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Commonwealth v. Seng4/23/2002
Middlesex.
February 7, 2002.
Homicide. Constitutional Law, Admissions and confessions. Practice, Criminal , Capital case, Voluntariness of statement, Argument by prosecutor, Instructions to jury. Search and Seizure, Inventory, Fruits of illegal search.
Indictments found and returned in the Superior Court Department on December 21 and 29, 1995.
A pretrial motion to suppress evidence was heard by R. Malcolm Graham, J., and the cases were tried before Thayer Fremont-Smith, J.
The jury rejected the defendant's insanity defense and convicted him on three indictments of murder in the first degree based on theories of deliberate premeditation and extreme atrocity or cruelty. The jury also found the defendant guilty of armed assault with intent to murder, assault and battery and possession of a firearm without a license. The defendant appeals from his convictions claiming that: (l) the admission of his statements to the police during a custodial interrogation violated his rights under the Fifth and Fourteenth Amendments to the United States Constitution because the recitation to him of the Miranda rights was inadequate and because the statements were involuntary in the totality of the circumstances; (2) certain bank records were obtained improperly by exploitation of an inventory search for investigative purposes; (3) the prosecutor's repeated assertions to the jury that the defense had "insulted" them with evidence relating to the defendant's treatment at Bridgewater State Hospital prejudiced the defendant's insanity defense; and (4) the judge erred by instructing the jury against drawing an inference of guilt from any refusal by the defendant to participate in further evaluation of his mental state at Bridgewater State Hospital. We conclude that a faulty recitation to the defendant of his Miranda rights in the Khmer language prevented the defendant from executing a valid waiver of these rights, and that a subsequent reading to the defendant of the rights in the English language did not cure the defect sufficiently to permit a voluntary waiver. Accordingly, we reverse the judgments of conviction and order a new trial.
1. Facts.
We summarize the salient background facts the jury could have found and reserve other details for discussion in conjunction with the specific issues raised. In November, 1995, the defendant lived in Lowell with Chhong Yim, and the victims, Chhong Yim's three sons, ages fifteen, twelve and nine years, and her thirteen year old daughter, Sathy Men. Chhong Yim met the defendant in the early part of 1995, and in August, he moved in with her and her children. After the defendant was living in the apartment, the relationship soured. The defendant was very jealous of Chhong Yim and closely monitored her activities. Chhong Yim was unhappy with the defendant's inability to hold a steady job; his failure to pay his share of the rent (a condition of his moving in with the family); his habit of gambling at casinos; and his lack of a pleasant relationship with Chhong Yim's children. As a result, by October, l995, she asked the defendant to move out. She said she did not love him, once more wanted to be alone with her children, and was even considering reconciling with her husband. The defendant refused to leave. Chhong Yim repeatedly asked the defendant to leave the apartment, to no avail. He insisted that he loved her and wanted to be with her. This situation apparently precipitated the defendant acting "different" toward the children and speaking to them even less than before.
On November 12, 1995, in the early morning hours, the defendant awoke Chhong Yim to ask what was the most important thing in her
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