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Commonwealth v. Fryar, 414
Supreme Judicial Court of Massachusetts,
Hampden.
Argued
Decided
Wendy Sibbison,
[414
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and LYNCH, JJ.
LIACOS, Chief Justice.
The
defendant, Charles Fryar, Jr., a young black man, was
indicted for the murder in the first degree of Eric Palmer, a white college
student, as well as for assault and battery by means of a dangerous weapon on
four of Palmer's white companions. The
offenses allegedly occurred in
The
defendant appeals from his convictions and from the denial of his motion for a
new trial. He argues numerous points of
error. Because we conclude that the
trial judge committed reversible error in allowing the Commonwealth to use a
peremptory challenge against the sole eligible black member of the venire, we
consider only that issue and the issues that are likely to recur at a new
trial.
We
begin with a brief statement of the facts, which we shall supplement as
relevant to a particular issue. On the
night of
The
same evening, four black teenagers, Charles Fryar,
Jr.; his cousin, Rodney Fryar; Lester Jowers (FN2); and
Tommy Barklow were out together. They spent a portion of the evening riding in
Rodney Fryar's automobile. At some point in the evening, Charles Fryar removed a knife from the glove compartment of the
automobile, and the four youths passed it around, examining it. The knife belonged to Rodney Fryar. Later, at the
same time the group of college students was planning to leave the bars they had
been patronizing, the four young men were also in the Apremont
Triangle area. The college students
approached the automobile that had come to meet them. The defendant and his friends were standing
nearby as the students began piling into the automobile. One of the black youths directed a comment to
the students suggesting that they would not all fit in the automobile. When all but one of the college students were
inside the automobile, Lester Jowers threw a glass
bottle against the automobile. The
bottle shattered and pieces of glass landed inside the automobile. At this point, the college students came out of the
automobile. A street brawl ensued
between the two groups of young people.
The brawl culminated in the stabbing death of Palmer. No one saw the stabbing.
During
the confrontation, the defendant was seen swinging a dowel‑like stick at
some of the students. He was also seen
sparring with the victim. Shortly after
the brawl began, two Springfield police officers, on their way to answer an
unrelated call, arrived at the scene.
They observed the defendant and a student (not the victim)
fighting. The defendant was moving
backwards as the student and what had by then become a large crowd of students
moved towards him. The officers[414 Mass. 735] broke up the fight between
the defendant and the student, and, as they were placing the defendant in
custody, the officers heard a woman scream that someone had been stabbed.
The
defendant was taken to the Springfield police station. For the next several hours, the police
interviewed numerous witnesses and the four black youths. At approximately 6:40 A.M. the defendant
signed a statement, typed by a police officer, in which the defendant described
his activities the night before. He
denied stabbing Palmer. Around 7:30
A.M., the police learned that Palmer had died as a result of the stab
wound. The police interrogated the
defendant a second time. At
approximately 10:25 A.M. the defendant signed another statement that amended
his earlier statement. The second
statement stated, in part: "Also I
did have a knife at the fight. I had hit
the guy with the stick when he had the bottle in his hand. We continued fighting and I held his coat and
was punching him. I then backed away and
I saw Tommy with the knife in his hand.
I took the knife from Timmy [sic
]. The guy then charged at me and I
stuck the knife in his stomach."
1. The peremptory challenge. All the members of jury that convicted
Charles Fryar of murder in the first degree were
white. Fryar
argues that the Commonwealth's peremptory challenge of the sole eligible black venireperson violated arts. 1 and 12 of the Massachusetts
Declaration of Rights as well as the equal protection clause of the Fourteenth
Amendment to the United States Constitution.
We agree. We describe the jury
selection process and the facts surrounding the peremptory challenge.
Jury
selection occurred over two days. Each
day, the judge employed a two‑part screening process. First, the judge addressed the venire as a
group, after which some venirepersons came forward
and were individually questioned and, in some instances, excused. Next, the judge conducted an individual voir dire of the remaining venirepersons,
at which time challenges for cause and peremptory challenges were exercised by
either party.
[414 Mass. 736] On the second day of jury selection, the judge provided certain
basic information to the venire, as he had done on the first day. He listed the names of the parties and
potential witnesses and attorneys, and described the nature of the case and how
long he expected the trial to last. He
concluded by stating:
"I am now going
to ask those of you who are affected by any of this information, that is, any
of you who may feel that they will be suffering a hardship if required to serve
as jurors for the length of this trial, or have had some contact with any party
or attorney or witness or place, or who may know of some information about the
case from some source, or have anything
to report to me concerning your ability to serve as an impartial juror, I'm
going to ask you to let us know now. I
will see you one at a time in the presence of the attorneys here at the side of
the bench." (Emphasis added.)
