Caputo v. Nelson

United States Court of Appeals
For the First Circuit

No. 06-1117

MICHAEL CAPUTO,

Petitioner, Appellant,

v.

KENNETH NELSON, Superintendent,
Bridgewater State Hospital,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch and Howard, Circuit Judges,

and Stafford,* Senior District Judge.

John J. Courtney for appellant.
Maura D. McLaughlin, Assistant Massachusetts Attorney General,
with whom Thomas F. Reilly, Massachusetts Attorney General, was on
brief, for appellee.

July 26, 2006

*
Of the Northern District of Florida, sitting by designation
 Stafford, Senior District Judge. In 1991, a

Massachusetts Superior Court jury convicted Michael Caputo

("Caputo") on two counts of first-degree murder. Caputo appeals

the district court's order denying his petition for writ of habeas

corpus by a person in state custody. Because the state court

decision affirming his conviction was neither contrary to, nor an

unreasonable application of, clearly established federal law, we

affirm.

I.

In the early morning hours of November 2, 1989, two

Boston police officers were dispatched to a second-floor apartment

in the Jamaica Plain neighborhood of Boston.2 In the apartment's

bedroom, the police found the bodies of Caputo's estranged wife and

mother-in-law. Caputo's wife had been stabbed twenty-two times,

his mother-in-law seventeen times. Caputo's two young daughters,

who were unharmed, were also found in the apartment.

Noting an open kitchen window that led to the back porch,

the police discovered that the telephone wires to the apartment had

been cut. There was no sign of forced entry. On the dining room

table, the police found a protective order dated July 31, 1989,

ordering Caputo to refrain from abusing his wife and to stay away

2
The facts, which are not challenged by Caputo, are taken from
the Massachusetts Supreme Judicial Court's recitation of the facts.
Commonwealth v. Caputo, 786 N.E.2d 352, 355-58 (Mass. 2003).

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from the Jamaica Plain apartment. The order contained Caputo's

address in Plymouth, Massachusetts.

After the Boston police notified the Plymouth Police

Department that Caputo was a suspect in a double homicide, six

Plymouth police officers, including Sergeant Thornton Morse

("Morse") and Sergeant Richard Dorman ("Dorman"), arrived at

Caputo's house. Caputo opened the front door after the officers

repeatedly knocked on the front and rear doors. Morse and Dorman

introduced themselves, then asked whether they could enter the

house to speak with Caputo. Caputo acquiesced.

Once inside the house, Dorman informed Caputo that they

were investigating a double homicide on behalf of the Boston Police

Department. From a printed card, Dorman read Caputo his rights

under Miranda v. Arizona, 384 U.S. 436, 467-73 (1966). When Dorman

asked Caputo whether he understood his rights, Caputo initially

replied: "No." Dorman then repeated each right, asking after each

whether Caputo understood. Caputo replied affirmatively to each,

then said that he thought it best if he said nothing further. The

officers immediately stopped all questioning of Caputo. They were

not, however, asked to leave the house.

After Dorman informed Caputo that they were investigating

a double homicide, Caputo asked Dorman who had died. Dorman

replied that he did not know. Soon thereafter, wanting to obtain

more information about the investigation to pass along to Caputo,

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Morse asked whether he could use Caputo's telephone to call the

Plymouth police station. Caputo agreed that Morse could use his

phone. At the conclusion of his call to the station, Morse

informed Caputo that the Plymouth police could not then supply any

additional information about the double homicide.

Leaving some of the officers inside the house, Dorman

went outside to examine the automobile parked in Caputo's driveway.

The vehicle matched the description given to the Plymouth police.

The hood was warm to the touch, and a registration plate with a

number other than Caputo's registration number covered the

automobile's assigned registration plate. It was later learned

that the outer registration plate had been stolen from a vehicle in

the Jamaica Plain section of Boston.

When he re-entered the house, Dorman asked whether he

could use Caputo's telephone to again call the Plymouth police

station. Caputo again agreed. Within Caputo's hearing, Dorman

informed the lieutenant on the line that Caputo was at his

residence, that the engine of Caputo's automobile was warm, and that

there were two different registration plates on the automobile.

