Opinion
13-P-766
06-15-2015
COMMONWEALTH v. ROBERT P. MONAHAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Following a jury trial in the Superior Court, the defendant, Robert P. Monahan, was convicted of assault and battery by means of a dangerous weapon, causing serious bodily injury, G. L. c. 265, § 15A(c)(1). In a separate jury-waived trial, he was also convicted of being a habitual criminal, G. L. c. 279, § 25. On appeal, the defendant challenges the admissibility of both his pre- and post-Miranda statements, as well as the sufficiency of the evidence supporting his habitual offender conviction. We affirm.
The defendant was acquitted of armed assault with intent to murder.
1. Background. On March 31, 2011, Lexington police officers responded to a report that a resident at 292 Massachusetts Avenue had been assaulted with a metal pipe. The victim identified the defendant, his roommate, as his attacker, and told the police that the roommate's name was "Bobby," he was five feet nine or ten inches tall, and he was "Irish-looking," bald, and clean-shaven. The description was broadcast to all Lexington police officers.
After hearing the broadcast, Lexington police Detective Brian Savage realized that he had seen a pedestrian fitting that description while he was en route to the victim's home. Savage left the scene, located the defendant, and asked him if his name was Bobby. The defendant replied, "Yes, I am," and confirmed that he had just come from 292 Massachusetts Avenue. Savage approached the defendant and "told him to take a knee . . . . I'm gonna cuff you for my own safety right now, just until I figure out what's going on. You're not under arrest at this point." The defendant complied. While handcuffing him, Savage noted blood on the defendant's arm and hand and asked, "Was there some kind of incident down there with a pipe?" The defendant answered, "Yeah, there was. I hit that kid in the head with a pipe." It was at this point that Savage told the defendant that he was under arrest and read him his Miranda rights. As he was entering the cruiser, and without being asked, the defendant volunteered, "I can tell you where the pipe is. . . . If you go out the back door [of the house], there's a shed to the left, and I put it out behind that shed." The pipe was located exactly where the defendant had said it would be.
After booking, the defendant was read his Miranda rights for a second time. Another officer and a second detective then brought the defendant to an interview room, where they read him his Miranda rights for a third time. The defendant agreed to be interviewed and consented to its recording. He was cooperative, appeared sober, and indicated that he understood his Miranda rights. The defendant described the events of that morning, admitting that he had hit the victim with a metal pipe. He also described how he had found some pills on Massachusetts Avenue the day before, which he had taken because he thought they would help his migraine headaches. He reported having a history of migraines and seizures, but said that had not taken seizure medication in a couple of weeks. He explained, "Sometimes I have these feelings about hurting people, and I don't usually go along with it, and for some odd reason, I just -- I may have snapped. Who knows? I don't know." The defendant told the police that he had worn gloves during the attack, and that he had thrown them in the river along Massachusetts Avenue. The police recovered the gloves in the location provided by the defendant.
2. Pre-Miranda statements. The defendant's initial statements, made prior to his receipt of the warnings required under Miranda v. Arizona, 384 U.S. 436, 476 (1966), were properly admitted, as they were made incident to an investigative stop.
It is undisputed that Savage had reasonable suspicion to stop the defendant and to inquire further. He approached the defendant alone, knowing that a person matching his description had just committed a violent attack nearby. Savage confirmed that the individual he approached had the same first name as the attacker. In the face of this legitimate safety concern, Savage was "justified in restraining the defendant's liberty of movement while [he] conducted a threshold inquiry." Commonwealth v. Williams, 422 Mass. 111, 119 (1996). See Commonwealth v. Robbins, 407 Mass. 147, 152 (1990) (officers not required "to gamble with their personal safety"). The use of handcuffs was reasonable and did not convert the situation to a custodial arrest. See Commonwealth v. Pandolfino, 33 Mass. App. Ct. 96, 98 (1992). Savage also explained his actions at each stage of the investigation, including stating unequivocally that the defendant was not under arrest when he handcuffed him initially. Savage's questioning of the defendant was also investigatory rather than aggressively accusatory in nature. For these reasons, Savage did not exceed the scope of a lawful investigatory stop when he restrained the defendant.
3. Post-Miranda statements. Nor were the defendant's statements following his initial Miranda warnings tainted by the investigatory questioning. Savage promptly stopped questioning the defendant and advised him of his Miranda rights when the seizure became an arrest. Unprompted, the defendant spontaneously informed Savage and the other arresting officers where the pipe could be located. Although the statement was incriminating, it was volunteered and not the product of improper questioning. As such, it was properly admitted. Commonwealth v. Koumaris, 440 Mass. 405, 409 (2003). The same is true for the statements made during the interview, which were obtained only after the defendant formally waived his Miranda rights.
The admission of the pipe was also not in error. The victim told the officers he was hit with the pipe. Although the defendant volunteered where it could be located, the officers at the scene were virtually certain to locate it, without the volunteered statement, while processing the crime scene. Commonwealth v. Starkweather, 79 Mass. App. Ct. 791, 798 (2011). In addition, the location of the gloves was given after the defendant waived his Miranda rights. There was no error in their admission either.
The defendant's claim as to the voluntariness of his recorded statements is likewise without merit. The defendant did not present any evidence in support of this claim, request a hearing, object to the admission of these statements on the grounds of voluntariness, or argue voluntariness to the jury. "Without evidence of a claim of involuntariness, the judge . . . had no obligation to make a separate inquiry into the issue." Commonwealth v. Benoit, 410 Mass. 506, 513 (1991). Moreover, the judge instructed the jury that they were not to consider the defendant's statements unless the Commonwealth proved that they were voluntary.
4. Habitual criminal conviction. The defendant argues that the Commonwealth's introduction of a so-called "pen pack" was not competent evidence to prove one of the two prior convictions required under the habitual criminal statute. See G. L. c. 279, § 25. The pen pack was introduced through the keeper of the records of the Department of Correction (DOC), and contained a certified copy of the mittimus issued by the Superior Court to the DOC for each of the defendant's prior commitments. We disagree with the defendant's contention that a mittimus may not be used as proof of conviction. Commonwealth v. Parzyck, 44 Mass. App. Ct. 655, 656 n.4 (1998). There was no error.
A "pen pack" is a selection of documents maintained by the Department of Correction that includes records of the defendant's conviction and incarceration.
A certified copy of a court record, in addition to the pen pack, was entered in evidence to prove the other conviction. The defendant does not challenge its admission on appeal.
The mittimus contains the certificate of the court, is witnessed by the Chief Justice of the Superior Court, is signed by an assistant clerk of the Superior Court, and is directed to the sheriff of Essex County and the superintendent of the DOC.
Judgment affirmed.
By the Court (Trainor, Agnes & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 15, 2015.