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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. Day, 387
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
[387
Kevin J. Ross, Asst. Dist. Atty., for the Commonwealth.
Before [387
[387
After a
trial by jury, the defendant was convicted of unlawful sexual intercourse with
a person under the age of sixteen. G.L.
c. 265, § 23. (FN1) Day appeals,
claiming error concerning the (1) denial of his motion to suppress statements
made by him to police officers; (2)
rulings and instructions concerning the date of the offense; and (3) instructions on the voluntariness of the defendant's statements. We affirm.
We
summarize the facts. (FN2) On
1. The motion to suppress. The defendant challenges the judge's denial
of his motion to suppress his statements to the police. The defendant claims (1) that the warnings
given to him by the police did not adequately comply with [387 Mass. 917] the
requirements of Miranda v. Arizona,
384 U.S. 436, 478‑479, 86 S.Ct. 1602, 1629‑1630,
16 L.Ed.2d 694 (1966), and (2) that he did not "voluntarily, knowingly,
and intelligently" waive the rights protected by the Miranda warnings as required by the Fifth and Sixth Amendments to
the Constitution of the United States. Commonwealth v. Tavares, 385
The judge
found the following facts on the motion to suppress. On January 15, 1980, the defendant learned
that the police were looking for him.
The defendant had been smoking marihuana and drinking alcohol for
several days prior to January 15, 1980.
Before meeting the police, Day drank some alcohol and smoked some
marihuana.
Day
arranged to meet a police officer. That
officer took Day to a parking lot where two other officers were waiting for
them. The two officers had a warrant for
Day's arrest for rape. G.L. c. 265, §
23. Day was shown the arrest warrant and
given a printed card containing the
Miranda warnings. (FN3) The
defendant looked at both sides of the card for a minute and then stated that he
understood his rights. One of the
officers said to the defendant that the "card means that you don't have to
talk to us if you don't want to."
The defendant was not questioned during his trip to the police station.
At the
station, the defendant responded without difficulty to all questions on the
arrest form. (FN4) Prior to questioning,
Day was shown a second Miranda
warning card. The defendant[387 Mass. 918] read both sides of this
card and again stated that he understood the warnings. A detective told him that "[i]f you do not wish to talk to us you don't have
to." Day said that he was willing
to talk with the police. He made some
incriminating statements during approximately thirty minutes of interrogation.
(FN5)
Day said
that he does not remember being given or reading any card containing the Miranda warnings. The judge disbelieved Day on this issue and found
that Day had a clear memory of "his conversations with the officers at the
school parking lot." The judge also found that the marihuana
and beer that Day consumed did not affect his ability to walk, to talk with the
officers, or to understand police questions and procedures. (FN6) The judge concluded that the defendant
knowingly, voluntarily, and intelligently waived his constitutional
rights. The judge also concluded that
Day was not tricked, coerced, or threatened, and that Day's statements were
"the product of a rational intellect." (FN7)
On appeal,
Day asserts that the Miranda warnings
he received were inadequate. Day does
not argue that the warnings printed on the cards were constitutionally
defective. (FN8) [387 Mass. 919] Day argues that, in view of his testimony that he was not shown
the Miranda warning cards, the
Commonwealth was obligated to produce evidence to corroborate the police
officers' testimony that they gave him the printed Miranda warnings to read.
We do not agree.
[1] The
judge was entitled to resolve the conflicting testimony. The judge was not required to believe the
defendant. We do not "revise a
judge's subsidiary findings of fact, where they are warranted by the evidence,
or ... review the weight of the evidence related to the findings. In particular, it is inappropriate to ask us
to reverse a judge's findings involving credibility, since he saw the witnesses
and we did not." Commonwealth v. Murphy, 362 Mass. 542,
550‑551, 289 N.E.2d 571 (1972) (Hennessey, J., concurring). See
Commonwealth v. Wilborne, 382 Mass. 241, ‑‑‑,
‑‑‑ Mass.Adv.Sh. (1981) 59, 70, 71, 415 N.E.2d 192;
Commonwealth v. Santo, 375 Mass. 299, 303, 376 N.E.2d 866 (1978).
