Com. v. Walker

CourtUnited States State Supreme Judicial Court of Massachusetts
Writing for the CourtBefore HENNESSEY; HENNESSEY; HENNESSEY; LIACOS
Citation370 Mass. 548,350 N.E.2d 678
Decision Date24 June 1976
PartiesCOMMONWEALTH v. Terrell WALKER.

Page 678

350 N.E.2d 678
370 Mass. 548
COMMONWEALTH
v.
Terrell WALKER.
Supreme Judicial Court of Massachusetts, Suffolk.
Argued Dec. 1, 1975.
Decided June 24, 1976.

Page 682

[370 Mass. 551] Norman S. Zalkind and Eric D. Blumenson, Boston (Stephen L. Saltonstall with them) for defendant.

Newman A. Flanagan, Asst. Dist. Atty., for the Commonwealth.

Before [370 Mass. 548] HENNESSEY, C.J., and REARDON, QUIRICO, BRAUCHER, KAPLAN, WILKINS and LIACOS, JJ.

[370 Mass. 551] HENNESSEY, Chief Justice.

The defendant was tried before a jury on five indictments charging him with murder in the first degree and armed robbery, and was convicted on all five indictments. He was sentenced to life imprisonment on the murder charge and to fifteen to twenty-five years' imprisonment on each of the armed robbery indictments, the

Page 683

terms of years to be served concurrently with the life term. The defendant prosecutes these appeals under G.L. c. 278, §§ 33A--33G.

We find no error in the rulings of the trial judge, and consequently we affirm the judgments. Further, a majority of the Justices participating in this decision are of the opinion that 'justice in (this) particular case' (Commonwealth v. Geraway, 364 Mass. 168, 184, 301 N.E.2d 814 (1973) (Tauro, C.J., and Braucher, J., dissenting)) does not require that we exercise the discretion vested in us under G.L. c. 278, § 33E. 1 [370 Mass. 552] We turn now to a discussion of the defendant's numerous assignments of error seriatim.

The facts are as follows. Sometime around noon on November 30, 1973, three men with guns robbed a pawnshop on Washington Street in Boston. While the robbery was in progress, one of the armed men struggled momentarily with and killed a plain-clothed Boston police officer who happened to be inside the pawnshop at the time.

Responding to the robbery and murder, several police officers, including Detective Louis McConkey of district 2 of the Boston police department, showed the customers and employees of the pawnshop numerous photographs of possible suspects. Tentative indentifications of at least two individuals, Terrell Walker and his brother, Arnold, were obtained.

In the late afternoon of that same day Detective McConkey and a contingent of plain-clothed police officers from districts 2 and 11 sought entry into a Columbia Point housing project apartment leased to Darlene Freeman, Arnold Walker's fiance e.2 Among the officers accompanying Detective McConkey was Detective Frank Olbrys, who was aware of two out-standing warrants for the arrest of Terrell Walker.

The police officers surrounded the ground level apartment, knocked loudly on the door, and demanded entry. Although there was no immediate response from within, the police deduced that the apartment was occupied because they could hear noises emanating from inside the apartment and because someone was observed peering out a side bedroom window after peeling back the corner of a drawn shade. A passkey was obtained to facilitate the police entry, but it was not until a bolt on the inside of the apartment door was released by Ms. Freeman that the police actually found themselves inside.

[370 Mass. 553] Considerable confusion ensued. It is at least clear, however, that the defendant was asked his name and responded falsely, and that Detective Olbrys identified him as Terrell Walker and placed him under arrest. Detective McConkey took Ms. Freeman aside to find out what she might know about the pawn shop incident, while other officers fanned out throughout the apartment to gather up any remaining individuals they might discover therein. During the course of Ms. Freeman's conversation with Detective McConkey it was revealed that a gun or guns were in one of the bedrooms. Two guns were eventually recovered from a bedroom, and various other items of evidence connected with the pawnshop robbery were discovered and seized during the police occupation of the

Page 684

apartment. 3 Arnold Walker (now also under arrest) and other persons in the apartment, including Ms. Freeman and the defendant, were taken to police headquarters. From Ms. Freeman investigating officers learned the identity of two individuals allegedly involved with the defendant in the robbery and murder. Nathaniel Williams and Anthony Irving were later apprehended with the murder weapon among their possessions.

