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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. Garcia, 379
Supreme Judicial Court of Massachusetts, Worcester.
Argued
Decided
[379
Daniel F. Toomey, Asst. Dist. Atty., for the
Commonwealth.
Before [379
[379
The
defendant Carlos Garcia was convicted of murder in the second degree after a
trial by jury in 1970. The judge imposed
the statutory sentence of life imprisonment.
At trial, Garcia admitted killing the victim, Francisco Alvarado, but
claimed that he had acted in self‑defense. The case is now before us in a consolidated
appeal under G.L. c. 278, ss 33A‑33G, assigning alleged errors during the
trial and in the denial of the 1977 motion for a new trial (G.L. c. 278, s
29). (FN1) The principal questions
presented for our consideration are the following:
(1) whether Garcia's difficulty communicating with his non‑Spanish
speaking trial attorney deprived him of his right to effective assistance of
counsel or his right of confrontation, (2) whether the judge erred in admitting
Garcia's admissions and confession in evidence, and (3) whether the judge erred
in instructing the jury on reasonable doubt and on the burden of proof of
voluntariness of Garcia's statements. We
affirm the conviction.
We briefly
summarize the evidence presented at the 1970 trial. (FN2) At approximately
The next
day, July 10, Garcia went to Carmen Baez's house. He told her he wanted no problems with
anyone, and apologized for what he had done.
Carmen refused to forgive him and told him they were not afraid of
him. Garcia then went to a place where
he had hidden a gun that he had purchased from a "hippie" and he
loaded it and put it in his pants. He
also put six or seven extra bullets in his pocket and proceeded to Main Street,
near Monihan's Cafe. While walking past
Monihan's, he saw Francisco Alvarado, the victim, who said to him, "I owe
you one from last night," or words to that effect. Garcia saw nothing in Alvarado's hands, but
Alvarado then reached for his back pocket.
Garcia thought Alvarado was reaching for a "knife or
something," and thereupon he took the gun from his pants and began firing
at Alvarado. He continued to fire after
Alvarado put both hands on his stomach and began to fall. Witnesses saw Garcia fire three times after
Alvarado was on the ground. The State
pathologist testified that there were two bullet entrance wounds in the front
of the victim's body and three in the back, and that one of the bullets
entering from the rear penetrated the heart and caused death. Garcia conceded during his testimony that he
could have run away from Alvarado, "but I didn't because I was
scared."
Immediately
following the shooting, Garcia ran, hid the gun and then went to look for a
policeman. He found a plainclothes
police officer, to whom he said, "I did it, I did it," before the
officer spoke. The officer (Healey)
asked Garcia if he understood English, and received an affirmative[379 Mass. 426] answer. No other conversation was had at that
point. Healey placed Garcia in a police
cruiser, where Officer Conrad asked him if he understood English, received an
affirmative response, and informed him of his Miranda rights. Conrad then asked him where the gun was, and
Garcia led the officers to it. At the
location where he had hidden the gun, he was again informed of his Miranda
rights and he again said that he understood them.
Shortly
thereafter, the officers took Garcia to the police station, where he was again
read his Miranda rights in English and in Spanish. A Spanish speaking police officer (Guittar)
interpreted for him throughout the interrogation, and Garcia gave the police a
signed statement concerning the shooting.
Officer Guittar translated the written statement for Garcia before the
latter signed it.
Several of
Garcia's alleged errors hinge on his claimed difficulty in speaking and
understanding English in 1970. He
contends that he is entitled to relief by reason of this language difficulty as
it bears upon the questions (a) whether he waived his rights under the decision
of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), (b)
whether his statements to the police shortly before and after the time of his
arrest were voluntary, and (c) whether he was denied the right to effective
assistance of counsel in preparation for and during his trial, with resulting
denial of rights of due process and of confrontation. Because of the claimed language difficulty we
have scrutinized the record with special care.
It reveals that Garcia was not fluent in English at the time of his
trial in 1970, but that he spoke and understood some English. The basic question for our decision in this
regard is whether his language difficulty operated to deprive him of any
constitutional right or of a fair trial.
We shall review the evidence concerning Garcia's facility with the
English language further as we discuss each of the issues in which that may be
a factor.
1.
Application of and compliance with Miranda decision. We are concerned here with three separate
statements made by Garcia to the Worcester police, all of which the judge
admitted in evidence at the trial.
[379 Mass. 427] [1] The first such statement was Garcia's spontaneous exclamation
to Officer Healey, "I did it, I did it." Since Healey had said nothing to Garcia, who
was not then in custody or even under suspicion, this statement was clearly
admissible without proof of any prior Miranda warnings, and Garcia does not
claim otherwise. (FN3) Commonwealth v.
Ladetto, 349 Mass. 237, 243‑244, 207 N.E.2d 536 (1965). Cf. Miranda, supra, 384 U.S. at 444, 478, 86
S.Ct. 1602; Escobedo v. Illinois, 378 U.S. 478, 490‑491, 84 S.Ct. 1758,
12 L.Ed.2d 977 (1964); Commonwealth v. Glavin, 354 Mass. 69, 72‑73, 235
N.E.2d 547 (1968); Commonwealth v. Kerrigan, 349 Mass. 295, 298‑299, 207
N.E.2d 882 (1965); Commonwealth v. Swenor, 3 Mass.App. 65, 68, 323 N.E.2d 742
(1975); Commonwealth v. Roy, 2 Mass.App. 14, 18, 307 N.E.2d 851 (1974).
We next
consider two separate statements made by Garcia after he was taken in custody
by the police. One consisted of his
conversation with the police when they first took him in custody and, at his
direction, drove him to the spot where he pointed to the gun which he had hidden
there after shooting Alvarado. The other
consisted of a written statement which he signed at the police station,
admitting that he "took the gun out of (his) pants and shot (Francisco
Alvarado) . . . three or four times."
Although both of these statements were made by Garcia before he was
formally booked by the police, we treat them as made in the course of custodial
interrogation. We treat custody as
having begun at the moment when the police first placed Garcia in the
cruiser. Miranda, supra, 384 U.S. at
444, 86 S.Ct. 1602. Commonwealth v.
