Com. v. Tarver

Decision Date22 December 1975
Citation345 N.E.2d 671,369 Mass. 302
PartiesCOMMONWEALTH v. Frank TARVER.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

John P. White, Jr., Boston, for defendant.

Thomas F. Reardon, Asst. Dist. Atty. (Sandra L. Hamlin, Asst. Dist. Atty., with him), for the Commonwealth.

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

HENNESSEY, Justice.

The defendant was tried before a Superior Court judge with jury on indictments charging him with the crimes of murder, kidnapping, indecent assault and battery on a child under the age of fourteen, and carnal knowledge and abuse of a female child, one Theresa, a six-year old girl. He was found guilty as to all the indictments after a trial subject to G.L. c. 278, §§ 33A--33G. He was sentenced to death on the charge of murder in the first degree; 1 to life imprisonment on the charge of carnal abuse (to be served from and after the sentence imposed on the murder charge); and to terms of years as to the other two indictments (to be served consecutively from and after the sentences previously imposed). The case is before us on the defendant's assignments of alleged error by the trial judge.

The defendant argues that there was error in the denial of his motion to suppress from evidence certain hair samples taken from him after his arrest; in the admission in evidence of photographs, allegedly inflammatory, of the body of the deceased child; in the denial of his motion to strike certain expert testimony concerning microscopic comparison of hair samples of the defendant with hair removed from the clothing of the decedent; in the admission in evidence of a death certificate containing the word 'homicide'; in the introduction of in-court identification testimony, allegedly constitutionally impermissible, by the ten-year old brother of Theresa; in the denial of his motion to inspect grand jury minutes; in the denial of his motions for directed verdicts of not guilty as to the charges of indecent assault and battery on a child under fourteen and carnal abuse of a female child; and in the imposition of the death penalty, contrary to the principles of the Federal and State Constitutions.

There was evidence that Theresa went to see a movie at the Roxbury Cinema on April 26, 1970, accompanied by her brother Richard, who was then eight years old, and her brother Michael, who was then ten years old. The children left the theatre about 4 P.M. and events occurred thereafter, as fully described, infra, culminating in the disappearance and death of Theresa.

We conclude that there was no error, except in the imposition of the death penalty, and that the judgments are to be affirmed as modified to require the imposition of a sentence of life imprisonment in lieu of the sentence of death.

1. Samples of the defendant's hair were snipped from his head, chest, and pubic area. The defendant's motion to suppress these samples was denied by the trial judge after an evidentiary hearing. The samples, together with expert testimony concerning comparison with hair taken from the clothing of the victim, were admitted in evidence. The defendant, correctly we believe does not contend that there is any violation of the Fifth Amendment or Sixth Amendment to the United States Constitution. Rather, he makes the argument that the hair samples were taken from him in violation of the Fourth Amendment in that an unreasonable search and seizure were involved. See Schmerber v. California, 384 U.S. 757, 766--772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). There was no error.

The judge made findings of fact at the hearing on the motion to suppress the hair samples. He found, in part, that the crimes involved in the instant indictments occurred on April 26, 1970, and that Officer Daley of the Boston police department, homicide unit, on April 27, 1970, received detailed descriptions of the assailant from Theresa's two brothers. 2 Officer Daley at that time (April 27, 1970) was also aware of the fact that a sexual assault had been made against a young girl named Nadene on February 8, 1970. That assault took place in the same neighborhood from which Theresa had disappeared. The descriptions of the assailant in both cases were such that the police were of opinion that the assailant was the same in both cases, and further that the assailant was the defendant, Frank Tarver. Indictments in the case involving Nadene were returned against the defendant on the first Monday of November, 1970.

