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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.
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Brownlow M. Speer, Committee for
Public Counsel Services,
[403
Before [403
[403
Convicted
of murder in the first degree, the defendant appeals, alleging error in (1) the
admission of his statements to the police;
(2) the denial of his motion for a required finding; (3) the denial of his request for an
instruction on voluntary manslaughter;
and (4) the instructions on malice.
The defendant asks that we exercise our power under G.L. c. 278, § 33E,
and reduce the verdict to manslaughter.
We conclude that there is no reversible error, and no substantial
likelihood of a miscarriage of justice.
Therefore we affirm the conviction.
We decline to exercise our power under G.L. c. 278, § 33E, in favor of
the defendant.
We
summarize the evidence in the light most favorable to the Commonwealth.
(FN1) At approximately
[403
At the
station, the defendant met with an Inspector Guilfoyle. The defendant told Guilfoyle
that he was with John Barnes on February 9 and intended to use the pay
telephone in front of City Hall. The
defendant stated that while using the telephone he observed a suspicious
individual whom he described. (FN2) He
also described a rod and bag carried by this individual. The defendant then assisted the police in
drawing a composite picture of the individual.
The defendant looked through the police photographs but did not make an
identification. The defendant left the
station.
On
February 13, Guilfoyle got in touch with Barnes to
get a further description of the suspicious individual. Barnes denied he was with the defendant on
February 9. Because of discrepancies
between Barnes's statement and the defendant's, the police asked both Barnes
and the defendant, separately, to come to the police station. The police recited the Miranda warnings and
had the defendant read a Miranda card aloud to the police. The defendant said he understood the warnings
and signed the card. The officers
witnessed the signature. (FN3)
The
defendant conferred with Barnes for a few minutes. The defendant then told the police he lied
when he said he was with Barnes. (FN4)
He said he would now tell the truth, and described [403 Mass. 578]
approaching the steps of City Hall and seeing a naked, bloody woman there. He placed the time of the murder at 12:30
A.M. The defendant also accurately
diagrammed the scene and the position of the body for the police and gave the
police a brief personal history. The
statement was typed on a victim‑witness form, and the defendant read it and
signed it.
The
officer then asked why the defendant, who said he was a licensed practical
nurse, had not tried to help the victim.
The defendant changed his story and said he had seen a man trying to
have sex with a body. The man saw the
defendant and threatened the defendant and the defendant's family if the
defendant said anything. The defendant
also changed the time of the incident from 12:30 A.M. to 2 A.M. During this interview, the defendant
interrupted the officer once to say, "You won't find my fingerprints on
her" and three times to say, "The hair won't match mine."
The
officer who coordinated the investigation of the murder, Lieutenant LaMothe, took over the interview of the defendant. The Miranda warnings were repeated, and
during the course of this interview, the defendant told the police, "I
banged her head on the cement." (FN5)
[1] 1. The defendant's custodial statements. The defendant argues that the judge erred in
admitting in evidence the defendant's confession to police officers. He asserts that the interrogating officer
used a psychological stratagem to break down "his normal will to protect
himself and render[ ] [him] indifferent
[403 Mass. 579] to protect
himself." Commonwealth v. Paszko,
391 Mass. 164, 178, 461 N.E.2d 222 (1984), quoting Pea v. United States, 397 F.2d 627, 634 (D.C.Cir.1967). (FN6) The defendant argues that, because LaMothe used the nickname "Skipper," spoke to the
defendant in the third person, and interrogated the defendant as to what
Skipper did, the defendant's "will [was] overborne and his capacity for
self‑determination [was] critically impaired." Culombe
v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860,
1879, 6 L.Ed.2d 1037 (1961). The
defendant asserts that "[a] confession made in the third person,
attributing criminal acts to an alter ego of the confessor ... bears on its
face conclusive indicia of irrationality and the breaking of its maker's will
to protect himself." We do not
agree.