Haas, 373 Mass. 545, ‑‑‑ ‑ ‑‑‑ (FNa),
369 N.E.2d 692 (1977). From that moment
he was not free to leave.
The
admissibility of these two statements made by Garcia while in custody and
without benefit of counsel gives rise to several questions. The first is whether Garcia truly understood
his Miranda rights (given to him in English in the cruiser and both in English
and in Spanish at the police station) in order to be capable of waiving them
"knowingly and intelligently," and, if not, whether the police were
entitled[379 Mass. 428]
to rely on Garcia's continued assurances that he did understand. The next question is whether any waiver by
Garcia of his rights was voluntary. The
question of the voluntariness of the waiver of those rights and that of
the voluntariness of the statements which Garcia made to the police may be
interrelated, but they are separate and distinct questions. The former is whether the Miranda requirement
of warnings was scrupulously observed and whether Garcia knowingly,
intelligently and voluntarily waived the rights covered by the warnings. The latter is whether Garcia's statements
were made freely and voluntarily when considering the "totality of the
circumstances" in which they were made.
Procunier v. Atchley, 400 U.S. 446, 453, 91 S.Ct. 485, 27 L.Ed.2d 524
(1971). Delle Chiaie v. Commonwealth,
367 Mass. 527, 533, 327 N.E.2d 696 (1975).
The inquiry into whether a statement was made freely and voluntarily is
the same whether it arises under the Miranda rule or whether it arises in the
determination of whether a confession was made freely and voluntarily. Commonwealth v. Cruz, 373 Mass. 676, ‑‑‑
‑ ‑‑‑ (FNb), 369 N.E.2d 996 (1977). Commonwealth v. Mahnke, 368 Mass. 662, 679‑680,
335 N.E.2d 660 (1975), cert. denied, 425 U.S. 959, 96 S.Ct. 1740, 48 L.Ed.2d
204 (1976).
[2] When
the judge denied the motion to suppress Garcia's in custody statements to the
police, he made no report of facts found in support of his ruling. We emphasize once again the importance of
findings of subsidiary facts in such a situation. Commonwealth v. Hosey, 368 Mass. 571, 574
n.1, 334 N.E.2d 44 (1975). We have
remanded some cases to the trial court with instructions to make such findings,
but we do not do so in this case because the judge did make limited findings on
this issue in denying the motion for a new trial. In his written decision denying the latter
motion the judge said in part: "I had previously ruled on the Motion to
Suppress that the defendant had adequately understood the Miranda Warnings
given to him by the police. . . . I again find that Mr. Garcia adequately
understood the Miranda Warnings. In
spite of somewhat of a language barrier, the voir dire hearings show that a
Spanish‑speaking police officer translated and explained the Miranda
Warnings to Mr. Garcia." [379 Mass. 429] Since these findings of subsidiary facts involve the credibility
of oral testimony and the judge's opportunity to observe the witnesses, they
are not likely to be disturbed by us when they are warranted by the
evidence. However, the ultimate
conclusions drawn from such subsidiary findings are subject to our review. Commonwealth v. Murphy, 362 Mass. 542, 548,
289 N.E.2d 571 (1972), quoting from Commonwealth v. Frank, 357 Mass. 250, 253‑254,
257 N.E.2d 919 (1970). Murphy, supra,
362 Mass. at 550, 551, 289 N.E.2d 571 (Hennessey, J., concurring).
We
summarize at this point the evidence which, in addition to that noted earlier
in this opinion, bears on this issue.
Several of the officers had conversations in English with Garcia and
none had any difficulty communicating.
The interrogation at the police station was conducted largely in
English, with Officer Guittar translating only a few times. Detective O'Leary, who obtained the statement
at police headquarters, testified that he called Officer Guittar as a
precaution, and that it was common police practice to call an interpreter for a
Puerto Rican person suspected of a serious offense. The police conducted no interrogation and
elicited no statement from Garcia before Guittar arrived. Although Garcia now says that Guittar spoke a
different type of Spanish, Guittar testified that he understood Garcia, and
that Garcia at the time said he understood Guittar. The statement signed by Garcia was read to
him in both English and Spanish; he said he understood it and wanted to sign
it. On the witness stand, Garcia
corroborated the essential facts in the statement.
[3] [4]
[5] [6] Where, as here, the voluntariness of statements made during a custodial
interrogation without counsel present is at issue, the State bears a heavy
burden of proving knowing, intelligent and voluntary waiver. Miranda, supra, 384 U.S. at 475, 86 S.Ct.
1602. Commonwealth v. Dustin, 373 Mass.
612, ‑‑‑ (FNc), 368 N.E.2d 1386 (1977), cert. denied, 435
U.S. 943, 98 S.Ct. 1523, 55 L.Ed.2d 540 (1978).
A confession can be voluntary in the legal sense only if the suspect
actually understands the import of each Miranda warning. See Miranda, supra, 384 U.S. at 467‑476,
86 S.Ct. 1602; Commonwealth v. Williams, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNd), 391 N.E.2d 1202 (1979); Commonwealth v. White, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNe), 371 N.E.2d 777 [379 Mass. 430] (1977), aff'd by an equally divided court, 439 U.S. 280, 99 S.Ct.
712, 58 L.Ed.2d 519 (1978); Hosey, 368 Mass. supra at 577, 334 N.E.2d 44. Police officers may infer such understanding,
however (in the absence of evidence of coercion, duress, incompetency, or other
such factors), from the suspect's outward behavior, most notably his indication
that he understands his rights, waives them, and wishes to talk. Here, the police made every effort to ensure
that Garcia understood English and his rights.
There was no evidence of coercion, duress or improper suggestion. There was no evidence of any circumstance
(such as drunkenness, drug influence or mental incompetency) which would have
led officers to proceed with greater than normal caution in relying on Garcia's
affirmative signs of knowing waiver.
(FN4)
[7] [8]
The Fifth Amendment exclusionary rule is largely a prophylatic measure to
discourage coercive or otherwise improper police procedures. Miranda, supra, 384 U.S. at 467, 86 S.Ct.
