|
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. Doucette, 391
Supreme Judicial Court of Massachusetts, Middlesex.
Decided
[391
Margot Botsford, Asst. Dist. Atty. (Susan S. Beck, Asst. Dist. Atty., with her),
for the Commonwealth.
Before [391
Mass. 443] HENNESSEY, C.J., and
WILKINS, NOLAN, LYNCH and O'CONNOR, JJ.
[391
On
The
defendant claims error in the trial judge's denial of his motion to suppress
statements made to the police and the judge's instructions to the jury. He further asserts that he was denied the
effective assistance of counsel. These errors,
he contends, require reversal of his conviction. In the alternative he requests that we direct
the entry of a verdict of guilty of murder in the second degree or order a new
trial pursuant to our authority under G.L. c. 278, § 33E. For the reasons stated below, we find no
error in the trial judge's admission of the defendant's statements or his
instructions to the jury and no denial of effective assistance of counsel. Nor does this case present an appropriate
occasion for the exercise of our powers under G.L. c. 278, § 33E.
[391 Mass. 445] We briefly summarize the events leading up to the defendant's
arrest. We shall describe the facts in
greater detail as necessary in our discussion of the various arguments raised
by the defendant.
In the
early morning hours of February 6, 1979, the defendant and the victim, Ronald Landry,
drove to a motel in Malden, Massachusetts.
The defendant testified that he had been drinking, had ingested several
seconals and therefore was incoherent during the drive to the motel. This testimony was partially corroborated by
the testimony of the defendant's girl friend, Denise Kaminski, and friend, John
Freda. The defendant stabbed and killed
the victim in a motel room, allegedly due to an attempted homosexual attack.
Dr. George
Katsas, a pathologist who conducted the autopsy, testified that the victim had
suffered numerous stab wounds. One wound
in the right chest area penetrated three to four inches inside the body,
cutting through the chest bone and into the heart. In the doctor's opinion, this wound was
inflicted with considerable force. The
second chest wound, on the victim's left side, penetrated one to one and one‑half
inches inside the body and cut through a rib bone. The victim's throat was slashed from the
midline front almost to the left ear.
The victim was also stabbed in the lower back area. This wound was three inches long and
penetrated into the body three inches.
Superficial wounds were located on the front and back of the victim's
right hand and just below his right knee.
Immediately
following the stabbing, the defendant concealed himself on a nearby porch about
100 yards away from the motel. While on
the porch he changed his coat by putting his hooded sweatshirt over his blue
baracuda jacket, which was spattered with blood.
Some time
later, the defendant went across the street to a gas station and conversed with
the attendant on duty. The defendant
testified that he told the attendant not to be afraid, that he was not there to
hurt him, that he needed some help, and that he thought he had killed a man
across the street.
The
attendant testified that he noticed the defendant had blood on his face, shoes,
and clothing. The defendant handed [391 Mass. 446] the attendant a knife and told him to put it somewhere. After the attendant inquired about the murder
across the street, the defendant recounted that he had lured the victim to the
motel by promising that they would meet some girls there. The defendant then said he stabbed the victim
because he had beaten up his girl friend's brother. When the victim started calling for help, he
slit the victim's throat. The attendant
further testified that aside from the defendant's shivering from the cold when
he first arrived, he did not notice anything unusual about his manner of speech
or walk.
The
defendant left the gas station in a taxi and proceeded to the North End of
Boston. En route he asked the driver to
stop for cigarettes. After purchasing
the cigarettes, he was apprehended by the police. After removing a four inch buck knife from
the defendant's pocket during a pat down, Officer David Marsters, the officer
who escorted the defendant back to the motel, informed him that a murder had
just been committed and asked the defendant if he would come back to the motel
for some questioning. The defendant
agreed. The taxi driver and Officer
Marsters both testified that they had no trouble understanding the defendant.
When the
defendant entered the motel, Detective Thomas Spartichino, the chief
investigating officer, inquired about the substance on his clothing. The defendant replied that he had spattered
his clothing with lobster sauce while working at a fish market. Detective Spartichino smelled alcohol on the
defendant's breath, but testified that the defendant appeared perfectly
normal. Detective Spartichino advised
the defendant of his Miranda rights
at approximately 5:30 A.M. According to
Spartichino, the defendant stated that he understood his rights and wanted to
talk.