At the
time of the interrogation, the defendant was nineteen years old. He attended school through the tenth grade
and thereafter earned a high school equivalency certificate. The defendant was of above average
intelligence. The defendant had a
history of psychiatric treatment and was diagnosed as suffering from
"bipolar disorder, mixed type with underlying strong borderline
personality character disorder." (FN7)
LaMothe had no knowledge of the defendant's
psychiatric history until the conclusion of the interrogation, at which point
the defendant informed LaMothe of his prior
psychiatric treatment. The judge [403 Mass. 580] found that, from February 10 to February 14, the defendant
followed his normal daily routine and that he worked full time during that
period. The judge found that, between
February 10 and February 14, the defendant was not under the influence of or
suffering from a major psychotic illness.
The
defendant was at the police station approximately nine hours, (FN8) during
which time he was given water and tonic, cigarettes, and bathroom privileges,
and was offered food, which he refused.
He was not fatigued. The judge
found that the defendant was not "unduly nervous" and was
"coherent and ... unaffected by his surroundings." The judge determined that the defendant was
alert and cooperative. The judge found
that the statements were not the product of intimidation or coercion.
LaMothe knew from the defendant's mother that the defendant
had a nickname, "Skipper."
During the interrogation, LaMothe addressed
the defendant alternately as Skipper and as Arthur. The defendant told LaMothe
that he preferred to be called Arthur. LaMothe showed the defendant the Miranda card he had signed
and asked him if he remembered his rights.
The defendant replied that he did.
LaMothe pointed out to the defendant that he
had not asked for a lawyer and had not asked to leave. He asked the defendant why he had not
left. LaMothe
described all the discrepancies in the stories the defendant had given so far
and asked him to explain what had really happened on the night of February 9.
LaMothe asked questions as to what the defendant had done,
and what Skipper had done, sometimes speaking of Skipper in the third
person. The defendant replied, sometimes
referring to himself as Skipper and sometimes using the first person. He also stated that he and Skipper were the
same person. He stated that Skipper had
taken off the victim's clothes and hit her with his bag. He then said, "I hit her head against
the cement."
The
defendant described generally what the victim had been wearing, and stated that
her underpants had been white and [403
Mass. 581] bloody. He accused LaMothe
of being "sneaky" in asking about the color of the victim's
pants. He said that the police might
find Skipper's fingerprints on the victim's shoulders and neck.
At the
conclusion of this interview LaMothe asked the
defendant if he would dictate and sign a typed statement. The defendant refused and asked to see his
mother. At that time, he told LaMothe that he had had psychiatric care in the past. The police called his mother and, when she
arrived, told her that they were planning on charging the defendant with
murder.
A
confession, to be admissible, must be "the product of a free
intellect," Townsend v. Sain, 372 U.S. 293, 308, 83 S.Ct.
745, 754, 9 L.Ed.2d 770 (1963), "free and voluntary," Malloy v. Hogan, 378 U.S. 1, 7, 84 S.Ct. 1489, 1493, 12 L.Ed.2d 653 (1964), "the product
of a rational intellect and a free will," Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct.
274, 281, 4 L.Ed.2d 242 (1960), and a "meaningful act of volition," id. at 211, 80 S.Ct.
at 282. See Commonwealth v. Vazquez, 387 Mass. 96, 99, 438 N.E.2d 856
(1982). The judge applied those
standards and concluded that the defendant's statements were the "product
of a rational intellect." The
judge's subsidiary findings are supported by the evidence and his application
of constitutional principles to the facts as found is correct. (FN9) See
Brewer v. Williams, 430 U.S. 387, 403, 97 S.Ct.
1232, 1241, 51 L.Ed.2d 424 (1977); Commonwealth v. Tavares, 385 Mass. 140,
145, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct.
2967, 73 L.Ed.2d 1356 (1982). (FN10) The
record indicates that the defendant made exculpatory statements, refused to
dictate an incriminating statement, and otherwise made an effort to protect
himself. Contrary to the defendant's
assertions, the interrogation by itself does not "bear conclusive indicia
of irrationality and the breaking of [the defendant's] will."
