Com. v. Souza

• Decision Date: 11 December 1998
• Citation: 428 Mass. 478,702 N.E.2d 1167
• Parties: COMMONWEALTH v. Michael D. SOUZA.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1167

702 N.E.2d 1167

428 Mass. 478

COMMONWEALTH v. Michael D. SOUZA.

Supreme Judicial Court of Massachusetts Worcester.

Argued Oct. 6, 1998.

Decided Dec. 11, 1998.

Stephen Neyman, Boston, for defendant.

James P. McKenna, Special Assistant District Attorney, for the Commonwealth.

Before WILKINS, C.J., and ABRAMS, LYNCH, FRIED and MARSHALL, JJ.

MARSHALL, Justice.

On March 29, 1995, a jury in the Worcester Superior Court found the defendant guilty of murder in the first degree on the theories of deliberate premeditation and felony-murder. The jury also convicted the defendant of armed robbery, breaking and entering in the daytime (two indictments), unlawfully carrying a firearm, removing or defacing the firearm's serial or identification number, assault by means of a dangerous weapon (three indictments), larceny of a motor vehicle, and larceny over $250 (two indictments).

The convictions arose from events surrounding the shooting death of the chief of police of the town of Paxton, Robert J. Mortell. He was shot while pursuing three men, believed to be armed burglars, in a heavily wooded area in the town of Holden.

On April 14, 1995, the defendant filed notice of his appeal. On January 14, 1997, he filed in this court a motion for a new trial raising a single issue concerning an instruction on self-defense. A single justice transferred the motion to the trial court. On November 20, 1997, a judge in the Superior Court, who was also the trial judge, denied the motion without a hearing.

Represented by new counsel on appeal, the defendant challenges only his convictions of murder in the first degree and armed robbery. He claims error in the denial of his motion to suppress statements he gave to the police; the judge's giving of an instruction on self-defense despite his request that no such instruction be given; the judge's refusal to give a requested instruction on involuntary manslaughter; the denial of his motion for a required finding of not guilty on the armed robbery indictment; trial counsel's failure to request and the judge's failure to give instructions on lesser included offenses of armed robbery and on felony-murder in the second degree; and trial counsel's failure to object to the form of the verdict slip for the murder indictment because it did not require the jury to specify whether they found that the defendant had acted as a principal or as a joint venturer. The defendant also challenges the armed robbery conviction on the ground that it is duplicative. We affirm the defendant's convictions and see no reason to grant any relief pursuant to our power under G.L. c. 278, § 33E.

1. Facts. ¹ On the morning of February 1, 1994, the defendant and two others, Kenneth Padgett and Jamie Richards, committed two burglaries while armed with handguns supplied by the defendant. While the coventurers fled from the second burglary in a stolen van, the van collided with a city of Worcester department of public works (DPW) truck and lodged in a snowbank. A DPW crew was working nearby. The defendant and his coventurers then took the DPW truck at gunpoint. When that vehicle got stuck in the snow after a few hundred yards, they abandoned it and fled on foot.

Chief Mortell received word of the burglaries and the incident involving the city crew shortly afterward. Responding to a call for help from the Holden police, he saw three men running across a road into a thickly wooded area near the Kendall Reservoir. Leaving his car on the road, he pursued the men into the woods on foot. As he passed a bush behind which the defendant hid, the defendant shot him. Chief Mortell returned fire, and then collapsed. The defendant fired at him repeatedly, eleven times in all. The fatal shot entered the victim's left side, just under his armpit, traveled through his lungs and heart, exited his right side and lodged in the inside of his upper right arm. A second shot hit the victim while he was bent over. The defendant threw his gun into the snow and fled. The tracks in the snow suggested that the three coventurers split up near the location of the victim's body: Padgett and Richards went in one direction, the defendant went in another. The police apprehended the defendant shortly after the shooting, and apprehended Padgett and Richards the following day. ²