Initially,
the defendant told the police that while at a bar with a girl friend, a black pimp
explained the life of a prostitute to the girl.
An altercation ensued, and the defendant stated that he took a knife
away from the pimp and stabbed him with it.
Spartichino and Detective‑Lieutenant John Gearty, who was also
present during the interrogation, indicated to the defendant that they did not
believe his story. Spartichino explained
that his [391 Mass. 447] alibi could easily be disproved and
that the victim's car, which was being processed, would reveal the defendant's
fingerprints.
The defendant
became emotional and was either crying or on the verge of tears. Detective Spartichino concluded with,
"Why don't you unburden yourself?"
"I feel you want to tell us something?" The defendant then blurted out that the
victim tried to rape him while holding a knife to his throat. At this point, Spartichino reminded the
defendant of his rights, but the defendant stated that he wanted to tell the
story. When Spartichino asked the
defendant whether he did engage in sexual intercourse with the victim, the
defendant refused to speak any further without the presence of an
attorney. All interrogation ceased at
this time.
Paul
Conley, a chemist who worked for the Massachusetts Department of Public Safety,
testified that he found seminal fluid in the seat area of the victim's
undershorts. Dr. Katsas also testified
that sperm was found in the victim's rectum, mouth, and throat. He could not give an absolutely certain
opinion, but he testified that the sperm located in the mouth, having not
degenerated, had been present there for no more than an hour or two. He could give no opinion as to the sperm
located in the rectal area, but did state that the presence of the sperm in the
rectum would depend mainly on the frequency of the victim's defecation.
1. Motions to suppress statements. The defendant first argues that the judge
erred in admitting in evidence his statements to the police because the
Commonwealth failed to prove a valid waiver of Miranda rights and the voluntariness of the defendant's statements. For these reasons, he contends that we should
grant him a new trial. We disagree.
[1] [2] In
reviewing a judge's determination that a defendant validly waived his Miranda rights or that the defendant
voluntarily made statements to the police, we will accord substantial deference
to a judge's ultimate findings and uphold a judge's subsidiary findings (FN1)
if warranted by the evidence. Commonwealth [391 Mass. 448] v.
Williams, 388 Mass. 846, 851, 448 N.E.2d 1114 (1983). However, we must also make an independent
determination about the correctness of the judge's application of the
constitutional principles to the facts. Id.
[3] Our
first inquiry is whether the defendant made a knowing and intelligent waiver of
his Miranda rights. The Commonwealth bears a heavy burden in
demonstrating a valid waiver. Commonwealth v. Silva, 388 Mass. 495, 500‑501,
447 N.E.2d 646 (1983). The defendant
asserts that the Commonwealth did not meet this burden because the defendant
was intoxicated at the time of the interrogation. He argues that the judge was not warranted in
finding a knowing and intelligent waiver, because the evidence of intoxication
introduced by the defendant offset the evidence of coherency and sobriety
introduced by the prosecution. The defendant
places
great emphasis on the Billerica jail infirmary report of February 6,
1979. This report, compiled after the
intake screening, indicated that the defendant appeared "to be under the
influence of an unknown substance."
[4] [5]
Intoxication alone is not sufficient to negate an otherwise voluntary act.
Commonwealth v. Hooks, 375 Mass. 284, 289, 376 N.E.2d 857
(1978). Although some evidence suggests
that the defendant may have been drinking or may have taken drugs, the judge
found that the defendant was aware of his position at the time of the
interrogation. The judge placed
considerable significance on the fact that while the defendant had no memory of
receiving his Miranda rights, (FN2)
he did have a clear memory of the details of the incident in the motel room.
[6] The
judge's subsidiary findings are based on the judge's assessment of the
witnesses' credibility. The judge is not
required to find all evidence credible. Commonwealth v. Perry, 389 Mass. 464,
466, 450 N.E.2d 615 (1983). Although the
defendant asserted that he was extremely intoxicated, every person who met the
defendant[391 Mass. 449]
in the three hours immediately following the murder and who testified
found him normal.