[2] 2. Motion for a required finding of not
guilty. The defendant argues that
the evidence is insufficient to warrant a verdict of [403 Mass. 582] guilty
on so much of the indictment as charged murder in the first degree. (FN11) The judge instructed the jurors that they
could consider murder in the first degree based on either deliberate
premeditation or extreme atrocity or cruelty or both. There was no error. The number of the injuries, the use of two
different weapons, and the brutality of the beating are sufficient, if
believed, for the jurors to conclude that the murder was committed with either
deliberate premeditation or extreme atrocity or cruelty or both. See
Commonwealth v. Wilborne, 382 Mass. 241, 245, 415
N.E.2d 192 (1981); Commonwealth v. Bonomi,
335 Mass. 327, 356, 140 N.E.2d 140 (1957).
See also Commonwealth v. Connolly,
356 Mass. 617, 628, 255 N.E.2d 191, cert. denied, 400 U.S. 843, 91 S.Ct. 87, 27 L.Ed.2d 79 (1970).
The
defendant asserts that, because the extreme cold also contributed to the
victim's death, the verdict of murder in the first degree is not
warranted. We do not agree. "The longstanding rule in this
Commonwealth is that '[i]f a person inflicts a wound
with a deadly weapon in such manner as to put life in jeopardy, and death
follows as a consequence of this felonious and wicked act, it does not alter
its nature or diminish its criminality to prove that other causes cooperated in
producing the fatal result.' " Commonwealth v. Fernette,
398 Mass. 658, 668, 500 N.E.2d 1290 (1986), quoting Commonwealth v. Hackett, 2 Allen 136, 142 (1861). The fact that the extreme cold also
contributed to the death does not relieve the defendant of responsibility for
his conduct.
Last, the
defendant contends that, if he acted in anger, he did not act with the
"cool reflection" which is required for a conviction based on
deliberate premeditation. See Commonwealth v. Blaikie,
375 Mass. 601, 605, 378 N.E.2d 1361 (1978).
There is no merit to this argument.
"Cool reflection" merely requires that "the purpose [be]
resolved upon and the mind determined to do it before the blow is
struck[;] then it is, within the meaning
of the law, deliberately premeditated malice aforethought."
Commonwealth v. Tucker, 189 Mass. 457, 494, 76 N.E. 127 (1905).
(FN12)
[403 Mass. 583] [3] 3. Request for an
instruction on manslaughter. The
defendant contends that the trial judge erred in refusing his request for an
instruction on voluntary manslaughter. (FN13)
The defendant correctly states that if any view of the evidence would
warrant a verdict of guilty of manslaughter, rather than murder, it is
reversible error for the judge to refuse a manslaughter instruction.
Commonwealth v. Martinez, 393 Mass. 612, 473 N.E.2d 167 (1985). We conclude that there was no error in
refusing an instruction on voluntary manslaughter in this case.
The
essence of the defendant's claim is that during the interrogation the defendant
said that "Skipper" hit the victim because he was angry, and that if
the victim pulled "Skipper's" hair that would make
"Skipper" angry. (FN14) Those
statements are insufficient to raise the issue of reasonable provocation or
sudden combat. "Speculation that
there may have been combat or provocation between the victim and the defendant
is not enough to require a [voluntary] manslaughter instruction."
Commonwealth v. DeArmas, 397 Mass. 167,
171, 490 N.E.2d 433 (1986). "There
must be evidence that would warrant a reasonable doubt that something happened
which would have been likely to produce in an ordinary person such a state of
passion, anger, fear, fright, or nervous excitement as would eclipse his
capacity for reflection or restraint, and that what happened actually did
produce such a state of mind in the defendant." Commonwealth v. Walden, 380
Mass. 724, 728, 405 N.E.2d 939 (1980).
