Commonwealth v. Gentile
Citation | 773 NE2d 428,437 Mass. 569 |
Parties | COMMONWEALTH v. MICHAEL P. GENTILE. |
Decision Date | 20 August 2002 |
Court | United States State Supreme Judicial Court of Massachusetts |
Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, & COWIN, JJ.
Robert S. Sinsheimer for the defendant.
Gail M. McKenna, Assistant District Attorney, for the Commonwealth.
The defendant was convicted by a jury of murder in the first degree on theories of deliberate premeditation, extreme atrocity or cruelty, and felony-murder (with aggravated rape as the predicate felony). On appeal, he claims that (1) the judge erred in failing to allow his motion to suppress evidence because (a) his truck and clothing were unlawfully seized; and (b) a warrant later issued to search the truck was not supported by probable cause; and (2) the prosecutor's closing argument was improper. The defendant also requests that we exercise our extraordinary power under G. L. c. 278, § 33E, to order a new trial. We affirm the conviction and decline to exercise our power under G. L. c. 278, § 33E.
1. Facts. We outline as general background the following facts which the jury could have found. On July 11, 1999, the victim went biking in the Sagamore Recreational Area on Cape Cod. When she was unable to start her automobile to return home, she accepted a ride with the defendant in his truck. The defendant agreed to drive her to the Carlton House in Brockton where she planned to meet her mother and stepfather at about 9 P.M. The victim never arrived at that location and was never heard from again. Her body was discovered eight days later in a swampy section of Pembroke. She had been raped and murdered. Cellular telephone records and procedures indicated that the defendant placed a telephone call from Pembroke shortly after 9 P.M. on the evening of the victim's disappearance. The defendant made incriminating statements to a friend and to his sister. A mixture of the victim's blood and the defendant's semen was discovered on a tarpaulin in the cab of the defendant's truck, as well as on the victim's bathing suit.
2. Motion to suppress. We summarize the relevant facts as found by the motion judge, supplemented by uncontested testimony from the motion hearing. The victim's mother, father, and stepfather reported to the Brockton police at about 12:30 A.M. on July 12, 1999, that the victim was missing. They informed the police that when the victim was unable to start her car to return home from biking on Cape Cod, she telephoned her mother and stepfather at approximately 7 P.M. using a man's cellular telephone. The man had attempted to repair the victim's car, and, when unsuccessful, telephoned a friend who also attempted to repair the car, but was unable to do so. The man who originally offered to help the victim gave her a ride. During a series of telephone calls, all made on the man's cellular telephone, the victim told her mother that the man would drive her to the Carlton House in Brockton. Her mother and stepfather arranged to meet her there at 9 P.M. The last call from the victim was received at about 9 P.M. The victim said that she would telephone again when she was closer to Brockton. The victim did not telephone again and did not arrive at the Carlton House as planned. The victim's mother reported that the victim normally telephoned twice a day and that, if the victim were in trouble, she would call her mother if possible. Her parents also stated that when the victim did not arrive as scheduled, they telephoned the cellular telephone (the victim had given them the number) but no one answered.
In speaking with the owner of the cellular telephone, Robert Shaw, the police discovered that the telephone was in the possession of the defendant, an employee of Shaw. They learned the defendant's personal identifying information; that the defendant called Shaw at 9 P.M. on July 11 and told him that he was unable to report to work because his truck had broken down in Boston; and that the defendant had previously been accused of stalking and making obscene telephone calls to a woman. The police attempted unsuccessfully to locate the defendant at his home and various other locations. They also were unable to reach him on his cellular telephone.
