COMMONWEALTH vs. WILLIAM H. HUNT.

DREBEN, J. The Commonwealth, having obtained leave to appeal from a single justice of the Supreme Judicial Court (G. L. c. 278, Section 28E, and Mass.R.Crim.P. 15[b][2], 378 Mass. 884 [1979]), claims error in the order of a judge of the Superior Court which allowed the defendant's motion to suppress a confession made by him while in police custody. [Note 1] We affirm.

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The following facts were found by the trial judge. In the early hours of February 17, 1980, a shooting occurred at "The Ranch," a bar in Marlborough. The victim was rendered unconscious and was taken to a hospital. A police report, based on conversations with a witness to the shooting, indicates that the victim's assailant fled the scene with a woman.

Various tips led Officer Bartlett of the Marlborough police department, the officer investigating the shooting, to the defendant's home. Bartlett and two other officers were allowed to enter. The defendant and his wife were given Miranda warnings. Both the defendant and his wife told the police that they had been at "The Ranch," but that they did not know anything about the shooting. Both were arrested. They were taken in separate cars to the police station where they were kept apart.

While at the police station, the defendant was questioned by Bartlett after having again been advised of his Miranda rights. He understood those rights. Bartlett took the defendant's photograph which he carried to the hospital with eight other pictures of males of similar appearance. The victim made a photographic identification of the defendant. Bartlett returned from the hospital and informed the defendant of the positive identification. The defendant expressed concern about his wife.

The judge found that:

"Bartlett told the defendant that if he confessed to the shooting and said Mrs. Hunt was not involved she would be released. Otherwise, because the couple had come recently from Florida, high bail would be sought and Mrs. Hunt would probably be sent to Framingham. Mrs. Hunt had been detained in another room but at one point had been brought in to defendant in tears." [Note 2]

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The defendant then made incriminating statements and led Bartlett to the firearm.

The judge ruled that at the time of the statements by the officer to the defendant concerning his wife, "Mrs. Hunt was being held with no evidence in the possession of police even approaching probable cause." [Note 3] She concluded that the psychological pressure brought to bear on the defendant was such that the Commonwealth did not meet its "heavy burden" of establishing that the defendant's confession was voluntary. Commonwealth v. Meehan, 377 Mass. 552, 563 (1979).

The standard of review in these cases requires us to accept the subsidiary findings of fact of the trial judge absent clear error. Commonwealth v. White, 374 Mass. 132, 137 (1977), aff'd, 439 U.S. 280 (1978). Commonwealth v. Moon, 380 Mass. 751, 755-756 (1980). Also, the judge's ultimate legal conclusions as to the defendant's intelligent and voluntary waiver of Miranda rights, or the absence thereof, or as to the voluntariness of his statements are "entitled to substantial deference." Commonwealth v. White, 374 Mass. at 138. Commonwealth v. Tabor, 376 Mass. 811, 822 (1978). Commonwealth v. Doyle, ante 786, 795 n.3 (1981).

Using that standard of review, we should not interfere with the judge's conclusions in this case. See Commonwealth v. Meehan, 377 Mass. at 567-568. The judge heard

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testimony of the defendant, his wife and of police officers. On the evidence before her, the judge found an implicit threat or promise that the defendant's wife would be released if he confessed and did not implicate her; otherwise she would be sent to jail. Viewing the totality of the circumstances, the judge could conclude that the statements of the defendant were not his free and voluntary act. See Rogers v. Richmond, 365 U.S. 534, 536-537, 548 n.5 (1961); United States v. Guaydacan, 470 F.2d 1173, 1173-1174 (9th Cir. 1972). See also United States v. McShane, 462 F.2d 5, 7 (9th Cir. 1972), and a considerably more egregious case, Ferguson v. Boyd, 566 F.2d 873, 879 (4th Cir. 1977). Cf. Commonwealth v. Meehan, 377 Mass. at 564-565. For cases in other States, see People v. Trout, 54 Cal.2d 576, 583-584 (1960) (particularly the court's comment concerning the testimony of Lieutenant Murray at 583-584); Hall v. State, 255 Ind. 606, 610-611 (1971); State v. Hilpipre, 242 N.W.2d 306, 312 (Iowa 1976). See generally Annot., 80 A.L.R.2d 1428 (1961). [Note 4]

We reject the Commonwealth's suggestion that a threat or promise concerning the defendant's wife, and not the defendant himself, is insufficient to invalidate a confession. See State v. Gibilterra, 342 Mo. 577, 586 (1938). See also dictum of Morton, J., in Commonwealth v. Knapp, 9 Pick. 496, 504 (1830). A concern for one's family may be as significant in inducing an involuntary confession as a concern

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for oneself. People v. Mellis, 134 Cal. App. 219, 225-226 (1933). See Rogers v. Richmond, 365 U.S. at 536-537, 548 n.5; Lynumn v. Illinois, 372 U.S. 528, 534 (1963). Cf. Commonwealth v. DiStasio, 294 Mass. 273, 284-285 (1936).

Order affirmed.