Commonwealth v. Conkey

• Decision Date: 30 July 1999
• Citation: Commonwealth v. Conkey, 430 Mass. 139, 714 N.E.2d 343 (Mass. 1999)
• Parties: COMMONWEALTH v. CRAIG W. CONKEY.
• Court: Supreme Judicial Court of Massachusetts

430 Mass. 139

714 NE 2d 343

COMMONWEALTH v. CRAIG W. CONKEY.

Supreme Judicial Court of Massachusetts, Middlesex.

April 6, 1999.

July 30, 1999.

Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, MARSHALL, & IRELAND, JJ.

Matthew A. Kamholtz for the defendant.

Eileen M. O'Brien, Assistant District Attorney, for the Commonwealth.

WILKINS, C.J.

The defendant was convicted of murder in the first degree on all three possible bases, deliberate premeditation, extreme atrocity or cruelty, and felony-murder. The jury also found him guilty of armed burglary, armed assault in a dwelling, and armed robbery. We reverse his convictions.

During the night of December 3-4, 1994, Mary Lou Sale was killed in her home on Massachusetts Avenue in Lexington. The defendant lived four houses away on the same side of the street. When the victim failed to appear at work on December 5 and 6, fellow workers called the Lexington police. The police found Sale's partially clothed body on the floor of her bedroom with lacerations to her head and a nylon stocking around her neck. A pane of glass on the back door had been broken, and several items of personal property were missing and never recovered. The victim died from asphyxiation and multiple blunt force trauma to her head.

The police investigation first turned to the victim's landlord but expanded to a neighborhood canvass. The police spoke with the defendant, who on two occasions denied knowledge of the victim or of the murder. During the second interview, the defendant agreed that on the next day he would furnish a full set of his fingerprints, but he never appeared at the Lexington police station to do so.

On December 29, 1994, using a set of the defendant's fingerprints obtained from another source, the police made a match between a latent fingerprint on the victim's bedroom door and the defendant's left ring finger.¹ That night a State trooper and a Lexington police lieutenant interviewed the defendant at his residence. The defendant insisted that he did not know the victim and was certain that he had never been inside the victim's house. Then, after receiving Miranda warnings and advice from the police officers that they had evidence that he had been in the victim's home, the defendant ultimately admitted that he had been in the victim's home during the night of December 3-4, 1994, that he had seen and touched the victim, but that she was already dead. He said that, while on a walk, he had heard a woman scream. He broke a glass panel in the rear door of the house from which he heard the scream, unlocked the door, and entered the house. He saw the victim's body on a bedroom floor and felt for a pulse. He picked up a telephone to call the police but changed his mind and left.² All but one issue raised on appeal concerns challenges to the trial judge's rulings on evidence.

After discussing the reason for our reversal of the defendant's convictions, we discuss issues relevant to the defendant's retrial.

1. The defendant challenges the judge's ruling that allowed the Commonwealth over objection to introduce evidence of the defendant's initial assent and subsequent failure to appear for fingerprinting. During an interview with a Lexington police detective, the defendant agreed that he would come to the Lexington police station to provide a complete set of finger and palm prints on the day following the interview. He appeared neither on the next day nor at any time thereafter. The Commonwealth contended in its closing argument that the defendant's failure to appear and provide finger and palm prints showed the defendant's consciousness of guilt. The defendant maintained consistently before and during trial that admission of evidence of his failure to provide prints would violate his right, under art. 12 of the Massachusetts Declaration of Rights, not to be compelled to furnish evidence against himself. We agree that the admission of evidence of his failure to appear to provide prints violated his art. 12 rights.

We have recognized that evidence of certain conduct of a defendant is admissible because it warrants an inference of consciousness of guilt. See Commonwealth v. Carrion, 407 Mass. 263, 276-277 (1990); Commonwealth v. Toney, 385 Mass. 575, 583 (1982). We have also recognized that evidence of a defendant's refusal to comply with a police request may not be admitted because in so refusing a defendant furnishes evidence against himself, and admission of that evidence would violate art. 12. See Commonwealth v. Hinckley, 422 Mass. 261, 264 (1996) (refusal to turn over sneakers); Commonwealth v. McGrail, 419 Mass. 774, 778-779 (1995) (refusal to take field sobriety test); Commonwealth v. Lydon, 413 Mass. 309, 314-315 (1992) (refusal to submit to hand swabbing for evidence of gunpowder residue). See also Opinion of the Justices, 412 Mass. 1201, 1208-1211 (1992) (statute making admissible evidence of refusal to submit to breathalyzer test would violate art. 12).³ In such cases, a defendant is compelled to choose between two alternatives, each of which might produce evidence against him: comply with the request and provide potentially incriminating real evidence or refuse the request and have incriminating testimonial evidence of the refusal admitted at trial. Id. at 1211.