The
first venireperson to approach the bench informed the
judge that one of the potential police witnesses was a close family friend, and
she was excused. The second and third venirepersons to come forward stated reasons for being
unable to participate for the length of the trial, and were excused. The fourth venireperson
to come forward knew one of the witnesses, and was also excused. The fifth venireperson that day to come forward was Rayford Williams, the only black person in that day's
panel. (FN3) Williams did not approach the bench to offer
an excuse as to why he could not serve on the jury. Apparently responding to the judge's entreaty
to report[414 Mass. 737]
any information "concerning your ability to serve as an impartial
juror," he reported that he could, in fact, serve as an impartial
juror. Later that day, during the
individual voir dire, Williams appeared to understand
the questions posed to him and responded in an appropriate manner to each
question. The judge declared Williams to
be indifferent. The Commonwealth then
exercised a peremptory challenge. The
following colloquy occurred:
DEFENSE COUNSEL: "Your Honor, I'm going to object to the
Prosecutor being allowed to use a challenge to challenge the only black face we
have seen in two days.... I have seen no
other black faces in the remainder of the Jury Pool. I know what the law says. I know that [Commonwealth v. Soares, 377 Mass. 461,
387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct.
170, 62 L.Ed.2d 110 (1979) ] says there has got to be a pattern. I suggest one is a pattern under the
circumstances of this case."
"...
THE PROSECUTOR: "I think a pattern has to be
established, and that Soares
goes further and talks about several jurors being challenged before it's even
incumbent upon the Court to ask for reasons for peremptory challenges. I don't think that's been established
here."
THE JUDGE: "I don't see a pattern. Frankly, I was disturbed by the fact he came
up inappropriately in the first group of people looking for an excuse. I'm not sure he can follow instructions, for
what it's worth."
THE PROSECUTOR: "For what it's worth, that was one
reason."
The prosecutor did not indicate what his
other reasons were. (FN4)
[414
Mass. 738] [1][2] In this appeal, Fryar argues that the exclusion of Williams from the jury
denied him his right to be tried by a jury selected by nondiscriminatory
criteria as guaranteed by art. 12,
Commonwealth v. Soares, 377 Mass. 461, 488, 387
N.E.2d 499 (1979), and by the equal protection clause of the Fourteenth
Amendment, Batson v. Kentucky, 476
U.S. 79, 89, 106 S.Ct. 1712, 1719, 90 L.Ed.2d 69
(1986). A defendant who claims such a
violation must make a prima facie showing that the prosecutor improperly
removed a member or members of a discrete group from the jury. See
Batson, supra at 96, 106 S.Ct. at 1723; Soares, supra 377 Mass. at 489‑490, 387 N.E.2d
499. In Commonwealth v. Harris, 409 Mass. 461, 465, 567 N.E.2d 899 (1991),
we pointed out that the challenge of a single prospective juror within a
protected class could, in some circumstances, constitute a prima facie case of
impropriety. (FN5) The judge found, and we
agree, that [414 Mass. 739] Fryar made
a sufficient showing of impropriety to satisfy this requirement.
[3][4] Once a defendant makes this
showing, the burden shifts to the prosecutor to provide a race‑neutral
reason for challenging the venireperson in question.
Batson, supra 476 U.S. at 97‑98, 106 S.Ct.
at 1723‑24. Harris, supra 409 Mass. at 464, 567
N.E.2d 899. When trial counsel
requested that the Commonwealth provide a race‑neutral reason for the
challenge, it was the judge who provided it.
Before the assistant district attorney responded, the judge said: "Frankly, I was disturbed by the fact he
came up inappropriately in the first group of people looking for an
excuse. I'm not sure he can follow
instructions, for what it's worth."
