Commonwealth v. Brant

395 N.E.2d 1320, 8 Mass. App. Ct. 558, 1979 Mass. App. LEXIS 970

• Court: Massachusetts Appeals Court
• Decided: October 31, 1979
• Status: Published

Opinions

Keville, J.

On December 28,1977, a clerk employed in a market located in Norwood was held up by two armed men who were masked. In the course of the robbery the clerk was shot and seriously wounded. The robbers fled and were not then apprehended. On February 4,1978, the defendant, Jeffrey A. Brant, and Neil Kampen, Jr., were arrested in Titusville, Florida, after a high speed chase in which shots were exchanged with the police.

Brant appeals pursuant to G. L. c. 278, §§ 33A-33G, from his conviction after a jury trial on an indictment arising out of the Norwood incident charging him with armed robbery while masked.¹ Brant argues two assignments of error on appeal.

He asserts error in the denial of his pretrial motion to suppress an incriminating statement made by him to police in Florida following his arrest which virtually amounted to a confession to the Massachusetts indictment. He also contends that the trial judge erred in permitting the prosecutor to argue to the jury that Brant had made no response to certain statements made by Kampen to the authorities and that the judge erred in instructing the jury that they could consider that failure to be an admission by Brant.

1. Motion to Suppress.

Whether the judge erred in denying Brant’s motion to suppress turns on the resolution of two questions: whether the police scrupulously honored Brant’s right to cut off questioning after he declined to be questioned without his lawyer being present, and whether his subsequent waiver of his right to remain silent was voluntarily and intelligently given. While the answers to these questions, as the motion judge acknowledged, are not free of difficulty, we conclude that there was no error.

In reviewing the judge’s findings of fact and rulings of law on the motion to suppress, we accept his resolution of conflicting testimony. His subsidiary findings are not to be disturbed if warranted by the evidence. Commonwealth v. Watkins, 375 Mass. 472, 476 (1978). However, ultimate findings and conclusions of law, particularly those of constitutional dimension, are subject to independent review on appeal. Commonwealth v. Mahnke, 368 Mass. 662, 667 (1975), cert, denied, 425 U.S. 959 (1976).

We summarize pertinent facts drawn from the judge’s findings which are supported by the evidence taken at the hearing on the motion to suppress. On February 5, the day following their arrest, Brant and Kampen were brought to court for a probable cause hearing and to fix bail on certain Florida charges. They were represented by a Florida public defender. They were then lodged in a county jail in separate cell blocks and could not communicate with each other.

On February 13 a court order relieved the public defender from representing Brant and Kampen.² On that day an assistant district attorney of Norfolk County, Tier-nan, requested by phone of a Florida deputy sheriff, Hudepohl (who appears to have been in charge of these prisoners), that Hudepohl interview Brant and Kampen concerning the robbery in Norwood. On February 14 Hudepohl interviewed Kampen and informed him of the call from Massachusetts. He stated that he wished to obtain Kampen’s side of the story and that he would not inquire about the Florida charges. Hudepohl carefully informed Kampen of his Miranda rights and ascertained that he understood them. Kampen replied "Yes” to Hudepohl’s question "Do you wish to talk with me now without a lawyer?” Kampen then gave the sheriff an inculpatory statement which was recorded on tape and on the following day was transcribed, signed by Kampen and notarized. At the close of the interview Kampen was permitted to talk briefly with Brant.³

Kampen’s inculpatory statement was communicated to Tiernan, who promptly secured complaints against him in Massachusetts for armed robbery while masked and for assault with intent to murder and then left for Florida with two police officers. The judge found that Kampen knowingly, intelligently and voluntarily waived his Fifth Amendment rights guaranteed under Miranda v. Arizona, 384 U.S. 436 (1966), and his Sixth Amendment right to have his attorney present.

On February 15 Kampen and Brant, new and separate counsel having been appointed to represent each of them, were arraigned on the Florida charges.⁴ The Massachusetts officials and Hudepohl were present in court at the arraignment and knew that Brant and Kampen were represented by counsel. They intended to interrogate Brant later that day. That afternoon Brant and Kampen were brought to an interview room in the jail, where the Massachusetts officials and Hudepohl had gathered. Hudepohl turned on a tape recorder and began to read to Brant his rights from a document entitled "Brevard County Sheriffs Department Interrogation Preamble.” Included therein was the question, "Are you willing to proceed without an attorney being present to represent you?” In the document this question is followed by a blank space for the response of the person being interviewed. When Hudepohl read the question to Brant, Brant replied "No.” Hudepohl then wrote that response on the document.⁵ One of the Massachusetts officials then mentioned the fact that Kampen had already given a statement to the police. Hudepohl stated that this was so and that Kampen’s statement had been signed and notarized. Hudepohl then turned off the tape recorder. At that juncture, Kampen remarked that his statement was "all lies.” Brant then requested a moment to speak with Kampen privately. That request was granted.⁶

Fourteen minutes later Brant and Kampen returned to the interview room. Brant asked that the tape recorder be turned back on as he wished to make a statement. Hudepohl complied with his request and again directed Brant’s attention to the interrogation preamble and specifically to the question of Brant’s willingness to proceed without an attorney being present to represent him. Brant himself crossed out the earlier response "No”, wrote in "Yes”, and signed his name indicating his willingness to make a statement without his attorney being present.

