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Opinions of The and the Court of Appeals To be used in
conjunction with the CPS Criminal Procedure Textbook |
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CPS Commonwealth
Police Service, Inc. and the Law Office of Patrick Michael Rogers |
Commonwealth v.
zz Supreme Judicial Court of
Massachusetts, Middlesex.
Argued
Decided
[380
Robert M. Raciti,
Asst. Dist. Atty., for the Commonwealth.
Before
[380
[380
About
8 p. m.,
On
Before
trial the defendant moved to suppress the three statements above mentioned as
well as evidence of the lineup identifications.
The motion was denied on June 27, 1975.
At trial the defendant on December 13, 1975, was found guilty of murder
in the second degree (the judge's instructions having also encompassed the
first degree) and of the other offenses charged; he was sentenced to life
imprisonment on the murder conviction with concurrent sentences of twelve to
twenty years on the assaults, the motor use charge being filed by consent. He appealed under the provisions of G.L. c.
278, ss 33A‑33H. (Legislation of 1979 affecting those
sections, particularly s 33E, will be discussed below.) He claims error in the denial of his motion
to suppress and in the subsequent admission of the relevant evidence at
trial. Other trial errors are alleged to
which we shall also come.
1.
Pretrial Waiver. As will appear, on the
three occasions on which the defendant made statements, he was advised of his
constitutional rights and indicated that he understood and waived them and was
willing to speak. The defendant's claim,
however, is that, having limited intelligence, he never actually understood
those rights, so that his waiver should be held ineffective as in essence
involuntary, and the statements should be rendered inadmissible accordingly.
[1] The
Commonwealth bears the burden of demonstrating that the defendant waived his
rights "voluntarily, knowingly and intelligently" (Miranda v.
Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16
L.Ed.2d 694 (1966); see Commonwealth v. Hosey, 368
Mass. 571, 574, 334 N.E.2d 44 (1975)), every reasonable presumption being
indulged against a waiver. See
Commonwealth v. Hooks, ‑‑‑ Mass.[380 Mass. 4] ‑‑‑, ‑‑‑
(FNa), 376 N.E.2d 857 (1978); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct.
1019, 1023, 82 L.Ed. 1461 (1938). We are to consider "the totality of all
the surrounding circumstances both the characteristics of the accused and the
details of the interrogation" in reaching a judgment. Commonwealth v. Daniels, 366 Mass. 601, 606,
321 N.E.2d 822, 827 (1975), quoting from Schneckloth
v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973). In the present case we are assisted by the
detailed findings of the motion judge after nine days and 1,314 transcript
pages of hearings (unnecessarily extended by futilely repetitious interrogation
by defense counsel). We accept the
judge's subsidiary findings as well supported; his conclusions are entitled to
respect, but they do not bind us and we submit them to our independent
judgment. See Commonwealth v. Murphy,
362 Mass. 542, 550‑551, 289 N.E.2d 571 (1972) (concurring opinion of
Hennessey, J.); Commonwealth v. Jones, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNb),
377 N.E.2d 903 (1978). (FN3)
[2]
(a) Statement of April 9, 1974. The
defendant was then thirty years old. He
had an I.Q. of seventy‑nine. The
normal range is between ninety and 109.
Although he had attended school to the eighth grade, he was illiterate,
but was able to write his name. All this
is agreed. (FN4)
Medford
police Lieutenant John Keating and his partner, Sergeant Patrick Carr, the
principal questioners of the defendant, first encountered him at the Auburn
jail about 6 p. m. that day. Keating
said he had a warrant for the defendant's arrest for the murder on March 20 of
Marie Morelli. Next, Keating read the defendant the Miranda
rights from a printed card and asked if he understood them. The defendant said as to each right that he
did. He answered affirmatively to the
question whether he wanted to talk to the officers. Keating asked the defendant to read and sign [380 Mass. 5] the Miranda card; when the defendant indicated he could not read,
Keating read from the card again, and the defendant then signed it and said he
wanted to talk about the holdup at Sam's to "get this thing off my
chest."