Contrary
to the defendant's suggestion, "not all physical contact ... is sufficient
to require a manslaughter instruction even though the victim initiated the
contact." Commonwealth [403 Mass. 584] v. Garabedian, 399 Mass. 304, 314, 503 N.E.2d 1290 (1987). See, e.g.,
Commonwealth v. Brown, 387 Mass. 220, 227, 439 N.E.2d 296 (1982) (evidence
that victim choked defendant with defendant's shirt inadequate provocation
where defendant stabbed victim twenty‑seven times); Commonwealth v. Rembiszewski, 363 Mass. 311, 321, 293 N.E.2d 919 (1973)
("It is an extravagant suggestion that
scratches by the [victim] could serve as provocation for a malice‑free
but ferocious attack by the defendant with a deadly instrument"). The judge correctly denied the defendant's
request for an instruction on manslaughter.
4. The instruction on malice. The defendant argues that a portion of the
jury instructions on malice requires reversal of his conviction. In support of his conclusion, the defendant
focuses on one sentence in the instructions on malice. "We, however, view the charge in its
entirety since the adequacy of instructions must be determined in light of
their over‑all impact on the jury." Commonwealth v. Sellon, 380 Mass. 220, 231‑232, 402 N.E.2d 1329
(1980). We do not analyze a fragment of
a charge and subject it "to scrutiny as though each fragment had to stand
or fall on its own without the aid of the remainder of the charge."
Commonwealth v. Whooley, 362 Mass. 313,
319, 284 N.E.2d 914 (1972). We do not consider
"isolated verbal phenomena" apart from their context. See
Charles A. Wright, Inc. v. F.D. Rich Co., Inc.,
354 F.2d 710, 713‑714 (1st Cir.), cert. denied, 384 U.S. 960, 86 S.Ct. 1586, 16 L.Ed.2d 673 (1966). So tested, the instructions do not require
reversal.
The judge
in a portion of the instructions on malice used the words "with a mind
inflamed by recklessness to such an extreme degree that it might rightfully be
described as indicating a heart devoid of social duty and fatally bent on
mischief, there is proof of malice...." (FN15) The defendant asserts that the use of the
word "recklessness" essentially negated the requirement of
intent. That sentence, however, was part
of an extended discussion of malice which repeatedly instructed [403 Mass. 585] the jurors, in substance, that the fatal blow must be
"purposeful and wrongful and not the result of chance or frailty of
humanity...." The instructions as a
whole clearly conveyed to the jurors that malice required deliberate,
intentional acts without legal excuse or palliation. The instructions on malice do not require
reversal of the conviction.
[4] 5. Relief pursuant to G.L.
c. 278, § 33E. The defendant asks
that we exercise our power under G.L. c. 278, § 33E,
in his favor and reduce the verdict to manslaughter. The defendant asserts that his character,
age, and lack of a prior criminal record all suggest that this is "a
tragic case in which a minor controversy between strangers exploded into the
killing of a human being." Commonwealth v. Keough,
385 Mass. 314, 320, 431 N.E.2d 915 (1982). (FN16)
The
circumstances of the killing, the number of blows, the injuries inflicted on
the victim, and the leaving of the victim unclothed and injured in extremely
cold weather do not support a conclusion that the verdict of guilt on the
charge of murder in the first degree is against either the law or the evidence
in a large or nontechnical sense. See
Commonwealth v. Garabedian, 399 Mass. 304, 316‑318,
503 N.E.2d 1290 (1987).
JUDGMENT
AFFIRMED.
FN1. The
defendant filed a motion for required finding of not guilty at the close of the
Commonwealth's case. We therefore
consider the evidence introduced up to the time the Commonwealth rested its
case. See Commonwealth v. Amazeen, 375 Mass. 73,
80, 375 N.E.2d 693 (1979); Commonwealth v. Kelley, 370 Mass. 147,
150, 346 N.E.2d 368 (1976).
FN2. The description resembled the appearance
of the defendant.
FN3. The judge found that the defendant was
not under arrest at the time of the warnings, but that recitation of the
warnings was a "matter of normal cautionary police procedure."
FN4. At trial, Barnes said that during the
evening of February 10, the defendant told him, "I killed her for a red
and white polkadotted dress."
