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SJC Affirms Murder Conviction Despite Prosecution’s Comments on Defendant’s Pre-arrest Silence

questions-1151886-300x225The Supreme Judicial Court affirmed the defendant’s conviction of first-degree murder in Commonwealth v. Gardner, despite the fact that the prosecutor questioned the defendant about his pre-arrest silence at trial.  In the ruling, the Court stated that although the prosecutor’s questions and comments concerning the defendant’s pre-arrest silence were improper, the errors did not create a substantial likelihood of a miscarriage of justice.

The background was as follows. On November 5, 2011, the defendant and the victim “met to conduct a drug transaction at a house in New Bedford…. Four days later, … the police found the victim’s body … hidden beneath the basement stairs of that house. The police also found … a trash bag outside the house that contained clothing and a hammer bearing both the victim’s and the defendant’s blood. Further investigation showed that the victim had died of blunt force trauma to the head.” On November 9, police officers in Fairfield, Connecticut, “learned that the victim’s Honda Civic was at a rest area off of Interstate Route 95. When the first officer arrived, she observed … the defendant sitting in the driver’s seat” of the Honda. “When the defendant saw the police cruiser, he fled in the [Honda], reaching speeds in excess of one hundred miles per hour…. [He] eventually lost control of the vehicle, abandoning it in a wooded area.” Officers arrested the defendant and transported him to a police station in Fairfield, where he was questioned by a Massachusetts state trooper and a New Bedford police detective. “The interview was recorded and later shown to the jury at trial…. [The defendant told the officers] that he was traveling with a ‘buddy’ who was going to Florida.” The defendant said that “[e]n route, they pulled off at the Fairfield rest stop, where they remained for two days. The defendant said that his friend had been inside a restaurant at the rest stop when the police cruiser had appeared…. After some prompting, the defendant indicated that the person he had been traveling with was the victim.” At trial, the defendant testified that he “killed the victim with the hammer that the police had found, but claimed that he had acted in self-defense.” He stated that the victim had punched him after the two had argued over the amount of money owed by the defendant for his purchase of heroin. “[T]he prosecutor repeatedly cross-examined the defendant about his failure to contact the police during the period between the victim’s death on November 5, 2011, and his arrest on November 9, 2011.” On appeal, the defendant argued that the prosecutor’s cross-examination and subsequent comments in closing argument regarding the defendant’s pre-arrest silence violated his rights under the common law and art. 12 of the Massachusetts Declaration of Rights.

In its decision, the SJC “not[ed] that [it had] not previously considered whether art. 12 prohibits use of a defendant’s pre-arrest silence for impeachment.” The Court stated that it had first addressed such use of pre-arrest silence in Commonwealthv. Nickerson, 386 Mass. 54, 59 (1982), and had decided that case “solely on common-law grounds.” In Nickerson, noted the Court, “[w]e recognized that where a defendant does not contact the police to tell them his story before he is arrested,” the prosecution’s use of that fact to impeach the defendant’s credibility at trial “is of limited probative value,” because “there may be many reasons why a defendant does not wish to come forward and speak to the police that have no bearing on his guilt or innocence.” “Consequently, we advised in Nickerson… that … ‘impeachment of a defendant with the fact of his pre-arrest silence … should be prefaced by a proper demonstration that it was “natural” to expect the defendant to speak in the circumstances.’” Here, stated the Court, the prosecutor’s cross-examination and closing argument regarding the defendant’s pre-arrest silence “were improper” because “it would not have been natural for him to contact the police or volunteer information to them under the circumstances.” The Court concluded, however, that the prosecutor’s errors did not result in a substantial likelihood of a miscarriage of justice.

Although the SJC remarked that it had not previously considered this issue under art.12, the Court never stated explicitly whether its conclusion that the prosecutor acted improperly was based on constitutional principles or, rather, was based on common-law grounds.

Despite the Court’s decision not to overturn the conviction in this case, the right to remain silent is still a critical right that must be vigorously protected.  If you or a loved one is charged with a crime in which you declined to speak with the police, you will need a skilled and experienced attorney to make sure that your rights are protected – both prior to and during trial.  Attorney Daniel Cappetta is such an attorney – he zealously advocates for all his clients and does not shy away from a fight.  Call him for a consultation today.