In
response to questions, the defendant recounted the episode of March 20. He told how he and three other men (Michael
Barrett, Kenneth Larkin, and William Paskell) decided
to rob Sam's store. The defendant was
the one who entered the store and announced the holdup. He did not draw and fire his gun until Cohen
had fired at him. He thought he had not
struck Morelli because he heard his shot hit the cans
behind the counter. He remembered seeing
Morelli standing as he left the store. (FN5)
He told also of his flight to Maine.
The
interview was taped; in addition, the police wrote down the answers to the
questions and read them back to the defendant to ensure accuracy. At the close of the interview, the written
responses were read to the defendant again, and he signed each page on which
they appeared. (FN6) Testifying at the suppression hearing,
the defendant himself said that he was told three or four times during the
session that he could stop the questioning at will; he also acknowledged that
he had put questions to Keating about his constitutional[380 Mass. 6] rights before answering the officers'
questions. (FN7) Contrast Commonwealth v. Daniels, 366 Mass.
601, 608, 321 N.E.2d 822 (1975). There
is no hint of the use of any of the techniques of interrogation criticized in
the Miranda case. Miranda v. Arizona,
supra 384 U.S. at 445‑448, 86 S.Ct. at 1612‑1614. Contrast Reck v.
Pate, 367 U.S. 433, 441, 81 S.Ct. 1541, 1546, 6
L.Ed.2d 948 (1961); Ashcraft v. Tennessee, 322 U.S. 143, 153, 64 S.Ct. 921, 925, 88 L.Ed. 1192
(1944); United States v. Hull, 441 F.2d 308, 313 (7th Cir. 1971).
[3]
The motion judge hearing the tapes described the interview as logical and
orderly, free of hostility, coercion, or threats. Perhaps more significantly for the present
purpose, he found the defendant's answers "responsive, clear, lucid, and
ready. His voice was soft, calm,
composed and void of any agitation or emotion.
No remark or response of Davis . . .
is found to be confused, incoherent; but rather his conversation is
found intelligent and rational."
Dr. William Shelton, a psychiatrist called to testify about the
defendant's competency to stand trial, said under questioning by the judge that
during his meeting with the defendant he found him communicative and possessed
of a "reasonable degree of rational understanding." An effective waiver was not precluded by the
defendant's limited education and intellectual ability. Commonwealth v. Daniels, supra at 606, 321
N.E.2d 822, and cases cited. (FN8)
Compare Blackburn v. Alabama, 361 U.S. 199, 207, 80 S.Ct.
274, 280, 4 L.Ed.2d 242 (1960); United States v. Hull, 441 F.2d 308, 309 (7th
Cir. 1971). We note here that the
defendant had had years of worldly experience, including several encounters
with the law in which he had four or five times been given Miranda
warnings. Undoubtedly he recognized the
seriousness of his situation.
[380 Mass. 7] The motion judge, who had the benefit of seeing and hearing the
defendant testify, concluded that the defendant's waiver was knowing and his
statement voluntary. We agree. (FN9)
[4]
(b) Statements of May 5 and May 9, 1974.
We skip for the moment the lineup of April 10, 1974. On May 5, Keating and Carr, in response to a
telephone call from the defendant, visited him at the Plymouth House of
Correction. A prison official told the
defendant he was not obliged to speak to the officers but the defendant said he
wanted to do so. At that point Miranda
rights were carefully given and the defendant signed a Miranda card. The defendant said (without any prior
suggestion) that he wanted to go before the grand jury because he believed he
had not fired the effective bullet. He
said he now remembered more of the incident and proceeded to amplify his April
9 statement with some details in themselves having a tendency to palliate his
offense by linking Cohen to the fatal shot.
(FN10)
On
May 9, the defendant in fact appeared before a Middlesex County grand
jury. The prosecutor gave the defendant
Miranda warnings as he took the stand.
Then the defendant told his story. The grand jury indicted.