There followed questions by Hudepohl and answers by Brant. At some point, Kampen volunteered a response to a question and one of the Massachusetts officials joined the dialogue. At this point, Hudepohl reminded Kampen of his Miranda rights, ascertained that he understood them and obtained an affirmative answer when he asked Kampen whether he still wished to talk without having his attorney present. Other questions to Brant and Kampen followed with their responses, the latter virtually amounting to confessions to the Massachusetts offenses.⁷

Contrary to Brant’s assertion, we cannot say that the judge erred in his conclusion that Brant’s right to cut off questioning was scrupulously observed when, on February 15, having indicated that he did not wish to be questioned without his attorney being present, he was in- ■ formed that Kampen had given a signed statement to the police. The judge was not confronted here with an evaluation of police conduct such as that in Commonwealth v. Jackson, 377 Mass. 319, 324 (1979), where a suspect’s statement was induced by a deliberate false representation that the suspect’s girl friend had implicated herself in the crime, or that in Commonwealth v. Taylor, 374 Mass. 426, 428 (1978), where subtle and persistent police persuasion induced an incriminating statement. See United States v. Olof, 527 F.2d 752, 753 (9th Cir. 1975); Commonwealth v. Dustin, 373 Mass. 612, 615 (1977); United States v. Davis, 527 F.2d 1110,1111 (9th Cir. 1976); Blackmon v. Blackledge, 396 F. Supp. 296, 298-299 (W.D.N.C. 1975); United States ex rel. Doss v. Bensinger, 463 F.2d 576, 578 (7th Cir. 1972). Compare United States v. Barnes, 432 F.2d 89, 91 (9th Cir. 1970); Commonwealth v. Andujar, 7 Mass. App. Ct. 777, 782-783 (1979). Compare also Commonwealth v. Watkins, 375 Mass. 472, 484 (1978), where a defendant’s statements made immediately following his initial request for counsel were suppressed because detectives continued to question him until he made a second request to see a lawyer.

The judge found that, following Brant’s response that he did not wish to proceed without his attorney being present, the police did not further solicit him or apply coercion or pressure. While, as the judge found, Brant’s questioners "hoped and expected” that he would make a statement, no questioning of him followed the factual disclosure that Kampen had given the police a statement until Brant, having at his request been given an opportunity to confer with his companion, changed his mind and initiated the resumption of interrogation. Brant was then facing the prospect of criminal charges against him in two jurisdictions. It was obviously to his advantage, before responding to questions in regard to the Massachusetts charges, to know that his companion had given the police a statement and whether he had been implicated therein. Where an accomplice has in fact made an inculpatory statement to the police it is permissible and, as in this instance, it may be informative rather than coercive for the police to make that fact known to a suspect who has invoked his right to cut off questioning in order that he may make a realistic evaluation of his position in light of the change in circumstances. Commonwealth v. Jackson, supra at 327 n.7. See Hill v. Whealon, 490 F.2d 629, 631 (6th Cir. 1974). Compare United States v. Mearns, 443 F. Supp. 1244,1253 (D. Del. 1978). Contrast United States v. Crisp, 435 F.2d 354, 357 (7th Cir. 1970); United States v. Priest, 409 F.2d 491, 493 (5th Cir. 1969).

The rule based upon the Fifth Amendment to the United States Constitution that, if a suspect indicates in any manner at any time prior to or during questioning that he wishes to cut off questioning, the interrogation must cease (Miranda v. Arizona, 384 U.S. 436, 473-474 [1966]) does not mean that questioning must cease forever. It permits renewal of interrogation in proper circumstances. The court in Michigan v. Mosley, 423 U.S. 96,102 (1975), observed that a "blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity and deprive suspects of an opportunity to make informed and intelligent assessments of their interests.”⁸

Although Brant and Kampen conversed for not more than fourteen minutes before interrogation was resumed, that hiatus was not insignificant in light of the facts that the conversation had been requested by Brant and that he had initiated the resumption of interrogation when he directed Hudepohl to turn the tape back on at the conclusion of their conversation. Contrast United States v. Mearns, supra at 1253; Commonwealth v. Taylor, 374 Mass. at 428-429.

Bearing in mind the heavy burden which rests on the Commonwealth to demonstrate a voluntary, knowing and intelligent waiver, Hill v. Whealon, supra at 630, compare Commonwealth v. Jackson, supra at 324, Commonwealth v. Dustin, 373 Mass. at 615, we think that the judge was right in his conclusion that Brant’s spontaneous declaration of his desire to have the interrogation resumed constituted an effective waiver of his earlier declination to respond to questioning in the absence of his attorney. Commonwealth v. Watkins, 375 Mass. at 484.