The
defendant further challenges the validity of the waiver on the ground that
Detective Spartichino mentally coerced the defendant into confessing to the
murder through his intimation that the defendant was a liar and that the
defendant wanted to unburden himself.
The defendant argues that these words were other than those normally
attendant to arrest and custody and were calculated to elicit an incriminatory
response. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1689, 64
L.Ed.2d 297 (1980).
[7] This
argument, however, is not persuasive in this case. The
Innis rationale applies to situations where the suspect has exercised his
Miranda rights and has refused to submit to questioning. The interrogation at that point must cease,
until an attorney is present. Commonwealth v. Brant, 380 Mass. 876,
882, 406 N.E.2d 1021, cert. denied, 449 U.S. 1004, 101 S.Ct. 545, 66 L.Ed.2d
301 (1980).
[8] In
this case, the defendant had not requested an attorney and was speaking freely
at the time. Moreover, after the
defendant blurted out that he had killed the victim, Spartichino reminded him
of his rights. The trial judge found
that Spartichino's statements were not coercive. We agree.
Furthermore,
in examining the details of the interrogation, we find no circumstances
warranting a contrary conclusion. The
interrogation lasted only thirty to thirty‑five minutes. Only Spartichino and one other officer were
present during the questioning. The
judge found that the police did not physically coerce the defendant.
[9] [10]
[11] Our second inquiry is whether the defendant's confession was a free and
voluntary act. When determining
voluntariness, "the court must assess the totality of relevant
circumstances to ensure that the defendant's confession was a free and
voluntary act and was not the product of inquisitorial activity which had
overborne his will." Commonwealth v. Mahnke, 368 Mass. 662,
680, 335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48
L.Ed.2d 204 (1976). Every reasonable
presumption against voluntariness will be indulged. Commonwealth v. Hosey, 368
Mass. 571, 577, 334 N.E.2d 44 (1975).
After reviewing the circumstances of the defendant's confession, we
conclude that the trial judge was warranted in determining that [391 Mass. 450] the defendant's statements were made voluntarily. We base this decision primarily on our
reasoning concerning the defendant's waiver of Miranda rights.
2. Jury instructions. The defendant claims that there was error in
the judge's instructions on malice, provocation, self‑defense,
extreme atrocity or cruelty, voluntary intoxication, and voluntariness of his
confession. These alleged flaws in the
instructions are raised for the first time on appeal. Nonetheless, the defendant requests that we
grant him a new trial or direct the entry of a verdict of a lesser degree of
guilt pursuant to our power under G.L. c. 278, § 33E.
[12] [13]
[14] Although the defendant did not object to these instructions at trial, we
must determine whether the alleged errors create a substantial risk of a miscarriage
of justice. Commonwealth v. Ely, 388 Mass. 69, 73‑74,
444 N.E.2d 1276 (1983). We view the
absence of any objection as relevant,
Commonwealth v. Tavares, 385 Mass. 140, 148, 430 N.E.2d 1198, cert. denied,
457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982), and consider "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).
a. Malice. The defendant contends that the judge's
instructions on malice and intent created a mandatory presumption in favor of
guilt. Alternatively, he argues that
these instructions impermissibly shifted the burden of disproving malice
aforethought to the defendant. See Sandstrom v. Montana, 442 U.S. 510,
524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39 (1979); Mullaney v. Wilbur, 421
U.S. 684, 698‑699, 95 S.Ct. 1881, 1889, 44 L.Ed.2d 508 (1975). The trial judge stated that "[w]hen the
killing is caused by the intentional use of a deadly weapon, such as a knife,
there arises a presumption that the killing was with malice
aforethought." The defendant
claims that this statement, read in conjunction with the earlier instruction
which states "[a]nd the heinousness or wrongfulness of the act is
sufficient to sustain in law a finding of malice aforethought," rendered
the charge defective. The defendant also
asserts that the "finding" language (FN3) employed by the trial
judge, as well as [391 Mass. 451] the instructions on intent (FN4)
contributed to the likelihood that the jury understood that the defendant had
to disprove malice.