Like
the statement of April 9, the May statements were not coerced, but the question
of the defendant's cognitive ability recurs and the judge's answer remained the
same, as does ours. Indeed the defendant
testified at the suppression hearing that counsel appointed by the court for
him on April 11 had explained his rights to him that day, well before the May
statements, so that he understood them well.
(FN11)
[380 Mass. 8] [5] (c) Lineup. Returning
under arrest from Maine on the evening of April 10, the defendant was placed in
a lineup at the Medford police station and was identified by Cohen and also by
Frank Palmisano, the proprietor of a service station
across the street from Sam's store.
(FN12) The failure to suppress a
photograph of the lineup and testimony of the identifications, and the
admission of corresponding material at trial, are attacked, first, on the
ground that the defendant could not waive intelligently a right to have counsel
present of which he was advised just before the lineup took place. This is answered in the terms set out above;
the defendant in fact signed a paper evidencing his consent. There is no need then to advance the
proposition that the defendant's Sixth Amendment right to counsel had not
attached under Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct.
1877, 1882, 32 L.Ed.2d 411 (1972), as "adversary judicial criminal
proceedings" against the defendant are conceived not to have been initiated
despite his having been arrested and booked.
See Flaherty v. Vinzant, 386 F.Supp. 1170, 1172 (D.Mass.1974). (FN13)
[380 Mass. 9] [6] Second, there is criticism of the composition of the lineup
as unduly suggestive, and hence impermissible constitutionally, because the men
who participated resembled the defendant, not the robber as described by Cohen
shortly after the incident, and because only the defendant was exhibited with a
bandaged hand. As to the selection for
the lineup, we need not get into details beyond saying the criterion suggested
might have had the effect of singling out the defendant (see United States v.
Wade, 388 U.S. 218, 232‑233, 87 S.Ct. 1926,
1934‑1935, 18 L.Ed.2d 1149 (1967)), and we do not see unfairness in the
criterion used, which would avoid that consequence. See generally N. Sobel,
Eye‑Witness Identification s 56.03 (1972). Regarding a bandage, the defendant testified
on the motion that he wore none at the lineup and three other witnesses agreed;
while there was testimony by one witness in a contrary sense, we see no reason
to disturb the judge's finding, which accords with the defendant's own
statement.
Third,
a confused argument is made about the question just when Cohen saw a picture of
the defendant that was published in a local newspaper, the Medford Mercury, on
April 10, 1974. The matter came up at
the suppression hearing and Cohen testified he believed he had not seen the
photograph and accompanying article until after the lineup identification. Thus all basis for suppression fell out. The motion judge made no findings on the
matter. At trial the question was
renewed, and the judge chose to conduct a voir
dire. Cohen first said he had seen the
picture before the lineup but then corrected himself and said it was
afterward. There is no suggestion that
the police were aware of the publication at the time of the lineup. The judge declined to exclude evidence of
Cohen's lineup identification, and in the circumstances we see no error. (FN14)
An assessment[380 Mass. 10]
of all of Cohen's identification testimony was for the jury. (FN15)
[7]
2. Trial. (a) Cross‑examination. The trial judge excluded questions on cross‑examination
of Cohen about whether he had a valid permit for the gun he fired on March 20,
and about a prior arrest of Cohen for assault with a dangerous weapon (the
charge had been reduced to assault and then dismissed). The defense tried to develop the theme that
Cohen had a motive to put the blame for the victim's death on the defendant in
order to relieve himself of such an onus.
There was argument that the excluded questions had some tendency to
prove bias, but this connection is hardly discernible. (FN16)
Rather the questions seem related to establishing Cohen's criminal
character, but on that footing they were inadmissible, as the possible
misconduct pointed to was short of a conviction as required for impeachment
under G.L. c. 233, s 21. See
Commonwealth v. Turner, 371 Mass. 803, 809‑810, 359 N.E.2d 626
(1977). Nor was this a case like Davis
v. Alaska, 415 U.S. 308, 316‑318, 94 S.Ct.
