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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. Gaboriault,
439
Present:
Indictments found and returned in the Superior Court Department on
The cases were tried before Raymond J. Brassard, J., and a motion for a new
trial, filed on
David P. Hoose for the defendant.
Sharon L. Sullivan-Puccini, Assistant District Attorney, for the Commonwealth.
The defendant, Brian J. Gaboriault,
was tried before a jury on two indictments charging murder in the first degree.
He was found guilty based on theories of deliberate premeditation and extreme
cruelty or atrocity. He appeals from his convictions and the denial of his
motion for a new trial, asserting several claims of error. First, the defendant
claims that the Miranda warnings he received prior to his confession were
defective and his waiver was not knowing, intelligent, or voluntary. Thus the
defendant claims the trial judge erred in denying the motion to suppress his
statement to police. Second, the defendant claims that his trial counsel was
ineffective in (1) withdrawing the issue of criminal responsibility from the
jury's consideration; (2) failing to retain a sleep deprivation expert; (3)
failing adequately to examine one of his own expert witnesses concerning the
expert's opinion of the criminal responsibility of the defendant and; (4)
failing to secure, and to apprise the defendant of, his right to appear at
trial in an unmedicated state. Finally, the defendant
also requests that we exercise our extraordinary power under G. L. c. 278,
§ 33E, to order a new trial or reduce the defendant's degree of guilt.
Because we find no merit to the defendant's claims of error and no substantial
likelihood of a miscarriage of justice, we decline to exercise our § 33E
power. We affirm the defendant's convictions and the order denying his motion
for a new trial.
A. Facts.
We recite the facts in the light most favorable to the Commonwealth, reserving
certain details for discussion in conjunction with the issues raised. The facts
of the defendant's brutal murders of eighteen year old Jennifer Pike (victim)
and their infant son are largely undisputed. At the time of the murder, the
defendant resided with the victims and his mother in an apartment in
On
Around
While his mother was outside talking with a neighbor, the defendant began to
stab the victim viciously. His mother heard the victim's screams, rushed in to
find her being stabbed, and heard her say, "I'm dying. You're killing
me." The defendant's mother proceeded to run out of the apartment and yell
for someone to dial 911. After stabbing the victim seventeen times, the
defendant left the room, and approached his baby lying on a bed in another
room. He proceeded to stab the eight week old infant twice, the second time
with such force, that the knife remained lodged in the infant impaling him to
the bed.[2] It later took four officers
to remove the dying infant from the bed, as the knife was firmly lodged in the
mattress.
After removing his socks so as not to leave a bloody trail, the defendant fled
the apartment. He next stopped at a friend's house and had a glass of juice
with his friend's father, and eventually found his way to the cemetery where
his father was buried.[3] Police found
him there on the morning of July 9. He received Miranda warnings from the
officer who found him, Lieutenant Donald Joseph, who then contacted an officer
known to the defendant, Detective Glenn Souza.[4]
During the ride to the station, the defendant indicated he wished to give a
statement regarding the murders, but Detective Souza said to wait until they
arrived at headquarters. On arrival, he was again given Miranda warnings.
Immediately before, however, Detective Souza referred to the Miranda warnings
as "just a formality." The defendant signed the Miranda form, stated
that he understood his rights, and was willing to speak. However, the video
camera in the interrogation room was not functioning properly and the
interrogation was moved to another room, where the defendant was once again
advised of his rights immediately before giving his full statement. In all, the
defendant received his Miranda warnings three times prior to the videotaped
confession in which he admitted to stabbing the victims.
B. Discussion.
1. Miranda warnings. The defendant first claims that the Miranda warnings were
rendered inadequate by Detective Souza's description of them as a
"formality." He claims that this word undercut the purpose of the
rights, and relegated them to a mere preliminary ritual, devoid of substance or
meaning. Additionally, the defendant claims that the word "formality"
rendered the subsequent recitation in the second interrogation room invalid as
well, as it created a notion in the defendant's mind that the rights were void
of significance. We disagree.
