Commonwealth v. Kenney, 972204
| Decision Date | 27 August 1998 |
| Docket Number | 972204 |
| Citation | 1998 MBAR 359 |
| Parties | Commonwealth v. Richard Kenney |
| Court | Massachusetts Superior Court |
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): Fremont-Smith
The following motions are before the Court:
1. "Motion to suppress statements and physical evidence," wherein defendant seeks to suppress statements made by the defendant prior to being provided with a Miranda warning, and to suppress the handgun which was located and seized as a result of said statements (in which it is contended (1) that defendant "was so highly under the influence of drugs that he did not waive his Miranda rights," (2) that "the second statement was forced from defendant by physical intimidation," and (3) that the police should have timely preserved a blood sample or sample of his vomit in the motor vehicle to establish his intoxication from drugs." (See memorandum in support of said motion.)
2. "Motion to suppress evidence" as a result of the police search of the suspect vehicle and premises located at 138½ Spring Street, Cambridge, on the ground that the search was conducted without a warrant, in the absence of exigent circumstances, and without the consent of the legal occupant.
3. "Motion to suppress statements," on the ground that defendant was "so deprived of his intellect by reason of the ingestion of drugs and alcohol" that he could not knowingly and voluntarily relinquish his rights that defendant was threatened and intimidated so that his waiver of Miranda rights was not voluntary, and that the police officers delayed his arraignment after arrest to permit them improperly to illicit information from him, as well as having obtained statements from him after violating his statutorily mandated right to notification as to use of a telephone.
4. "Motion for voir dire regarding identification procedure and motion to suppress identification," on the ground that out-of-court identification of defendant by the young children of the mother, who witnessed the shooting, was "unnecessarily suggestive and conducive to irreparable mistaken identification..."
5. "Motion for Voir Dire of Identification Procedures," which duplicates and renews motion No 4.
6. "Motion to dismiss," on the ground that the grand jury indicted on insufficient evidence and that the integrity of the proceedings were impaired because the indictments were obtained by an unfair and misleading presentation.
After a lengthy evidentiary hearing in regard to all except No. 6 of the above motions,1 and based upon all of the credible evidence, the Court makes the following findings, rulings and order.
On October 21, 1997, after Annie Glenn was shot by a light-skinned black male on Merrimack Street in Lowell in front of a number of eye-witnesses, including her two young children (aged 4 and 5), local police departments were notified of the suspect's description and that of the automobile in which he drove away. A traffic warden in the City of Cambridge spotted the car there, and Cambridge and State Police conducted a surveillance of the car. At approximately 1: 30 p.m., the defendant was seen walking down the street and to enter the car. He was immediately apprehended at gunpoint by Cambridge and State Police. At the time he was apprehended, before he was provided with a Miranda warning, he spontaneously exclaimed "I fucked up." As he was pat frisked, he also blurted out that the gun was in his uncle's house, located at 138½ Spring Street, Cambridge. The officers observed no blood or vomit in the car.
Defendant was then cuffed, read his Miranda rights and transported to the Cambridge police station, and was booked at 1: 40 p.m., shortly after his arrest, which the police estimated to have occurred about 1: 30 p.m.
Police officers then proceeded to 138-1/2 Spring Street and knocked. Defendant's uncle, Ronald Kenney, opened the door. When asked if he knew Richard Kenney, Ronald stated "he's my nephew, but I haven't seen him for ten years." When asked if they could come in, he told them they could come in and look anywhere they liked, as "he had nothing to hide." He then motioned them through the front door into the parlor. He then told the officers he had seen Richard at the supermarket that morning, and that Richard had returned with him to his apartment to launder his sweatsuit, on which he had vomited. While at the apartment Richard had sat in the parlor watching television the entire time until his sweatsuit was laundered (about an hour), after which he had left to get money from his car to buy cigarettes and had not returned.
While interrogating Ronald in the parlor, one of the officers noticed white sneakers nearby beside a chair, and asked Ronald who owned them. He said Richard owned them, and that he (Ronald) had loaned Richard loafers when he left. When the officer took a step around the chair to observe the sneakers, he could see, in plain sight, the handle of a handgun protruding from inside one of them. After consulting with the State Police, it was decided to procure a search warrant before the police took physical possession of the sneakers and handgun, and before they searched the other rooms of the apartment. The police remained in order to secure the house, and were at no time asked to leave by Ronald, who at all times remained cooperative.
Based on all of the credible evidence, including the testimony of Ronald Kenney (who was subpoenaed by the defendant but had to be transported with a capias to the courtroom) the Court finds, beyond a reasonable doubt, that the lawful occupant of the premises consented to the entry by the police into the parlor, where the handgun was observed in plain sight.2
In the course of defendant's booking at the Cambridge Police Station, as is shown on the police videotape, he was informed of his right to use the telephone, and explicitly declined to do so. At the booking, he was also advised again of his Miranda rights and confirmed that he understood them.
After booking, he was transported in an unmarked State Police cruiser to the Lowell police station. During the course of the transportation, none of the officers engaged in any conversation with defendant or had any physical contact with defendant other than to assist him in and out of the vehicle. Upon his arrival at the Lowell police station, he was not immediately booked there, but was once more read his Miranda rights, notified of his right to use the telephone, and notified of his right to have any statement electronically recorded. He acknowledged in writing, on a form, his understanding of each of these rights. Having then indicated a willingness to speak with the police, the Lowell police proceeded to interrogate him from about 3: 30 p.m. until 4: 45 p.m., without recording his answers electronically or in writing. During this period, the conversations were conducted in a relaxed, nonhostile atmosphere. The participants were described as having conversed at all times in a "low-key" manner.
Commencing at about 4: 45 p.m., his interrogators decided to reduce defendant's admissions to the form of a written statement, and commenced to requestion him, this time typing up his answers as he gave them. This continued, with more questions being asked and other answers being corrected by defendant, until the statement was completed and was printed out in corrected form, when it was signed by the defendant and witnessed by the officers between 8: 30 p.m. and 8: 45 p.m. The officers credibly explained the length of time all of this had required, as being due to the fact that neither of the officers who typed the statement were proficient, but typed "with two fingers." The statement (Ex. 5) is also detailed and lengthy.
During the course of this requestioning and typing of his statement, at approximately 7: 35 p.m., defendant was requested to acknowledge and did acknowledge, on a written form, that he had been informed of and received and waived his right to be arraigned in court within six hours of arrest, and of his right not to be questioned for more than six hours after arrest. This is also acknowledged on p. 4 of his written statement, just above his signature. The Court finds, beyond a reasonable doubt, that the defendant intelligently and voluntarily waived his "Rosario" rights at about 7: 35 p.m. and then continued to cooperate with the police by participating in his interrogation in excess of another hour, until his statement was completed and signed between 8: 30 p.m. and 8: 45 p.m.
Although there was testimony that defendant mentioned to the police that he had taken crack cocaine the previous...
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