1602. Commonwealth v. Jackson, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNf), 386 N.E.2d 15
(1979). Here, that goal was amply
served, and the requirement of a knowing and intelligent waiver was also
met. The judge chose to disbelieve
Garcia's claim that he complained to Guittar of noncomprehension, and chose
instead to believe Guittar that Garcia said he understood and appeared to
understand. We will not interfere with
that choice. Commonwealth v. Meehan, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNg), 387 N.E.2d 527 (1979), cert. granted, ‑‑‑ U.S. ‑‑‑‑,
100 S.Ct. 44, 62 L.Ed.2d 30 (1979).
(FNh) Commonwealth v. Doyle, ‑‑‑ Mass. ‑‑‑,
‑‑‑ n.6 (FNi), 385 N.E.2d 499 [379 Mass. 431]
(1979). That a waiver of rights must be
knowing and intelligent does not mean that with the hindsight of conviction the
defendant would not have chosen to talk to the police. Rather, it means that police procedures must
scrupulously respect the suspect's free choices, made with actual knowledge of
his rights at the time of interrogation.
The
evidence in the record supports the subsidiary findings of the judge, whether
they be those implied in his denial of the motion to suppress or those
expressed in his denial of the motion for a new trial, that the defendant
understood the Miranda warnings, that he knowingly and intelligently waived his
rights thereunder and elected to make the statements in question to the police,
and that the statements were made by him freely and voluntarily. Such findings in turn support the judge's
action in denying the motion to suppress and his admission of the statements in
evidence. There was no error in so far
as the Miranda rule is concerned.
In all of
our discussions to this point in this opinion we have referred to Garcia's in
custody statements without attempting to classify them as either admissions or
confessions. That is unnecessary because
of the following language in Miranda, supra, 384 U.S. at 476, 86 S.Ct. at 1629:
"The warnings required and the waiver necessary in accordance with our
opinion today are, in the absence of a fully effective equivalent,
prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between
statements which are direct confessions and statements which amount to
'admissions' of part or all of an offense.
The privilege against self‑incrimination protects the individual
from being compelled to incriminate himself in any manner; it does not
distinguish degrees of incrimination."
In
charging the jurors the judge instructed them that if they found that prior to
the time Garcia made any in custody statements to the police they did not
inform him of his Miranda rights, they should disregard the statements. He instructed them further that, if the
Miranda warnings were given but that because of language difficulties or for
any [379 Mass. 432] other reason Garcia did not
intelligently waive his rights covered by the warnings, they likewise should
disregard his statements to the police.
This action by the judge has not been put in issue, and we therefore
intimate no opinion on whether the judge was required to submit to the jury for
decision, the same preliminary factual questions regarding the Miranda
questions, on which he passed when the statements were offered in
evidence. This question was alluded to,
but not decided, in Commonwealth v. Chung, ‑‑‑ Mass. ‑‑‑,
‑‑‑ n. 9 (FNj), 392 N.E.2d 1015 (1979). In any event, if the instructions were
erroneous in this regard, the defendant might profit, but could not be injured
thereby.
[9] 2.
Voluntariness of Garcia's statements, apart from requirements of Miranda
decision. "The practice has long
been established in this Commonwealth that, when statements amounting to a
confession are offered in evidence, the question whether they were voluntary is
to be decided at a preliminary hearing by the presiding judge in the absence of
the jury. If he is satisfied that they are
voluntary, they are admissible; otherwise they should be excluded. If the judge decides that they 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,
800 (1959), and cases cited therein.
This practice, sometimes referred to as "the humane practice,"
has been followed in this Commonwealth for many years, see Commonwealth v.
Preece, 140 Mass. 276, 277, 5 N.E. 494 (1885), long predating the approval of
such a practice by the decision in Jackson v. Denno, 378 U.S. 368, 84 S.Ct.
1774, 12 L.Ed.2d 908 (1964).
This court
has held in a number of decisions that this "humane practice" gives
the defendant a right to a preliminary hearing and decision by the presiding
judge on the voluntariness of "a confession, as that word is accurately
used in the criminal law," but not "in case of mere incriminating
admissions or declarations of subordinate or independent facts" which fall
short of a confession. Commonwealth v.
Haywood, 247 Mass. 16, 18, 141 N.E. 571, 572 (1923). Commonwealth v. Jokinen, [379 Mass. 433] 257
Mass. 429, 430, 154 N.E. 189 (1926).
Commonwealth v. Gleason, 262 Mass. 185, 189‑190, 159 N.E. 518
(1928). Cf. Marshall, supra, 338 Mass.
at 462, 155 N.E.2d 798.
Although
the decisions limiting the application of the "humane practice" to
confessions have not been overruled to date, there have been statements in some
of our more recent decisions which seem to question the exclusion of admissions
from its operation. In Commonwealth v. Wallace, 346 Mass. 9
at 17, 190 N.E.2d 224, at 229 (1963), we said: "Notwithstanding the rule
in Commonwealth v. Haywood, 247 Mass. 16, 18, 141 N.E. 571, which has been
criticised, we assume that the defendant's statements would, because of his
youth, be accorded the safeguards applicable to confessions. See Maguire, Evidence of Guilt, s 3.03, and
cases collected in note 14." In
Mahnke, supra, 368 Mass. at 679 n.24, 335 N.E.2d at 671 n.24, we again noted
the criticism of the rule that "a defendant is entitled to lesser
safeguards with respect to the admissibility of admissions and exculpatory
statements than he would have if the statements had amounted to a
confession," but we concluded that for the purposes of that case "we
do not consider its continuing validity."
We cited this same footnote from Mahnke in Commonwealth v. Fournier, 372
Mass. 346, at 348, 361 N.E.2d 1294, at 1296 (1977) when we said: "For
present purposes we assume that we would apply the same standard to admissions
as to confessions, even though the admissions on their face are exculpatory
rather than inculpatory." In a
discussion of this subject in W. B. Leach & P. J. Liacos, Handbook of
Massachusetts Evidence (4th ed. 1967), we find the following statement at 230:
"The Massachusetts practice whereby the procedure of determining the
admissibility of admissions involved lesser safeguards for the defendant than
that involving the admissibility of confessions is now of dubious
validity. This is true at least as to
express or implied admissions made while the defendant is in custody of the
police." See also McCormick,
Evidence s 144 (2d ed. 1972). We note
these developments, but we need go no further for the purposes of the present
case.
