Com. v. Smith

• Decision Date: 06 November 1997
• Citation: 426 Mass. 76,686 N.E.2d 983
• Parties: COMMONWEALTH v. Edwin F. SMITH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 983

686 N.E.2d 983

426 Mass. 76

COMMONWEALTH v. Edwin F. SMITH.

Supreme Judicial Court of Massachusetts,

Plymouth.

Argued Oct. 9, 1997.

Decided Nov. 6, 1997.

Robert L. Jubinville, Jr., Milton, for defendant.

Mary E. Mullaney, Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, GREANEY, MARSHALL and IRELAND, JJ.

MARSHALL, Justice.

A Plymouth County jury found the defendant guilty of murder in the first degree on the theory of extreme atrocity or cruelty. The victim was the defendant's girl friend. On direct appeal the defendant argues that certain incriminating statements he made to the police were not voluntary and were admitted in evidence in violation of his Federal and State constitutional protections against self-incrimination. He also claims that incriminating statements he made to his brother and sister on the afternoon following the murder should not have been admitted; and that it was error for the trial judge to rule that the Commonwealth could impeach him with evidence of certain of his prior convictions if he testified on his own behalf. Finally, he argues there are mitigating factors that should lessen the degree of guilt. We conclude that there is no basis for granting the defendant relief pursuant to our authority under G.L. c. 278, § 33E. We affirm the conviction.

1. The jury were warranted in finding the following pertinent facts. On the afternoon of May 20, 1994, the defendant and the victim went to a bar. Afterward they bought a case of beer and went to a friend's house to drink and smoke marihuana. Later, the defendant and the victim went to another bar where the defendant drank alcohol and ingested cocaine. According to the defendant, at some point the defendant went outside and saw the victim engaging in oral sex with a man. ¹ A fight ensued between the man and the defendant. The victim and the defendant then went to the defendant's apartment.

Later that night, the defendant went to two other bars on his own where he met two female acquaintances. Both women noticed scratches on his face. When asked about the victim's absence, the defendant told them that she had passed out in his apartment. Early the next morning, at approximately 3:30, the defendant joined a group of people in an apartment downstairs in his building for a brief period. When asked about the victim's whereabouts, the defendant again said that she was "home passed out."

That afternoon, May 21, at approximately 4:30, the defendant telephoned his sister. He told her that the night before he had been drinking and ingesting cocaine, that he had seen the victim having oral sex with another man, that he had fought with the man, and that he had fought with the victim when they returned to his apartment. He told his sister that he had choked the victim. He asked his sister to turn him in to the police, which she attempted to do: she went to the Bridgewater police and gave them the defendant's address.

Also that afternoon, the defendant went to the home of one of his brothers, and told him that he had had a fight with his girl friend, that he had not seen her since the night before, that he was afraid that something was wrong with her, and that the victim was at his apartment. The defendant's brother flagged down a Brockton police officer and he then directed the officer to the defendant's apartment, where he let him in. This occurred at approximately 6 P.M. on May 21. The officer discovered the victim's body in the bedroom. At trial, the evidence showed that the victim died as a result of manual strangulation. The victim had a black eye and bruises across the front of her neck and on the left and right sides of her neck. There was evidence that a fight had occurred in the bedroom.

At 6:10 P.M. on May 21, the defendant walked into the Brockton police station, alone. Police officers at that station had just learned about the murder from the Bridgewater police, and had also learned about the Brockton officer's discovery of the victim's body.

2. After his arrival at the Brockton police station, the defendant made incriminating statements to the police. He argues on appeal that those statements should have been excluded at trial because he did not receive a legally sufficient Miranda warning, and because his statements were not made voluntarily. Prior to trial, the defendant did not move to suppress the statements. However, at trial and prior to the testimony of two Brockton police officers, the judge appropriately conducted a voir dire at which the defendant and the two officers testified. We describe their testimony about the circumstances surrounding the statements, ² and the evidentiary rulings relating to them.

