Commonwealth v. Hampton, SJC-10000.

• Decision Date: 30 June 2010
• Docket Number: SJC-10000.
• Citation: 928 N.E.2d 917,457 Mass. 152
• Parties: COMMONWEALTHv.Lord HAMPTON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

457 Mass. 152

928 N.E.2d 917

COMMONWEALTHv.Lord HAMPTON.

SJC-10000.

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Jan. 8, 2010.

Decided June 30, 2010.

COPYRIGHT MATERIAL OMITTED

Chauncey B. Wood, Boston, for the defendant.

Helle Sachse, Assistant District Attorney, for the Commonwealth.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, BOTSFORD, & GANTS, JJ.

SPINA, J.

The defendant was convicted of the September 28, 1999, murders of a fourteen year old girl (victim) and her eight month old fetus, both on theories of deliberate premeditation and extreme atrocity or cruelty. On appeal he asserts error in the denial of his motion to suppress the statement he gave to Boston police, allegedly because they violated his right under G.L. c. 276, § 33A, to make a telephone call; and in the denial of his request to obtain criminal records of jurors after the Commonwealth obtained criminal records of four jurors and after the jury were sworn. We affirm the convictions and decline to grant relief under G.L. 278, § 33E.

1. Background. We summarize the evidence at trial on which the jury could have returned their verdicts. On September 28, 1999, the victim failed to return home. The next day her family reported her missing. On November 2, 1999, the investigation led police to a site on the grounds of the former Boston State Hospital, where they unearthed the victim's body from a grave approximately twenty-eight inches deep. The medical examiner who performed the autopsy testified that the victim died as a result of the combination of multiple stab wounds and suffocation from being buried alive. Her fetus died as a result of asphyxia, a lack of oxygen caused by the death of the victim.

Police questioned the defendant at Boston police headquarters on November 4, 1999. The defendant gave a tape-recorded statement in which he described his assistance in the killings. He said that Kyle Bryant,¹ a long-time friend, asked him to help kill the victim because Bryant was concerned that, as the father of the child she carried, he would be charged with statutory rape and face a lengthy prison sentence. The defendant told police that Bryant took him to a place on the property of the former Boston State Hospital where Bryant had started digging the grave in which he intended to bury the victim after he killed her. The defendant said he refused Bryant's request that the defendant help him dig the grave.

Later that day, September 28, 1999, Bryant gave the defendant a pillowcase containing a kitchen knife, and told him to go to the grave. The defendant told police that when he arrived, he threw the knife and pillowcase near the hole. Bryant lured the victim to the site. The defendant could hear her crying, “No, Kyle. Please. No,” but he was about twenty feet away and could not see what was happening in the dark. He denied stabbing the victim. He saw Bryant drag her through the dirt and drop her in the grave. The defendant said he pushed dirt onto the victim with his hands while Bryant jumped on her, shouting, “Hurry up and die, bitch.” The victim was gasping for air as the defendant continued covering her with dirt, now with a shovel.

The defendant recounted that he threw the shovel into some nearby bushes, and that the two men buried the pillowcase with the victim. The defendant did not know what became of the knife. Police found the shovel in bushes near the grave, and the pillowcase was recovered near the body. The knife was never found.

The defendant told police he had discussed the killings with Tracy Howard. Howard confirmed this, but testified the defendant told him he killed the victim and Bryant “was there.” Between 3 and 3:30 p.m. on November 4, 1999, the defendant telephoned April Peebles, a woman with whom he had occasionally stayed, and told her he was present when Bryant killed the victim in late September.

The defendant testified at trial. He denied any involvement in the victim's death. He said he made the statement to police because he believed that was what they wanted to hear, and he just wanted to go home. The defendant presented expert testimony that the cause of death of the victim was multiple stab wounds, with no contribution from suffocation. The parties presented experts with opposing views about whether the victim was alive when she was buried, based on the absence of insect activity in or about her body.

2. Motion to suppress. The defendant assigns error to the denial of his motion to suppress the statement he gave to police on November 4, 1999. He relies on an incident report and a booking form as irrefutable proof that he was arrested at 10:30 a.m. on November 4, and he argues that because he was neither advised of his right to use a telephone forthwith on arrival at police headquarters nor permitted to use a telephone within one hour of his arrest, in violation of G.L. c. 276, § 33A,² the statement he made beginning at 12 p.m. and ending at 12:55 p.m. on November 4 must be suppressed.