[10] We
are satisfied from our examination of the record in this case that the judge
followed the "humane practice" prescribed by our cases. He held a preliminary hearing and [379 Mass. 434] determined that Garcia's statements were voluntary before
admitting them in evidence for consideration by the jury. The evidence of the totality of circumstances
in which the statements were made supports his conclusion that the statements
were voluntary. The judge did not
attempt to distinguish between admissions and confessions. He treated both statements which Garcia made
while in custody in the manner in which confessions are required to be
treated. He impliedly or expressly found
them to have been made voluntarily, and he instructed the jury they should
disregard the statements unless they found that they were "made
voluntarily and in compliance and after his constitutional safeguards were
complied with." It is therefore immaterial
that the judge did not single out any statement for treatment as an admission
since, "by reason of the statement having been treated as a confession,
the defendant was accorded greater safeguards with respect to its admissibility
than he would have had in the case of an admission." Commonwealth v. Chapman, 345 Mass. 251, 254,
186 N.E.2d 818, 821 (1962).
3.
Ineffective assistance of counsel.
Garcia's claim that he was denied effective assistance of counsel, which
he raises for the first time on direct appeal, is grounded solely in his
asserted difficulty with the English language.
Garcia's trial counsel spoke no Spanish, and Garcia now maintains that
he was unable to cooperate with him in preparing his defense.
[11] As we
recently noted, there is no isolated constitutional test to determine whether a
defendant's due process right to effective assistance of counsel has been
violated. Commonwealth v. Rondeau, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNk), 392 N.E.2d 1001
(1979). Our cases have tended toward a
standard of competence similar to that for legal malpractice. A defendant must demonstrate that his
attorney's conduct fell "measurably below that which might be expected
from an ordinary fallible lawyer."
Id. at ‑‑‑ (FNl), 392 N.E.2d at 1003, quoting from Commonwealth
v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878 (1974). In addition, there must be a showing that the
attorney's conduct prejudiced the defendant, which typically may mean loss of
"an otherwise available, substantial ground of defence." Saferian, supra at 96, 315 N.E.2d at
883. Rondeau, supra, ‑‑‑
Mass. at ‑‑‑ (FNm), 392 N.E.2d 1001. [379 Mass. 435] Effective assistance is a practical
matter, however, and each case is to be judged on its own particular merits.
a. The
pretrial stage. Garcia's family hired
and paid for the trial attorney. The
attorney experienced no difficulty communicating with Garcia, and neither
Garcia nor his family complained about any lack of understanding at any time
during the pretrial preparatory stage or at trial. (FN5) The attorney met with Garcia several
times before the trial, and every evening during the trial. At these meetings, Garcia discussed his
background and which witnesses the attorney should call in his defense. We find nothing in the record which indicates
that the attorney's conduct fell below ordinary standards of competence at the
pretrial stage.
b. The
trial. Garcia has not alleged, through
his testimony at the hearing on the motion for a new trial, or through his new
counsel who is representing him on appeal, any specific prejudice to his
defense as a result of any language barrier.
He has not asserted that a defense was lost; he simply maintains that he
could not communicate with his trial attorney his reasons for carrying the gun
on the evening of the homicide, and the reason he feared that Alvarado would
attack him. Garcia's present claim is
(a) that he had a "great number of enemies on the street" because of
his background and reputation as a professional boxer and street fighter and
therefore on the day of the homicide he had reason to fear that Alvarado would
attack him with a knife, and (b) that his language difficulty prevented him
from explaining this to his lawyer.
[12] [13]
This subject was raised in "Claim II" of Garcia's motion for a new
trial. The judge's decision in relation
to that point opens with the finding that "during all stages of the
proceedings the defendant was able to adequately consult with counsel and
assist counsel in the preparation of his defense,"[379 Mass. 436] and after reciting subsidiary findings it
concludes that "at no time, either prior to trial or during trial, did
(Garcia's counsel) have any difficulty communicating with the defendant." Garcia obviously disagrees with these
findings, but they are supported by the evidence and for the same reasons
stated in part 1 of this opinion we do not disturb them. (FN6)
The judge
charged the jury on the circumstances in which a killing in self‑defense
would be lawful, as well as the circumstances in which a killing, although in
self‑defense, but by the use of excessive force, would constitute
manslaughter. Commonwealth v. Shaffer,
367 Mass. 508, 326 N.E. 880 (1975).
Commonwealth v. Houston, 332 Mass. 687, 690, 127 N.E.2d 294 (1955). Commonwealth v. Peterson, 257 Mass. 473, 478,
154 N.E. 260 (1926). Commonwealth v.
Woodward, 102 Mass. 155, 161 (1869). In
addition, he charged the jury that "the burden of proof does not shift to
Garcia to prove to you that what he did was in self‑defense; the burden
is always on the Commonwealth to prove that the killing was
unlawful." Commonwealth v.
Rodriguez, 370 Mass. 684, 687‑691, 352 N.E.2d 203 (1976).
[379 Mass. 437] [14] Upon all the evidence, including testimony that after
Alvarado fell, Garcia shot him three or four times more, and that three of the
bullet entrance wounds were in Alvardo's back, the jury could reasonably have
concluded that the prosecution had met its burden of proving that Garcia did
not act in self‑defense.
[15] 4.
Confrontation right. Garcia's contention
that he could not understand what transpired at the trial essentially alleges a
violation of his right to be "present" at his trial and to confront
the witnesses against him. See Sixth
Amendment to the United States Constitution; art. 12 of the Declaration of
Rights to the Massachusetts Constitution; G.L. c. 263, s 5; G.L. c. 278, s 6;
United States ex rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir. 1970);
Garcia v. State, 151 Tex.Cr.R. 593, 210 S.W.2d 574 (1948); State v. Vasquez,
101 Utah 444, 121 P.2d 903 (1942); Annot., 36 A.L.R.3d 276 (1971). (FN7) The right to confront witnesses, and to
be present at the proceedings, encompasses the right not to face a
"Kafkaesque spectre of an incomprehensible ritual, which may terminate in
punishment." United States v.
Carrion, 488 F.2d 12, 14 (1st Cir. 1973), cert. denied, 416 U.S. 907, 94 S.Ct.