Learning that the police were looking for him, the defendant went to the Bourne State police barracks at approximately 7 A.M. and spoke with Sergeant Alan Garcia. The defendant refused to enter the barracks and stated that they could speak in the lobby. After the defendant was given his Miranda rights, Garcia asked whether he knew the victim's whereabouts. The defendant described the victim's car troubles and stated that he eventually agreed to give her a ride to Brockton and that she had purchased ten dollars of gasoline for his truck. The defendant claimed that he became lost, believed he was running low on gasoline, and dropped the victim off in Kingston between 8 and 10 P.M. The defendant refused to identify his friend who helped him with the victim's car. He also stated that he and the victim had smoked marijuana together and claimed that, after dropping off the victim, he went to the Plymouth bus station where he slept all night. The officer asked the defendant for permission to look inside his truck. The defendant agreed and opened the driver's side door and stated, "See, look," and slammed the door shut. The defendant repeated this action with the rear hatch covering the truck. The officer then asked if he could search the truck; the defendant refused, stating that he had a "pot pipe" in the truck and could be arrested. At approximately 9 A.M., the defendant asked if he could leave the barracks and was told that he was free to leave, but that the truck had to remain. The defendant went to the truck, locked the doors, and slammed them shut. He stated that if the police wanted to get inside, they would have to break into the truck.
Sergeant William Burke arrived at the Bourne barracks at 9 A.M. to supervise the investigation. After contacting his attorney on his cellular telephone, the defendant refused to give a statement to Burke. Burke told the defendant that he was free to leave but that his truck needed to remain at the barracks. The defendant asked if he could remove something from the truck and was told that he could not. When the defendant was informed that the police were going to obtain a search warrant for the truck, the defendant stated that he would wait, and asked Burke what they were going to find in the truck. Burke responded that they would find out whether something bad had happened to the girl in the truck. The defendant did not respond, but closed his eyes and dropped his head. The defendant told Burke that a person cannot be reported missing until after twenty-four hours elapsed. Burke remarked that the defendant watched too much television and that a person could be reported missing at any time. The defendant then said,
Another State trooper pointed out to Burke a discoloration on the defendant's pants. Burke then noticed a scabbed gouge on the defendant's right bicep and a scratch that looked red and fresh. At approximately 5 P.M., the defendant stated that he wanted to leave and was told that he was free to leave, but the police were going to take his clothes. The defendant was given a change of clothes and then left the barracks. Search warrants were obtained for the defendant's truck and clothing. In reviewing a ruling on a motion to suppress evidence, we accept the judge's subsidiary findings of fact absent clear error. The weight and credibility to be given testimony is for the judge. See Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990), and cases cited. "[W]e give substantial deference to the judge's ultimate findings and conclusions of law, `but independently review[] the correctness of the judge's application of constitutional principles to the facts found.'" Commonwealth v. Eckert, 431 Mass. 591, 593 (2000), quoting Commonwealth v. Magee, 423 Mass. 381, 384 (1996).
When the defendant stated that he wished to leave the barracks, the police told him that he was free to leave, but that he could not take his truck with him. The defendant argues that this warrantless seizure of his truck was unconstitutional. Warrantless seizures are permissible in certain circumstances. With probable cause, the police may seize property "to prevent destruction or removal of evidence during the relatively short period of time needed ... to obtain a search warrant." Commonwealth v. Taylor, 426 Mass. 189, 195 (1997). Commonwealth v. Martino, 412 Mass. 267, 275-277 (1992) ( ). Commonwealth v. Cast, 407 Mass. 891, 895-896 (1990), quoting Draper v. United States, 358 U.S. 307, 313 (1959). "The officers must have entertained rationally `more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt.'" Commonwealth v. Santaliz, 413 Mass. 238, 241 (1992), quoting Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 45 (1989). "The test is an objective one." Commonwealth v. Santaliz, supra,
and cases cited.
The police seizure of the truck was grounded firmly in probable cause to believe that evidence that the defendant kidnapped or otherwise harmed the victim might be found in the truck. By 9 A.M., the police knew that a young woman who normally telephoned her mother at least twice a day and was in continuous telephone contact with her mother and stepfather immediately prior to her disappearance was missing and had not spoken with...
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