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May 23, 1978


Hampden. Indictments found and returned in the Superior Court on November 7, 1974. The cases were tried before Hallisey, J. After review was sought in the Appeals Court, the Supreme Judicial Court, on its own intitiative, ordered direct appellate review.

Hennessey, C.j., Quirico, Braucher, Kaplan, & Abrams, JJ.


Constitutional Law, Waiver of constitutional rights. Waiver. Practice, Criminal, Charge to jury. Homicide. Robbery.

The opinion of the court was delivered by: Abrams

Evidence at a hearing on a motion to suppress statements made by a Spanish-speaking defendant to the police that the defendant understood English and therefore comprehended the Miranda warnings given him, that a prior interrogation was terminated after the defendant chose to remain silent and was resumed only after the passage of a significant period of time, and that the defendant had been informed prior to the second interrogation that an attorney had called and asked to speak to him but that the defendant said he did not want to speak to the attorney warranted a finding that the defendant had voluntarily, knowingly, and intelligently waived his rights to remain silent and to the assistance of counsel. [302-305]

The Judge at a criminal trial did not err in failing to instruct the jury concerning lesser included offenses which were unsupported by the evidence. [305-307]

The defendant Reinaldo Santo was indicted for murder in the first degree and armed robbery. After a jury trial, he was convicted of murder in the second degree and unarmed robbery. Pursuant to G. L. c. 278, §§ 33A-33G, he appeals his convictions. Santo argues assignments of error concerning (1) a motion to suppress a statement and (2) the refusal of the trial Judge to charge on involuntary manslaughter and on two offenses -- assault with intent to rob and larceny -- as lesser included offenses of robbery. We find no error and we decline to exercise our authority under G. L. c. 278, § 33E.

We summarize the evidence presented at the trial. Justino Santana, who occupied a room in a rooming house next to the room of the victim Edward J. Premont, testified that on September 12, 1974, Premont produced some money from his pocket and gave Santana twenty dollars to purchase groceries and six containers of beer. When Santana returned he gave back three or four dollars to Premont.

That evening Premont, Santana, and two other tenants were in Premont's room eating sandwiches, drinking soda, and watching television. At approximately 9:15 p.m. Santana saw Santo, together with one Jose Martinez in the vicinity of Premont's room. Santana overheard Santo and Martinez talking in Spanish in the hallway outside the room. He testified that Santo said that they had to make some money and that they would take the money from someone and kill him. Premont and the other two tenants did not understand Spanish, and thus they did not know what Santo and Martinez were planning.

When Santo and Martinez appeared at Premont's door, he invited them inside and offered them food and drink. Santana and the other two tenants then returned to their respective rooms, leaving Premont alone with Santo and Martinez.

At some point Premont went to Santana's door and invited him to come back to his room because he was afraid. Santana heard Premont "grunting" and Santo saying that they "were going to kill the old man and take his money and escape." Santana went into the hallway so that he could see inside Premont's room. He observed Santo and Martinez striking Premont and tying him up. He saw Santo thrusting his hands into Premont's pocket and heard Premont ask them "ot to tie his hands." Santana was afraid of Santo and Martinez so he remained in his room with the door closed until he went to work the next morning.

On September 13, 1974, Premont was discovered dead in his room. He was found in a chair which had been tipped over backwards. He was bound by a belt and an electrical cord, a necktie was stuffed in his mouth as a gag, a pair of trousers was wrapped tightly around his neck, and a pillow was covering his head. The medical examiner testified that Premont died between 9 p.m. on September 12 and 3:00 a.m. on September 13, as a result of asphyxia due to the gag and the ligature around his neck. Premont had several bruises about his head, arms, thighs, lower abdomen, and genitals; he also had several broken ribs. No money was found during a search of the room.

The defendant gave a statement to police in which he admitted that he was in the rooming house on the night of the killing; he said that he heard Martinez hitting Premont and Premont shouting for help; and he denied participation in the killing and robbery. After a voir dire during the trial, the Judge concluded that the statement was admissible. The defendant argues that it was prejudicial error to admit this statement because the Commonwealth did not meet its burden of ...

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