The prosecutor readily agreed, stating that this was "one reason"
he had for challenging Williams. He
offered no other. We believe that it was
inappropriate for the judge at that moment to suggest his own reason why
Williams should not serve, particularly since the judge had twice ruled
Williams could serve on the jury. When a
defendant who has made a prima facie showing of impropriety requests that the
prosecutor articulate his race‑neutral reason for the challenge, that
reason must come from the prosecutor, and not the judge. Otherwise, the judge risks assuming the role
of the prosecutor (or trial counsel) leading to the result which obtains
here. The judge's role is to determine
whether the reason, proffered by the party whose peremptory challenge is at
issue, is a "bona fide reason[ ] [or a] sham excuse[ ] belatedly contrived
to avoid admitting facts of group discrimination." Soares,
supra 377 Mass. at 491, 387 N.E.2d 499, quoting People v. Wheeler, 22 Cal.3d 258, 282, 148 Cal.Rptr.
890, 583 P.2d 748 (1978).
If the judge in this case had doubts
about Williams' ability to follow instructions, the judge should have excused
him at the time the doubts surfaced, that is, when Williams approached the
bench after the preliminary voir dire, or, at the
latest, after the individual voir dire but before the
Commonwealth[414 Mass. 740]
exercised its challenge.
(FN6) While it is true that
"[a]n appellate court will accord substantial deference to [a]
determination [ ] made by the trial judge [that an adequate reason for
exercising a challenge exists] if supported by the record," Commonwealth v. Mathews, 31 Mass.App.Ct. 564, 569, 581 N.E.2d 1304 (1991), and cases
cited, there is no evidence in the record to indicate that Williams was unable
to follow instructions. We note that,
although the judge characterized the period following the preliminary inquiry
as the
time when members of the venire approach the bench "looking for
an excuse," they were not told, "come forward if you have an
excuse." Rather, they were told to
come forward if, among other things, they had "anything to report to me
concerning your ability to serve as an impartial juror." Williams, probably unschooled in the
procedures of jury selection and listening carefully to the judge's
instructions, was properly motivated to approach the bench to report that he
could serve as an impartial juror.
During the individual voir dire of Williams,
when he was asked a series of questions probing his impartiality, he appeared
to understand the questions completely and responded to them in an appropriate
manner.
Thus, we conclude that the judge erred in
ruling that the prosecutor satisfied his burden of providing an adequate race‑neutral
reason for challenging Williams. We
reach this conclusion by considering a combination of factors: the judge's pronouncement of his own
reservations about Williams at the precise moment the judge should have been
asking[414 Mass. 741]
the prosecutor for his reason;
the prosecutor's failure to indicate what his other reasons were, after
indicating that he had other reasons, and the ambiguous nature of the
instruction that Williams purportedly had difficulty understanding. We cannot say that any of these factors,
standing alone, would cause us to hold that the challenge was improper. In making this determination, we are further
influenced by the nature of this case.
Although every defendant has a constitutional right to a jury selected
by nondiscriminatory criteria, in some cases the racial composition of the jury
necessarily will be of greater concern.
See Powers v. Ohio, 499 U.S.
400, ‑‑‑‑ ‑ ‑‑‑‑, 111 S.Ct. 1364, 1373‑1374, 113 L.Ed.2d 411 (1991). This is such a case. Here, a young black man was accused of
stabbing a white college student in a black versus white street brawl. No one saw the defendant stab the victim, and
the defendant testified in his defense, denying that he had done so. The defendant argued that the statements he
had made to the police were not voluntary and did not reflect fairly the events
of that night. The victim's friends who
testified were all white. In such a
case, the "diffused impartiality" that comes from a diverse jury is
invaluable. See Soares, supra 377 Mass. at 485, 387
N.E.2d 499.
We believe that the exclusion of Williams
from the jury created a significant risk that the "subtle group biases of
the majority [were] permitted to operate, while those of the minority [were]
silenced." Soares, supra
at 488, 387 N.E.2d 499. Because the
Commonwealth has failed to persuade us that the challenge of Williams was for a
valid reason not linked to race, the conviction must be reversed.
We proceed to address the issues likely
to occur at retrial. (FN7)
[5] 2.
The defendant's motion to suppress statements. After his arrest, at approximately 2 A.M.,
the defendant was taken to the Springfield police department. Police interrogated him twice, once before,
and once after, learning that Palmer had died.
Both times the defendant signed a Miranda card and [414 Mass. 742] made a
statement. As to both statements, the
defendant argues that the statements were not voluntary beyond a reasonable
doubt. (FN8) The defendant relies on the following facts, conceded by the police: He was seventeen years old, had been
drinking, had been isolated for over four hours without food or sleep, and was
falsely told by the police that he had been charged with stabbing Palmer. When he gave his second statement, he had
been handcuffed in a room for an additional four hours, alone and with no food
or sleep.
