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It was the same way with this drive. The invisible world was made visible, as we came into Salt Lake, with the mountains on one side, the desert on the other, the lights of the hotels, and the wide, empty streets after midnight.
Evidence at a murder trial that the defendant made an inculpatory statement to a policeman who had merely approached the defendant, asked him his name and whether he knew anything about a man who had been lying in the street was sufficient to warrant findings that the defendant was not in custody when he made his statement and that, therefore, Miranda warnings were not required. [342-434]
About 2:30 A.M., an ambulance arrived at Leeds Street. There was a pool of blood on the street near the victim's head. He had no pulse or blood pressure, but he was breathing "agonal breaths." The medical examiner testified that a person breathing in this fashion is still alive. At approximately 3 A.M., as the ambulance was leaving, Officer Zweihorn and his partner arrived. After speaking to Mrs. Antonik, they went to 40 Woodward Street. When they approached the front door, the first-floor lights went out. Their knocking brought no response. Officer Zweihorn conferred again with Mrs. Antonik, who told him about a back entrance. The officers went down an alley to the rear of 40 Woodward Street where they saw the defendant, wearing a blue shirt, standing on the top step of the cellar bulkhead. Officer Zweihorn asked the defendant his name and the defendant replied, "Robert Podlaski." He then asked whether the defendant knew anything about the man who had been lying in the street. The defendant replied, "The fellow called my mother a mother fucker and I had to give it to him. I had to do him in." [Note 1] The officers placed the defendant in the police wagon. They entered the house and found Hughes and Barroni, and two other men who were apparently incapacitated by alcohol. All four of them were put in the wagon.
The judge properly denied the defendant's motion to suppress his statement to Officer Zweihorn that "he had to do [the victim] in, give it to him, and had to do him in because he called him, called him and his mother a mother fucker." The defendant contends this statement should
The short answer to the defendant's argument that Miranda warnings should have been given is that, when he made the statement, he was not "in custody ... or otherwise deprived of his freedom of action in any significant way." Miranda v. Arizona, 384 U.S. 436, 477 (1966). The questioning by Officer Zweihorn was a proper preliminary inquiry not requiring Miranda warnings. See Commonwealth v. Borodine, 371 Mass. 1, 4-5 (1976), cert. denied, 429 U.S. 492, 495 (1977). The fact that the officer would not let the defendant leave until he had talked to him did not make the interrogation custodial. No suspicion had even focused on the defendant. "The questions were preliminary, directed to discovering ... what he knew about the circumstances." Commonwealth v. Borodine, supra. Unlike the situation in Orozco v. Texas, 394 U.S. 324 (1969), the officers did not question the defendant about incriminating facts without first informing him of his rights. Nor was this an overbearing, noncustodial interrogation. See Beckwith v. United States, 425 U.S. 341, 347 (1976). Before the defendant made his statement, Officer Zweihorn asked him only his name and whether he knew anything about the man who had been lying in the street.
The principal thrust of the defendant's argument is that there was no evidence that he caused the victim's death and no evidence that he participated in the killing as a joint venturer. He argues that there was no direct evidence he struck the victim and that the fatal blow must have been struck by someone else while the victim was lying in the street. The evidence shows, he claims, only that he was present during the commission of the crime (see Commonwealth v. Clark, 363 Mass. 467, 473 ; Commonwealth v. Benders, 361 Mass. 704, 708 ) and not that he aided, assisted, or encouraged the others during its commission (see Commonwealth v. Ambers, 370 Mass. 835, 839 ; Commonwealth v. Perry, 357 Mass. 149, 151 ).
[Note 7] Among the evidence that would support the conclusion that the defendant was knowingly involved in the beating are: (a) his statement to the police, (b) his association with Hughes and Barroni in the house before the beating and while they were dragging the victim, (c) the blood on his shoes and pants, (d) his changing his shirt, (e) his attempt to wash the blood off his pants, (f) his statement on the street, "Oh, shit, the bastard is dead," and (g) his act of fleeing when Mrs. Peltz yelled, "What are you doing?"
She strips down to her underwear, pulls back the comforter and lays down on top of the sheets. She presses a bag of frozen corn to her forehead as her only relief. She should leave the house, maybe walk to the bar across the street and get a cold drink, but the task of pulling herself together and looking presentable to the world seems insurmountable at the moment. 2b1af7f3a8