Day also
argues that, even if the printed warnings were adequate, they were rendered
void because the detective who questioned Day said, "If you do not wish to
talk to us you don't have to." Day
urges that this statement, made after Day acknowledged that he understood his
rights, diluted his right to counsel.
Alternatively, Day argues that the statements of the two officers
tainted his understanding of the warnings.
We are not persuaded by the defendant's arguments.
[2] The
police informed the defendant of the
Miranda warnings, including the right to counsel, when they gave him the
printed card. See Commonwealth v. Mahnke, 368 Mass. 662,
691, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct.
1740, 48 L.Ed.2d 204 (1976). There was
no misrepresentation to the defendant of any required warnings.
Commonwealth v. Dustin, 373 Mass. 612, 616, 368 N.E.2d 1388 (1977),
cert. denied, 435 U.S. 943, 98 S.Ct. 1523, 55 L.Ed.2d
540 (1978). (FN9) The officers' [387 Mass. 920] statements were not designed to "persuade [the defendant] to reconsider his
position," Michigan v. Mosley,
423 U.S. 96, 104, 96 S.Ct. 321, 326, 46 L.Ed.2d 313
(1975), or to persuade him not to exercise his rights. Compare
Commonwealth v. Hosey, 368 Mass. 571, 577‑578,
334 N.E.2d 24 (1975). We conclude that
the judge's findings are not erroneous and are supported by the record.
Day also
asserts that suppression of his statement was required on the ground that he
did not "voluntarily, knowingly and intelligently waive his Miranda
rights." Commonwealth v. Jackson, 377 Mass. 319,
325, 386 N.E.2d 15 (1979), quoting
Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct.
1602, 1612, 16 L.Ed.2d 694 (1966). He
contends that the judge erred in concluding that the Commonwealth met its
"heavy burden" of proving a knowing and voluntary waiver.
[3] The
defendant argues that his use of marihuana, his consumption of alcohol, and his
failure to eat before talking with police prevented him from making a knowing
and voluntary waiver. The judge assumed
that the defendant had been smoking marihuana and drinking. Nonetheless, he found that Day could and did
make a knowing and intelligent waiver of his constitutional rights. "[A] finding of voluntary waiver is
'entitled to substantial deference by this court.' Commonwealth v. White, 374
Mass. 132, 138 [371 N.E.2d 777] (1977), aff'd, 439
U.S. 280 [99 S.Ct. 712, 58 L.Ed.2d 519] (1978)."
Commonwealth v. Tabor, 376 Mass. 811, 822, 384 N.E.2d 190
(1978). The judge "carefully
weighed the conflicting evidence, and made findings," which are supported
by the record. Commonwealth v. Wilborne,
382 Mass. 241, ‑‑‑, Mass.Adv.Sh. (1981) 59, 71, 415 N.E.2d 192. We conclude that the judge correctly
determined that the Commonwealth met its "heavy burden" of proving
that the defendant knowingly and voluntarily waived his rights under Miranda.
[4] The
defendant also asks us to hold that the Commonwealth's burden of proof on the
issue of waiver is proof beyond a reasonable doubt. We left that issue open in Commonwealth[387 Mass. 921] v. Tavares, 385 Mass. 140, 144 n. 5, 430
N.E.2d 1198 (1982). Since a defendant's
statement may not be placed before a jury unless the judge concludes that the
Commonwealth has proved voluntariness beyond a
reasonable doubt, see Commonwealth v.
Tavares, supra at 152, 430 N.E.2d 1198, we think that the administration of
justice will be facilitated by requiring the Commonwealth to adhere to the same
standard in proving a knowing and voluntary waiver of the constitutional rights
protected by Miranda v. Arizona, 384
U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thus, as a matter of Massachusetts practice,
the Commonwealth must prove a knowing and intelligent waiver beyond a
reasonable doubt. (FN10)
[5] 2. Jury instructions. Day's indictment charged that the alleged
unlawful sexual intercourse occurred on October 24, 1979. There is some evidence that October 24 is the
date of the alleged offense, and other evidence that it occurred on October 26,
1979. (FN11)
During its
deliberations the jury asked the judge "whether it should restrict its
deliberations to what actually happened on Wednesday, 24 October, 1979, or
whether the charge may more broadly be interpreted as including the several
days before or after the alleged incident?" Defense counsel then requested an instruction
that the Commonwealth be required to prove the October 24, 1979, date in the
indictment. The judge declined to give
this instruction. He instructed the jury
that whether the incident took place on October 24, 1979, or a few
days before or after that date was immaterial because the date was not an
essential element of the offense charged.