[15] We
agree that the judge's use of the word "presumption" was incorrect
and certainly regrettable. Commonwealth v. Repoza, 382 Mass. 119,
132, 414 N.E.2d 591 (1980). Commonwealth v. Medina, 380 Mass. 565,
577, 404 N.E.2d 1228 (1980). Equally
erroneous was the judge's use of "finding" language.
Commonwealth v. Richards, 384 Mass. 396, ‑‑‑,
Mass.Adv.Sh. (1981) 1967, 1976, 425
N.E.2d 305. However, in the final
analysis, "whether a defendant has been accorded his constitutional rights
depends upon the way in which a reasonable juror could have interpreted the
instruction." Sandstrom v. Montana, supra, 442 U.S. at
514, 99 S.Ct. at 2454. Therefore, we
have upheld the use of the word "presumption" in malice instructions
where the language of the charge taken as a whole, "effectively negates
any burden‑shifting" and when it is clear that the presumption is
not mandatory. Commonwealth v. Richards, supra, 384
Mass. at ‑‑‑, at 1974, 425 N.E.2d 305.
"The
fact that on [one occasion] the judge lapsed into the use of the word
'presumption' when he obviously meant 'inference' [does] not detract from the otherwise thorough, accurate, and
precise instructions on [malice]." Commonwealth v. McInerney, 373 Mass. 136,
150, 365 N.E.2d 815 (1977). See Commonwealth v. Festa, 388 Mass. 513,
514‑515, 447 N.E.2d 1 (1983). The
judge repeatedly charged the jury that the Commonwealth had to prove the case
against the defendant and each element of the offense beyond a reasonable
doubt. The charge defining reasonable [391 Mass. 452] doubt was correctly stated.
The judge also correctly instructed on the presumption of innocence and
that all presumptions of law independent of evidence are in favor of
innocence. Listening to the charge as a
whole, the jury would not understand the quoted language as creating a
mandatory presumption of malice or as shifting to the defendant the burden of disproving
malice.
[16] [17]
Moreover, we see no merit in the defendant's contention that the finding
language and the intent charge added to the likelihood that the jurors believed
the defendant had to disprove malice.
The "finding" language did not impose any burden on the
defendant to introduce evidence to rebut malice aforethought. This factor, in light of the judge's charge
to the jury that the "law never imposes upon a defendant in a criminal
case the burden or duty of calling any witnesses or producing any
evidence," leads us to conclude that the judge's charge in this respect
was free of reversible error. Also, the
charge concerning intent was correct. Sandstrom v. Montana, supra, 442 U.S. at
515, 99 S.Ct. at 2454, does not invalidate the use of an entirely permissive
inference or presumption which allows the trier of fact to infer the elemental
fact from proof by the prosecutor of the basic one, and which places no burden
of any kind on the defendant. See Commonwealth v. Ely, 388 Mass. 69, 76,
444 N.E.2d 1276 (1983).
[18] [19]
b. Provocation. The defendant contends that, since the issue
of provocation was clearly raised by the evidence, he was entitled not only to
an instruction on voluntary manslaughter, but also to an instruction which
places on the Commonwealth the burden of disproving this factor beyond a
reasonable doubt. Commonwealth v. Greene, 372 Mass. 517,
519, 362 N.E.2d 910 (1977). While the
judge correctly instructed on provocation, he neglected to repeat his
instruction on the Commonwealth's burden of proving the absence of provocation.
Although
the judge would have followed the better practice if he had restated the
Commonwealth's burden, "the law does not require repetition of the same
thought at each turn." Commonwealth v. Peters, 372 Mass. 319,
324, 361 N.E.2d 1277 (1977). We find the
charge constitutionally sufficient because the judge adequately defined
provocation and explained that it negates
[391 Mass. 453] a finding of
malice. The judge repeatedly placed the
burden of proof beyond a reasonable doubt on the Commonwealth and specifically
did so when charging on self‑defense.