Spontaneously, Caputo stated that he did not want to incriminate

himself but that he had a story to tell. He then proceeded to tell

the officers that two men kidnapped him after forcing their way into

his home the night before and that he later awoke "in a daze" in the

Braintree area wearing only his underwear. The officers did not ask

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any questions in response to Caputo's unelicited statements.

At the request of the officers, Caputo agreed to

accompany the officers to the Plymouth police station. At the

station, Caputo was once more advised of his Miranda rights.

Indeed, he was given a written copy delineating each right. Caputo

read the form, making a check mark after each right. When asked

whether he wished to talk to the officers, Caputo replied: "I'm not

sure; I don’t know if I should say anything or not. What should I

do?" Morse responded: "I can’t tell you that, but I want you to be

aware of your rights and that you do not have to say anything to

me."

Yet again, Morse informed Caputo of his Miranda rights,

ascertained that Caputo understood his rights, and asked Caputo

whether he wished to speak to the police. Then, and only then,

Caputo began to elaborate on the statement he had previously made

in his home. Among other things, Caputo told the officers that he

remembered having blood on him, throwing an object out of his

automobile, and, at some point during the night, being outside his

mother-in-law's home.

At approximately 9:20 A.M., Sergeant Detective Charles

Horsley ("Horsley") of the Boston Police Department arrived at the

Plymouth police station. Informed that Caputo had been read his

Miranda rights, Horsley interviewed Caputo for approximately forty-

five minutes. When asked whether he had anything to do with the

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murders, Caputo became upset and stopped talking. Caputo asked to

leave the police station but was informed that he was under arrest.

Later that same afternoon, the police executed a search

warrant at Caputo's residence. They recovered a knife set from

which one knife was missing. A pair of "tin snips" capable of

cutting telephone wires was found in Caputo's automobile.

On November 17, 1989, Caputo was charged in two

indictments with the first-degree murders of his wife and mother-in-

law. Before trial, Caputo moved to suppress the statements that he

made at his home and at the police station. After an evidentiary

hearing, the motion judge denied Caputo's motions. The judge found

that, on entering Caputo's house, the officers immediately informed

Caputo of his Miranda rights, then ceased all questioning when

Caputo indicated that he did not want to speak to them. The judge

also found that, at the Plymouth police station, after he again

received full and complete Miranda warnings, Caputo knowingly waived

his Miranda rights before he voluntarily answered police questions.

On March 21, 1991, a jury found Caputo guilty of two

counts of first-degree murder. He was sentenced that same day to

two consecutive life sentences. The judgments were affirmed by the

Supreme Judicial Court of Massachusetts ("SJC") on April 15, 2003.

In rejecting Caputo's claims on appeal, the SJC

explained:

First, before he made any statement, [Caputo]
received and acknowledged that he understood

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 his Miranda rights. Second, when [Caputo]
indicated a wish not to speak to the police,
all questioning ceased. It was only after he
overheard the police conversation that
[Caputo] stated, unprovoked, that he had been
kidnapped the previous night. We do not agree
with [Caputo] that his statement should be
suppressed because the police officer's
request to use his telephone was "reasonably
likely to elicit an incriminating response"
from [Caputo], and therefore the "functional
equivalent" of an interrogation. The
telephone call was a report and request for
further information, an action "normally
attendant" to police procedures. [Caputo's]
statement occurred only after and apparently
because he had overheard the telephone
conversation that tended to implicate him, not
because of any "interrogation."

. . . [Caputo] gave his consent to the
police to enter his home, he did not ask them
to leave, and spoke to them only after he
recognized that the police had seen
potentially incriminating evidence outside.
A defendant who is "nervous" because he is in
the presence of police within hours of
committing murder and who chooses to give
false information to the police in an attempt,
however clumsy, to throw them off the trail as
he perceives their attention focusing on him
as a suspect, cannot resort later to a claim
of coercion.

. . .

Because we reject [Caputo's] claims that
his statements to the police at his home
should have been suppressed, we need not
consider his argument that his later
statements should have been suppressed as
"fruit of the poisonous tree."

Commonwealth v. Caputo, 786 N.E.2d 352, 358-59 (Mass. 2003)

(footnote and citations omitted).