There are two significant aspects to the prohibition in art. 12 that a person not "be compelled to accuse, or furnish evidence against himself." First, the evidence must have a testimonial aspect. See Commonwealth v. McGrail, supra at 777. If evidence sought is real or physical evidence, such as hair and blood samples, voice exemplars, fingerprints, lineups, sobriety tests, or breathalyzer tests, art. 12 does not protect a person from having to provide such evidence. See Commonwealth v. Blais, 428 Mass. 294, 299-300 n.3 (1998); Commonwealth v. Lydon, 413 Mass. 309, 313-314 (1992); Opinion of the Justices, supra at 1208-1209. Although the production of such evidence is compelled, it is not testimonial and hence is not subject to art. 12 protection. Commonwealth v. Blais, supra at 300. By contrast, conduct offered to show a defendant's state of mind is testimonial. See Commonwealth v. Brennan, 386 Mass. 772, 778 (1982). Conduct evidence admitted to show consciousness of guilt is always testimonial because it tends to demonstrate that the defendant knew he was guilty. See, e.g., Commonwealth v. Fernandes, 427 Mass. 90, 94 (1998) (threat or intimidation of potential witness); Commonwealth v. Sherif, 425 Mass. 186, 199 (1997) (attempt to commit suicide); Commonwealth v. Hinckley, supra at 264 (refusal to turn over physical evidence); Commonwealth v. McGrail, supra at 778-779 (refusal to take field sobriety test); Commonwealth v. Jackson, 417 Mass. 830, 843 (1994) (destruction of evidence); Commonwealth v. Carrion, 407 Mass. 263, 276-277 (1990) (flight and altered appearance); Commonwealth v. Basch, 386 Mass. 620, 624 (1982) (false statements). The second consideration under art. 12 is whether the State compelled the production of the testimonial evidence. See Commonwealth v. Brennan, supra. In instances of a false alibi, fleeing the vicinity of the crime, or making false exculpatory statements, for example, compulsion is absent, and art. 12 does not bar the admission of such evidence.⁴ If, however, as we have said, the defendant's conduct is testimonial and if the police, by their request, force the defendant to choose between two potentially inculpatory alternatives, the defendant's refusal to comply with that request may not be introduced against him over objection without violating art. 12. See Commonwealth v. Hinckley, supra; Commonwealth v. McGrail, supra; Commonwealth v. Lydon, 413 Mass. 309, 314-315 (1992).

Evidence of a defendant's outright refusal to provide fingerprints to the police may not be admitted as evidence of consciousness of guilt because, as we have just discussed, art. 12 forbids it. This case involves such a refusal. The fact that the defendant first agreed to provide prints and then failed to do so does not eliminate the compulsion. The defendant had only two alternatives, each of which could be adverse to his interests. Because there was governmental compulsion, admission of evidence that the defendant did not appear at the police station to be fingerprinted violated his art. 12 rights. The error cannot fairly be said to have been harmless.

2. Certain statements that the defendant made to police were not obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and, therefore, are admissible against him.

On December 29, 1994, police matched a fingerprint of the defendant to a latent fingerprint found in the victim's bedroom. At approximately 8 P.M. the same day, State Trooper Sennott and Lexington police Lieutenant Corr, dressed in plain clothes, went to the defendant's home. The defendant's landlord directed them to the defendant's room on the third floor. The officers knocked on the door and the defendant said, "Hello, come in." The officers identified themselves and, noting that the defendant was undressed, asked him to get dressed. The defendant shut the door and reopened it after about thirty seconds, now dressed, and invited the officers into his room. For about ten minutes, and without giving the defendant Miranda warnings, the officers asked the defendant questions about the victim and whether he had ever been in her home. After the defendant had repeatedly stated he had never been in her home, the officers gave the defendant Miranda warnings. Subsequently, the defendant stated that he had indeed been inside the home on the night of the killing, but that the victim was already dead when he arrived.

The defendant asserts that the initial encounter was custodial and that that interrogation violated his Miranda rights. When a defendant is in custody, any statement by the defendant elicited by police interrogation is inadmissible unless it is preceded by Miranda warnings....