Commw. v. Scott, 110999

• Decision Date: 09 November 1999
• Docket Number: No. SJC-07508,SJC-07508
• Citation: 430 Mass. 351,718 N.E.2d 1248
• Parties: (Mass. 1999) COMMONWEALTH v. GARY L. SCOTT
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

718 N.E.2d 1248 (Mass. 1999)

COMMONWEALTH v. GARY L. SCOTT.

No. SJC-07508

SUPREME COURT OF THE STATE OF MASSACHUSETTS

Argued September 13, 1999.

November 9, 1999

Essex County

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

Constitutional Law, Admissions and confessions, Assistance of counsel. Evidence, Admissions and confessions, Credibility of witness. Practice, Criminal, Admissions and confessions, Motion to suppress, Voluntariness of confession, New trial, Assistance of counsel, Capital case.

Indictments found and returned in the Superior Court Department on May 18, 1994.

A pretrial motion to suppress evidence was heard by Charles M. Grabau, J.; the cases were tried before Margot Botsford, J., and a motion for a new trial was heard by her.

Robert S. Sinsheimer for the defendant.

Deirdre L. Casey, Assistant District Attorney, for the Commonwealth.

ABRAMS, J.

Convicted of murder in the first degree based on felony-murder¹ and extreme atrocity or cruelty, the defendant appeals. He also appeals from the denial of his motion for a new trial. Represented by new counsel on appeal, the defendant challenges the admission of certain statements in evidence. He also argues that he is entitled to a new trial because he was denied effective assistance of counsel. For the reasons stated in this opinion, we affirm the defendant's convictions of murder in the first degree and armed robbery. We also affirm the order denying a new trial. We decline to exercise our power under G. L. c. 278, § 33E, in the defendant's favor to order a new trial on the conviction of murder in the first degree or to enter a verdict of a lesser degree of guilt.

1. Facts. A jury could have found the following. On April 11, 1994, the defendant, Gary Scott, checked into the Hampton Inn in Lawrence. During his stay, he consumed heroin and cocaine. He also attempted to commit suicide by overdosing on drugs, cutting his wrists, and electrocuting himself. After his suicide attempts failed, the defendant decided to rob the Hampton Inn to obtain more funds. He staked out the inn's security precautions on two successive nights and purchased a large knife at a local department store.

On April 21, the defendant went to the hotel lobby brandishing a knife. He demanded that the victim, the night manager, give him money. The defendant then led the victim to the lobby elevator. On the way to the elevator, the victim ran down the hall toward the exit doors. The defendant caught the victim and stabbed him several times. The defendant took the victim back to his room and tied him up. The defendant left the room, walked to a nearby restaurant, and called a taxi to take him to an area in Lawrence known to be frequented by drug users. The victim died from the stab wounds in the defendant's motel room.

2. Motion to suppress. After the defendant's arrest, he gave a detective a statement concerning the murder. Prior to trial, the defendant filed a motion to suppress all statements he made to police officers. The judge issued a memorandum denying the defendant's motion to suppress. We summarize the judge's findings of fact on that motion.

On April 24, at approximately noontime, the defendant was arrested in Lynn for the murder of Randy Cote, the night manager at the Hampton Inn in Lawrence, on April 21. Before he said anything to the police, the defendant was advised of the Miranda warnings.² The defendant asserted his right to remain silent. On arrival at the Lynn police station, the defendant was again advised of the Miranda warnings. The defendant again exercised his right to remain silent.

At approximately 3 P.M., the defendant was brought to the Lawrence police station, where he was placed in a holding cell. At approximately 5 P.M., the defendant called out to an officer who was passing through the cell area that he wanted to confess to a murder. The officer immediately informed a supervisor of the defendant's request. Approximately one and one-half hours later, the officer returned to the cell area to deliver food to the detainees and the defendant again expressed his desire to confess. The officer informed the defendant that he was not involved with the investigation, but that he would communicate with an officer who was investigating the Lawrence murder.

Subsequently, that officer and his supervisor went to the defendant's cell. After ascertaining that the defendant wanted to talk, the supervisor again advised the defendant of the Miranda warnings. The defendant stated that he understood each of these rights. The officer then asked the defendant to wait for the investigating officers.