2. Suppression of the defendant's statements. The defendant first claims that, because of an improper inducement by the police, the waiver of his Miranda rights and his subsequent statements to the police were not voluntary and should have been suppressed. At the scene of his arrest in the woods, the defendant received Miranda warnings and indicated that he understood them. He was taken to the Holden police station, where he was first interviewed by State Trooper Robert O'Keefe and Holden Detective Albert Bourget for approximately forty minutes. At the beginning of the interview Trooper O'Keefe again informed the defendant of his Miranda rights. Trooper O'Keefe then told the defendant it was in his "best interest" to "set the record straight" and tell them what happened that day. ³ The defendant characterizes O'Keefe's statement as "unsolicited advice of a legal nature" designed to elicit a waiver of his rights in violation of Commonwealth v. Meehan, 377 Mass. 552, 564, 387 N.E.2d 527 (1979), cert. dismissed, 445 U.S. 39, 100 S.Ct. 1092, 63 L.Ed.2d 185 (1980). In Meehan, supra, we said that an officer may suggest that it would be " 'better' for a suspect to tell the truth," but that "an assurance, express or implied," that a statement "will aid the defense or result in a lesser sentence" is prohibited. Id., and cases cited. More recently, we held that an officer's suggestion that it would be in the defendant's "best interests to get out his side of the story" did not violate the prohibitions of Meehan, "and was more closely related to 'suggest[ing] broadly that it would be 'better' for a suspect to tell the truth,' which we have expressly allowed police officers to do." Commonwealth v. Raymond, 424 Mass. 382, 395-396, 676 N.E.2d 824 (1997), quoting Commonwealth v. Meehan, supra at 564, 387 N.E.2d 527.

Trooper O'Keefe's statement to the defendant is all but identical to the one at issue in Raymond and, for the reasons we explained in that case, fell within the permissible zone of questioning. Id. at 395-396, 676 N.E.2d 824. We do not agree with the defendant that the officer's statement "implicitly assures something short of a prosecution for first degree murder." The officer made no promises of any kind to the defendant, express or implied. Commonwealth v. Meehan, supra at 564, 387 N.E.2d 527.

The defendant also argues that his statements were the product of physical and psychological intimidation. We conclude that the judge's finding that the police conduct from the time of the defendant's arrest until his arraignment "was not coercive or otherwise overbearing or deceptive," is warranted by the evidence. See Commonwealth v. Raymond, supra at 395, 676 N.E.2d 824. At the Holden police station, the defendant was placed in a cell and told to remove his clothing, except his underwear. The defendant was given a blanket to cover himself, and taken to an interview room approximately eight feet by ten feet. He was seated in a chair in a corner directly across from a glass paneled door, and was handcuffed to a bar on the wall, where he remained until he was arraigned later that afternoon. The defendant points to the fact that he was questioned by a series of officers over approximately three and one-half hours. After the initial forty-minute interrogation, a Worcester detective interviewed the defendant for approximately one and three-quarter hours. ⁴ A State trooper also interviewed the defendant for approximately twenty minutes. ⁵ The judge's conclusion that the interviews, conducted in the middle of the day, were "not a stratagem designed to wear [the defendant] down" but were reasonable and investigative is fully supported: the defendant was a suspect in the murder of a police officer, and the subject of an investigation in which several local police departments and the State police were involved.

The defendant further claims that he was "humiliated" and "deprived of his dignity" because he was questioned while stripped of his clothing, handcuffed to a bar in a small room, observed in this condition by percipient witnesses and deprived of his privacy. We would not tolerate the custodial interrogation of a suspect who is nude. See Commonwealth v. Collins, 11 Mass.App.Ct. 126, 131, 414 N.E.2d 1008 (1981) (the "coercive effect of being nude during custodial interrogation is well settled"). But the defendant was not nude; he was permitted to wear his underwear and the police provided him with a blanket to cover himself. The removal of his clothing was not for coercive purposes: the police had a legitimate interest in preserving his clothing as possible evidence. The judge also made no error in concluding that the police took reasonable precautions by handcuffing the defendant to a bar: the defendant was an escape risk. ⁶ He makes no claim that the handcuffs caused him any pain, nor does he suggest that he was in any other kind of discomfort. ⁷ Five workers from the Worcester DPW arrived at the Holden police station during the interrogation and looked at him through the glass door. The judge found this was for the purpose of identifying the suspect. For the police to seek assistance in identifying a suspect in this manner is not inappropriate.

"The test for voluntariness of a confession ⁸ is 'whether, in light of the totality of the circumstances surrounding the making of the statement, the will of the defendant was overborne to the extent that the statement was not the result of a free and voluntary act.' " Commonwealth v. Raymond, supra at 395, 676 N.E.2d 824, quoting Commonwealth v. Selby, 420 Mass. 656, 663, 651 N.E.2d 843 (1995). On our own review of the...