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Commonwealth v. Pileeki11/29/2004
Barnstable.
December 1, 2003
Evidence, Voluntariness of statement, Admissions and confessions. Practice, Criminal , Voluntariness of statement, Instructions to jury, Duplicative convictions.
Indictments found and returned in the Superior Court Department on June 8, 1999.
A pretrial motion to suppress evidence was heard by Gerald F. O'Neill, Jr. J., and the case was tried before Richard F. Connon, J.
The defendant, Jearlee Pileeki, was found guilty of burning a dwelling, G. L. c. 266, § 1, and involuntary manslaughter, G. L. c. 265, § 13. She was sentenced to MCI, Cedar Junction for a term of not more than six years and not less than three years and nine months on the manslaughter conviction, and to five years probation, with special conditions, on the arson conviction, to be served from and after the sentence on the manslaughter conviction. On appeal, she claims the following errors: (1) the second of four statements she made to the police should have been suppressed (as were the other three); (2) even if the second statement was admissible, references to a previous statement she made at the hospital should have been redacted; (3) it was prejudicial error for the judge to instruct the jury on the "battery causing death" theory of manslaughter; (4) the police failed to inform her of her right to make a telephone call pursuant to G. L. c. 276, § 33A; and (5) the convictions for burning a dwelling and manslaughter are duplicative.
1. Factual and Procedural Background
On the evening of May 19, 1999, there was a fire in a vacant house in Hyannis. After the fire was extinguished, the body of a homeless man, Joseph Maddox, was discovered inside. An autopsy revealed he had died of smoke inhalation. The fire appeared to have originated in an overstuffed chair on the first floor of the house. Police investigation revealed that the victim was known to spend time at the house with the defendant.
Two days later, at about 11:00 A.M. on May 21, the police received an emergency telephone call regarding a suicidal woman who had consumed a pint and a half of vodka and two klonopin tablets, had superficial cuts on her wrists, and indicated that she had tried to shoot herself. That woman was the defendant. An ambulance transported the defendant to the hospital, where a blood serum test revealed that she had an ethyl alcohol level of .378, the equivalent of a blood alcohol level of .33.
The defendant made four statements to various police officers that day. The first was shortly after 12:30 P.M., at Cape Cod Hospital, without benefit of Miranda warnings. The second took place between approximately 2:45 and 3:15 P.M. at the Barnstable police station after the defendant was given Miranda warnings and signed a waiver of her Miranda rights. This second statement was tape recorded. See Commonwealth v. DiGiambattista, 442 Mass. 423, 445-448 (2004). The third statement, also made at the police station, lasted only seven to eight minutes and was not recorded. Finally, the defendant made a fourth statement, also at the police station, which lasted about ten minutes and which was also recorded. The defendant was again given the appropriate warnings but was not told that a lawyer was waiting to talk to her.
The defendant moved to suppress all four statements. A Superior Court judge allowed the motion as to the first, third, and fourth statements. He denied that part of the motion that sought to suppress the second statement.
As to the first statement, made at Cape Cod Hospital, the motion judge ruled that the defendant "was not in a condition to exercise the judgment necessary to support a finding
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