Com. v. Taylor

• Decision Date: 21 February 1978
• Citation: 374 N.E.2d 81,374 Mass. 426
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 81

374 N.E.2d 81

374 Mass. 426

COMMONWEALTH v. Lawrence D. TAYLOR.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Sept. 12, 1977.

Decided Feb. 21, 1978.

Timothy P. O'Neill, Asst. Dist. Atty. (James E. Caffrey, Sp. Asst. Dist. Atty., with him), for the Commonwealth.

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

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

QUIRICO, Justice.

The defendant was indicted for murder in the first degree, assault with intent to rob while being armed, and armed robbery. Prior to trial, the defendant filed a motion to suppress statements made by him to the police while in custody. After hearing, a judge of the Superior Court denied the motion on November 14, 1975. Thereafter, on June 1, 1976, the judge, sua sponte, held a further hearing on the motion to suppress in light of the United States Supreme Court's decision in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and on July 16, 1976, he vacated his previous ruling and allowed the defendant's motion. The Commonwealth applied for interlocutory appeal pursuant to G.L. c. 278, § 28E, and leave was granted by a single justice of this court.

This appeal presents two issues for our consideration. They are: (1) whether the Commonwealth may properly claim an appeal when it did not save an exception to the order allowing the motion to suppress, and (2) whether the judge properly allowed the defendant's motion to suppress statements made by him during a second police interrogation, conducted after the defendant, acting on the advice of counsel, had asserted his right to remain silent. We hold that the judge properly allowed the motion.

The pertinent facts found by the judge after the second hearing are as follows. At approximately 10:30 A.M. on November 18, 1974, Mr. Andrew Ketterer, a lawyer with the Roxbury Defenders Committee, met the defendant at the Municipal Court of the Roxbury District, in order to represent him in regard to his surrender on outstanding warrants. Mr. Ketterer brought the defendant to the District 2 police station for booking and requested the booking sergeant to return the defendant to court for arraignment after the booking. Mr. Ketterer then left the police station.

Detective O'Malley, who was assigned to assist in the investigation of a homicide for which the defendant was a suspect, learned of the defendant's presence at the police station, so he went there, arriving sometime after 10:30 A.M. Detective O'Malley brought the defendant upstairs to the detective room at the police station. There he gave the Miranda warnings to the defendant who indicated he understood. He then began to question the defendant concerning his whereabouts at the time of three robberies in a certain flower shop-subpostal station.

About 11:15 A.M., Sergeant Hudson and Detective McConkey arrived at the police station. Sergeant Hudson wished to interrogate the defendant in regard to a homicide so he ordered Detective O'Malley to request Mr. Ketterer to return to the station. When Mr. Ketterer arrived at the station at approximately 11:30 A.M., Sergeant Hudson told him that he wished to interrogate the defendant about a homicide on Sunnyside Street, Jamaica Plain, on October 14, 1974. The sergeant outlined some basic facts of the homicide and told Mr. Ketterer that he wanted the defendant's story.

Mr. Ketterer told Sergeant Hudson that he would not be representing the defendant on the homicide charge, but probably would on the robbery charges. (As an attorney attached to the Roxbury Defenders Committee, Mr. Ketterer could not have been appointed to represent the defendant on a homicide charge.) There were no current proceedings against the defendant in regard to the homicide. Mr. Ketterer then conferred with the defendant, out of the hearing of the police officers, and advised him that he should not make any statement about involvement in, or knowledge of, the incident. Then, while the attorney was still in the room, the defendant was asked if he wished to answer any questions about the homicide of October 14, 1974. The defendant stated that on advice of counsel he did not wish to say anything. After this response Detective McConkey said to Mr. Ketterer, who had started to leave the police station, that the defendant could change his mind and talk to the police, even though at this time he chose not to.