1105, 1110‑1111, 39 L.Ed.2d 347 (1974), where the defense was held
entitled to cross‑examine to establish that the witness was on probation
and thus subject to pressure to testify favorably to the prosecution. See also Commonwealth v. Hogan, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNc),
396 N.E.2d 978 (1979). Cohen's arrest
occurred in 1968 and did not survive as any threat to him at the time of trial
seven years later. Compare Commonwealth
v. Santos, ‑‑‑ Mass. ‑‑‑, ‑‑‑
(FNd), 384 N.E.2d 1202 (1978).
Cohen
had been convicted of receiving stolen property and the record of that
conviction was properly used by the defense to impeach him. It was not error to exclude defense questions
designed to show that Cohen had appealed the conviction but later withdrew the
appeal. The defendant asserts that he
was denied questions intended to show inconsistencies between Cohen's current
testimony and statements[380 Mass.
11]
made by him in other judicial proceedings, but the assertion is not
fortified by any demonstration of the claimed error or its significance, and so
we need not consider it. See
Commonwealth v. Bernier, 366 Mass. 717, 719‑720, 322 N.E.2d 414 (1975).
[8]
(b) Mistrial. On the seventeenth day of
trial Lieutenant Keating was called as a witness for the prosecution and
testified briefly before adjournment for the day. That evening Keating suffered a heart attack
and was placed in the coronary intensive care unit at Lawrence Memorial
Hospital; he was unable to return to complete his direct testimony or to stand
cross‑examination. The judge
promptly struck Keating's testimony (including a Miranda card
admitted as an exhibit in connection with the testimony), and instructed the
jury then and (in more general terms) in his final charge to disregard it. The defendant urges that it was error for the
judge to deny his motion for a mistrial.
It is generally accepted that when a witness becomes suddenly
unavailable for cross‑examination, the judge is not bound to declare a
mistrial; in his discretion, if the likelihood of prejudice is slight, he may
act just as the trial judge did here.
See Best v. Tavenner, 189 Or. 46, 54‑56,
218 P.2d 471 (1950); McCormick, Evidence at 44‑45 (2d ed. 1972); 5 J. Wigmore, Evidence s 1390 (Chadbourn rev. 1974). We think there was no chance of
prejudice. As noted, Keating's testimony
was brief; he had only gotten to the point of recounting the preliminaries to
the defendant's statement of April 9 that the defendant was informed of the
warrant for his arrest, given his Miranda rights, asked if he understood the
rights and was willing to waive them, and asked whether he recognized two
pictures handed him. The testimony had
not reached any contested issue.
Nevertheless the judge allowed the defense (without waiving its
objection to the denial of the mistrial) to read to the jury from Keating's
direct and cross‑examination at the suppression hearing; and the defense
chose to read extensively from that transcript.
We should add that it would not have been improper for the judge, in
denying the mistrial, to give due consideration to the fact that the trial had
gone seventeen days. See United States
v. Malinsky, [380
Mass. 12] 153 F.Supp.
321, 323 (S.D.N.Y.1957). It is contended
that Keating was an indispensable witness because of his involvement in the
Auburn interrogation, but the circumstances were fully developed through the
direct and cross‑examination of Sergeant Carr. (FN17)
[9]
3. Question of G.L. c. 278, s 33E. The
Commonwealth contends that this defendant, indicted for murder in the first
degree and convicted of murder in the second degree, is not entitled to a
special review of "the whole case for . . . consideration of the law and the evidence"
long required by G.L. c. 278, s 33E.
This, the Commonwealth claims, results from the amendment of the s 33E
stated to be effective on July 1, 1979 (St.1979, c. 346, s 2).
Section
33E, after amendment, is the equivalent of the second paragraph of that section
in its earlier form but with the changes indicated (strike‑through
represents deletion from earlier text):
"In a capital case as hereinafter
defined the entry in the supreme judicial court shall transfer to that court
the whole case for its consideration of the law and the evidence. Upon such consideration the court may, if
satisfied that the verdict was against the law or the weight of the evidence,
or because of newly discovered evidence, or for any other reason that justice
may require (a ) order a new trial or (b ) direct the entry of a verdict of a
lesser degree of guilt, and remand the case to the superior court for the
imposition of sentence. For the purpose
of such review a capital case shall mean a case in which the defendant was
tried on an indictment for murder in the first degree and was convicted of
murder either in the first or second degree.