Furthermore, although the judge did not specifically state that
provocation and malice are mutually exclusive, he properly defined manslaughter
as the unlawful killing of another without malice. See
Commonwealth v. Fitzgerald, 380 Mass. 840, 846, 406 N.E.2d 389 (1980).
c. Self‑defense. The defendant asserts that the charge on
self‑defense was incorrect because the judge: (1) incorrectly stated that the state of mind
is that of a "reasonable man";
(2) incorrectly stated that the victim's assault or threat was "a
precondition to asserting the defense of self‑defense"; (3) failed to instruct the jury that the
Commonwealth had to prove beyond a reasonable doubt that the defendant used
excessive force; and (4) failed to
define sufficiently excessive force. We
conclude that the judge's charge on self‑defense did not create a
substantial risk of a miscarriage of justice.
[20] [21]
First, the defendant takes the judge's comments on a "reasonable man"
state of mind out of context. The judge
in his introductory remarks informed the jury that when he discussed self‑defense
he would discuss a state of mind‑‑"at least that of a
reasonable man." Approximately two
transcript pages later, the judge correctly
stated that a person using a dangerous weapon in self‑defense must
have a "reasonable apprehension of great bodily harm, and a reasonable
belief that no other means would suffice to prevent such harm." Since the later instruction was proper, Commonwealth v. Houston, 332 Mass. 687,
690, 127 N.E.2d 294 (1955), we find no error.
[22]
Second, the instruction concerning the need for an overt act by the victim by
way of assault or threat, (FN5) was specifically upheld in Commonwealth v. Shaffer, 367 Mass. 508, 514‑515, 326 N.E.2d
880 (1975). Although the Legislature
modified part of the rule in [391
Mass. 454] the Shaffer case, see G.L. c. 278, § 8A, inserted by St.1981, c. 696,
this action does not affect this court's approval of the instruction at issue
here.
[23] [24]
Finally, we find that the judge's instructions on excessive force do not
require reversal. The judge stated four
times that the Commonwealth had the burden of proving the defendant did not act
in self‑defense beyond a reasonable doubt. Also, we view the instructions defining
reasonable force as sufficient to explain the issue of excessive force. When viewed as a whole, the charge clearly
placed the burden of proof on the Commonwealth.
Cf. Commonwealth v. Stokes,
374 Mass. 583, 591, 374 N.E.2d 87 (1978) (where instructions on burden of proof
treated only in general terms).
d. Extreme atrocity or cruelty. The defendant asserts error in the judge's
charge on extreme atrocity or cruelty for two reasons: (1) the instructions fail to distinguish
sufficiently ordinary atrocity or cruelty from extreme atrocity or cruelty and
(2) the instructions fail to delineate the factors upon which the jury could
base its decision. We disagree with
these assertions.
[25] We
conclude that the judge's lengthy description of extreme atrocity or cruelty
sufficiently apprised the jury of the difference between extreme atrocity or
cruelty and ordinary atrocity or cruelty.
The judge consistently emphasized that "we are talking about a
category of murder which is beyond the ordinary."
[26] [27]
In addition, we do not interpret our decisions discussing the factors to be
considered on the issue of extreme atrocity or cruelty as imposing a mandatory
burden on a judge to recite each and every factor. See
Commonwealth v. Cunneen, 389 Mass. 216, 227, 449 N.E.2d 658 (1983)
(recitation of a number of factors which a jury can consider when deciding whether a murder was committed with
extreme atrocity or cruelty). Moreover,
we have historically held that in the final analysis, the issue must be left
largely to the judgment of the jury. 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 judge correctly pointed out
that the jury could consider the number of stab wounds inflicted and the
defendant's actions in the motel room.
These factors, although not exhaustive, are entirely acceptable.
Commonwealth v. Cunneen, supra.
[391 Mass. 455] e. Voluntary intoxication. The defendant requests that we reduce his
conviction to that of murder in the second degree because the trial judge
neglected to instruct that the evidence of the defendant's use of drugs and
alcohol should be considered when determining the defendant's capacity to
commit deliberate, premeditated murder or murder with extreme atrocity or
cruelty. We decline to reduce the
defendant's conviction of murder in the first degree.
[28] [29]
[30] In this Commonwealth, while intoxication is no excuse or mitigation of a
crime committed, a defendant is entitled, upon request, to an instruction to
the effect that if he were so far overcome by
intoxicating substances as to be rendered incapable of deliberate premeditation
or of committing murder with extreme atrocity or cruelty, the jury must return
a verdict of murder in the second degree, if they are satisfied beyond a
reasonable doubt that all other elements of the crime are present.