Late in November, 1970, the Boston police learned that the defendant was being held in custody in north Las Vegas, Nevada, on an unrelated charge. Officers Daley and O'Malley went to Las Vegas, and rendition proceedings were then commenced for the return of the defendant to Massachusetts. As a result of these proceedings, the defendant was brought back to Boston in the custody of the officers. The hair samples were taken promptly on his arrival at a Boston police station, in what we conclude was a valid search incident to a lawful arrest. The warrant on which the rendition was based arose out of the indictments concerning Nadene. No indictments or complaints relating to the crimes against Theresa had as yet been returned when the hair samples were taken. The hair samples were in no way related to the investigation of Nadene's case.

We accept as true the defendant's statement of a basic principle deriving from the Fourth Amendment, that as a rule, but with certain recognized exceptions to the rule, any search or seizure which is accomplished without a valid warrant is unreasonable and therefore unlawful. See Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The defendant also emphasizes, in urging that the search and seizure here were unreasonable, that the hair samples were taken when the defendant was under arrest for an unrelated crime, was without counsel, and was a prime suspect in the crimes involving Theresa.

The burden of establishing reasonableness was on the Commonwealth (Chimel v. California, 395 U.S. 752, 762, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Commonwealth v. Antobenedetto, --- Mass. ---, --- - --- a, 315 N.E.2d 530 (1974), and we believe that burden was sustained. We rely generally on the reasoning that a search incident to a lawful arrest may be valid even though accomplished without a warrant. Essentially, the defendant's argument is that the search and seizure were related to the case involving Theresa, and he was not under arrest for the crimes against her. Nevertheless, we conclude that the hair samples were properly taken in a search incident to arrest.

We recognize that the same Fourth Amendment standards of probable cause are applicable to arrests as well as to searches. Giordenello v. United States, 357 U.S. 480, 485--486, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958). In Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969), where the defendant was briefly detained by the police for questioning, without probable cause, evidence of his fingerprints obtained during the detention was excluded as the fruit of an unlawful arrest. 'Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed 'arrests' or 'investigatory detentions. " Id. at 726--727, 89 S.Ct. at 1397. Compare Commonwealth v. Bumpus, 362 Mass. 672, 674--677, 290 N.E.2d 167 (1972), judgment vacated and remanded on other grounds, 411 U.S. 945, 93 S.Ct. 1941, 36 L.Ed.2d 407 (1973), affd. on rehearing 365 Mass. 66, 309 N.E.2d 491 (1974) (where this court said that evidence obtained involuntarily from a suspect not under arrest was admissible, since the evidence was procured under a court order issued after a hearing in which probable cause for arrest of the suspect was shown), with McGowan, Constitutional Interpretation and Criminal Identification, 12 William & Mary L.Rev. 235, 242--247 (1970).

The Commonwealth argues that a search has been upheld even where the suspect was not under arrest (as in Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973), where a search for fingernail scrapings was upheld even though there was no formal arrest). We do not consider the Cupp case, or Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (where a blood sample was taken to test for alcoholic content) as entirely apposite, because of the exigency aspect present in those cases, i.e., the likelihood of imminent loss of the evidence. Rather, we prefer to rest our reasoning on the fact that the defendant was under valid arrest as to Nadene's case, and but for that fact could just as appropriately be under arrest as to Theresa's case, or as to both cases.

Of primary importance is our conclusion that the police had probable cause to believe, at the time they took the hair samples, that the defendant was guilty of the kidnapping and murder of Theresa. Thus, although the defendant was not under arrest for those crimes and indeed no complaint had issued against him as to those crimes, the police were not engaged in a catchall or random proceeding in hopes of involving the defendant in as yet unknown crimes; rather they were purposefully pursuing the investigation of specific crimes as to which strong evidence against the defendant was known to them. Cf. Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

Probable cause was made out by an unusually detailed description provided to the police by Theresa's two brothers at the time of her disappearance. They described the man who asked them to buy Pall Mall cigarettes in a nearby store, and who was with Theresa when they last saw her as they entered the store. Their description correlated in remarkable detail with the appearance and characteristics of the defendant as the police observed him when they took him in custody in north Las Vegas. There...

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