After the entry of the appeal in a capital case and until the filing of
the rescript by the supreme judicial court motions[380 Mass. 13] for a new trial shall be
presented to that court and shall be dealt with by the full court, which may
itself hear and determine such motions or remit the same to the trial judge for
hearing and determination. If a motion
is so remitted, or (I)f any motion is filed in the superior court after rescript, no appeal shall lie from the decision of that
court upon such motion unless the appeal is allowed by a single justice of the
supreme judicial court on the ground that it presents a new and substantial
question which ought to be determined by the full court."
The
earlier text addressed itself aptly to the situation as it was before the
founding of the Appeals Court: appeals of murder convictions of both types
mentioned first degree indictment with first degree conviction, and first
degree indictment with second degree conviction went direct to, and were
entered in this court. Under the
legislation connected with the creation of the Appeals Court, first degree
convictions were still to go direct to this court. But appeals from second degree convictions
under first degree indictments were to be entered in the Appeals Court (G.L. c.
211A, s 10), subject to our transferring them here. Id. Because of a doubt whether s 33E allowed
for the special review at the hands of the Appeals Court, we regularly used our
sua sponte power of
transfer with respect to such appeals after they were entered in the Appeals
Court. As those appeals upon transfer
were entered in our court, there was conformance with the words "the entry
in the supreme judicial court" appearing in the first sentence of text set
out above.
The
amendment of s 33E, eliminating the special review of the category of second
degree convictions based on first degree indictments, may have been a response
to the fact that such a conviction results in a sentence (life imprisonment
with a possibility of parole after fifteen years) no more severe than sentences
on convictions of various other crimes [380
Mass. 14] for which the special
review has not been provided. (FN18)
However, the question arises whether, as the Commonwealth contends, the
amendment operates upon all cases in the category where appeal is entered in
this court on or after July 1, 1979.
The
contention must be held erroneous because it would lead to arbitrary and
unreasonable results. Take the present
case. According to the Commonwealth, the
special review is eliminated simply because the "entry" in this court
occurred after July 1, 1979. But
consider the actual table of events. The
defendant was convicted on December 13, 1975, and sentenced on December 19,
1975; on the same day he filed his claim of appeal to the Appeals Court. Certificate of notice of completion of the
summary of the record was filed on June 16, 1977. On March 9, 1978, the Commonwealth moved to
dismiss the appeal for the defendant's failure to file his assignment of
errors, but this was met by the defendant's motion to enlarge time to file the
assignment, which was granted on April 19, 1978, and the assignment was filed
on April 27, 1978. On June 26, 1979, the
case was entered in the Appeals Court.
This court on July 3, 1979, sua sponte ordered the case transferred here, and it was so
entered on July 9, 1979.
The
date of the "entry" in this court was a matter of chance. Even if we disregard the fortuities in the
four‑year progress of the appeal up to the time of our order of transfer,
it is evident that that order might just as well have come, say, on June 26,
1979, with entry here the next day. To
make the right to the special review turn on such oddities would not make
sense, and we should not ascribe such a design to the Legislature. Thus the Commonwealth's contention is very
infirm.
What,
then, should be the incidence of the amendment of s 33E? As a general rule, statutes are to be read in
a prospective[380 Mass. 15]
sense. See Hanscom
v. Malden & Melrose Gas Light Co., 220 Mass. 1, 3, 107 N.E. 426
(1914). As to criminal statutes, the
rule is strongly reinforced by the constitutional prohibitions of ex post facto
laws. Declaration of Rights of the
Massachusetts Constitution, art. 24.