The exclusionary rule applies to intentional deprivation by police of a defendant's rights under G.L. c. 276, § 33A. Commonwealth v. Jones, 362 Mass. 497, 502-504, 287 N.E.2d 599 (1972). A defendant must show that the denial of his right to the use of a telephone was intentional. Commonwealth v. Scoggins, 439 Mass. 571, 578, 789 N.E.2d 1080 (2003). A defendant's rights under the statute are triggered by his formal arrest, not by the custodial nature of any prearrest interrogation. Commonwealth v. Rivera, 441 Mass. 358, 374-375, 805 N.E.2d 942 (2004).

When reviewing a decision on a motion to suppress we accept the motion judge's findings of fact, absent clear error. Commonwealth v. Yesilciman, 406 Mass. 736, 743, 550 N.E.2d 378 (1990). We exercise our “independent determination on the correctness of the judge's ‘application of constitutional principles to the facts as found.’ ” Commonwealth v. Haas, 373 Mass. 545, 550, 369 N.E.2d 692 (1977) S. C., 398 Mass. 806, 501 N.E.2d 1154 (1986), quoting Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).

We summarize the judge's findings of fact from the hearing on the motion to suppress. On November 1, 1999, police interviewed Bryant, who implicated the defendant, but not himself, in the killing of the victim. He led police to the grave where he thought she was buried, but it was too dark for police to do anything that night.

On November 2, the defendant appeared unexpectedly at the Area B3 police station in the Mattapan section of Boston, looking for Bryant. Detectives spoke with the defendant for approximately five hours and forty minutes. He was concerned because the victim's family accused him of killing her, and they said Bryant “ratted” him. The victim's body had been found earlier that day. The defendant denied having anything to do with her disappearance or burial. He told detectives that Bryant was concerned he might be incarcerated for statutory rape related to the victim's pregnancy. He also told detectives that Tracy Howard told him that Bryant was responsible for the victim's disappearance. After the interview he left the station.

On November 3, detectives spoke again with Bryant. He gave a statement in which he said he was present when the defendant killed the victim. Bryant was arrested for murder. The next morning Sergeant Detective Daniel Keeler telephoned the defendant's stepfather at his place of employment and said the police wanted to speak to the defendant again. The defendant's stepfather went home, where he saw detectives waiting in their car. He entered his house and told the defendant the detectives had asked to speak to him. The defendant got dressed and walked outside with his stepfather. The three detectives were Dennis Harris, James Doyle, and Paul McLaughlin. Harris asked the defendant if he would accompany them to headquarters for a further interview, and he agreed. He was not handcuffed or otherwise restrained, and he went with the detectives voluntarily. The defendant was aware of the nature of the police investigation: during his interview two days earlier, detectives had asked him if he was involved in the victim's death, and he was aware that members of the victim's family were blaming him for her death. He understood that he was not under arrest, and testified at the suppression hearing that he spoke with Harris to avoid being arrested.

At headquarters, the defendant was taken to a conference room and given the Miranda warnings at 11:07 a.m. He said he understood his rights and signed a waiver of rights form. Detective Harris conducted a “pre-tape interview” until noon, at which time the defendant agreed to give a tape-recorded statement. Detective Doyle was present. The tape-recorded interview ended at 12:55 p.m.

After completing the recorded interview, Harris sought and obtained authorization from the district attorney's office to arrest the defendant for the two murders. It is not clear precisely when after 12:55 p.m. the defendant was arrested. The judge found that the defendant “was arrested at Headquarters and transported shortly after 4 p.m. to the Area B3 station, where he was booked at 4:45 p.m.” and advised of his right to use a telephone. The judge found there was a period of more than one hour between arrest and booking, at which time the defendant was advised of his right to use a telephone, but she also found that this failure to comply with the one-hour requirement of G.L. c. 276, § 33A, was inadvertent. She further found that once the defendant was arrested, there was no further interrogation.

Although the booking sheet indicates the defendant was arrested at 10:30 a.m., the judge found that it was completed by the booking officer at the Area B3 station, and not by the detectives.³ The judge implicitly found that the incident report, which also states that the defendant was arrested at 10:30 a.m., is incorrect. Detective Paul McLaughlin, who prepared that report, testified that the...