See Commonwealth v. Gallant,[387 Mass. 922] 373 Mass. 577, 582‑585,
369 N.E.2d 707 (1977), and cases cited.
Day argues that he was unfairly prejudiced by this instruction. We disagree.
General
Laws c. 277, § 35, provides that a variance between the allegations and proof
shall not be a ground for the defendant's acquittal "if the essential
elements of the crime are correctly stated, unless he is thereby prejudiced in
his defence."
Since the date of intercourse is not an essential element of statutory
rape, and the defendant raised no alibi defense, in the absence of prejudice
the defendant was not entitled to an acquittal even if the jurors found a
variance between the date alleged in the indictment and the date proved.
Commonwealth v. Smith, 368 Mass. 126, 129, 330 N.E.2d 197 (1975).
Commonwealth v. Manooshian, 326 Mass. 514,
516, 95 N.E.2d 659 (1950).
The
defendant next urges that, even if the date is not an essential element of the
offense, the Commonwealth was required to prove the October 24 date, because
that date was set forth in the pretrial conference report. He claims that written agreements in the
report "shall be binding on the parties and shall control the subsequent
course of the proceeding." Mass.R.Crim.P. 11(a)(2)(A), 378 Mass. 863 (1979). The judge found that the October 24 date was
listed by the Commonwealth in the report to provide notice to the defendant,
should he wish to rely on an alibi defense.
The defendant responded to this notice by stating that no alibi defense
would be offered.
Absent an
alibi defense, the defendant's primary allegation of prejudice is that between
the time of the indictment and that of the jury instructions, he relied on the
October 24 date and was therefore misled in the preparation of his
defense. See United States v. Jones, 647 F.2d 696, 699 (6th Cir.), cert.
denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214
(1981);
United States v. Welliver, 601 F.2d 203,
207 (5th Cir.1979). See also United States v. Tomasetta,
429 F.2d 978, 979 (1st Cir.1970). The
defendant asserts that the judge's instructions negated the impact of the
employment record evidence on the victim's credibility, and the portions of his
summation emphasizing that October 24, 1979, was a Wednesday, not a Friday. [387
Mass. 923] However, the victim's
entire employment record for the week in question was introduced, and the judge
instructed the jury that it could consider the evidence on the dates "as
to how it might or might not affect the credibility of any particular
witness." (FN12)
The
defense was based on the theory that, although the complainant and the
defendant were together in his bedroom in late October, intercourse did not
take place. In these circumstances, Day
has not shown any prejudice from the change in date.
[6] 3. Jury instruction on voluntariness. The judge instructed the jurors to disregard
Day's statements unless they concluded that the defendant voluntarily made his
statements, and that the statements were the product of a rational
intellect. The judge also instructed the
jurors to disregard the statements if they determined that Day did not make a
knowing and voluntary waiver of his
Miranda rights. Day claims the judge
erred by instructing the jurors on the voluntariness
of the Miranda waiver since the
evidence of the involuntariness of the waiver was not presented at trial. The defendant did not object to the
instructions.
The
instructions on voluntariness of the defendant's
statements were accurate, although the judge need not have instructed on voluntariness because it was not a live issue at trial.
Commonwealth v. Alicea, 376 Mass. 506,
523, 381 N.E.2d 144 (1978). Further, the
judge was not required "to submit to the jury the question of the validity
of a waiver of Miranda rights apart
from the
overall determination of voluntariness."
Commonwealth v. Tavares, 385 Mass. 140, 153 n. 19, 430 N.E.2d 1198
(1982). The instructions, therefore,
were more favorable to the defendant than those to which he was entitled. Read as a whole, the charge was fair and
accurate. We conclude that there is no
substantial likelihood of a miscarriage of justice. (FN13)
Judgment affirmed.