Constitution of the United States, art. 1, s 10. It is not entirely clear whether the s 33E
amendment, if applied to crimes committed before July 1, 1979, would offend
against the ex post facto clauses. We
have indicated that legislation which would have the effect of changing a
discretionary sentence to a mandatory one could not be validly enforced with
respect
to crimes antedating the law.
See Commonwealth v. Harrington, 367 Mass. 13, 20‑21, 323 N.E.2d
895, 900 (1975). (FN19) The amendment of s 33E partakes of this
character in that it cuts off the court's power to weigh sundry factors and
adjudge whether an offense should be reduced or a new trial ordered. (FN20)
So also we have held against application of subsequent legislation which
aggravated the punishment established by law for the particular offense when it
was committed, even where that took the rather mild form of tampering with good‑conduct
credits. See Murphy v. Commonwealth, 172
Mass. 264, 52 N.E. 505 [380 Mass. 16] (1899). (FN21)
See also Lembersky v. Parole Bd. of the Dep't
of Correction, 332 Mass. 290, 293, 124 N.E.2d 521 (1955); Greenfield v. Scafati, 277 F.Supp. 644 (D.Mass. 1967) (three‑judge court), aff'd, 390 U.S. 713, 88 S.Ct.
1409, 20 L.Ed.2d 250 (1968) (per curiam). Cf. Lindsey v. Washington, 301 U.S. 397, 57 S.Ct. 797, 81 L.Ed. 1182 (1937); Kring v. Missouri, 107 U.S. 221, 2 S.Ct.
443, 27 L.Ed. 506 (1882). We must acknowledge that we find no precedent
directly in point, and that there are some cases from which analogies may be
drawn that would perhaps justify the application of the s 33E amendment to past
crimes. See Mallett
v. North Carolina, 181 U.S. 589, 21 S.Ct. 730, 45 L.Ed. 1015 (1901) (State's right to appeal applied
retroactively). See also People v.
O'Bryan, 165 Cal. 55, 130 P. 1042 (1913); State v. Witte, 243 Wis. 423, 10
N.W.2d 117 (1943). But see In re Jones,
500 P.2d 690 (Wyo.1972). (FN22) Whatever conclusion might be reached on
strict analysis, we think this is a field where a court does well to tread
lightly, and so we are inclined, "under the influence if not the
command" (FN23) of the ex post facto provisions, to rule that the special
review remains available where, as in the present case, the offense resulting
in a second degree murder conviction upon an indictment in the first degree was
committed before July 1, 1979. As to such cases we [380 Mass. 17] shall
follow our practice of sua sponte
transfer to this court from the Appeals Court.
The category will exhaust itself in course of time.
The
record in the present case has been accorded the s 33E review. No reason appears for reducing the offense or
granting a new trial.
Judgments
affirmed.
FN1.
Cohen fired a second shot from the doorway of the store as the defendant escaped.
FN2.
The defendant was using a .32 caliber automatic pistol, Cohen a .38 caliber
revolver. A pathologist who testified
for the Commonwealth stated that the size of the victim's entrance wound was
consistent with a .32 caliber bullet but not with a .38 caliber bullet. According to the pathologist for the defense,
no such conclusion could be reached.
Blood was found on the counter suggesting that the crucial shot was fired
by the defendant, as both he and the victim were positioned in front of the counter,
with the defendant behind it. (See note
10 infra.)
FNa. Mass.Adv.Sh. (1978)
1356, 1360.
FNb. Mass.Adv.Sh. (1978)
1467, 1472‑1473.
FN3.
The trial judge left to the jury the voluntariness
not only of the defendant's statements, but also of the waiver of his right to
remain silent. See, however,
Commonwealth v. Chung, ‑‑‑ Mass. ‑‑‑, ‑‑‑
n.9 (Mass.Adv.Sh.
(1979) 1722, 1732 n.9, 392 N.E.2d 1015).
FN4. A
psychologist testified for the defendant about the defendant's intelligence as
measured by standard tests. The
"retarded" category is not reached until I.Q. 69.
FN5. On
April 10 the defendant sought out Keating and told him that, contrary to what
he had said the day before, he had not seen the victim standing when he left
the store.