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 On April 12, 2004, Caputo filed a petition for writ of

habeas corpus in federal court. The district court entered judgment

for the respondent on December 5, 2005, and this timely appeal

followed. The district court thereafter issued a certificate of

appealability, limiting the appeal to Caputo's claim that his

privilege against self-incrimination was violated when his

statements were introduced at trial.

II.

We review the federal district court's denial of Caputo's

petition for writ of habeas corpus de novo. Correia v. Hall, 364

F.3d 385, 387 (1st Cir. 2004).

Because Caputo's habeas petition was filed after April

24, 1996, this court's review is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132,

110 Stat. 1214 (1996). As amended, AEDPA precludes the granting

of habeas relief to a state prisoner unless the state court decision

(1) "resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States;" or (2)

resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in the

State court proceeding. 28 U.S.C. § 2254(d). Notably, the federal

habeas court shall presume that the state court's determination of

factual issues is correct, although the petitioner may rebut the

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presumption of correctness by clear and convincing evidence. Id.

A state court acts "contrary to" clearly established

Supreme Court precedent if it "arrives at a conclusion opposite to

that reached by [the Supreme] Court on a question of law" or if it

"decides a case differently than [the Supreme] Court has on a set

of materially indistinguishable facts." Williams v. Taylor, 529

U.S. 362, 413 (2000) (Justice O'Connor's Part II majority opinion).

A state court's decision involves an "unreasonable application" of

clearly established federal law if it correctly identifies the

governing legal principle from the Supreme Court's decisions but

then unreasonably applies that principle to the facts of the

prisoner's case. Id. An "unreasonable" application, moreover, is

an "objectively unreasonable" application. Id., 529 U.S. at 409.

III.

Caputo contends that his conviction was obtained through

evidence that was obtained in violation of the Fifth Amendment

privilege against self-incrimination. Specifically, he argues that

the statements he gave to the police at his house were not the

product of a voluntary waiver of his Miranda rights but were the

product of police tactics intended to elicit an incriminating

response from him. He also argues that the statements he made at

the police station, after he signed a waiver form, were the "fruit

of the poisonous tree," his earlier statements having been

involuntarily made.

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 In Miranda, 384 U.S. at 467-73, the Supreme Court held

that a person in custody must be warned prior to interrogation that

he has certain rights, including the right to remain silent. Once

a person in custody invokes his Miranda protections, the government

cannot use any evidence obtained through custodial interrogation

unless the suspect knowingly waives his rights. Id. at 479. The

term "interrogation" under Miranda refers not only to express

questioning but also "to any words or actions on the part of the

police (other than those normally attendant to arrest and custody)

that the police should know are reasonably likely to elicit an

incriminating response from the suspect." Rhode Island v. Innis,

446 U.S. 291, 301 (1980).

Here, Caputo contends that the police officer's use of

Caputo's telephone, in Caputo's presence, to relay information about

what the officers found at Caputo's residence was the functional

equivalent of interrogation because it was "reasonably likely to

elicit an incriminating response" from Caputo after he had claimed

his right to remain silent. Citing Miranda, Caputo maintains that

the story he blurted out upon hearing the officer's telephone

conversation should have been suppressed as the product of that

allegedly unlawful interrogation. Like the SJC, we are not

persuaded.

In Innis, in the presence of a man arrested on suspicion

of armed robbery, while conversing about the missing shotgun used

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in the robbery, two police officers expressed concern that a child

might injure herself if, by chance, she found the missing weapon.

This musing between the officers prompted the suspect to reveal the

location of the weapon. In holding that the police officers did not

engage in the functional equivalent of interrogation, the Supreme

Court wrote:

The case thus boils down to whether, in the
context of a brief conversation, the officers
should have known that the respondent would
suddenly be moved to make a self-incriminating
response. Given the fact that the entire
conversation appears to have consisted of no
more than a few off hand remarks, we cannot
say that the officers should have known that
it was reasonably likely that Innis would so
respond. This is not a case where the police
carried on a lengthy harangue in the presence
of the suspect. Nor does the record support
the respondent's contention that, under the
circumstances, the officers' comments were
particularly "evocative." It is our view,
therefore, that the respondent was not
subjected by the police to words or actions
that the police should have known were
reasonably likely to elicit an incriminating
response from him.

