Tyree v. Keane

• Citation: 400 Mass. 1,507 N.E.2d 742
• Parties: William TYREE, Jr. v. Patrick KEANE et al. 1
• Decision Date: 14 May 1987
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 742

507 N.E.2d 742

400 Mass. 1

William TYREE, Jr. v. Patrick KEANE et al. ¹

Supreme Judicial Court of Massachusetts Middlesex.

Argued Jan. 6, 1987.

Decided May 14, 1987.

Richard L. Zisson, Boston, for defendants.

Damon Scarano, Boston, for plaintiff.

Before HENNESSEY, C.J., and WILKINS, LIACOS, ABRAMS and NOLAN, JJ.

HENNESSEY, Chief Justice.

The plaintiff, William Tyree, Jr., brought this action against the defendants, Patrick Keane and Roderick Hendrigan, in which he claimed that, following the murder of his wife, Elaine Tyree, the defendants violated his Federal and State civil rights by searching his apartment. ² 42 U.S.C. § 1983 (1976 ed.). G.L. c. 12, § 11I (1984 ed.). The complaint also alleged conversion, invasion of privacy, and trespass. Following a trial in Superior Court, the jury returned verdicts against Keane regarding the Federal civil rights, invasion of privacy, and trespass claims. The jury assessed damages in the amount of $2,500 against Keane on the Federal civil rights claim and nominal damages of $1 for the invasion of privacy and trespass claims. The jury returned a verdict in favor of Keane regarding the State civil rights claim and the conversion claim, and in favor of Hendrigan on all claims. Motions for a new trial by the plaintiff and Keane were denied. Both parties appealed and we transferred the case to this court on our own motion. We affirm the judgments with respect to Hendrigan and the judgments for nominal damages against Keane on the invasion of privacy and trespass claims, and further conclude that, with respect to the alleged violation of the plaintiff's Federal civil rights, Keane is entitled to a new trial or, at his option, the entry of a judgment for the plaintiff in the amount of $1.

The testimony at the trial disclosed the following facts. At approximately 12 noon on January 30, 1979, the Ayer police department received a telephone call in which the caller stated that a woman's screams were heard emanating from an apartment at 104 1/2 Washington Street. William Adamson, the police chief of Ayer, went to the apartment and with the aid of the landlord entered the apartment where he found the body of Elaine Tyree. Adamson notified the district attorney's office for the Northern District, which dispatched State Police Trooper Hendrigan to the scene. When Hendrigan arrived, he secured the murder scene to ensure that nothing was touched until the medical examiner arrived. Approximately one-half hour after Hendrigan's arrival, State Police Detective Lieutenant Jack Dwyer, head of homicide investigations for the district attorney's office, arrived. While investigating the crime scene, Hendrigan took a military identification card from the victim's body. Dwyer, Adamson, and Hendrigan left the Tyree apartment between 3 and 3:30 P.M. They then met the plaintiff at the Ayer police station, where he agreed to speak with the police after waiving his Miranda rights and acquiesced to a search of his truck and to a benzidine test of his clothes.

That evening Dwyer telephoned State Police Trooper Keane, informed him of the Tyree homicide, and requested his assistance with the investigation. On the morning of January 31, Keane accompanied Dwyer and Adamson to the apartment to view the scene. The visit lasted approximately thirty minutes to one hour. Later that evening, Keane, Hendrigan, Dwyer, Adamson, and another trooper went with the plaintiff to the apartment to obtain a dress to bring to the funeral home. Before entering the apartment, Hendrigan asked the plaintiff if the officers could accompany him inside. He indicated that they could and the officers "look[ed] around" for approximately thirty minutes. While in the apartment, Hendrigan took a New York traffic ticket that he found on a table in the apartment.

On February 1, Keane returned to the apartment with Adamson and Dwyer and took two letters which he found in a coffee can above the refrigerator in a cabinet. The police officers remained in the apartment for approximately one hour. The police retained a key to the Tyree apartment until February 21. No search warrant was obtained at any time during this period. Testimony indicated that other visits were also made during this period by police officers.

