Commw. v. Mavredakis, 030700

• Decision Date: 07 March 2000
• Docket Number: No. SJC-07801,SJC-07801
• Citation: 430 Mass. 848,725 N.E.2d 169
• Parties: (Mass. 2000) COMMONWEALTH v. EMMANUEL MAVREDAKIS
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

725 N.E.2d 169 (Mass. 2000)

COMMONWEALTH v. EMMANUEL MAVREDAKIS

No. SJC-07801

SUPREME COURT OF THE STATE OF MASSACHUSETTS

Argued November 1, 1999.

March 7, 2000

Hampden County

Robbery. Felony-Murder Rule. Evidence, Admissions and confessions, Consciousness of guilt,

Relevancy and materiality. Constitutional Law, Admissions and confessions, Waiver of

constitutional rights, Self-incrimination, Assistance of counsel, Equal protection of laws.

Practice, Criminal, Assistance of counsel, Capital case. Search and Seizure, Warrant, Probable

cause. Joint Enterprise.

Indictments found and returned in the Superior Court Department on August 25, 1995.

A pretrial motion to suppress evidence was heard by Francis X. Spina, J., and the cases were

tried before Mary-Lou Rup, J.

Donald A. Harwood for the defendant.

Thomas H. Townsend, Assistant District Attorney (Lori K. Odierna, Assistant District Attorney,

with him) for the Commonwealth.

Marshall, C.J., Abrams, Lynch, Greaney, Ireland, & Cowin, JJ.

IRELAND, J.

The defendant was convicted of murder in the first degree on the theory of

felony-murder.¹ He also was convicted of armed robbery, the underlying felony; breaking and

entering in the nighttime; and illegal possession of a firearm. On appeal, he challenges the denial

of his motion for a required finding of not guilty on the armed robbery and felony-murder

charges; the denial of his motion to suppress statements he made to the police in response to

questioning at the police station (and items subsequently seized pursuant to a warrant that was

issued, in part, based on information he had disclosed in his statements); and certain evidentiary

rulings. He seeks a new trial or a reduction in the degree of the verdict pursuant to G. L. c. 278,

§ 33E. Because we conclude that art. 12 of the Massachusetts Declaration of Rights

requires the police to inform a suspect of an attorney's efforts to contact him for purposes of

providing legal advice, the majority of the defendant's statements to the police should have been

suppressed and, accordingly, the defendant is entitled to a new trial.

1. The murder. We summarize the evidence in the light most favorable to the Commonwealth.

Commonwealth v. Nichypor, 419 Mass. 209, 210 (1994). Edward Baladinakis (Eddie) was

working the night shift on August 11, 1995, at the Kentucky Fried Chicken Restaurant (KFC) in

West Springfield. At approximately midnight, Eddie's brother, Emmanuel Baladinakis (John),

and their two friends, Carlo Siniscalchi and the defendant, arrived at the KFC to pick Eddie up

after work. Approximately twenty minutes later, the foursome drove to the Baladinakis home.

They discussed breaking into the KFC. Eddie claimed fatigue and declined to join the venture.

John and the defendant went inside the house and spoke with John's girl friend, Catherine Zayas.

John told Zayas that he, the defendant, and Siniscalchi were going to get a gun² and break into

the KFC. John, Siniscalchi, and the defendant left shortly thereafter, with Siniscalchi driving.

They arrived at the KFC at approximately 1 A.M., but saw that the lights were still on. Rather

than entering while someone was there, they went to a grocery store and bought a few items

sometime before 1:31 A.M. Returning to the KFC and seeing that nobody was there, John and

the defendant, using John's keys,³ unlocked a door to the KFC, while Siniscalchi remained in

the car.

When they entered, they found the safe open. Fearing that the night manager might return, the

defendant suggested that they leave immediately. John insisted that he wanted to get all of the

money from the safe.

Thomas Henson, the shift supervisor on duty that night, returned to the KFC after making a night

deposit. John and the defendant ran to the back of the restaurant and hid. Henson walked to the

office and turned on the light. Then, he walked to the kitchen where he was shot three times.

Despite being shot, Henson moved toward the front of the restaurant and collapsed. After he fell

to the floor, he was shot twice more.

The defendant and John took approximately $1,000 in bills and rolled coins from three cash

register drawers that were in the safe. They also took receipts, a police scanner, and a white

towel. They wiped off the surfaces that they had touched and placed the drawers in water-filled

sinks, in an attempt to remove their fingerprints. Siniscalchi was not outside waiting, so they

walked toward a pizza shop to call him. As they walked, John carried the money in a white

plastic grocery bag. On the way, they passed by Agri-Mark, a dairy processing plant. An

employee on his break saw them walking by and noticed that one of them was carrying a white

plastic bag. Several rolls of coins were discovered where the two of them had been walking.