An extensive and comprehensive hearing was held before trial to consider the defendant's motion to suppress the evidence obtained by the police at Ms. Freeman's apartment. 4 The judge found that Ms. Freeman had knowlingly,[370 Mass. 554] intelligently and voluntarily consented to the police entry and presence in her apartment and that the two guns found in one of the bedrooms were found by the police in plain view. The judge further found that the defendant had been arrested on probable cause and also on the two warrants for his arrest which were outstanding. Ms. Freeman's later statements to the police, in which she inculpated Williams and Irving, were found by the judge to be the result of an intervening, independent act on her part to supply information to the police, and were not deemed to be tainted in any way by the entry and search of her apartment. We have mentioned elsewhere in this opinion the judge's disposition with regard to other items of real evidence seized at the apartment. See note 3 supra.

1. It is uncontroverted that the police had no search warrant covering Ms. Freeman's apartment.5 The paramount question then becomes, broadly, Has the prosecution carried its burden of showing the existence of some one of the ". . . few specifically established and well-delineated" exceptions to the warrant requirement? Vale v. Louisiana, 399 U.S. 30, 34, 90 S.Ct. 1969, 1972, 26 L.Ed.2d 409 (1970), quoting from Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The prosecution demonstrated, primarily through the testimony of Detective McConkey and Ms. Freeman, that the police entered her apartment and confiscated at least the two guns which were introduced in evidence as a result of Ms. Freeman's consent to that entry and search. That Ms. Freeman, as lessee of the apartment, and one on the premises at the time of the entry and search, could give a valid consent is not disputed. The issue narrows, we think, to whether, in all the circumstances, her consent to the entry and search can be said to have been freely and voluntarily given. Commonwealth v. Mendes, 361 Mass. 507, 512, 281 N.E.2d 243 [370 Mass. 555] (1972); Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Bumper v. North Carolina,

Page 685

391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

Decisions of this court and of the United States Supreme Court make it clear that 'consent freely and voluntarily given' means consent unfettered by coercion, express or implied, and also something more than mere 'acquiescence to a claim of lawful authority.' Bumper v. North Carolina, supra at 549, 88 S.Ct. at 1792. The fact that a person is not informed by the police that he has an unqualified right to refuse to consent to an entry or search is 'a factor to be taken into account' on the issue of voluntariness, but is by no means determinative of that issue. Schneckloth v. Bustamonte, supra 412 U.S. at 248--249, 93 S.Ct. 2041.

In the instant case, determined as the police were to enter the Freeman apartment, they did not utilize trickery or threats to gain entrance to the dwelling. In considering all the circumstances, we must take into account not only the conduct of the police but also the conduct and statements of persons inside the apartment prior to the police entry.

At the preliminary hearing the judge would have been warranted in finding that, after the loud knocks on the apartment door, someone inside the apartment went to a bedroom window, pulled the shade back, and informed those inside the apartment that there were 'cops' all around the building. Ms. Freeman's three children were watching television in the apartment at that time. The apartment occupants argued with the defendant, who expressed his intention not to go to jail by stating that '(t)he only way to get me is take me out of here in a pine box.' There was talk of guns by the defendant. A shootout seemed imminently possible. Ms. Freeman was frightened--not of the police, but of the defendant and what he might do to avoid arrest.

We conclude, as the trial judge did, that it was this atmosphere of tension and fear of the defendant which prompted Ms. Freeman to admit the police in the first instance. In these circumstances the judge was warranted in [370 Mass. 556] concluding that her consent was freely and voluntarily given since the only element of fear was injected by the defendant's conduct, which was unknown to the police at the time they sought entry into the apartment. In view of the limited information possessed by the police before they entered the apartment and the spontaneity of their action as the situation developed, the circumstances here are distinguishable from those in the case of Commonwealth v. Forde, --- Mass. --- a , 329 N.E.2d 717 (1975) and more closely approximate the circumstances surrounding the warrantless entry into an apartment which we recently upheld in Commonwealth v. Moran, --- Mass. --- b , 345 N.E.2d 380. There was no error.