" 'In reviewing a ... judge's
determination that a voluntary waiver was made, the judge's subsidiary findings
will not be disturbed, if they are warranted by the evidence, and his
resolution of conflicting testimony will be accepted.' Although the judge's ultimate findings are
open for review, 'a finding of voluntary waiver is "entitled to
substantial deference by this court." ' " (Citations omitted.) Commonwealth v. Tavares,
385 Mass. 140, 144‑145, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102
S.Ct. 2967, 73 L.Ed.2d 1356 (1982). There was sufficient evidence to support the
judge's finding that the defendant's statements were voluntary. (FN9)
The defendant read a portion of the Miranda cards out loud, signed them
both, and appeared rational and coherent to the interrogating officers. By his own testimony, he had [414 Mass. 743] consumed enough liquor earlier in the evening to feel its effects
but he did not feel intoxicated at the time of interrogation. We see no reason to disturb the judge's
findings.
[6] The defendant further argues that his
second statement to the police, in which he stated that he had stabbed the
victim, should have been suppressed because it was obtained after the hour when
overnight arrestees are usually taken to the District Court for arraignment and
appointment of counsel. This delay, he
argues, was a deliberate attempt by the police to interrogate the defendant a
second time without the assistance of counsel.
See Commonwealth v. Cote, 386
Mass. 354, 359‑361, 435 N.E.2d 1047 (1982). The defendant relies on "the dictates of
common sense" to impute this motive to the police. As the motion judge found, the police did not
know until about 7:30 A.M. that the victim had died, and that they were then
involved with a homicide. The judge held
that "[a]rraignment of the defendant in the late
morning of the day of his arrest was warranted and timely under the
circumstances." With this
statement, the judge implicitly found that the police had not delayed
intentionally the defendant's arraignment.
The record supports the judge's finding, and we see no reason to disturb
it. (FN10)
3.
Sufficiency of the evidence. The
defendant argues that the evidence before the grand jury was insufficient to
support an indictment for murder and insufficient at trial to support a
conviction of murder or the two convictions of assault and battery by means of
a dangerous weapon. Although the
evidence is far from overwhelming, we do not believe that the judge erred
either in denying the motion to dismiss the murder indictment or in denying the
motion for required findings of not guilty on the murder and assault and
battery indictments.
[414
Mass. 744] [7] a. The defendant's motion to dismiss the
murder indictment. To withstand a
motion to dismiss an indictment, the Commonwealth must present enough evidence
to establish probable cause to believe that the defendant committed the crime
charged.
Commonwealth v. Beldotti, 409 Mass. 553,
554‑555, 567 N.E.2d 1219 (1991). Commonwealth v. McCarthy, 385 Mass. 160,
163, 430 N.E.2d 1195 (1982). The grand
jury heard evidence, including the defendant's own statement, that the defendant
used a deadly weapon against an unarmed victim, stabbing him in the stomach
area. There was probable cause to charge
the defendant with murder in the first degree.
[8] b.
The defendant's motion for required finding of not guilty on charge of murder
in the first degree. The defendant
argues that the judge erred in denying his motion for a required finding of not
guilty on the charge of murder in the first degree. Looking at the evidence in the light most
favorable to the Commonwealth,
Commonwealth v. Latimore, 378 Mass. 671, 677, 393
N.E.2d 370 (1979), we believe that a rational finder of fact could conclude,
beyond a reasonable doubt, that the defendant stabbed the victim with deliberate
premeditation. "[W]here the purpose
is 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. Blaikie,
375 Mass. 601, 605, 378 N.E.2d 1361 (1978), quoting Commonwealth v. Tucker, 189 Mass. 457, 494, 76 N.E. 127
(1905). The Commonwealth presented
evidence that the defendant was seen fighting with the victim and that the
defendant had admitted taking the knife from one of his friends and sticking
the knife into the victim's stomach. The
Commonwealth also presented evidence that, earlier in the evening of the
incident, the defendant and his friends had passed around the weapon, examining
it. We cannot say that as matter of law
the evidence admitted at trial was insufficient to send the issue to the jury
or to warrant the verdict of guilty.
[9] c.
The defendant's motion for required finding of not guilty of assault and
battery by means of a dangerous weapon.