FN6. At
the close of the interrogation the defendant answered affirmatively three
additional questions:
1) "Delmont did you rob
Sam's Variety on March 20, 1974?"
2) "Did
Kenny Larkin, Billy Paskell, and Mike Barrett help
you rob Sam's Variety?"
3)
"Did you shoot gun at store manager in Sam's Variety on March 20,
1974?"
Asked
if he felt better after discussing the incident, the defendant said:
"Yeah,
I really do because it's been bugging me and everything, and I'd rather face it
and get it over with, why live with it and hide for the rest of my life so you
know, I feel a lot relaxed. I just hope
it wasn't me that done it, it might have been me, but as far as I know that
when I fired the gun it hit the cans."
FN7.
The defendant at the hearing conceded that he understood his right to remain
silent but claimed ignorance of the other Miranda rights.
FN8.
The whole tenor of the evidence was such that the Commonwealth's omission to
introduce expert evidence on its own behalf (apart from testimony about
competency to stand trial) raised no such questions as were discussed in
Commonwealth v. Kostka, 370 Mass. 516, 539, 350
N.E.2d 444 (1976) (Hennessey, C. J., dissenting in part) (issue of insanity).
FN9.
The judge denied suppression of the added statement of April 10 (see note 5
supra ) as well as the statement of April 9.
FN10.
The defendant claimed to recall on May 5 that he found blood on his shoulder
although he had not been shot. But
compare note 2 supra. The clothing worn
by the defendant on March 20 was discarded soon after the incident and was not
recovered.
FN11.
The defendant does not argue in this court a question raised at the suppression
hearing about the propriety of the police receiving the statement of May 5, and
letting the defendant go before the grand jury on May 9, without their getting
in touch with counsel for the defendant.
See Massiah v. United States, 377 U.S. 201, 84
S.Ct. 1199, 12 L.Ed.2d 246 (1964). It appears that counsel's assignment ended
with the probable cause hearing on April 25; the defendant initiated the
meeting of May 5 and chose deliberately not to attempt to reach that attorney;
Miranda warnings were given about procuring counsel; and the May statements
were not more inculpatory than the April 9
statement. We leave to another day the
further exploration of the issues regarding notification of counsel discussed
in Brewer v. Williams, 430 U.S. 387, 405‑406, 97 S.Ct.
1232, 1243‑1244, 51 L.Ed.2d 424 (1977), and Commonwealth v. Frongillo, 359 Mass. 132, 136‑137, 268 N.E.2d 341
(1971) (see also Commonwealth v. Williams, ‑‑‑ Mass. ‑‑‑,
‑‑‑ n.10 (Mass.Adv.Sh. (1979) 1431, 1442 n.10), 391 N.E.2d 1202),
and recently renewed by the New York Court of Appeals in People v. Cunningham,
49 N.Y.2d 203, 424 N.Y.S.2d 421, 400 N.E.2d 360 (1980).
FN12.
The identifications, made separately by the two witnesses, were definite. Neither was told that a suspect had been
arrested or a confession given.
FN13.
The defendant argues that he was willing to decline the Commonwealth's offer of
counsel only because he had already made the incriminating statement of April 9
which, according to his claim, was illegally obtained. This "cat out of the bag"
contention, such as it is, fails because the April 9 statement was secured
lawfully.
FN14.
In the absence of contrivance by the police, the fact that a witness has
previously seen newspaper display of the defendant seems not itself to have
figured as the basis for excluding an identification. For discussion, see United States v. Zeiler, 470 F.2d 717, 719‑720 (3d Cir. 1972); see
also United States v. Grose, 525 F.2d 1115, 1117‑1118
(7th Cir. 1975); United States v. Boston, 508 F.2d 1171, 1177‑1178 (2d
Cir. 1974), cert. denied, 421 U.S. 1001, 95 S.Ct.
2401, 44 L.Ed.2d 669 (1975); Norris v. State, 265 Ind. 508, 511‑513, 356
N.E.2d 204 (1976).