In reviewing a judge's determination regarding a valid waiver of Miranda rights
and voluntariness, we "accept[]
the judge's subsidiary findings of fact absent clear error, give[] substantial
deference to the judge's ultimate findings and conclusions of law, but
independently review[] the correctness of the judge's application of
constitutional principles to the facts found." Commonwealth v. Vao Sok, 435
The judge found that immediately prior to the second recitation of the Miranda
warnings to the defendant, Detective Souza indicated that the rights were a
"formality."[5] The circumstances surrounding this
interrogation, taken as a whole, demonstrate that the use of the word
"formality" did not render the Miranda warnings constitutionally
inadequate. The defendant was read his Miranda warnings three times, and after
all three readings, indicated a willingness to speak with the officers. The
defendant also signed a Miranda card acknowledging the rights he was given, and
prior to his statement never asked for an attorney or whether he could make a
telephone call. Additionally, he was given more time to reflect on his waiver
because of the malfunctioning video equipment in the first interrogation room.
When he was brought to the second room, and read his Miranda warnings for the
third time, he once again waived them. Although any use of words that
characterize or minimize a suspect's Miranda rights should be avoided, we agree
that in this situation, using the word "formality" did not coerce or mislead
the defendant as to the rights he was waiving.[6] We therefore find no
reversible error.
Additionally, and closely related to the preceding
claim of error, the defendant also contends that the entire Miranda procedure,
when taken as a whole, rendered his waiver invalid. The defendant's waiver of
his Miranda rights must be voluntary, knowing, and intelligent beyond a
reasonable doubt.
While making extremely thorough and well-reasoned findings, the judge carefully
considered the totality of the evidence and concluded the defendant's waiver
was voluntary, knowing, and intelligent. Based on the videotape recording of
the defendant before, during, and after his statement, and also on witness
testimony, the judge found that the defendant was coherent and not under the
influence of any drug or alcohol. The judge also found that the defendant was
given his Miranda warnings three times, that there was no evidence of coercion
or trickery on behalf of the officers, and finally, that there was no evidence
of inappropriate or inordinate psychological pressure. Additionally, the judge
found that although the defendant had a somewhat below average intelligence,[7] he maintained employment and a home. The
record does not support the defendant's contention that his "past
relationship" with Detective Souza[8]
when coupled with the "formality" statement, created a highly
coercive environment that eviscerated the voluntariness
of the confession. As a result, we decline to disturb the judge's ruling to
admit the defendant's statement to the police.
2. Ineffective assistance of counsel. This court is granted substantial power
under G. L. c. 278, § 33E, to review an appeal from a conviction of murder
in the first degree. In evaluating a defendant's claim of ineffective
assistance of counsel in a capital case, we consider whether there was error at
trial and, if so, whether that error was likely to have influenced the jury's
conclusion.
a. Withdrawal of a defense of lack of criminal responsibility. The defendant
now claims, in essence, that he was denied a meaningful defense because trial
counsel abandoned a McHoul defense. Commonwealth v. McHoul, 352
Once it was determined by the defendant's own witness that he would not meet
the two-pronged McHoul test, an alternative strategy
for counsel was to pursue a claim of diminished capacity. Trial counsel
attempted to show that the defendant had a diminished mental capacity at the
time he stabbed the victims, thereby "render[ing]
him unable either to form the specific intent to kill or to premeditate." Commonwealth v. Laurore, 437
Moreover, malice is a necessary element of both murder in the first and second
degrees, and "[m]
Trial counsel was therefore faced with a situation where he had experts that
would testify toward a diminished capacity claim, but not lack of
responsibility. His tactical decision to focus on diminished capacity was
therefore logical and cannot be seen as depriving the defendant of an adequate
defense. See, e.g., Commonwealth v. LaCava,
438
b. Failure to retain a sleep deprivation expert. The defendant now alleges that
trial counsel was aware that the defendant had gone without sleep in the days
leading up to the crime, and has submitted an affidavit from an expert on sleep
disorders (Dr. John Christian Gillin) regarding the
potential effects of sleep deprivation on the actions of the defendant. Based
solely on information provided by appellate counsel, Dr. Gillin
concluded that Dr. Whaley did not adequately consider sleep deprivation and
thus rendered his analysis "substandard and unreliable."