FN1. Day
was sentenced to a term of ten years at the Massachusetts Correctional
Institution, Concord. See G.L. c. 279, §
33. Thirty days of the sentence were to
be served, the remainder suspended, and the defendant placed on probation for
two years. G.L. c. 279, § 1. The sentence was stayed pending appeal. G.L. c. 279, § 4. Mass.R.Crim.P.
31(a), 378 Mass. 902 (1979). Commonwealth v. Allen, 378 Mass. 489, 392
N.E.2d 1027 (1979).
FN2. Additional facts will be set forth in
our review of the errors alleged.
FN3. The warnings printed on the card
were: "MIRANDA WARNING 1. You have the right to remain silent. 2.
Anything you say can and will be used against you in a court of
law. 3.
You have the right to talk to a lawyer and have him present with you
while you are being questioned. 4. If you cannot afford to hire a lawyer, one
will be appointed to represent you before any questioning."
The reverse
side of the card stated:
"WAIVER After the warning
and in order to secure a waiver, the following questions should be asked and an
affirmative reply secured to each question:
1. Do you understand each of
these rights I have explained to you?
2. Having these rights in mind,
do you wish to talk to us now?"
FN4.
The defendant also signed a form stating that he had been advised of his right
to use the telephone. G.L. c. 276, §
33A.
FN5.
Day admitted being with the victim in his bedroom one night in October,
1979. He stated that he was so
"high" on alcohol, marihuana, and Valium that he could not remember
having intercourse with the victim.
FN6.
There was conflicting evidence from the police.
The arresting officer, who knew Day, was of the opinion Day was under
the influence of a substance. The
detective who questioned Day, however, stated that Day was calm, coherent, and
understood the questions. That detective
said that the defendant appeared to be "sober."
FN7.
The judge also found that, although Day was not orally given the Miranda warnings, he fully understood
the warnings before he made any statements.
Moreover, the judge concluded that, although Day was not given an
additional, "fifth" warning that he could stop the questioning at any
time, such a warning is not required. Commonwealth v. Lewis, 374 Mass. 203,
205, 371 N.E.2d 775 (1978). See Commonwealth v. Gallant, 381 Mass. 465,
‑‑‑ ‑ ‑‑‑, Mass.Adv.Sh. (1980) 2031, 2033‑2034, 410 N.E.2d 704;
Commonwealth v. Brant, 380 Mass. 876, ‑‑‑ ‑ ‑‑‑
Mass.Adv.Sh.
(1980) 1473, 1479‑1481, 406 N.E.2d 1021, cert. denied, 449 U.S.
1004, 101 S.Ct. 545, 66 L.Ed.2d 301 (1980).
FN8.
Day also does not claim that there is a requirement that the Miranda warnings be given in oral
rather than written form. See United States v. Sledge, 546 F.2d 1120,
1121 (4th Cir.1977).
FN9.
Day relies on two cases in which a defendant, after receiving Miranda warnings, sought to exercise
his right to counsel. The police officer
misrepresented the defendant's ability to consult a lawyer at that time and the
officer's comment led to the defendant's statement. See Cribbs v. State, 378 So.2d 316 (Fla.App.1980);
State v. Steptoe, 296 N.C. 711, 717, 252 S.E.2d 707 (1979). The defendant's reliance on these cases is
misplaced. In this case there was no
misrepresentation by police officers. If
anything, the officers' statements supported Day's exercise of his
constitutional rights. Their statements
did not hinder Day's efforts to exercise either a right to counsel or a right
to remain silent.
FN10.
Since this rule is not constitutionally mandated, we conclude that it should be
applied to decisions made on motions to suppress after the date of this opinion.
FN11.
The victim testified that she went to school and worked at D'Angelo's
sandwich shop on the day of the incident.
She believed it to be a Friday, but was uncertain of the day. The shop's records, introduced in evidence,
showed that the victim worked Saturday (October 20), Tuesday (October 23),
Thursday (October 25), and Friday (October 26).
The records indicate that she did not work on Wednesday, October 24.
FN12.
The complainant's credibility was challenged at trial on this ground as well as
a number of other grounds.
FN13.
The defendant's statements to the police did not differ materially from the
defense theory of the case. Indeed, in
his summation the defendant argued the truth of his statements to the police.