At trial,
but not at the hearing on the motion, Barnes said he heard the defendant refer
to himself as Skipper. Barnes also said
that the defendant carried a maroon bag and a purple duffle bag. These items were similar to those described
by the defendant as having been carried by the suspicious individual he
described to police in the first interview.
Items matching the defendant's description were found in the defendant's
home.
FN5.
On February 10, before he had spoken to the police, the defendant told a
coworker at his place of employment "he was late for work because there
was a murder in Lowell[,] ... that the police were ... asking people if they
had seen anything[,] ... that he was asked too, and that is why he was
late." At lunch, the defendant
asked the same worker "what [she] would do if [she] witnessed a
murder." He also asked her if she
"would tell if [she] knew who did it." The witness asked the defendant "if he
had anything to do with it." The
defendant "laughed [and] said no one would ever know."
FN6.
In support of his motion to suppress, the defendant argued that all his
statements to the police were custodial.
He admitted that he had been given Miranda warnings but argued that his
statements should be excluded because they were involuntary. He also moved to suppress the physical
evidence obtained through use of the allegedly involuntary statements. The motion was denied "with the
exception of defendant's statements regarding the location of his gym
bag," which had been made in response to questioning after the defendant
exercised his right to remain silent.
On
appeal, the defendant argues only that the portion of the interrogation
conducted by LaMothe, which the judge found to be
custodial, should have been excluded as involuntary. We deem all other issues waived. Mass.R.A.P.
16(a)(4), as amended, 367 Mass. 919 (1975). Commonwealth v. Cundriff,
382 Mass. 137, 415 N.E.2d 172 (1980), cert. denied, 451 U.S. 973, 101 S.Ct. 2054, 68 L.Ed.2d 353 (1981). We have nevertheless reviewed the issues
raised by the motion, pursuant to G.L. c. 278, §
33E. We conclude that there is no error
and hence obviously no substantial likelihood of a miscarriage of justice. The defendant correctly waived these issues.
FN7.
Bipolar disorder is the term now used to describe manic‑depressive
illness.
FN8.
The judge found that the custodial interrogation with LaMothe
began at approximately 2 A.M. and concluded at approximately 3:30 A.M.
FN9.
We reach our conclusion without regard to the judge's finding that "when
speaking, the defendant has a habit or style of referring to himself in the
third person. This has been noted by
friends and teachers who consider this to be his style of speaking." In his brief, the defendant correctly points
out that at the hearing on the motion only the defendant's art teacher for the
sixth, seventh, and eighth grades said that the defendant spoke in the third
person.
FN10.
The judge did allow the defendant's motion to suppress all references in the
interrogation to the defendant's sexual preference.
FN11.
At trial, the defendant did not so limit his motion.
FN12.
The defendant argues that his case is controlled by Commonwealth v. McInerney, 373 Mass.
136, 365 N.E.2d 815 (1977), and therefore a conviction of murder in the first
degree is unwarranted. We do not
agree. In McInerney, the defendant inflicted a
single injury with a weapon of opportunity (cord). He did not bring a weapon to the scene and he
did not inflict a number of blows. The
circumstances of that homicide thus differ from the circumstances of this case.
FN13.
The defendant concedes that he failed to meet the formal requirements of Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979), but contends
that he saved the issue for appeal in substance if not in form. See
Commonwealth v. Matos, 394 Mass. 563, 565, 476 N.E.2d 608 (1985). The Commonwealth does not argue otherwise.
FN14.
There is no evidence that the victim pulled the defendant's hair. Although hair was found in the victim's
hands, that hair was determined to be the victim's own hair.
FN15.
The defendant's requested instruction number 34 reads as follows: " 'Malice' is a state of mind showing a
heartless regard [sic ] for life and
safety of others, a mind deliberately bent on mischief, a generally disproved [sic ], wicked and malicious spirit."
FN16.
The defendant bases his argument on a portion of the statement excluded from
jury consideration. See note 10, supra.
The defendant did not specifically adopt LaMothe's
hypothetical suggestion as to what might have happened.