1613, 40 L.Ed.2d 112 (1974). The
questions generally are two: (a) at what level of language barrier and at what
stage of the proceedings must an interpreter be provided, and (b) how much
translation does the defendant require.
Although factors such as the complexity of issues at trial and the
language ability of counsel are significant, the crucial factor is the level of
fluency of a given defendant. That judgment
is uniquely within the province of the trial judge, who is in direct contact
with the defendant and accordingly must have wide discretion. Perovich v. United States, 205 U.S. 86, 27
S.Ct. 456, 51 L.Ed. 722 (1907).
Commonwealth v. Turell, ‑‑‑ Mass.App. ‑‑‑
(FNn), 381 N.E.2d 1312 (1978). Unless
the record reveals blatant[379 Mass.
438]
insensitivity to a language problem, with the result that the defendant
was deprived of a fair trial, an appellate court will not disturb the exercise
of that discretion. (FN8)
[16] The
record in the present case amply demonstrates the judge's continued sensitivity
to Garcia's language problem. The judge
conducted a hearing in which he questioned Garcia directly. At the conclusion of the hearing, the judge
was not convinced that Garcia needed a translator even for his own testimony. At all times during the probable cause
hearing, the hearing on the motion to suppress, and the trial, Garcia had a
qualified interpreter. While she did not
provide a word‑for‑word translation of the proceedings, she
conferred constantly with Garcia and informed him of the substance of
questions, answers, and court rulings.
Although the judge did not direct that pauses be allowed for translation
while other witnesses testified, the interpreter said she translated for Garcia
at the same speed as the witnesses were speaking. It is evident from the record that Garcia had
an interpreter if and when he needed one, and that his rights were fully protected.
5. Jury
instructions. Garcia alleges three
errors in the charge to the jury: inadequate instructions on the meaning of
"reasonable doubt"; failure to instruct the jury that the
Commonwealth bore the burden of proving that his confession was voluntary; and
improper instructions on the standard by which to assess the voluntariness of
his confession.
a.
Reasonable doubt. The defendant alleges
that the definition of reasonable doubt does not comport with our decision in
Commonwealth v. Ferreira, 373 Mass. 116, ‑‑‑ ‑ ‑‑‑
(FNo), 364 N.E.2d 1264 (1977). There can
be little question that the [379
Mass. 439] charge given in this case
was very similar to that given in Ferreira.
(FN9)
[17]
Before considering the propriety of the present charge, however, we note that
defendant's counsel did not object to that portion of the charge which defined
reasonable doubt. In the absence of an
objection and exception, although this court may still find reversible error
under G.L. c. 278, s 33E, it will do so only "upon a showing of grave
prejudice or substantial likelihood that a miscarriage of justice has
occurred." Commonwealth v. Roberts,
‑‑‑ Mass. ‑‑‑, ‑‑‑ ‑
‑‑‑ (FNp), 389 N.E.2d 989, 994. Commonwealth v. Burnett, 371 Mass. 13, 16,
353 N.E.2d 665 (1976). (FN10) Because we
do not require that defense counsel [379
Mass. 440] foresee developments in
the case law, we shall consider this issue, and review the propriety of the
reasonable doubt charge according to the standard stated above.
The
constitutionally significant error, if any, in the charge is not that it
referred generally to important decisions in the jurors' daily lives. (FN11) Rather,
it is the use of specific examples which, "far from emphasizing the
seriousness of the decision before (the jurors), detracted both from the
seriousness of the decision and the Commonwealth's burden of proof." Ferreira, supra, 373 Mass. at ‑‑‑
‑ ‑‑‑ (FNq), 364 N.E.2d at 1273. We have consistently criticized the
"personal decision‑making" approach, but in the absence of
specific examples have found no error.
See Commonwealth v. Williams, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNr), 391 N.E.2d 1202 (1979); Commonwealth v. Allen, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNs), 387 N.E.2d 553
(1979); Commonwealth v. Adrey, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNt), 383 N.E.2d 1110 (1978); Commonwealth v. Seay, ‑‑‑
Mass. ‑‑‑, ‑‑‑ ‑ ‑‑‑
(FNu), 383 N.E.2d 828 (1978); Commonwealth v. Canon, 373 Mass. 494, ‑‑‑,
368 N.E.2d 1181 (1977), cert. denied, 435 U.S. 933, 98 S.Ct. 1510, 55 L.Ed.2d
531 (1978); (FNv) Commonwealth v. Gilday, 367 Mass. 474, 497, 327 N.E.2d 851
(1975); Commonwealth v. Lovell, ‑‑‑ Mass.App. ‑‑‑,
‑‑‑ (FNw), 374 N.E.2d 318 (1978).
[18] Only
once before have we considered a charge which included specific examples, and
we found the use of analogies in the context of the entire charge, not to
constitute reversible error.
Commonwealth v. Grace, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑ (FNx), 381 N.E.2d 139
(1978). Grace was an appeal from the
denial of a motion for new trial. Here,
in addition, there is a direct appeal.
We hold that the charge in this case, like that in Ferreira, supra, is a
constitutionally inadequate definition of "beyond a reasonable
doubt." The use of specific
examples [379 Mass. 441] "trivializes" the standard
of proof in the direction of the "preponderance of the evidence"
standard. Cf. Bumpus v. Gunter, 452
F.Supp. 1060, 1061 (D.Mass.1978). (FN12)
Although
we find constitutional error in this charge, we must also consider whether this
holding applies to the present defendant, whose trial took place some seven
years before our decision in Ferreira, supra.
We believe that In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d
368 (1970), made retroactive by Ivan V. v. New York, 407 U.S. 203, 92 S.Ct.
1951, 32 L.Ed.2d 659 (1972), mandates retroactive application of Ferreira. We emphasize, however, that we will
scrutinize more carefully jury instructions given after the date of
Ferreira. Cf. Commonwealth v. Rodriguez,
370 Mass. 684, 692, 352 N.E.2d 203 (1976); Commonwealth v. Collins, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNy), 373 N.E.2d 969
(1978); Commonwealth v. Stokes, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNz), 374 N.E.2d 87 (1978).
[19] We
must next consider whether the error in the present case, while of
constitutional dimension, was harmless.
Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Commonwealth v. MacDonald, 368 Mass. 395, 399, 333 N.E.2d 189
(1975). Commonwealth v. Hanger, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (FNaa), 386 N.E.2d 1262
(1979). The reasonable doubt standard is
most crucial in cases where central facts (such as identity, or the occurrence
of an event) are at issue, and credibility plays a key role. The present case involved no such dispute:
the defendant testified and corroborated all of the essential elements of the
Commonwealth's case. The homicide here
occurred in broad daylight in the presence of witnesses who testified. Even if Garcia had not testified, the
circumstantial and direct, eyewitness testimony implicating him was very
strong. The only issues the jury faced
were whether the killing was justified in self‑defense and, if so, whether
Garcia exercised that right imperfectly (to result in manslaughter) or, if not,
whether the killing was first or second degree murder. Therefore, unlike Ferreira, where we
expressly stated that [379 Mass. 442] we considered the charge in the light
of "not overwhelming" evidence of Ferreira's guilt, Ferreira, supra,
373 Mass. at ‑‑‑ (FNbb), 364 N.E.2d 1264, the present case
involves overwhelming evidence of guilt.
We are convinced beyond a reasonable doubt that the error did not
contribute to the guilty verdict, and that it was therefore harmless. See Chapman, supra, 386 U.S. at 22‑24,
87 S.Ct. 824.
[20] b.
Burden of proof. Garcia further
maintains that the judge failed to tell the jury that the Commonwealth bears
the burden of proof of the voluntariness of his statements. While the judge did not specifically so
state, he told the jury that the Commonwealth must prove every element of the
case beyond a reasonable doubt, and then included the confession (and its
voluntariness) as part of the case. The
jury could easily have inferred that the Commonwealth had to prove the
voluntariness of Garcia's confession beyond a reasonable doubt. Although, as discussed above, the judge's
definition of reasonable doubt was deficient, even assuming and we do not decide
this that the instructions effectively reduced the standard of proof to
preponderance of the evidence, that is the Federal constitutional standard for
voluntariness of a confession. Lego v.
Twomey, 404 U.S. 477, 486, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). While it is preferable that a trial judge
include in the jury instructions on voluntariness, if given, (FN13) an explicit
instruction on the burden of [379
Mass. 443] proof, in the present
case the instructions were sufficiently complete to impress upon the jury that
the Commonwealth had the burden of proving beyond a reasonable doubt that
Garcia made his statements voluntarily.
We find no error.
c.
Standard for voluntariness. (FN14)
Finally, Garcia alleges that the judge erred in instructing the jury on the standard regarding the voluntariness of Garcia's
statements. He maintains that the judge
told the jury to disregard Garcia's statements only if there was an actual
threat of brutality or no proper waiver of Miranda rights. We have reviewed the instructions in this
regard, and find the defendant's allegation unsupported. The judge told the jury, "Now by
voluntary we mean three things."
The first was whether the oral or written statements were "made
under any threat of injury or violence to be done to him, or were they induced
by any promise that if he said something, the police would go easy on him, or
it would go easy with him." The
second was whether the police had actually informed him of his Miranda rights
(here the judge explained "custody" and enumerated the
warnings). The third was whether
"he understood what the police were warning him . . . and understood
enough English to know what the officers were talking about and made a decision
that he would answer their questions anyway . . . . If he did not . . . then
you are to use no part of any statement . . . ."
[21] We
have noted in a recent decision that the jury's consideration of the issue of
voluntariness of a confession is not limited to the question whether the
Miranda warnings were given, or whether the rights thereunder were waived, and
held that additionally the jury must consider any circumstances[379 Mass. 444] which may militate against
the true voluntariness of the confession.
Chung, supra, ‑‑‑ Mass. at ‑‑‑ ‑
‑‑‑ (FNcc), 392 N.E.2d 1015.
In that case the judge failed to instruct the jury to consider the
effect of evidence of the defendant's insanity on the issue of
voluntariness. In the present case we
had instead evidence of language problems and a claim of coercion, and the
judge did instruct the jury to consider those factors in deciding whether
Garcia's confession was voluntary. He
further instructed the jury to consider whether the Miranda warnings were given
to Garcia before he signed the confession, and also whether he understood
them. (FN15) In short, his instructions
permitted the jury to consider the totality of the circumstances in which the
confession was made in determining whether the confession was voluntary. There was no error in this regard.
[22] 6. Finally,
the defendant asks that we exercise our discretion under G.L. c. 278, s 33E, to
reduce the verdict to manslaughter. This
we decline to do. As discussed above,
the jury could reasonably have found that there was no right to self‑defense,
either because Garcia's fear that Alvarado had a knife was not reasonable, or
because Garcia could have retreated, or both.
Even if the jury found that Garcia had a right to self‑defense
initially, they may have found that the right terminated when Alvarado fell to
the ground (after which the fatal shot was fired). The jury therefore properly rejected a
reduction of the crime to manslaughter through improper use of self‑defense.
Judgment
affirmed.
Order
denying motion for new trial affirmed.
[379 Mass. 445] LIACOS, Justice (dissenting).
I agree
with the majority that the charge to the jury on reasonable doubt was
erroneous. I do not believe, as the
majority holds, that an erroneous charge on reasonable doubt can constitute
harmless error. The majority cites no
cases which so hold, and I am aware of none.
See Dunn v. Perrin, 570 F.2d 21 (1st Cir. 1978).
The
majority is apparently convinced that the error was harmless beyond a
reasonable doubt because of the "overwhelming evidence of guilt." (FN1) The
court states, "(T)he defendant testified and corroborated all of the
essential elements of the Commonwealth's case. . . . The only issues the jury
faced were whether the killing was justified in self‑defense and, if so,
whether Garcia exercised that right imperfectly (to result in manslaughter) or,
if not, whether the killing was first or second degree murder." (FN2) As the majority has specifically
commented on the issue of self‑defense, I will focus on it for purposes
of this analysis.
This court
stated in Connolly v. Commonwealth, ‑‑‑ Mass. ‑‑‑,
‑‑‑ (FNa), 387 N.E.2d 519, 522 (1979): "As malice is an essential element of
murder, and a proper exercise of self‑defense negates malice, it follows
from Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975),
that the Commonwealth bears the burden of proving beyond a reasonable doubt, in
any case where the issue arises, that there was not a proper exercise of self‑defense;
and the judge should so charge."