About five minutes after Mr. Ketterer left, there was a conversation between the defendant and Detective McConkey. During this conversation the detective placed on the desk in front of the defendant a poster containing a photograph of the defendant and of another person, giving their names and descriptions, and stating in large print: "WANTED FOR ARMED ROBBERY OF A POST OFFICE." The detective then told the defendant that he could not have been in Florida at a certain time ¹ because they had discovered his fingerprints at the scene of a flower shop-post office robbery. The defendant then responded, "I was there, but I didn't do the stabbing." Apparently in making that statement the defendant was referring to the homicide on Sunnyside Street, and not the post office robbery. Detective McConkey then asked the defendant, "Do you want to talk to us about this, even though your attorney has just advised you not to talk to us about this?" The defendant replied, "Yes, I do." The defendant was then taken to an adjoining room where a tape recorder was set up, and, after again being given the Miranda warnings, the defendant gave an incriminating statement to the police. This statement was given in the absence of Mr. Ketterer who did not return to the police station after he had advised the defendant not to discuss the case. Thereafter, the defendant was arrested, booked, fingerprinted, and photographed, and arraigned the following morning.

In his written decision after the second hearing on the defendant's motion to suppress, the judge concluded that the major issue was the effect of the recent decision in Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). The judge noted that the court in Mosley had prescribed "several crucial considerations" to be applied in a case where a defendant, after indicating that he does not want to talk, nevertheless is interrogated further and subsequently makes an incriminating statement. Foremost among such considerations is the requirement "that the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda, on whether his 'right to cut off questioning' was 'scrupulously honored.' " Michigan v. Mosley, supra at 104, 96 S.Ct. at 326, quoting from Miranda v. Arizona, 384 U.S. 436, at 474 and 479, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), respectively.

The judge found, in reviewing the circumstances leading up to the defendant's admission in the present case, that the defendant's right to cut off questioning was not scrupulously honored. In so finding, he cited the police officers' failure to cease questioning the defendant immediately when he indicated his unwillingness to answer questions, the very short time interval between the first and second interrogation of the defendant, and the "subtle" manner of questioning utilized by the police at the second interrogation in attempting to influence the defendant to talk about the homicide even though he had previously declined to answer such questions. Consequently, the judge ruled that the statements made by the defendant to the police should be suppressed.

1. Commonwealth's failure to save exception to allowance of defendant's motion to suppress. The defendant contends that the Commonwealth cannot maintain its interlocutory appeal under G.L. c. 278, § 28E, because it did not save an exception to the judge's order allowing the defendant's motion to suppress his statements to the police officers. In support of this contention he cites some of the many cases in which we have held that an alleged error in the trial of a criminal case brings nothing to this court for review unless it is based on an exception seasonably saved in the trial court. Commonwealth v. Underwood, 358 Mass. 506, 509 n. 2, 265 N.E.2d 577 (1970); Commonwealth v. Foley, 358 Mass. 233, 236, 263 N.E.2d 451 (1970); Commonwealth v. Myers, 356 Mass. 343, 346, 252 N.E.2d 350 (1969).

Neither party has been able to cite any decision by this court on the issue whether the Commonwealth is required to save an exception as a condition to maintaining an appeal from a ruling adverse to it. The absence of such a decision is no doubt due to the fact that until very recently there were very few, if any, situations in which the Commonwealth was entitled to an appeal in a criminal case. The Commonwealth's right to such an appeal was first created by G.L. c. 278, § 28E, inserted by St.1967, c. 898, § 1, and applies only in a limited number of situations.

In view of our conclusion on the issue whether the judge erred in allowing the motion to suppress, we need not decide the consequences of the Commonwealth's failure to save an exception. While we intimate no opinion on that point, it should be obvious to prosecuting attorneys that the exposure to the risks, if any, arising from such a situation are easily avoidable by seasonably saving exceptions to otherwise appealable adverse rulings.

2. Constitutionality of the second police interrogation. The Commonwealth argues that the second police interrogation, which elicited the defendant's incriminatory statements, was properly conducted pursuant to the holdings of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and that the judge's findings and rulings to the contrary were erroneous as matter of law and not supported by the evidence. In examining the Commonwealth's contentions, we adhere to the established principle that the...