1. We first address the plaintiff's arguments with respect to the defendant Hendrigan. Although it is not entirely clear in the plaintiff's brief, we infer that the plaintiff's arguments as to Hendrigan are relevant to the claimed error in the judge's denial of the plaintiff's motion for a new trial on the ground that the verdict for the defendant was against the weight of the evidence. ³ We have stated that a "trial judge may set aside a verdict as against the weight of the evidence 'only if he is satisfied that the jury have failed to exercise an honest and reasonable judgment in accordance with the controlling principles of law.' " Oldham v. Nerolich, 389 Mass 1005, 1006, 452 N.E.2d 225 (1983), quoting Hartmann v. Boston Herald-Traveler Corp., 323 Mass. 56, 60, 80 N.E.2d 16 (1948). Furthermore, "[t]he granting or denying of a new trial on the ground that the verdict is against the weight of the evidence rests in the discretion of the judge." Bergdoll v. Suprynowicz, 359 Mass. 173, 175, 268 N.E.2d 362 (1971). We have reviewed the evidence relating to the claims against Hendrigan. There was no error.

2. We next address the appeal by the defendant Keane. As part of his defense, Keane relied on the qualified immunity that has been recognized under 42 U.S.C. § 1983. See Malley v. Briggs, 475 U.S. 335, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986); Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Keane maintains that, because this qualified immunity is based on a standard of "objective reasonableness," see Malley v. Briggs, supra 106 S.Ct. at 1098; Davis v. Scherer, supra, 468 U.S. at 190-191, 104 S.Ct. at 3017; Harlow v. Fitzgerald, supra, 457 U.S. at 818, 102 S.Ct. at 2738, the trial judge erred when he refused to allow the defendants to introduce in evidence § 4.7 of the rules and regulations for the governing of the State police and declined to take judicial notice of G.L. c. 38, § 6, which at the time of the alleged unconstitutional search provided that "[t]he district attorney or his representative upon receipt of notification shall thereafter be in sole charge of the criminal investigation of the death." ⁴ The judge also refused to give to the jury a requested instruction regarding Keane's good faith reliance on these provisions. We agree with the defendant that these rulings amount to reversible error.

The plaintiff maintains that his constitutional rights were violated when the defendant searched his apartment without obtaining a warrant. Mincey v. Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (concluding that there is no homicide scene exception to the warrant requirement). Nevertheless, the defendant contends that, under G.L. c. 38, § 6, and § 4.7 of the State police rules and regulations, he was not in charge of the investigation and thus was not in a position to obtain a warrant if one were required. Consequently, he argues that it was not unreasonable for him to assume that his search of the apartment under the authority of Detective Lieutenant Dwyer did not involve a violation of the plaintiff's constitutional rights.

In Harlow v. Fitzgerald, supra, 457 U.S. at 815, 102 S.Ct. at 2737, the Supreme Court defined the objective reasonableness standard underlying the qualified immunity principle and stated that a claim for qualified immunity "would be defeated if an official 'knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the [plaintiff] ...' " (quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 [1975] ). Furthermore, the Supreme Court has stated that "[i]t is the existence of reasonable grounds for the belief formed at the time and in light of all the circumstances, coupled with good-faith belief, that affords a basis for qualified immunity." Scheuer v. Rhodes, 416 U.S 232, 247-248, 94 S.Ct. 1683, 1692, 40 L.Ed.2d 90 (1974). We conclude that Keane should have been allowed to present all the relevant evidence, including his reliance on G.L. c. 38, § 6, and regulation § 4.7. Certainly, evidence of both the statute and the State police regulation which placed the district attorney's office, and Detective Lieutenant Dwyer as its representative, in sole charge of the investigation was relevant to Keane's claim that his conduct was reasonable under the circumstances. The jury should have been allowed to consider the defendant's reliance on these statutory and regulatory provisions with regard to whether he reasonably should have known that his conduct would violate the constitutional rights of the plaintiff.

3. Because this case must now be remanded for a new trial, we consider several other arguments advanced by Keane which may arise at any new trial. Keane contends that the trial judge erred in instructing the jury that the defendants had the burden of proving that the plaintiff consented to the searches involved. He recognizes that in a criminal matter the prosecution has the burden of establishing consent when a defendant raises the constitutionality of a search through a motion to suppress. Schneckloth v. Bustamonte, 412 U.S. 218, 222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973), citing Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1968). Commonwealth v. Angivoni, 383 Mass. 30, 33-34, 417 N.E.2d 422 (1981). Commonwealth v. Cantalupo, 380 Mass. 173, 176-177, 402 N.E.2d 1040 (1980). Nevertheless, he argues that, in a civil matter, the plaintiff shoulders the burden of proving the essential elements of the case, one of...