Essex. Indictments found and returned in the Superior Court on September 12, 1973. Motions to suppress evidence were heard by Donahue, J., and the cases were tried before him.
Hennessey, C.j., Braucher, Wilkins, Liacos, & Abrams, JJ. Braucher, J., Concurring. Hennessey, C.j., Dissenting in part.
Homicide. Arrest. Evidence, Admissions and confessions, Expert witness. Constitutional Law, Admissions and confessions, Waiver of constitutional rights, Probable cause. Probable Cause. Waiver. Practice, Criminal, Argument by prosecutor. Witness, Expert: opinion.
The opinion of the court was delivered by: Abrams
At a voir dire hearing prior to the trial of a defendant charged with murdering his wife and children, evidence that the defendant was barred by police from entering his home after the bodies were discovered, that he was taken to a police station where he was informed for the first time that his family had "expired," and that he was then asked, as instructed by the chief of police, what time he had left his home that morning, required a finding that the defendant had been subjected to a "custodial interrogation" which should have been preceded by Miranda warnings. [549-554] Braucher, J., Concurring.
Statements made by a criminal defendant subsequent to his receipt of Miranda warnings followed so closely upon illegal interrogation of him that their suppression was required. [554-556] Braucher, J., Concurring.
At a murder trial, where it appeared that, absent information illegally obtained, the police did not have probable cause to arrest the defendant for murder, his motion to suppress certain notes which were seized from him at the time of his arrest should have been granted ; Braucher, J., Concurring; Hennessey, C.J., Dissenting; however, photographs of the defendant made after his arrest illustrating the scratch marks visible on his face were admissible since they would have been discovered without exploitation of the "primary illegality" .
At a criminal trial, failure of defense counsel to object to certain remarks by the prosecutor in his closing argument did not preclude appellate consideration of the claimed error where defense counsel requested a curative instruction at the Conclusion of closing argument. [558-559]
Comments by a prosecutor in his closing argument which invited the jurors to draw an adverse inference from the defendant's failure to deny his guilt voluntarily were improper even though defense counsel had improperly urged the jury to draw a favorable inference from the defendant's failure to request an attorney after being informed by the police of his right to do so. [558-562]
At a murder trial, the Judge did not err in denying the defendant's motion for a bifurcated trial, requesting an initial trial on the merits, and, if found guilty, an additional hearing on the issue of criminal responsibility. 
At a murder trial, the Judge did not err in qualifying a medical examiner as an expert to testify regarding the victims' time of death; nor was the examiner's testimony inadmissible on the ground that the Commonwealth failed to demonstrate that there exists a developed and reliable field of knowledge on which the examiner could draw; nor was his testimony inadmissible on the ground that it was formulated at the scene without the benefit of scientific testing. [562-564]
Convicted of murder in the first degree of his pregnant wife and two young children, Gordon F. Haas (Haas) appeals to this court pursuant to G. L. c. 278, §§ 33A-33H. Although Haas argues numerous assignments of error, we concern ourselves primarily with two of the grounds asserted as error: (1) the denial of three motions to suppress evidence, and (2) prosecutorial comment on Haas' failure to deny committing the crimes. We reverse the convictions and remand for a new trial. We also consider those evidentiary issues likely to recur in a new trial.
The basic facts, which are not in dispute, may be summarized as follows. Gordon F. Haas, a Williams College graduate, and his wife, Shirley, were married in 1965. In 1969, their first child, a son, was born. Approximately twenty-one months later a second child, a daughter, was born. During this period Haas commenced working for Lechmere Sales, and the family moved into a single-family home in Ipswich, Massachusetts. In June, 1973, Haas was still employed at Lechmere Sales, and the family lived in their Ipswich home. Mrs. Haas was pregnant.
On June 26, 1973, Haas arrived at Lechmere Sales in Cambridge at 7:30 A.M. He performed his job that morning in what appeared to be a normal manner. A fellow employee observed some scratches on the right side of Haas' face. Haas said, "I leaned over to kiss Shirley and she must have been having a nightmare or something and she scratched me."
About 10:15 A.M., Robert Christensen, a friend and co-worker, entered the defendant's office and observed the defendant hanging up the telephone. The defendant then called the Ipswich police station and spoke to the desk officer. He stated that he had just received an anonymous telephone call to the effect that "black and white don't mix" and that his family had just been "taken care of." *fn1 He requested that an officer check on the welfare of his family and left a telephone number at which he could be reached.
An Ipswich police officer was dispatched to the Haas home to investigate. He found the front door ajar with a key in the lock. After calling out and receiving no response, the officer entered the house and discovered the bodies of Mrs. Haas and the children in their beds in separate bedrooms. Each victim's head was covered with a white plastic bag tightly secured with adhesive tape. *fn2
The investigating officer radioed for an ambulance and for additional assistance. State and local police officers, including the Ipswich chief of police and a medical examiner, converged on the scene. An investigation commenced. The house was observed to be in order, the windows appeared to be secure, and the backyard, which was muddy, contained no footprints. The only sign of any physical disturbance was in the master bedroom (the location of Mrs. Haas' body) where the sheets were off the bed. In that room a sign which read "lack and white don't mix" was found.
The medical examiner examined the bodies and informed the chief of police that each victim died between 3 and 5 A.M. He also noted that the fingernail on the middle finger of Mrs. Haas' right hand was broken.
The police did not return Haas' call, and sometime after the discovery, Haas again called the police station. Haas was told to come home but was not told what the police had found.
After learning of the medical examiner's opinion as to the estimated time of death, the chief instructed his men not to let the defendant in the house when he arrived home; instead, they were told to take the defendant to the police station, inform him of the deaths, and ask him what time he left for work that morning. Approximately thirty to forty-five minutes later, the defendant arrived at his house in a car driven by Christensen. After Haas got out of the car, he was met by one of the members of the Ipswich police, Officer Rauscher, with whom he had a brief conversation. *fn3 Haas then got in the back seat of a police car. Christensen, Officer Rauscher, and Officer Surpitski, an inspector for the Ipswich police department, also got in the car. The defendant was driven to the police station, where the four men went into the inspector's room. At this time, Haas was first advised of the deaths of his entire family. Moments thereafter, Haas was asked what time he left for work. Haas replied, "I want to be helpful. I left between 6:15 and 6:30."
After calling the chief, the officers placed the defendant under arrest and read him his Miranda rights. Haas signed a waiver of rights form, and then responded to further questions. Haas told the officers he arrived home at approximately 11:15 the previous evening. His wife arrived home at approximately the same time, and that after chatting they went to bed. Haas said he and his wife had slept in the master bedroom that night, and that he left home at approximately 6:30 A.M. on June 26.
At the Conclusion of the interrogation, the defendant was booked and certain belongings were removed from his person and inventoried. Among the items were four handwritten notes. One, which was especially incriminating, appeared to be a list, including the words "gloves, overalls, tape, bags, ether, mask."
At trial, the Commonwealth's evidence was circumstantial. The prearrest, pre-Miranda warning statement made by the defendant at the station, and the four notes were introduced in evidence.
1. Motions to suppress. Prior to trial, defense counsel filed three separate motions seeking to suppress (1) the oral statements made by the defendant at the Ipswich police station; (2) the four notes seized during the booking procedure; and (3) photographs showing scratches on the defendant's face, taken after his arrest. Haas claimed that his statement that he left his home at 6:30 A.M. on the day of the crimes was obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966). He also alleged that, as a consequence, his subsequent arrest was illegal and the fruits of the arrest -- his further ...