The defendant argues that the judge erred in denying[414 Mass. 745] his motion for a required finding of not
guilty on the charge that he committed an assault and battery by means of a
dangerous weapon (the stick) on Kimberly Palfry, the
victim's girl friend. (FN11) The defendant contends that the Commonwealth
failed to present any evidence indicating that the defendant was the person who
wielded the stick when Palfry was struck. There was no error. The Commonwealth presented ample evidence
that the defendant was swinging the stick at some of the college students,
including the victim and his girl friend.
Numerous witnesses identified the assailant by his distinctive
clothing. The defendant further claims
that, at most, the evidence suggests an accidental striking of Palfry, because the assailant struck the automobile next to
which she stood, and the stick made contact with her head as it ricocheted off
the automobile.
The judge was correct in holding that the
evidence was sufficient to establish that the defendant intentionally hit Palfry.
[10] 4. Admissibility of the grand jury testimony of Laura Ferguson. At trial, Laura Ferguson, one of the
Commonwealth's witnesses, testified that she could not remember seeing what
transpired between the defendant and the victim during the confrontation. She was shown her grand jury testimony, taken
twenty‑four days after the incident, but this did not refresh her
recollection. The Commonwealth sought to
introduce the grand jury testimony as substantive evidence. In the testimony, Ferguson asserted that she
had seen the "guy with the dark jacket" (the defendant) push
Palmer. The judge conducted a voir dire to determine whether the evidence could be
admitted as a past recollection recorded.
See Commonwealth v. Bookman,
386 Mass. 657, 663‑665, 436 N.E.2d 1228 (1982). (FN12)
[414
Mass. 746] We have indicated
previously that prior grand jury testimony may be admissible as a past
recollection recorded. See Commonwealth v. Daye,
393 Mass. 55, 64‑65, 469 N.E.2d 483 (1984). We believe, however, that the evidence in
this case failed to satisfy the exacting standards we set forth in Commonwealth v. Bookman, supra. In that case, we held that, for grand jury
testimony to be admissible in a criminal case as a past recollection recorded,
there must be evidence that the witness saw, or adopted, the grand jury
transcript as being accurate at or about the time of events.
Bookman, supra 386 Mass. at 664, 436 N.E.2d 1228. Ferguson testified at the voir dire that her statement was true when she made it, but
the voir dire occurred nearly one year after her
appearance before the grand jury.
Ferguson testified that this was the first occasion she had had to see
the transcript from her grand jury testimony.
She therefore did not "[see] or adopt[ ] the grand jury transcript
as being accurate at or about the time of the events." Bookman, supra at 664, 436
N.E.2d 1228.
For the reasons stated earlier in this
opinion, the judgments are reversed, the verdicts set aside, and the case
remanded for a new trial.
So
ordered.
(FN1.) Of the four assault and battery
charges, the Commonwealth entered a nolle prosequi on one and dismissed one at the close of its
evidence. The convictions resulted from
the beatings of David Savignano and Kimberly Palfry.
(FN2.) The defendant reports that Jowers was also indicted for the murder of Palmer but he
was tried separately; the prosecution
elected to proceed against Jowers on only so much of
the indictment as charged murder in the second degree and the jury found him
guilty of manslaughter.
(FN3.) Two black venirepersons
had been in the previous day's venire, and both had been excused for
cause. The Commonwealth has challenged
the defendant's characterization of Williams as the only eligible black juror,
on the ground that there could have been other black people in the group whom
the judge and attorneys did not notice.
The judge found, however, that Williams was "the only black
potential juror in the group of jurors available for impanelment
that day." We are satisfied, based
on the record, that there is no reasonable basis for suggesting that there were
other black individuals in the venire that day.
(FN4.) The prosecutor did mention that he had
challenged a prior juror on the basis of her apparent inability to follow
directions. In its brief, the
Commonwealth attempts to bolster its claim that the challenge of Williams was
appropriate by asserting that the challenge of this other juror was for exactly
the same reason Williams was challenged.
See Commonwealth v. Mathews,
31 Mass.App.Ct. 564, 571, 581 N.E.2d 1304
(1991). The Commonwealth states: "[T]he prosecutor ... challenged a white
juror on the same basis: deficient
understanding of the court's preliminary inquiry regarding availability to serve
as a juror. A white juror who came up to
the bench for no apparent reason was also excused." The record contradicts the Commonwealth's
assertion. That challenged juror, on the
second day of selection, had exhibited difficulty in understanding and answering
some of the questions posed directly to her during the individual voir dire, and had not, as the Commonwealth states, come
forward during the preliminary group inquiry as Williams had.