Given, as the majority has held, that the charge on reasonable doubt was
erroneous, it follows that the jury were improperly instructed as to the
standard of proof required of the Commonwealth in order to sustain its burden
of proving the element of malice (i. e., no proper exercise of self‑defense). Likewise, of course, the high standard of
proof required of the Commonwealth with respect to the remaining elements of
the crime of murder was "trivialized" by the reasonable doubt charge
given.
[379 Mass. 446] The United States Supreme Court has indicated that an
unconstitutional jury instruction on an element of the crime cannot constitute
harmless error. See United Brotherhood
of Carpenters & Joiners v. United States, 330 U.S. 395, 408‑409, 67
S.Ct. 775, 91 L.Ed. 973 (1947). Cf.
Bollenbach v. United States, 326 U.S. 607, 614‑615, 66 S.Ct. 402, 90
L.Ed. 350 (1946). See also Sandstrom v.
Montana, 442 U.S. 510, ‑‑‑‑, 99 S.Ct. 2450, 2461, 61
L.Ed.2d 39 (1979) and Hammontree v. Phelps, 605 F.2d 1371, 1380 (5th Cir.
1979). Chapman v. California, supra,
cited by the majority in support of its holding that the error in the instant
charge was harmless, did not involve an unconstitutional jury charge affecting
an element of the crime. Furthermore,
Chapman recognizes that "there are some constitutional rights so basic to
a fair trial that their infraction can never be treated as harmless error . . .
." Id. 386 U.S. at 23, 87 S.Ct. at 827, 828. I believe that an erroneous instruction on
reasonable doubt presents such a situation.
Accordingly, I conclude that reversal is required in this case.
FN1. After
the 1970 verdict, the defendant did not appeal within the statutory twenty‑day
time limit, G.L. c. 278, s 33B. At the
hearing on the motion for a new trial, there was conflicting evidence whether
Garcia had declined to appeal within the time limited by statute. In 1975, Garcia filed a petition seeking
reinstatement of his appellate rights, and it was allowed by a single justice
of this court. Garcia subsequently filed
a motion for a new trial, which was heard in 1977. The judge who presided at the trial denied
the motion, and Garcia appealed the denial to the Appeals Court. We transferred the case to this court on our
own motion, and consolidated the direct appeal with the appeal from the denial
of the motion for new trial.
FN2. Further evidence will be discussed below
in conjunction with the errors alleged; evidence presented at the new trial
motion hearing will also be discussed below.
FN3. Garcia admitted at trial that he wanted
to talk to a policeman after the shooting "(b)ecause I knew I had shot him
and I wanted to see the police . . . I didn't know the law. All I want(ed) was him to take me
away." Healey did not advise Garcia
of his rights.
FNa.
Mass.Adv.Sh. (1977) 2212, 2220‑2222.
FNb. Mass.Adv.Sh. (1977) 2395, 2409‑2410.
FNc.
Mass.Adv.Sh. (1977) 2302, 2305.
FNd.
Mass.Adv.Sh. (1979) 1431, 1439.
FNe.
Mass.Adv.Sh. (1977) 2805, 2811.
FN4. In certain limited circumstances, the
police are charged with observing greater caution in relying on signs by the
accused that he understands and waives his Miranda rights. See Commonwealth v. Hosey, 368 Mass. 571, 334
N.E.2d 44 (1975) (intoxication and irrational behavior); Commonwealth v. White,
‑‑‑ Mass. ‑‑‑ (Mass.Adv.Sh. (1977) 2805), 371 N.E.2d 777 (1977), aff'd by
an equally divided court, 439 U.S. 280, 99 S.Ct. 712, 58 L.Ed.2d 519 (1978)
(intoxication); Commonwealth v. Daniels, 366 Mass. 601, 608, 321 N.E.2d 822
(1975) (mental retardation). But see
Commonwealth v. Hooks, ‑‑‑ Mass. ‑‑‑, ‑‑‑
‑ ‑‑‑ (Mass.Adv.Sh.
(1978) 1356, 1358‑1362), 376 N.E.2d 857 (1978) (upholding trial
judge's rejection of defendant's claim that he did not understand warnings
because of marihuana influence); Commonwealth v. Fielding, 371 Mass. 97, 100,
353 N.E.2d 719 (1976) (drug withdrawal syndrome does not necessitate
suppression). Although drug and alcohol
cases rest very heavily on a possible inability of the suspect to exercise his
will, and are thus superficially distinguishable from the present case,
certainly a failure of cognition can effect a failure of volition. We do not maintain otherwise in this case.
FNf.
Mass.Adv.Sh. (1979) 401, 410.
FNg. Mass.Adv.Sh. (1979) 710, 714‑715.
FNh. U.S.L.W. 3217 (Oct. 2, 1979).
FNi. Mass.Adv.Sh. (1979) 168, 175 n.6.
FNj. Mass.Adv.Sh. (1979) 1722, 1732 n.9.
FNk. Mass.Adv.Sh. (1979) 1668, 1671.
FNl. Mass.Adv.Sh. (1979) at 1673.
FNm. Mass.Adv.Sh. (1979) at 1674.
FN5. Garcia testified that
he did not complain because he was "scared" and ignorant of the law,
and his family failed to act because they were unschooled. We are, of course, mindful that
constitutional rights are not accorded only to those who complain of their
violation, but in this case we conclude that no constitutional violation was
present.