Shortly thereafter, Siniscalchi picked up the defendant and John and they drove to the defendant's

house. The defendant hid some items in his cellar. Siniscalchi and John then went to John's

home. There, Siniscalchi and John told Eddie and Zayas what had happened. They told Zayas

that, if the police should question her, she should say that the defendant, John, and Siniscalchi

went to "Worthington Street with some girls" after they picked Eddie up from work at the KFC.

They were also instructed to tell the police that Eddie had left his gun at the KFC and was

planning to get it in the morning when he went to work.

2. The investigation and the defendant's statements to the police.⁴ Henson's body was

discovered at approximately 8:40 A.M. on August 12, 1995. On arriving at work, Eddie told

police that he had left his gun in the men's restroom, and that he had been with the defendant,

John, and Siniscalchi the night before. The police sought to locate each of these individuals in an

attempt to confirm Eddie's statement.

At approximately 8:40 P.M.,⁵ two police officers arrived at the family-owned restaurant where

the defendant worked. They identified themselves to the defendant and asked him to accompany

them to the police station. The defendant asked if it was about the murder at the KFC. When one

of the officers asked the defendant why he had asked that question, the defendant said that his

father had told him something about it. The motion judge found that the defendant went

voluntarily with the officers to the police station, and that the defendant was not a suspect at that

time. As he was leaving, the defendant asked a waitress to telephone his father so that his father

could close down the restaurant for the night.

On arriving at the station, the defendant was taken to the "drug room," a large office with a word

processor. At 8:55 P.M., the defendant was given Miranda warnings and signed a "Miranda

rights/waiver" form. At 9:07 P.M. the defendant began dictating a noninculpatory statement to an

officer who typed the statement into the computer. The interview lasted approximately twenty

minutes; because there was some trouble with the computer printer, the defendant did not sign

the statement until 9:40 P.M. Meanwhile, the defendant's father arrived at the station at

approximately 9:30 P.M. and asked to speak to the defendant. When his request was denied, the

defendant's father left the station. The defendant was not informed that his father was at the

station.

At 9:45 P.M., Eddie gave the police a statement implicating John, Siniscalchi, and the defendant

in the shooting. The motion judge found that at that time, 9:45 P.M., the defendant became a

suspect and was no longer free to leave.

Just before 10 P.M., Sergeant Paul Finnie told the defendant that he knew he was lying, and told

him that there was a witness who could place him at the scene of the crime. In response, the

defendant stated that he knew the person at Agri-Mark would be their undoing, that he had been

at the KFC, but that, if he said anything, "he'd be dead." The motion judge found that shortly

thereafter two more officers, Lieutenant Peter Higgins and Captain Daniel Murray, entered the

room. They overheard the defendant say that, if he talked, the Los Solidos gang, to which he

belonged, would kill him or his parents. Lieutenant Higgins and Captain Murray then left the

room.

Meanwhile, the defendant's relatives had retained Attorney Steven Leary to represent the

defendant. At 10:15 P.M., Attorney Leary called the police station and informed Sergeant

Ferrarini that he had been retained by the defendant's family to represent the defendant, and

asked to speak with the defendant. Sergeant Ferrarini denied Attorney Leary's request because,

after conferring with Lieutenant Higgins, he determined that the defendant had not requested to

speak with a lawyer. Although Attorney Leary demanded that the defendant not be questioned

further until he arrived at the station,⁶ the police continued their interrogation. The police did

not inform the defendant of Attorney Leary's call.

The defendant's father had also contacted a second lawyer, Steven Newman. Because Attorney

Newman was closer to the police station than Attorney Leary, it was agreed that Attorney

Newman would go to the station.⁷ Attorney Newman and the defendant's father arrived at the

station at 10:30 P.M. and asked to see the defendant. The defendant, however, was not told that

his father and Attorney Newman were there until 11:05 P.M.⁸

At approximately 10:40 P.M., while Attorney Newman was waiting downstairs, the defendant,

who, up to that point had denied involvement in the shooting, admitted his involvement. In

response to questions about who had shot the victim, the defendant stated, "We didn't mean to

shoot [the victim]," and was placed under arrest.⁹

At approximately 11:05 P.M., the defendant was informed that his father and Attorney Newman

were in the station, and he was asked whether he wished to speak to them. The defendant, who

by then was in the process of writing out...