only slightly bent, the window showed no signs of having been forced open, and in the lower right corner of the window, they found an intact spider web. The defendant reported that some computer equipment and a small television had been stolen. The defendant also showed police a computer processing unit and stereo equipment that he claimed to have found in the living room "packaged" by the intruders, ostensibly for later retrieval.

Early in the afternoon of the next day, Labor Day, September 4, 1995, the defendant and his three children headed out of the house to the family car parked in the driveway. The plan was to take the children to the Spencer Fair. The defendant told the children that their mother was going to stay home to "guard the house." After the children were in the car, with seat buckles fastened and playing a game the defendant went back toward the house, as if he had forgotten something. Once inside the house, the defendant fired three shots from his pistol into the head and neck of his wife. The victim had a defensive contact wound to her right hand, indicating that she had made a futile attempt to ward off the first shot as the gun was pressed against her hand. That shot went through the victim's hand and penetrated her left nostril, suggesting that her hand had been held up in front of her face. Another shot penetrated her left cheek. Another wound to the back of the neck suggested that the third and final shot was fired while the victim lay face down on the floor.

The defendant then left the house carrying a camera that he had not had with him when he went in, and drove off with the children, proceeding with his plan to take them to the Spencer Fair. On the way to the fair, the defendant stopped briefly at his vacuum cleaner repair shop in East Brookfield. While there, he hid the .380 caliber pistol in a back room behind some hoses and a box.²

The defendant and his children then spent the afternoon at the Spencer Fair, where the children rode ponies and elephants and had their photographs taken. During the several hours they were there, the children observed nothing out of the ordinary in their father's demeanor, reporting that he "seem[ed] to be having fun." At one point, when the children wanted to go for a ride on the Ferris wheel, the defendant told them they could go on the Ferris wheel with their mother "another time." While at the fair, the defendant purchased T-shirts for himself and his children. During a visit to the first aid station for a minor cut to his daughter's finger, the defendant put on one of the new T-shirts, and discarded the shirt he had worn during the shooting. The defendant telephoned his house while at the fair and left a message on the answering machine, ostensibly for his wife, saying that he would get dinner on the way home.

The defendant and his children left the fair in the late afternoon and drove to the Black and White Restaurant in Spencer. On the way to the restaurant, he told the children that he was going to call a neighbor to have her look in on their mother. At the restaurant, the defendant again telephoned his house and left another message on the answering machine. He then called a neighbor and asked her to check on his wife.³ The neighbor drove over to the defendant's house and, seeing no car in the driveway and the house doors closed, called the defendant at the restaurant and told him that she assumed his wife was either out driving or walking with friends.

The defendant then drove home with the children, becoming noticeably "red" and, "sweaty" during the drive. After parking the car in the driveway, the defendant went into the house ahead of the children, calling back out to them to get back into the car, and then yelled at them to go to the neighbor's house. The children, aware of the earlier claimed break-in, assumed that their father's distress and the order to go next door meant that there were "robbers in [their] house." The defendant called the Holden police at approximately 5:30 P.M. and in an excited voice reported that his wife was down on the floor and could not get up. A police officer arrived shortly thereafter, where he found the defendant sitting on the stairs leading into the house, hunched over the telephone and sobbing. The defendant directed the officer into the house, where the officer found the victim lying dead on the floor.

Detective Albert Bourget arrived at the scene at approximately 6 P.M. and advised the defendant of his Miranda rights. The defendant acknowledged those rights, and told Bourget that he wanted to work with the police as long as necessary to find the person who killed his wife. At approximately 8 P.M., he voluntarily accompanied the detective to the Holden police station, where he made two statements to police, discussed in greater detail below. In a statement made during the first interview, held on the night of September 4, the defendant denied any involvement in the killing of his wife. However, at a second interview with police conducted in the early-morning hours of September 5, the defendant gave a statement in which he admitted his involvement in the killing, but claimed that it had happened after he saw his wife approach him with a gun in her hand.

As part of their investigation, the police recovered the pistol that the defendant had hidden in the back of his shop. A ballistics expert confirmed that that pistol was the weapon that had fired the fatal shots. The police also found computer equipment, a small television (the same one that the defendant had reported as stolen in the previous day's alleged breakin), and the victim's pocketbook in the trunk of the defendant's car. Finally, the police recovered the defendant's shirt from the first aid station at the fair grounds, and found blood inside the right pocket.

2. Motion to suppress. Before trial, the defendant moved to suppress both his statements to the police. As to the second statement (in which he had confessed to the shooting), the defendant argued that the police failed to readvise him of his rights at the start of that second interview. The judge denied the defendant's motion, and the Commonwealth introduced both statements at trial. On appeal, the defendant does not challenge the admissibility of the first statement, but contends that his waiver with respect to the second, inculpatory statement was invalid because he should have received a "fresh administration" of Miranda warnings during that second interview when it became distinctly confrontational.⁴

The judge found that police advised the defendant of his Miranda rights three times over the course of the evening: once at roughly 6 P.M., when Bourget spoke with the defendant at the scene; again at approximately 9 P.M., just prior to the defendant's first statement; and again at approximately 2 A.M., when the defendant agreed to give police his clothes and a hair sample for testing. On each occasion, the defendant acknowledged the warnings and waived his Miranda rights. In addition, the defendant signed two Miranda waiver forms in connection with his first statement, and two search consent forms that contained the equivalent of the Miranda warnings.

Prior to the second interview, which began at...