Com. v. Stirk
| Decision Date | 28 August 1984 |
| Citation | 467 N.E.2d 870,392 Mass. 909 |
| Parties | COMMONWEALTH v. Gregory N. STIRK. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Steven J. Rappaport, Boston, for defendant.
Pamela L. Hunt, Asst. Dist. Atty., for the Commonwealth.
Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and LYNCH, JJ.
We granted the defendant's application for further appellate review to consider an issue that divided a panel of the Appeals Court. Commonwealth v. Stirk, 16 Mass.App.Ct. 280, 450 N.E.2d 1110 (1983); id. at 286, 450 N.E.2d 1110 (Dreben, J., dissenting in part). That issue was whether an attorney who advised the defendant prior to his confession, which was used to convict him of murder in the second degree, had such a conflict of interest that a new trial was required at which the confession would not be admissible. A majority of the Appeals Court panel accepted the trial judge's determination that there was no genuine conflict of interest.
We conclude that the defendant has failed to demonstrate that he was prejudiced by anything the attorney did or did not do, that in fact the defendant did not look to the attorney for legal advice, that he received no legal advice from the attorney, and that the defendant has made no showing that his confession was involuntary. Consequently, we need not decide whether the trial judge and the Appeals Court were correct in concluding that the attorney was not a suspect, and thus had no conflict of interest at any time he spoke with the defendant after the defendant was taken into custody. 1 We agree with the Appeals Court on the other issues argued on appeal and, therefore, affirm the judgment.
We consider first the question whether, on this record, the defendant has presented any basis for concluding that his confession was involuntary because of Mr. Sandini's involvement. We then consider separately his claim that his Miranda rights were violated. We set forth the facts leading up to the defendant's confession, giving particular attention to the involvement of Mr. Sandini. In August, 1979, a body was found in a sand pit in Hudson. Police investigation identified an old motor vehicle similar to one owned by Mr. Sandini as possibly being the motor vehicle in which the victim was seen shortly before his death. The police went to Mr. Sandini's residence where they found Sandini and the defendant, who fit a description they had received of the driver of the old motor vehicle. The police gave Miranda warnings both to Mr. Sandini and to the defendant. Further police work, including a search of Mr. Sandini's motor vehicle with his consent, led to the defendant's arrest. There was evidence from police officers that the defendant and Mr. Sandini had private conversations at various times during the questioning of the defendant. Ultimately, that day, the defendant admitted to the police that he had killed the victim, but claimed that he had acted in self-defense.
Our focus is not on the fact that the police believed that Mr. Sandini was acting as an attorney nor is our focus on whether the trial judge was correct in his conclusion that, when Mr. Sandini spoke with the defendant prior to his confession, Mr. Sandini no longer considered himself to be a suspect. We are concerned with whether the defendant was relying on Mr. Sandini as an attorney, what advice may have been given, and whether the defendant's confession was not knowingly and voluntarily made. The Supreme Court of the United States has recently said that Miranda warnings are designed to protect a person's Fifth Amendment right against self-incrimination and not a defendant's Sixth Amendment right to counsel. See United States v. Gouveia, 467 U.S. 180, 104 S.Ct. 2292, 2298 n. 5, 81 L.Ed.2d 146 (1984). In Federal constitutional terms, therefore, the question is not the possible ineffective assistance of counsel arising from an asserted genuine conflict of interest of Mr. Sandini but rather the voluntariness and hence the admissibility of the defendant's confession. Thus what Mr. Sandini said to the defendant can only be significant as it may bear on the voluntariness of the confession. We direct our attention then to the testimony of the defendant and Mr. Sandini concerning their conversations on the day of the defendant's arrest and confession.
At a pretrial hearing on the defendant's motion to suppress his confession, the defendant testified that Mr. Sandini had represented him in a previous criminal matter but that Mr. Sandini had told him that "[h]is license had lapsed." 2 Before his arrest, the defendant called Mr. Sandini to come to the police station but "he hadn't got his license back yet, so I didn't ask him to represent me."
The defendant heard Mr. Sandini tell two police officers that he came down to the police station as a friend. It is true, however, that, before the defendant's confession, one or more police officers believed that Mr. Sandini was acting as counsel for the defendant. The defendant never testified that Mr. Sandini told him to confess or that he was influenced in any way to confess because of what Mr. Sandini told him.
At trial Mr. Sandini testified that, although the investigating officers considered him to be the defendant's attorney, he told them he was not and that he had been suspended from the practice of law. He further testified that he went to the police station not to represent the defendant but "as a citizen." Following the Appeals Court's remand of the case for further findings concerning the possibility of Mr. Sandini's conflict of interest (see Commonwealth v. Stirk, 16 Mass.App.Ct. 280, 281 & n. 1, 450 N.E.2d 1110 [1983] ), Mr. Sandini testified at the remand hearing that the only private conversation he had with the defendant during the investigation occurred immediately after the police found the victim's shirt in Mr. Sandini's car. He asked the defendant whether he did "it," and the defendant said, "No." Mr. Sandini did not consider himself to be acting as an attorney, and the defendant did not ask him to act as his attorney. He said that he gave no legal advice to the defendant.
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