Two investigating officers then arrived at the defendant's cell and identified themselves. They asked the defendant whether he wanted to speak to them, and the defendant said that he did. They asked the defendant if he wanted an attorney, and the defendant said that he did not. The officers brought the defendant to an office upstairs. The judge found that one of the officers "recited the Miranda rights to [the defendant], by reading each right individually from a form. After reading each sentence, [the officer] asked [the defendant] if he understood. [The defendant] responded in the affirmative each time, and he signed the form." The defendant then confessed to an unrelated murder in Pawtucket, Rhode Island.³ Thereafter, the defendant confessed to the murder at the Hampton Inn.

During the confession, which lasted approximately three hours and fifteen minutes, one of the officers took fourteen pages of notes while the defendant spoke. The defendant was permitted to take four or five breaks to use the bathroom, to smoke cigarettes, to eat, and to drink coffee. The defendant gave his statement in narrative form. The defendant controlled the sequence of his narrative. He was interrupted only when the officers asked a few questions to clarify the narrative. After the defendant finished speaking, he was asked to review the officer's notes. The defendant did so and made a few changes. He initialed each change and each page, and then signed the last page of the statement.

The defendant asserts that admission of his statements in evidence violated the United States Constitution and the Massachusetts Constitution. We do not agree. "In reviewing the denial of a motion to suppress, we accept the motion judge's subsidiary findings of fact absent clear error." Commonwealth v. Yesilciman, 406 Mass. 736, 743 (1990).

A. The defendant claims that the officer who gave the first Miranda warnings did not recite the warnings in their entirety. See note 2, supra. The defendant claims that this officer's testimony proves that the first Miranda warnings were not recited correctly at the time the defendant first heard them. From this, the defendant concludes that all his statements must be suppressed. The defendant's argument ignores the fact that, prior to making his statement, the defendant was twice advised of the Miranda warnings.

Assuming, without deciding, that the first officer failed to advise the defendant of the full Miranda warnings, see note 2, supra, the defendant was not harmed by the omission. After the first warning, the defendant exercised his right to remain silent. Then, before the defendant made his statement, other officers on two separate occasions advised the defendant of the Miranda warnings. The defendant also read and signed a card that had the warnings printed on it before he gave his statement. Thus, any error was cured by the subsequent warnings. All the later warnings preceded the defendant's statement.

B. Next, the defendant complains that the government did not scrupulously honor the defendant's right to remain silent. The defendant again presses his claim that he did not receive proper Miranda warnings, and adds that any warning that he did receive came too late. As discussed above, the defendant was properly advised of the Miranda warnings prior to making a statement. The defendant's argument that any such warning was too late has no merit because, as discussed above, the defendant was advised of the Miranda warnings immediately before he gave his statement.

C. The defendant also asserts that the government failed to prove beyond a reasonable doubt that his confession was voluntary. The Commonwealth bears this burden. In determining whether a statement was voluntary, we consider the totality of the circumstances. Commonwealth v. Selby, 420 Mass. 656, 663 (1995). The judge considered factors relevant to the totality of the circumstances, including "whether promises or other inducements were made to [the defendant] by the police . . . [the defendant's] age, education and intelligence . . . his experience with the criminal justice system . . . his physical and mental condition . . . whether he was under the influence of drugs or alcohol . . . and the details of the interrogation, including the recitation of Miranda warnings . . ." (citations omitted). After a review of these factors, the judge found that the defendant made his statement voluntarily. There was no error.

We accept the findings of the judge absent error. The defendant claims that he could not have rationally decided to make a voluntary statement because he was overwhelmed by his concern for his sister. Concern for a loved one may, in certain circumstances, render a confession involuntary. Commonwealth v. Berg, 37 Mass. App. Ct. 200, 206 (1994) (i.e., unfair and illegitimate police tactics, psychological coercion, threats, etc.). The record is devoid of any unfair tactics, illegitimate police conduct, or psychological coercion. "The presence of one or more factors suggesting a statement may have been made involuntarily is not always sufficient to render the statements involuntary." Commonwealth v. Selby, supra at 664. The defendant's concern for his sister is not enough to tip the balance where all other factors indicate that the defendant made his statement voluntarily.

Furth...