2. Argument and Charge.

Brant next argues that the prosecutor made what amounted to constitutionally impermissible remarks in his closing argument which irreparably prejudiced Brant’s right to a fair trial. Specifically, the defendant alleges that the prosecutor argued improperly in reminding the jurors that, during the course of Brant’s inculpatory statement to the authorities on February 15, statements were made by Kampen which corroborated Brant’s admissions and which were not denied by Brant. Brant argues in essence that this allusion to Kampen’s unchallenged statements compromised Brant’s right to silence. Brant further argues that the trial judge compounded the problem in his instructions to the jury. The defendant’s arguments lack merit.

The short answer to those contentions is that one cannot preserve what one has already waived. It is settled that extrajudicial accusatory statements made in a defendant’s presence are not admissible as evidence against him where he is under arrest and maintains his right to silence, Commonwealth v. Locke, 335 Mass. 106, 115 (1956), and as a corollary, that the prosecutor is not permitted to allude to the defendant’s silence, Commonwealth v. Egan, 357 Mass. 585, 591-592 (1970); Commonwealth v. Morrison, 1 Mass. App. Ct. 632,634 (1973). Here, however, Brant did not maintain his right to silence. Kampen’s statements were made in the midst of those being made by Brant. Brant’s "silence” occurred only while Kampen made statements which generally corroborated what Brant had just stated. Brant and Kampen, in effect, made a joint confession, and as such the statements were competent evidence. Commonwealth v. Brown, 121 Mass. 69, 80 (1876). Commonwealth v. Trefethen, 157 Mass. 180, 197-198 (1892). Commonwealth v. Lucas, 332 Mass. 594, 597 (1955). It follows that the prosecutor’s reference to Kampen’s statements in no way compromised Brant’s right to silence which he had already relinquished. Contrast Commonwealth v. Bennett, 2 Mass. App. Ct. 575,580 (1974). Furthermore, the judge’s instruction permissibly informed the jury that they could, in this context, infer from Brant’s silence an admission of the truth of Kampen’s statements, which, as we have observed, merely corroborated what Brant had already said. See Commonwealth v. Brown, supra at 80. See also State v. Cooley, 221 S.W. 2d 480, 485 (Mo. 1949).

Judgment affirmed.

1 His companion, Kampen, pleaded guilty following his indictment for the same offense.

2 There appeared to be a conflict of interest between these defendants and a juvenile who was apprehended with them and represented by the same attorney.

3 Omitted from the judge’s findings but included in the transcript of the motion to suppress was the indication that, prior to his interrogation by the authorities, Brant had already discussed with Kampen the possibility of making a "deal” to return to Massachusetts and thus avoid the prospect of incarceration in Florida.

4 The record on appeal is bare as to what, if any, advice was given to Brant by his court-appointed counsel save for the fact that on February 17 Brant was returned to court where, on the advice of counsel, who was present, he waived extradition proceedings and agreed voluntarily to return here to face the Massachusetts charges. The motion judge found that there was no suggestion that Brant was prevented from communicating with his attorney at any time.

5 BREVARD COUNTY SHERIFF’S DEPARTMENT INTERROGATION PREAMBLE

I,_am aware that I am (under arrest) or (suspect) [for Armed Robbery while Masked and attempted murder]. I have

been advised and have had explained to me that prior to answering any questions or making any statement either oral or written that I am entitled to be represented by legal counsel (lawyer). I have also been advised that if I am without funds with which to secure counsel, the State of Florida will furnish me with an attorney. It has also been explained to me that any statement I make or question that I answer must be free and voluntary, without threat of punishment or promise of reward. I am aware that I have the right to remain silent and not bear witness against myself as guaranteed by the Constitution of the United States of America. It has also been explained to me that any statement made by me, either oral or written, can and will be used as evidence against me in Court.

It has also been explained to me that I may have an attorney present to represent me now or at any time during this interview and interrogation.

I understand that this interview and interrogation can and will be terminated at any time upon my request.

Q. Are you willing to proceed without an attorney being present to represent you?

A. __

Signed_

6 The judge found that in permitting Brant to speak with Kampen the police "hoped and expected that Brant would change his mind and make a statement.”

7 The judge suppressed those statements by Kampen which had been vólunteered on February 15 prior to Hudepohl’s obtaining from him an express waiver of counsel’s presence. He also suppressed affidavits of Kampen and Brant which had been attached on February 17 to the transcription of their joint statement made on February 15, as well as certain statements made by Kampen and Brant to one of the Massachusetts officers while en route to the airport on February 18. He assigned as the basis for the suppression, in each of these instances, the Commonwealth’s failure to prove that the defendants expressly or implicitly waived their rights to the assistance of counsel prior to making the statements and executing the affidavits.

8 The argument against an absolute rule with respect to silence has been held applicable equally to situations involving the right to counsel. Commonwealth v. Watkins, 375 Mass. 472, 483-484 (1978).