Despite the fact that there was testimony from the defendant's mother regarding
his lack of sleep preceding the murders, none of the experts retained by trial
counsel recognized sleep deprivation as a viable tool that would help the
defendant at trial. The judge found that counsel was not ineffective for
"failing to recognize the defendant's lack of sleep as a critical
issue," when his own experts did not do so. In fact, although it is not
clear whether a sleep deprivation theory was ever discussed with either Dr. Lesniak or Dr. Whaley, both experts had available to them
the information regarding the defendant's behavior in the days before the
murders. Additionally, the evidence of sleep deprivation was mainly derived
from the defendant's own statement and his mother's testimony.
There was also evidence available to rebut the claim that the defendant
suffered from sleep deprivation at the time of the murders. The videotape
recording of the interrogation revealed the defendant was able to recount the
killings in detail and clarity. A friend testified that he and the defendant
lifted weights the morning of the killings and that the defendant appeared to
be behaving normally. The defendant also appeared normal to the father of
another friend immediately after the killings, as he sat and drank a glass of
juice with him.[13] It would therefore
be a reasonable tactical strategy, even in hindsight, not to pursue this claim
given the self-serving nature of the only evidence to support it. Coupled with
his own experts' failure to raise a sleep deprivation issue, trial counsel was
not ineffective for failing to pursue this defense, and the possibility of such
a claim does not allow us to conclude that a substantial likelihood of a
miscarriage of justice has resulted.
c. Failure to seek an opinion on criminal responsibility from Dr. Lesniak. The defendant also alleges that his trial counsel
was ineffective for failing to elicit an expert opinion from Dr. Lesniak regarding his assessment of the defendant's
criminal responsibility. Dr. Lesniak was hired by the
defense on the advice of Dr. Whaley, to assess the defendant's brain
functioning through the interpretation of neuropsychological testing. Dr.
Whaley was particularly interested in what the tests would reveal about the
defendant's intellectual capacity, capacity to solve problems, and ability to
control impulses. Dr. Whaley viewed Dr. Lesniak's
role as limited, because he was not going to be provided with all of the
information relevant to determine whether the defendant was criminally
responsible at the time of the killings. Dr. Whaley briefly discussed his
ultimate findings with Dr. Lesniak, but never asked
Dr. Lesniak his opinion on the final determination of
criminal responsibility. The judge found that "it would not be common
practice to do so." Although Dr. Lesniak was
well aware of the nature of the case, he never volunteered any additional
information or opinion on whether the defendant was criminally responsible. Dr.
Lesniak now offers an affidavit that if he had been asked, he would have opined that the defendant was unable to
conform his behavior to the requirements of the law as a result of his organic
brain disorder and chronic affective disorder.
At the time of trial, Dr. Lesniak had never conducted
a criminal responsibility examination, nor had he testified at a murder trial.
We agree with the judge that given the limited scope of Dr. Lesniak's
purpose for the defense, and given that Dr. Whaley was the primary defense
expert on criminal responsibility, it was not a manifestly unreasonable
decision for trial counsel not to review the ultimate finding of criminal
responsibility with Dr. Lesniak. Thus, we agree with
the motion judge that it is unnecessary to determine whether Dr. Lesniak even would have been qualified to issue such an
opinion at trial.
d. Right to appear at trial in an unmedicated state.
Finally, the defendant claims that the blunting effect of his "daily
pharmacological cocktail" denied him of his right to appear unmedicated in front of the jury. It is well established
that the jury may consider the defendant's court room demeanor when the
defendant's sanity is at issue at trial.
In this case, the judge found that the defendant was treated for depression and
anxiety, with medications that did not have the drastic effect of undermining
his defense of lack of criminal responsibility. Furthermore, the defendant
requested and voluntarily took the medication to combat depression and
sleeplessness.[14] We take into account trial counsel's testimony at the
hearing on the motion for a new trial that he never discussed the option of the
defendant's appearing unmedicated at trial; we do not
find this to be a manifestly unreasonable action by trial counsel.
C. G. L. c. 278, § 33E, review.
After a review of the entire record, we conclude the verdicts of murder in the
first degree are supported by the evidence. We therefore decline to order a new
trial or reduce the defendant's degree of guilt.