Innis, 446 U.S. at 303.

Since Innis, a number of courts have considered whether

police may confront a suspect with evidence against him without

engaging in the functional equivalent of interrogation. For

example, in United States v. Payne, 954 F.2d 199 (4th Cir. 1992),

cert. denied, 503 U.S. 988 (1992), the defendant made incriminating

statements after a law enforcement officer informed the defendant

that the FBI possessed inculpatory evidence against him. Rejecting

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the defendant's argument that the officer's statement constituted

the functional equivalent of interrogation, the Fourth Circuit

observed: "[T]he Innis definition of interrogation is not so broad

as to capture within Miranda's reach all declaratory statements by

police officers concerning the nature of the charges against the

suspect and the evidence relating to those charges." Id. at 202.

The court went on to explain:

That no comment on the evidence in a case
will ever issue in the presence of a criminal
suspect seems to us neither realistic nor
desirable as an absolute rule derived from the
Fifth Amendment. Indeed, it may even be in
the interest of a defendant to be kept
informed about matters relating to the charges
against him. . . . Information about the
evidence against a suspect may also contribute
to the intelligent exercise of his judgment
regarding what course of conduct to follow.

Id.; see also United States v. Thomas, 11 F.3d 1392, 1397 (7th Cir.

1993) (finding no functional equivalent of interrogation where a

police officer provided information about the results of his

investigation to a suspect who had herself asked the officer to let

her know such results).

Similarly, in Plazinich v. Lynaugh, 843 F.2d 836 (5th

Cir.), cert. denied, 488 U.S. 1031 (1989), the Fifth Circuit

rejected the defendant's argument that a policeman engaged in the

functional equivalent of interrogation when he informed the

defendant-–after the defendant invoked his Miranda rights--that the

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defendant's accomplice had attempted suicide by slashing her wrists

in the jail. Citing Innis, the court wrote:

[The officer's] information concerning [the
defendant's accomplice] was not objectively
likely to elicit an incriminating response
from the suspect, who had just minutes before
declined to be interrogated. In the brief and
informal context in which it was made, the
comment could at most be characterized as
offering [the defendant] food for thought
rather than seeking to provoke an
incriminating response.

Id. at 840 (internal quotation marks omitted); see also Enoch v.

Gramley, 70 F.3d 1490, 1500 (7th Cir. 1995) (finding no functional

equivalent of interrogation where the police identified the victim

to the suspect and briefly stated the evidence against him), cert.

denied, 519 U.S. 829 (1996).

In this case, Caputo volunteered false exculpatory

information after hearing Dorman report to his shift commander that

Caputo was at his residence, that the engine of Caputo's automobile

was warm, and that there were two different registration plates on

the automobile. Dorman did not pose any questions to Caputo, and

he did not otherwise engage in subtle efforts to get Caputo to talk.

Instead, he simply related to another law enforcement officer non-

evocative facts about what he saw at Caputo's residence. Dorman had

no reason to know or even suspect that, in response to his brief

telephone call to the Plymouth police station, Caputo would

spontaneously blurt out a fabricated story intended to be

exculpatory and explanatory. Consistent with the case law set out

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above, the SJC determined that Caputo was not subjected to the

functional equivalent of interrogation, and his Fifth Amendment

right against compelled self-incrimination was not violated, when

Dorman used Caputo's telephone, in Caputo's presence, to report what

was found at Caputo's residence. Finding no Fifth Amendment

violation when Caputo made his initial statements, the SJC

determined that Caputo's later statements could not have been "fruit

of the poisonous tree." The SJC thus upheld the trial court's

denial of Caputo's motion to suppress.

When reviewing the SJC's decision upon Caputo's petition

for federal habeas corpus relief, the district court concluded that

the SJC properly applied the holdings of Miranda and Innis and,

consequently, reached a decision that was neither contrary to, nor

an unreasonable application of, Supreme Court precedent. We agree

with the district court's conclusion and, accordingly, AFFIRM the

judgment of the district court, denying Caputo's petition for writ

of habeas corpus.

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