Com. v. Stroud

• Decision Date: 17 May 1978
• Citation: 375 Mass. 265,376 N.E.2d 849
• Parties: COMMONWEALTH v. Roland S. STROUD.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 849

376 N.E.2d 849

375 Mass. 265

COMMONWEALTH v. Roland S. STROUD.

Supreme Judicial Court of Massachusetts,Hampden.

Argued Jan. 3, 1978.

Decided May 17, 1978.

Joseph F. Flynn, Boston, for defendant.

L. Jeffrey Meehan, Sp. Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and ABRAMS, JJ.

HENNESSEY, Chief Justice.

The defendant Roland S. Stroud was tried before a Superior Court jury on an indictment charging him with the murder of one Noah Dennis. The jury found the defendant guilty of manslaughter, and the judge imposed a sentence of eight to ten years at the Massachusetts Correctional Institution at Walpole.

The defendant appeals the conviction, arguing that the trial judge erred by: (1) allowing in evidence certain inculpatory statements which the defendant had made to Tennessee and Massachusetts police officers; (2) denying the defendant's motion for a directed verdict in the presence of the jury; (3) admitting in evidence certain bloodstained garments alleged to have been worn by the victim at the time of the incident; and (4) allowing trial counsel to represent the defendant without determining whether the attorney had filed an appearance in accordance with Rule 19 of the Superior Court (1954). We conclude that there was no error. Accordingly, we affirm the conviction.

The pertinent facts are as follows. On the evening of September 4, 1972, pursuant to an invitation by Dennis, the defendant and his girl friend went to Dennis's apartment for drinks. The couple arrived at the apartment building at approximately 10:45 P. M. On ascending the stairs, they saw Dennis on the landing outside his second floor apartment. There was testimony tending to show that Dennis was highly intoxicated.

Although there is conflicting evidence as to the specific details, it is clear from the record that initial verbal exchanges between Dennis and the defendant soon became hostile. Shortly thereafter, a fight ensued. The struggle continued down the staircase and into the front hallway. The defendant's last blows pushed Dennis against the front door of the building and outward onto the cement stoop.

Several bystanders testified that they observed the fight. There was evidence that Dennis appeared to be unconscious, and that he was bleeding profusely in the areas of the chest and face. Although subsequent to the fight a red-stained knife was found in the vicinity, all witnesses testified that they did not see a knife in the defendant's hand during the struggle. Nevertheless, the medical examiner testified that Dennis had suffered multiple stab wounds, and that his death resulted from a penetrating stab wound to the chest.

Immediately after the incident, the defendant left the scene. Four days later, the defendant appeared in the Greyhound Bus Terminal in Memphis, Tennessee, where, at approximately 12 P. M., he volunteered to a security guard that he had been involved in a fight in Massachusetts, and that a man had been killed. While the security guard summoned police officers, the defendant called the Holyoke police department to announce that he was giving himself up. He also called his girl friend.

At approximately 1:30 A. M., the defendant voluntarily accompanied police officers to the Memphis police department and met with one Detective James Hester. The defendant told Detective Hester that he was wanted for murder in Holyoke, Massachusetts, and that he wanted to surrender himself. Detective Hester placed the defendant under arrest and gave him Miranda warnings. At approximately 1:40 A. M., the defendant made a brief oral statement admitting that he had killed Dennis by stabbing him. ¹ At 2 A. M., after calling the Holyoke police to confirm the defendant's assertion that there was a warrant for his arrest in Massachusetts, Detective Hester offered the defendant the use of a telephone. The defendant refused.

On September 13, 1972, Officer Richard Page of the Holyoke police department arrived in Memphis to escort the defendant back to Massachusetts. At approximately 1 P. M., Officer Page met the defendant at the Shelby County jail and immediately advised him of his Miranda rights. The defendant acknowledged that he understood the warnings but did not want to make a statement.

The following day, on an airplane bound for Massachusetts, the defendant initiated a conversation with Officer Page about the incident. Officer Page reminded the defendant that the warnings he had been given the previous day still applied, and that anything the defendant said could be used against him. The defendant then told Officer Page that he had stabbed Dennis with a knife, but had done so in self-defense, thinking Dennis had a gun.