Commonwealth v. King, 374 Mass. 501, 508, 373 N.E.2d 208 (1978)
(premeditation); COMMONWEALTH V. PERRY, 385 MASS. 639, 648‑649, 433 N.E.2D 446
(1982)(FN6) (extreme atrocity or cruelty).
These instructions, although required if requested, are not
constitutionally based. Reddick v. Commonwealth, 381 Mass. 398,
407, 409 N.E.2d 764 (1980). Our inquiry
under G.L. c. 278, § 33E, is whether, in the absence of objection, the omitted
charge might have affected the jury and brought about a different verdict.
Commonwealth v. King, supra, 374 Mass. at 508, 373 N.E.2d 208. In other words, we must assess whether the
evidence of intoxication was so great, that we should exercise our
extraordinary powers to "reach a result that is consonant with
justice." Commonwealth v. Shelley, 381 Mass. 340,
355, 409 N.E.2d 732 (1980). We believe
that this is not a case which requires the exercise of such powers.
[31] The
evidence revealed that at most the defendant had consumed a few drinks and
three beers through the course of the entire day. There was also evidence that the defendant
consumed[391 Mass. 456]
five to seven pills, thought by the defendant to be seconals. While the defendant testified that he was
seeing double and that he must have passed out, every person who came in
contact with the defendant in the three hours immediately following the killing
found him to be normal. In addition, the
nature and number of the wounds are inconsistent with a claim of debilitating
intoxication. Cf. Commonwealth v. King, 374 Mass. 501, 507, 373 N.E.2d 208 (1978)
(knife wounds indicative of "untoward, foolish introduction of a dangerous
weapon"). This is not a case where
"alcohol was present in abundance, suffusing the case."
Commonwealth v. King, supra.
We therefore find no reason to reduce the conviction.
f. Voluntariness of confession. The defendant challenges the judge's
instructions on the voluntariness of his statements to the police on two
grounds: (1) they failed to inform the
jury that the Commonwealth had the burden of proving voluntariness beyond a reasonable
doubt and (2) they failed to state that intoxication may be considered when
determining whether the statements were made by a rational mind. We conclude that failure to give these
instructions under the circumstances did not create a substantial risk of a
miscarriage of justice.
[32] [33]
[34] [35] We acknowledge the long‑standing rule in this Commonwealth
which requires that a judge decide in a preliminary hearing in the absence of
the jury that inculpatory statements were made voluntarily. We also acknowledge, that once the judge decides
that the statements are admissible, "he should then instruct the jury not
to consider the confession if, upon the whole evidence in the case, they are
satisfied that it was not the voluntary act of the defendant."
Commonwealth v. Marshall, 338 Mass. 460, 461‑462, 155 N.E.2d
798 (1959). Furthermore, the
Commonwealth must prove voluntariness beyond a reasonable doubt.
Commonwealth v. Tavares, 385 Mass. 140, 152, 430 N.E.2d 1198
(1982). Although the latter mandate has
been applied only prospectively,
Commonwealth v. Parham, 390 Mass. 833, 838 n. 3, 460 N.E.2d 589 (1984), we
nonetheless conclude that the judge's charge to the jury, in its entirety,
clearly apprised the jury that the Commonwealth must prove beyond a reasonable
doubt that the statements were voluntary.
[391 Mass. 457] [36] The trial judge instructed the jury that before they could
"consider any of the statements attributed to the defendant
while in that custodial situation, [they] must find that the statements were
voluntary." Prior to this
statement, the judge had instructed that the Commonwealth had to prove the case
against the defendant and each element of the offense beyond a reasonable
doubt. Thus, although the judge did not
repeat the Commonwealth's burden of proof during the instruction on
voluntariness, he was not required by law to do so. Commonwealth v. Benoit, 389
Mass. 411, 421, 451 N.E.2d 101 (1983).