2. We turn now to the judge's findings and rulings as to the search conducted by the police once they were inside the Freeman apartment. Two independent grounds were offered to justify the seizure of the guns which were found in one of the apartment bedrooms. On the one hand, the judge found that these guns were discovered in plain view by one of the officers who entered the bedroom to ascertain whether that room was the one from which someone had been observed peering out; on the other hand, he judge found that Ms. Freeman expressly consented to a search of the bedroom...

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203 practice notes
  • Commonwealth v. Rogers, SJC-09353 (MA 5/16/2005), SJC-09353
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 16, 2005
    ...the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548 (1968). See Commonwealth v. Walker, 370 Mass. 548, 554-555, cert. denied, 429 U.S. 943 (1976), citing Bumper v. North Carolina, supra; Commonwealth v. Sanna, supra at 97; Commonwealth v. Agu......
  • Blaisdell v. Com.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 14, 1977
    ...for the Commonwealth to come forward with affirmative evidence of sanity, see Commonwealth v. Walker, --- Mass. ---, --- - --- d, 350 N.E.2d 678 (1976) (Hennessey, C. J., and Kaplan, J., dissenting in part) (Liacos, J., concurring), it frequently can do so without relying on testimonial sta......
  • Commonwealth v. Rogers
    • United States
    • Massachusetts Supreme Judicial Court
    • May 16, 2005
    ...the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548 (1968). See Commonwealth v. Walker, 370 Mass. 548, 554-555, cert. denied, 429 U.S. 943 (1976), citing Bumper v. North Carolina, supra; Commonwealth v. Sanna, supra at 97; Commonwealth v. Agu......
  • Com. v. Hogan
    • United States
    • Appeals Court of Massachusetts
    • March 20, 1979
    ...brought adequately to the jury's attention by other questions during the course of cross-examination. See, e. g., Commonwealth v. Walker, 370 Mass. 548, ---, 350 N.E.2d 678, cert. denied 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976); F Commonwealth v. Franklin, --- Mass. at --- G, 385 N......
  • Request a trial to view additional results
203 cases
  • Commonwealth v. Rogers, SJC-09353 (MA 5/16/2005), SJC-09353
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • May 16, 2005
    ...the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548 (1968). See Commonwealth v. Walker, 370 Mass. 548, 554-555, cert. denied, 429 U.S. 943 (1976), citing Bumper v. North Carolina, supra; Commonwealth v. Sanna, supra at 97; Commonwealth v. Agu......
  • Blaisdell v. Com.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • June 14, 1977
    ...for the Commonwealth to come forward with affirmative evidence of sanity, see Commonwealth v. Walker, --- Mass. ---, --- - --- d, 350 N.E.2d 678 (1976) (Hennessey, C. J., and Kaplan, J., dissenting in part) (Liacos, J., concurring), it frequently can do so without relying on testimonial sta......
  • Commonwealth v. Rogers
    • United States
    • Massachusetts Supreme Judicial Court
    • May 16, 2005
    ...the consent was, in fact, freely and voluntarily given." Bumper v. North Carolina, 391 U.S. 543, 548 (1968). See Commonwealth v. Walker, 370 Mass. 548, 554-555, cert. denied, 429 U.S. 943 (1976), citing Bumper v. North Carolina, supra; Commonwealth v. Sanna, supra at 97; Commonwealth v. Agu......
  • Com. v. Hogan
    • United States
    • Appeals Court of Massachusetts
    • March 20, 1979
    ...brought adequately to the jury's attention by other questions during the course of cross-examination. See, e. g., Commonwealth v. Walker, 370 Mass. 548, ---, 350 N.E.2d 678, cert. denied 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 314 (1976); F Commonwealth v. Franklin, --- Mass. at --- G, 385 N......
  • Request a trial to view additional results

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