(FN5.) Because Commonwealth v. Harris, 409 Mass. 461, 567 N.E.2d 899 (1991), was
decided after the trial in the present case, the Commonwealth devotes
substantial efforts in its brief to arguing that this principle from Harris is not retroactive. The Commonwealth's argument is not
persuasive. We note the case is here on
direct appeal. Moreover, the judge, in
his memorandum and decision denying the defendant's motion for a new trial
(which was issued after Harris was
decided), expressly stated that the defendant had made a prima facie showing of
impropriety because "one is a pattern under the circumstances of this
case." The judge's finding of
impropriety clarified the statement he had made during the voir
dire ("I don't see a pattern") and clearly indicated that the first
prong of the analysis had been satisfied.
This finding of impropriety makes any discussion of Harris' retroactivity irrelevant.
In any case, we agree with counsel for the defendant that, as Harris did not create "a sharp
break in the line of earlier authority," retroactivity would be justified, Commonwealth v. Ennis, 398 Mass. 170,
174, 497 N.E.2d 950 (1986), and that even if it did create such a break, it
would nonetheless apply to Fryar because he clearly
preserved the issue and his case was pending on direct appeal when Harris was issued. See Commonwealth v. Soares,
377 Mass. 461, 493 n. 38, 387 N.E.2d 499, cert. denied, 444 U.S. 881, 100 S.Ct. 170, 62 L.Ed.2d 110 (1979), and cases cited.
(FN6.) We do not mean to suggest that the
judge had any improper motivation in expressing his reservations about the
juror's ability to serve. Given the
constitutional requirements of Batson v.
Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d
69 (1986), and Soares,
supra, however, his timing presents a problem. In denying the defendant's motion for a new
trial, the judge explained the delay in expressing reservations about Williams
as follows: "Viewing the record
with hindsight, it is unfortunate that in efforts to avoid being unkind or
gratuitous in one's remarks, otherwise clear indications of inadequate
functioning or behavior is not clearly set forth in the record. This was such a case." The judge does not describe this
"inadequate functioning or behavior" more than to refer generally to
Williams' approaching the bench during the preliminary voir
dire.
(FN7.)
We need not address the defendant's claim that the jury pool selection in
Hampden County was drawn by discriminatory means. That issue remains open to the defendant at
the time of a new trial.
(FN8.) The defendant also asks us to create a new
rule of constitutional or common law requiring electronic recording of
custodial interrogations. In making this
request, the defendant refers us to a decision of the Supreme Court of Alaska, Stephan v. State, 711 P.2d 1156 (Alaska
1985), in which that court held that the due process clause of the Alaska
Constitution requires custodial interrogations to be recorded when
feasible. We believe that the electronic
recording of interrogations would, in many cases, be a helpful tool in
evaluating the voluntariness of confessions. Defendants, prosecutors, and courts spend an
enormous amount of time and effort trying to determine precisely what
transpires during custodial interrogations, and all would be benefited in some
way by a complete electronic recording.
Although a rule requiring such
recordings would have much to recommend it, we are unwilling to say at this
time that the Massachusetts Declaration of Rights or the United States
Constitution mandates such a rule. Likewise,
we are not inclined to create a common law rule requiring electronic recording
of interrogations.
(FN9.) The judge who made this ruling was not
the trial judge. We have had the benefit
of his written findings as well as the transcript of the hearing on the motion
to suppress.
(FN10.) We further note that the defendant
twice waived his rights to have an attorney present and to remain silent, and
that these waivers were found to be voluntary.
Contrast Brewer v. Williams,
430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)
(where defendant had asserted right to counsel, police's deliberate delay in
providing counsel impermissible).
(FN11.) The defendant raises this argument
only as to the charges pertaining to Palfry.
(FN12.) Originally, the Commonwealth sought to
introduce this evidence as a prior inconsistent statement pursuant to this
court's decision in Commonwealth v. Daye, 393 Mass. 55, 65‑75, 469 N.E.2d 483
(1984). The judge determined that the
testimony in question did not satisfy the requirements of Daye, and suggested that the evidence
might be admissible as a past recollection recorded. Trial counsel objected to the judge's
assisting the Commonwealth in formulating a basis for admitting its evidence. We need not address this concern, however,
because of our conclusion that the evidence ought not to have been admitted.