Judgments affirmed.
Order denying motion for
a new trial affirmed.
FOOTNOTES:
[1] In November or December of 1995, the defendant
hit the then-pregnant victim across the face during an argument. In June of
1996, he told her that if she left, he would kill her. Two weeks before the
murders, the victim telephoned a friend and asked for a ride. The defendant
grabbed the telephone and told the friend that if she came over to give the
victim a ride, he would, "fuck [her] up." Later, he told the same
young woman that sometimes he felt like killing the victim. Finally, on July 5,
the defendant became angry when the victim wore a bikini.
[2] The defendant later confessed that he stabbed the
baby because he did not want him to grow up in foster care without his parents.
[3] According to the defendant, he made his way to
the roof of a building that would allow him access to a radio tower. His plan
was to climb the tower and then jump off. He could not, however, bring himself
to do it.
[4] At the hearing on the defendant's motion to suppress,
Detective Souza testified that he had questioned and arrested the defendant on
previous occasions, and the defendant indicated to Lieutenant Joseph that he
would feel more comfortable speaking with Detective Souza given their past
contact.
[5] In making this finding, the judge relied on a
videotape of the booking procedure that came to light just before trial. In
making the rest of his findings, the judge heard testimony from Detective Souza
and other officers, and scrutinized the videotape of the interrogation.
[6] The defendant previously had been arrested by
Detective Souza, thus further indicating his knowledge of the Miranda warnings
from at least one other occasion. See note 4, supra.
[7] Neuropsychological testing by the defense expert
demonstrated that the defendant's I.Q. fell in the low average range, while on
previous occasions the defendant had tested in the average range. On
cross-examination, the defense expert conceded that depression could decrease
an individual's I.Q score on the standardized test.
[8] There is no substantial evidence presented that
the defendant and Detective Souza had any relationship other than that of a
police officer and suspect.
[9] Commonwealth v. McHoul,
352 Mass. 544 (1967), states that in order to constitute a defense, the
defendant must have had a mental disease or defect that deprived him of the
substantial capacity to appreciate the criminality of his actions or conform
his conduct to the requirements of law.
[10] Trial counsel had no choice. In addition to the
confession, there would be undeniable evidence presented that the defendant
killed the victims; his own mother was going to testify that she walked into
the room and saw the defendant stabbing the defenseless victim.
[11] The defendant suggests that, because trial
counsel knew prior to trial that his expert witness would not be able to render
testimony concerning lack of criminal responsibility, it was improper to allude
to such a claim during his opening argument. The opening statement was proper,
as sufficient evidence was presented by lay and expert witnesses regarding the
defendant's sanity and ability to premeditate to warrant counsel's tactical
decision.
[12] In his brief, the
defendant claims that trial counsel's diminished capacity strategy provided no
defense to murder in the second degree. Because the jury convicted him of
murder in the first degree by both premeditation and extreme cruelty and
atrocity, the merit of this argument is largely irrelevant, as the jury's
finding of premeditated murder in the first degree demonstrates that they
believed that the defendant had the specific intent to kill. This court has
previously stated, however, that a defendant's mental impairment is relevant to
intent and knowledge.
Under G. L. c. 278, § 33E, we review the entire record, and it is
appropriate to mention parts of the judge's jury instructions. The judge did
not repeat his proper instruction regarding mental impairment in conjunction
with his charge on murder in the second degree and merely summarized the
elements of the three prongs of malice. There was no substantial likelihood of
a miscarriage of justice, especially where the jury convicted the defendant of murder
in the first degree. Finally, the judge instructed the jury on the first two
prongs of malice during his charge on deliberate premeditation. This is error,
as only a finding of the first prong of malice may warrant a return of
premeditated murder in the first degree. Commonwealth v.
Simpson, 434
[13] Although none of these facts forecloses the
applicability of a sleep expert's testimony on the effects of sleep
deprivation, we must review trial counsel's decision on the facts available at
the time of the trial.
[14] The doctor's instructions were for
administration of the medication as needed. The defendant testified at the
hearing on the motion for a new trial that the medication was usually brought
to him, he never refused it, and if it was not brought to him, he would request
it.