Podlaski v. Butterworth

• Decision Date: 09 February 1982
• Docket Number: No. 81-1581,81-1581
• Parties: Robert J. PODLASKI, Plaintiff, Appellant, v. Fred A. BUTTERWORTH, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 8

677 F.2d 8

Robert J. PODLASKI, Plaintiff, Appellant, v. Fred A. BUTTERWORTH, Defendant, Appellee.

No. 81-1581.

United States Court of Appeals, First Circuit.

Heard Feb. 9, 1982.

Decided April 28, 1982.

John P. Courtney, Boston, Mass., for plaintiff, appellant.

Michael B. Roitman, Asst. Atty. Gen., Boston, Mass., with whom Francis X. Bellotti, Atty. Gen., and Barbara A. H. Smith, Asst. Atty. Gen., Boston, Mass., Chief, Criminal Appellate Division, were on brief, for defendant, appellee.

Before CAMPBELL and BREYER, Circuit Judges, and GARRITY, ^* District Judge.

BREYER, Circuit Judge.

Appellant Podlaski was convicted in the Massachusetts state courts of first degree murder and sought habeas corpus relief in federal district court. He appeals from its denial. His basic claim is that the state trial court wrongly admitted a highly incriminating statement that he gave to police without the prior warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Commonwealth responds that the questioning was proper because it was "preliminary," taking place before appellant was "in custody;" thus no warnings were required. We agree with the Commonwealth and affirm the district court's judgment.

We take the relevant facts to be as follows: In the early hours of May 3, 1977, police officers Zweihorn and MacCarthy were on patrol in South Boston. They received a message telling them that there was a man injured and lying on Woodward Street. They arrived at Woodward Street at about 3 a. m., as an ambulance pulled away. A woman who lived on the street, Mrs. Jan Antonik, called out to tell Officer Zweihorn what she had witnessed:

She said that the ambulance just left with the man they dragged down the street. I said, "Dragged which way." "Down towards Leeds Street. They came out of that house across the street, 40 Woodward, three men, dragged him out, kicking him, dragged him down to Leeds Street." I said, "Where did they go from there." She said, "Don't know, they ran around Leeds Street."

Upon hearing this, Zweihorn and MacCarthy went over to 40 Woodward Street, saw the lights inside go out, knocked, received no response, and returned to Mrs. Antonik, who told them about a back entrance to 40 Woodward.

The officers then went to the back of 40 Woodward and saw Podlaski coming out of the cellar through a bulkhead door. Officer MacCarthy asked him his name, which he gave. Officer Zweihorn asked his address, and whether he lived there, to which he responded he was soon moving. And, according to appellant, the officers then asked him whether anyone else lived in the house and whether he knew anything about "a fellow that has been injured out in the street." Appellant answered, saying, "The fellow called my mother a (obscenity) and I had to give it to him. I had to do him in." While the Commonwealth lists a slightly different order of questions and answers, the timing is not dispositive.

What is dispositive, in our view, is this court's prior case of Borodine v. Douzanis, 592 F.2d 1202 (1st Cir. 1979). In that case, police found the defendant leaning over the murder victim's body in the basement of a house, upset and asking for help. The police asked him to move into a small adjoining laundry room and then questioned him for about ten minutes. We noted that in Miranda itself the Supreme Court disclaimed any legal need for warnings prior to "(g)eneral on-the-scene questioning as to facts surrounding a crime." Miranda v. Arizona, 384 U.S. at 477-78, 86 S.Ct. at 1629. In Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977), the Court added that warnings are not required "simply ... because the questioned person is one whom the police suspect." The issue is whether the person questioned is "in custody." And, as we pointed out, this circuit has held that "custody" is tested objectively, not subjectively. There must be "at least some objective manifestation that the defendant was 'deprived of his freedom of action in (a) significant way.' " Fisher v. Scafati, 439 F.2d 307, 310 (1st Cir.), cert. denied, 403 U.S. 939, 91 S.Ct. 2256, 29 L.Ed.2d 719 (1971). We consequently found the questioning in Borodine to be part of a legitimate police attempt to investigate the crime, and we held that it was lawful.

We fail to see how Podlaski was any more "in custody" while on the back cellar steps of his house than was Borodine in the laundry room. In neither instance was the defendant told he was under arrest; in both cases he was in a home familiar to him; in both cases police activity was consistent with investigatory questioning. And, if, in either case, the defendant inferred that he would be stopped if he had tried to leave, that inference would likely have been based in part upon subjective knowledge of his own guilt.

Appellant's "custody" argument essentially amounts to a claim that the police would have arrested him had he tried to leave and that the facts would have warranted their doing so. We reject the implicit assumption that Miranda concerns what the police would...