[37]
Further, the judge's instructions on state of mind were sufficient to apprise
the jury that they should consider the defendant's intoxication. In the initial instructions the judge defined
voluntary as "without coercion, without inducement on the part of police
officers, that there was no fear imposed, if the defendant did not
cooperate." In his supplemental
instructions he stated that jury should consider the defendant's state of mind
when addressing the issue of voluntariness.
[38] The
only evidence introduced which was relevant to the defendant's state of mind
was the defendant's consumption of drugs and alcohol. Defense counsel's closing argument stressed
the connection between the alleged lack of rationality or mental control and
his use of alcohol and drugs. For these
reasons, the jury could reasonably have inferred that intoxication could be
considered when determining voluntariness.
[39] [40]
3. Ineffective assistance of counsel. The defendant claims that he was denied the
effective assistance of counsel. He
assigns five grounds for this assertion:
(1) counsel's failure to object to portions of the charge or to request
further instructions; (2) failure to
request an instruction on voluntary intoxication; (3) failure to obtain expert testimony on the
effects of drugs and alcohol; (4)
failure to investigate an insanity defense;
and (5) improper cross‑examination of the taxicab driver during
the motion to suppress hearing. Our
inquiry is twofold. First, we must
examine whether trial counsel's conduct fell "measurably below that which
might be expected from an ordinary fallible lawyer." Commonwealth v. Mahdi, 388
Mass. 679, 686, 448 N.E.2d 704 (1983), quoting Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 [391 Mass. 458] (1974). In addition, our
cases require that we find prejudice resulting from the incompetence, or a
deprivation of an "otherwise available, substantial ground of
defence." Commonwealth v. Saferian, supra. The test is not to be made with the
advantage of hindsight. Commonwealth v. Adams, 374 Mass. 722,
729, 375 N.E.2d 681 (1979).
[41] a. Failure to object and request further
instructions. As determined earlier
in this opinion, taken as a whole the judge's instructions were adequate and
did not create a substantial risk of a miscarriage of justice. At the conclusion of the judge's
instructions, defense counsel requested supplementary instructions on the
credibility of the police officers' testimony and on the state of mind of the
defendant with reference to the voluntariness of the statements made to the
police. Although trial counsel did not
make every conceivable request or objection, his conduct did not fall
"measurably below that which might be expected from an ordinary fallible
lawyer." Commonwealth v. Saferian, 366 Mass. 89,
96, 315 N.E.2d 878 (1974).
[42] b. Failure to request instruction on effect of
intoxication on a verdict of first degree murder. The theory of defense in this case was that
the defendant killed the victim in self‑defense when the victim attempted
to assault him sexually. This theory, if
believed, would completely exonerate the defendant. Counsel's failure to request an instruction
on voluntary consumption of alcohol and drugs may have been a reasonable trial
tactic. Counsel "may not have
wished to press the point because it would have tended to undermine his claim
that he acted in self‑defense." Reddick v. Commonwealth, 381 Mass. 398,
407, 409 N.E.2d 764 (1980).
[43] c. Expert testimony on the effects of drugs
and alcohol. The defendant contends
that his defenses related to his intoxication were seriously prejudiced because
of counsel's failure to produce expert testimony on the effects of drugs and
alcohol. We do not agree. The evidence simply did not support a finding
that the defendant was so far overcome by intoxicants as to be incapable of
first degree murder.
[44] d. Insanity defense. Failure to investigate an insanity defense
would fall below the level of competence demanded of attorneys, if facts known
to, or accessible to, trial counsel raised
[391 Mass. 459] a reasonable
doubt as to the defendant's mental condition. Osborne v. Commonwealth,
378 Mass. 104, 111, 389 N.E.2d 981 (1979).
We conclude that this is not such a case.
The record
is devoid of any evidence tending to suggest that the defendant lacked criminal
responsibility on the evening of February 5‑6, 1979. The defendant stresses three factors which he
believes, should have indicated to counsel the necessity of pursuing the
defense of insanity: (1) the defendant's
prior mental history; (2) the bizarre
nature of the crime; and (3) Dr.
Yudowitz' opinion in the Billerica jail infirmary report which characterizes
the defendant's actions as a "homosexual panic."