When the defendant presented himself at the Brockton police station, he stated to the desk officer, "I believe you or the police are looking for me." The desk officer asked him in regards to what situation were the police looking for him. The defendant responded, "For the murder on Warren Ave." The desk officer, who acknowledged this statement was unusual, escorted the defendant to the office of his patrol supervisor, Sergeant Lon L. Elliott, and told him what the defendant had said. Sergeant Elliott, who at that time did not know the suspect's name, asked the defendant what he was doing at the station, and the defendant responded that he was there to "confess" about the murder of "his girl friend down at 664 Warren Avenue." Another officer later joined Sergeant Elliott. Sergeant Elliott testified that he immediately gave the defendant Miranda warnings, from memory, and that the defendant told him that he understood his rights.

Sergeant Elliott said he then asked the defendant what had happened. The defendant confessed to the murder and said that he had had an argument with his girl friend, that he had strangled her, and he recounted his activities after the strangulation. When asked whether he was using drugs, the defendant responded that he had been using cocaine and alcohol, and was "all fucked up." The defendant was unrestrained throughout the interview, which lasted no more than ten minutes. The defendant was then formally arrested. He was advised of his Miranda rights a second time, and he refused to answer further questions.

The defendant testified on voir dire that he did not remember receiving Miranda warnings, that he in fact did not remember any of the statements he made to the police, and that he was confused and intimidated by the officer's questions. The defendant admitted that he drove the victim's car to the police station and that he wanted to go to the police station in order to speak to the police. The defendant remembered that the detailed personal information written on the booking sheet was accurate, and also remembered speaking to his sister and brother earlier that same day. Sergeant Elliott testified that he smelled alcohol on the defendant's breath and noticed that his eyes were red, but that the defendant's speech was not slurred, he was responsive to questions, and he was able to walk without staggering. The desk officer said the defendant appeared calm and relaxed and that he did not see any signs that the defendant was intoxicated.

At the conclusion of the voir dire, the judge ruled that the defendant was not in custody when he made the incriminating statements to the police. She also ruled that the Commonwealth had demonstrated beyond a reasonable doubt that the defendant made his statements freely and voluntarily.

"In reviewing a judge's determination regarding a knowing waiver of Miranda rights and voluntariness, 'we grant substantial deference to the judge's ultimate conclusions and we will not reject a judge's subsidiary findings if they are warranted by the evidence.' " Commonwealth v. Rodriguez, 425 Mass. 361, 364, 682 N.E.2d 591 (1997), quoting Commonwealth v. Mandile, 397 Mass. 410, 412, 492 N.E.2d 74 (1986). Nevertheless, we "independently review[ ] the correctness of the judge's application of constitutional principles to the facts found." Commonwealth v. Mello, 420 Mass. 375, 381 n. 8, 649 N.E.2d 1106 (1995).

We consider first the judge's conclusion that the defendant was not in custody when he made the incriminating statements to the police. In Commonwealth v. Jung, 420 Mass. 675, 651 N.E.2d 1211 (1995), we described four factors that bear on the question of whether a defendant is in custody or otherwise deprived of his freedom in any significant way: "(1) the place of the interrogation; (2) whether the investigation has begun to focus on the suspect, including whether there is probable cause to arrest the suspect; (3) the nature of the interrogation, including whether the interview was aggressive or, instead, informal and influenced in its contours by the suspect; and (4) whether at the time the incriminating statement was made, the suspect was free to end the interview by leaving ... as evidenced by whether the interview terminated with the defendant's arrest." Id. at 688, 651 N.E.2d 1211, quoting Commonwealth v. Bryant, 390 Mass. 729, 737, 459 N.E.2d 792 (1984). In this case, the defendant came to the police station on his own accord and announced to the police at the outset that he understood they were looking for him for the murder on Warren Avenue. Shortly after that, he told Sergeant Elliott that he was there to confess about the murder on Warren Avenue. We agree with the judge that the defendant was not in custody when he made these initial statements. When the defendant arrived at the Brockton police station the police had some information about the murder, but did not know that this particular person was a suspect. ³

However, after the defendant told the police that he was there to confess to the murder of his girl friend, given the information the police already had received about the murder, we conclude that if he had wanted to leave at that point, he would not have been free to do so. ⁴ Sergeant...