FN15.
On April 6, two days before the lineup, Cohen had identified the defendant's
picture in a group of six pictures, calling it a "good look alike"
and saying he would like to see the man in person.
FN16.
In fact the judge gave the defendant considerable scope in pursuing bias.
FNc. Mass.Adv.Sh. (1979)
2453, 2454.
FNd. Mass.Ad.Sh. (1978)
3221, 3227.
FN17.
We are unpersuaded by the defendant's claim that he
did not take the stand because Keating was unavailable for cross‑examination. This was a decision for the defendant to make
and does not produce error in the judge's action denying a mistrial.
FN18.
The s 33E review was not applicable to a conviction of second degree murder
following indictment for that offense, or for sentences of life imprisonment
upon conviction of crimes other than murder where parole was available only
after fifteen years. See G.L. c. 127, s
133A.
FN19.
"(A) retroactive legislative change from discretionary to mandatory death
sentence would be an unconstitutional ex post facto law. United States Constitution, art. 1, s
10. Declaration of Rights of the
Massachusetts Constitution, art. 24. See
Commonwealth v. Gardner, 11 Gray 438, 443 (1858); Commonwealth v. Phelps, 210
Mass. 78, 79‑80, 96 N.E. 349 (1911); Lembersky
v. Parole Bd. of the Dept. of Correction, 332 Mass. 290, 293 (, 124 N.E.2d 521)
(1955); Lindsey v. Washington, 301 U.S. 397, 401, 57 S.Ct.
797, 799, 81 L.Ed. 1182 (1937). An unforeseeable judicial decision having the
same effect is equally barred by the due process clause. Bouie v. Columbia,
378 U.S. 347, 353‑354, 84 S.Ct. 1697, 1702, 12
L.Ed.2d 894 (1964)."
FN20.
The s 33E review is broader than the doctrine of Commonwealth v. Freeman, 352
Mass. 556, 564, 227 N.E.2d 3, 9 (1967), under which a court may examine a point
on appeal although not properly preserved below where otherwise "there is
a substantial risk of a miscarriage of justice." The search under s 33E is a more general and
an obligatory one for a result that may be "more consonant with
justice." Commonwealth v. Seit, 373 Mass. 83, ‑‑‑ (1977) (Mass.Adv.Sh. (1977)
1555, 1567, 364 N.E.2d 1243, 1250), quoting from Commonwealth v. Baker, 346
Mass. 107, 109, 190 N.E.2d 555 (1963).
That this kind of search has not often eventuated in relief to
defendants does not affect our discussion.
FN21.
The court in Murphy, holding that the statute should attach only to crimes
committed after its enactment, said broadly that a law is subject to the ex
post facto objection if "it will increase the penalty, or operate to
deprive a party of substantial rights or privileges to which he was entitled as
the law stood when the offense was committed, or, 'in short, (which,) in
relation to the offense or its consequences, (alters) the situation of a party
to his disadvantage.' " Murphy v.
Commonwealth, 172 Mass. 264, 269, 52 N.E. 505, 507 (1899), quoting the latter
words from Kring v. Missouri, 107 U.S. 221, 228‑229,
2 S.Ct. 443, 449, 27 L.Ed.
506 (1882).
FN22.
The conventional explanations of the ex post facto doctrine e. g., that to
apply subsequent legislation would defeat "reliance" or
"expectation" without serving a deterrent function are analyzed in
some detail in Note, Ex Post Factor Limitations on Legislative Power, 73 Mich.L.Rev. 1491 (1975).
In some respects the doctrine appears to look not to the effects on the
individual but to a notion of the just ordering of a legal system which is
suspicious of a lawmaker who seeks to switch penal rules after the event. Cf. J. Rawls, A Theory of Justice 238 (1971).
FN23.
The expression is taken from Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356
U.S. 525, 537, 78 S.Ct. 893, 901, 2 L.Ed.2d 953
(1958), where the constitutional provision referred to was the Seventh
Amendment to the United States Constitution.