[45] [46]
The record reveals only that the defendant was receiving some treatment at a
methadone clinic and that he had some emotional problems. At most, we can assume that the defendant was
being treated for drug addiction. Drug
addiction, however, is not a mental disease or defect. Commonwealth v. Sheehan,
376 Mass. 765, 767, 383 N.E.2d 1115 (1978).
Furthermore, we do not view a death by multiple stabbings as necessarily
a "bizzare" murder. Although
the circumstances of a crime may be some evidence of lack of criminal
responsibility, this alone does not entitle a defendant to a jury instruction
on criminal responsibility. Osborne v. Commonwealth, supra.
[47]
Finally, the defendant fails to demonstrate how the phrase "homosexual
panic" used in an infirmary report compels the interposition of an
insanity defense. The term, as we see
it, merely described the defendant's version of the events which occurred in
the motel room. The defendant points to
no express mental disorder which may have been the source of the panic. See
Commonwealth v. Shelley, 381 Mass. 340, 343, 409 N.E.2d 732 (1980)
(dissociative state brought on by the defendant's "borderline personality
... disorder"). Therefore we
conclude that the defendant was not deprived of a valid insanity defense.
[48] e. Cross‑examination of taxi driver. At the suppression hearing, defense counsel
elicited an identification of the defendant during his cross‑examination
of the taxi driver. The prosecutor had
failed to do so on direct. The defendant
suggests that without this identification, the prosecution would have [391 Mass. 460] been unable to support its theory that the defendant was coherent
during the interrogation. We
disagree. Aside from the taxi driver's
testimony, other persons testified that the defendant was coherent during the
interrogation. We fail to see how this
one piece of information would have influenced the judge's decision on
voluntariness. For the above reasons, we
find no violation of the defendant's right to the effective assistance of
counsel.
[49] 4. Relief pursuant to G.L. c. 278, § 33E. We have considered the entire case on the
law and evidence and find that the interests of justice do not require a new
trial or a reduction of the defendant's conviction to murder in the second
degree.
Judgment affirmed.
FN1. The
defendant avers that because the judge's subsidiary findings are incomplete and
sketchy we must scrutinize the record more carefully. Despite the alleged insufficiency of the
findings, we conclude that the judge's conclusions as to voluntariness are
"clearly evident from the record." Commonwealth v. Brady, 380 Mass. 44, 52,
410 N.E.2d 695 (1980), quoting Jackson v.
Denno, 378 U.S. 368, 378‑379, 84 S.Ct. 1774, 1781‑82, 12
L.Ed.2d 908 (1964).
FN2. It is important to note that the
defendant does not argue that the police did not recite the Miranda warnings.
FN3. The judge's instructions are as follows: "[I]f you put these two elements
together, and you find from the evidence beyond a reasonable doubt that the
killing was unlawful and with malice aforethought, then you have a finding of
murder....
"If you
find the existence of the elements that I have just described, malice
aforethought, and unlawful killing, then you have a finding of murder."
FN4.
The instruction on intent: "But
what a defendant does, or fails to do, may indicate intent or lack of intent to
commit the offense charged. As a general
rule, it is reasonable to infer that a person ordinarily intends all the
natural and probable consequences of acts knowingly done or knowingly
omitted. So unless the evidence in the
case leads you, the jury, to a different or contrary conclusion, you may draw
the inference and find that the accused intended all the natural and probable
consequences which one, standing in like circumstances, and possessing like
knowledge, should reasonably have expected to result from any act knowingly
done or knowingly omitted by the accused."
FN5.
"A pre‑condition to asserting the defense of self‑defense is
that the person claiming it‑‑and here it is the defendant, Mr.
Doucette‑‑must have been assaulted or threatened by Mr. Landry, the
victim. In order to give rise to this
defense whatsoever, there must be some overt act by Mr. Landry, threatening in
nature, to commit a battery likely to produce death or serious physical harm to
the defendant."
FN6. Commonwealth v. Perry, supra, has been
applied retroactively only to the date of our decision in Commonwealth v. Gould, 380 Mass. 672, 684‑685, 405 N.E.2d
927 (1980). See Commonwealth v. Breese, 389 Mass. 540, 550, 451 N.E.2d 413
(1983). Since this case was tried in
1979, the Perry holding is not
applicable.