1. The defendant contends that it was error to admit in evidence inculpatory statements which were made in the Memphis police station before he was apprised of his statutory right to use a telephone. We disagree.

The relevant statutory provision, Tenn. Code Ann. § 40-806 (1975), is as follows: "No person under arrest . . . shall have his name entered on any . . . record until such time that said person has successfully completed a telephone call . . . without undue delay. One (1) hour shall constitute a reasonable time without undue delay. However, if the arrested person does not choose to make a telephone call, then he shall be 'booked' or docketed immediately."

This statute, like its Massachusetts counterpart, ² requires the police promptly to disclose to the person arrested that he has a right to make a telephone call. If the individual chooses not to exercise this right, he must be booked; if the individual desires to use a telephone, he must be permitted to do so within one hour.

The record shows that Detective Hester did not inform the defendant immediately of his statutory right to make a telephone call. There is every indication, however, that the defendant's determination to make a statement at the Memphis police station was completely voluntary. The record shows that his decision to confess was unprompted by any official conduct, and, as such, was wholly unrelated to any possible deprivation of his statutory rights. In these circumstances, there was no error in admitting the statements in evidence.

From the time he arrived at the Greyhound Bus Terminal in Memphis, the defendant's actions evidenced a consistent desire to surrender himself to Tennessee authorities and to confess his involvement in the Holyoke incident. The defendant's initial decision to speak about the incident to a security guard was an independent one, as was his decision to call the Holyoke police to notify them of his intention to surrender himself. At the terminal, the defendant fully cooperated with the Memphis police while they attempted to check his story through the National Crime Information Center in Washington, D. C. Thereafter, the defendant agreed to accompany the police to the station where he voluntarily made a statement to Detective Hester.

This was not a situation in which the police intentionally withheld the opportunity to make a telephone call until the defendant confessed. Contrast Commonwealth v. Jones, 362 Mass. 497, 503, 287 N.E.2d 599 (1972). On the contrary, the judge found that the defendant wanted to talk about the incident as soon as he was placed under arrest, and even before Detective Hester had an opportunity to warn him of his Miranda rights.

The defendant would be equally hard pressed to characterize the half-hour interval between his arrival at the police station and his opportunity to use the telephone as some sort of "incommunicado detention," contrast Commonwealth v. Jones, supra, particularly in light of the fact that he took the opportunity to inform a friend of his whereabouts just moments before he was taken to the police station. Thus, in all the circumstances, even if we assume that there was a violation of the defendant's statutory rights, there was clearly no prejudice to the defendant. ³

2. The defendant challenges the admissibility of certain inculpatory statements made to Officer Page while in an airplane bound for Massachusetts. We conclude that the statements were properly admitted.

The defendant concedes that, on the day prior to the flight, Officer Page had warned him fully of his Miranda rights. Further, the defendant makes no argument that his initial decision to remain silent was not "scrupulously honored" by the police. Cf. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Rather, the defendant contends that, on the following day, when he decided to talk about the incident, Officer Page was required to repeat the Miranda warnings in full. We do not agree.

The judge found that, on the flight to Massachusetts, it was the defendant, and not Officer Page, who initiated a conversation about the case. The record shows that the defendant was "anxious to describe his connection with the case, and did so voluntarily." It is well settled that, in these circumstances, Miranda warnings are not required at all. See Commonwealth v. Stavros, --- Mass.App. ---, --- ^a, 356 N.E.2d 706 (1976); Commonwealth v. Black, --- Mass.App. ---, --- ^b, 351 N.E.2d 859 (1976); Commonwealth v. Swenor, 3 Mass.App. ---, --- ^c, 323 N.E.2d 742 (1975). Indeed, in Miranda itself, the Supreme Court made clear that "(t)here is no requirement that police stop a person who . . . states that he wishes to confess to a crime . . . . Volunteered statements of any kind are not barred by the Fifth Amendment . . . ." Miranda v. Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966). See Commonwealth v. Frongillo, 359 Mass. 132, 135-136, 268 N.E.2d 341 (1971); Commonwealth v. Rawlins, 352 Mass. 293, 297-298, 225 N.E.2d 314 (1967).

3. At the close of the Commonwealth's case, and in the presence of the jury,...