FN6. In oral argument,
Garcia's appellate counsel raised the broader question whether there is a
constitutional right to an attorney who speaks one's native language. See generally Note, Incompetency to Stand
Trial, 81 Harv.L.Rev. 454 (1969). We
recognize that there are many persons in this country for whom English is a
second language, and we in no way wish to underestimate the importance of the
rights of confrontation and effective representation. Nevertheless, we believe that a per se
entitlement to bilingual attorneys is neither necessary nor desirable, for
several reasons. First, at pretrial
stages informal interpreters (such as relatives and friends) are
available. See Jara v. Municipal Court,
21 Cal.3d 181, 184‑186, 145 Cal.Rptr. 847, 578 P.2d 94 (1978), cert.
denied, 439 U.S. 1067, 99 S.Ct. 833, 59 L.Ed.2d 32 (1979). Second if an attorney discovers that he and
his client cannot communicate because of language problems, and no competent
informal interpreter is available, the attorney may, in criminal cases,
petition the court for the expenses of an interpreter, which the judge may
grant in his or her discretion. See G.L.
c. 277, s 56; Mass.R.Crim.P. 41, ‑‑‑ Mass. ‑‑‑
(1979); G.L. c. 213, s 8; Blazo v. Superior Court, 366 Mass. 141, 150‑151,
315 N.E.2d 857 (1974); Abodeely v. Worcester, 352 Mass. 719, 722, 227 N.E.2d
486 (1967). Third, at the trial stage
the court will provide qualified interpreters, and neither the prosecution nor
the defense should have to depend on a bilingual defense counsel for
interpreting the proceedings. Finally,
the practical difficulties of locating adequately bilingual counsel might
result in less effective communication than the present system of using
interpreters.
FN7. Some language barrier
cases have been brought on the grounds of ineffective assistance of counsel, e.
g., Commonwealth v. Alicea, ‑‑‑ Mass. ‑‑‑
(Mass.Adv.Sh. (1978) 2707) 381 N.E.2d
144 (1978); United States v. Carrion, 488 F.2d 12 (1st Cir. 1973), cert.
denied, 416 U.S. 907, 94 S.Ct. 1613, 40 L.Ed.2d 112 (1974). The test for both confrontation and effective
assistance cases in this context is the same: was the defendant hampered by a
language problem in any meaningful way in presenting his defense?
FNn. Mass.App.Ct.Adv.Sh. (1978) 1029.
FN8. Cases reversed because
of failure to provide an interpreter involve either an obvious inability of a
defendant to comprehend the import of the testimony against him, or to
communicate his defense to the fact finder, or a judicial insensitivity to a
language problem. See, e. g., United
States ex rel. Negron v. New York, 434 F.2d 386, 389 (2d Cir. 1970); Atilus v.
United States, 378 F.2d 52 (5th Cir. 1967); In re Muraviov, 192 Cal.App.2d 604,
606‑607, 13 Cal.Rptr. 466 (1961); People v. Starling, 21 Ill.App.3d 217,
315 N.E.2d 163 (1974); Parra v. Page, 430 P.2d 834 (Okl.Cr.1967).
FNo. Mass.Adv.Sh. (1977) 1594, 1608‑1610.
FN9. The judge charged the
jury that: "The words, 'beyond a reasonable doubt,' on the other hand, do
mean that after hearing the evidence, after discussing it among yourselves,
after determining what part, if any, of any witness's story you're going to
believe, after determining what inference you're going to draw from the
evidence, you believe, all twelve of you, that you must be sure, as sure as you
want to be when in your own lives you had to make important decisions involving
your personal, your social or your economic lives. For example, I am sure that all of you at
some time or another in your lives have had to decide whether to quit school or
to go on with your education, whether to get married, whether to stay single,
whether to get divorced or stay married; whether to buy a house or not, whether
to increase the mortgage on the house or not, and when you have had to make
this type of a decision, you have weighed the pros and cons. You have carefully thought about it, and if
there was a reasonable doubt in your mind that you were not doing the right
thing, then you didn't do it. I am not
talking about decisions that you have to make of a routine nature, like what
color tie to put on in the morning, whether to wear a blue shirt, or what color
beads to wear with a particular dress, or whether to buy a Ford or a Chevrolet;
I'm talking about more important decisions in your own lives where you weighed
the pros and cons seriously and knowing that it is impossible to be absolutely
sure, for example, that you were doing the right thing when you decided to get
married or get divorced, to buy a house, but if you had a reasonable doubt in
your mind that this was not the right thing to do, then you didn't do it, this
is what the law means by the expression, 'beyond a reasonable doubt,' that type
of sureness that compelled you to act when you, yourself, had to make important
decisions."
FNp.
Mass.Adv.Sh. (1979) 1302, 1309‑1310.
FN10.
It is also our "unbroken practice" not to allow use of a motion for
new trial to compel a judge to review questions of law which could have been
raised at the trial. Commonwealth v.
McLaughlin, 364 Mass. 211, 229, 303 N.E.2d 338 (1973). Commonwealth v. Grace, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (Mass.Adv.Sh. (1978) 2697, 2698), 381 N.E.2d 139 (1978).
FN11.
State and Federal courts, including the United States Supreme Court, have
consistently approved general references to the daily lives of jurors. See, e. g., Holland v. United States, 348
U.S. 121, 139‑140, 75 S.Ct. 127, 99 L.Ed. 150 (1954); Hopt v. Utah, 120
U.S. 430, 439‑441, 7 S.Ct. 614, 30 L.Ed. 708 (1887); United States v.
Robinson, 546 F.2d 309, 313 (9th Cir. 1976), cert. denied sub nom. Chew v. United States, 430 U.S. 918, 97 S.Ct.
1333, 51 L.Ed.2d 596 (1977); Foran v. Metz, 463 F.Supp. 1088, 1092
(S.D.N.Y.1979). The rule in Federal
courts is that these general references should be phrased in terms of doubts
which would cause jurors to "hesitate to act" in their own decisions,
rather than those that would make them "willing to act." Holland, supra, 348 U.S. at 140, 75 S.Ct.
127.
FNq. Mass.Adv.Sh. (1977) at 1608‑1611.
FNr. Mass.Adv.Sh. (1979) 1431, 1449.
FNs. Mass.Adv.Sh. (1979) 863, 871.
FNt. Mass.Adv.Sh. (1978) 3008, 3018.
FNu. Mass.Adv.Sh. (1978) 2994, 3006‑3007.
FNv. Mass.Adv.Sh. (1977) 2134, 2143.
FNw. Mass.App.Ct.Adv.Sh. (1978) 289, 297.
FNx. Mass.Adv.Sh. (1978) 2697, 2698‑2699.
FN12.
We do not believe that it is wise to dissect a charge to determine if each part
is constitutionally adequate. Instead we
think a court must consider a charge in its totality to assess the impression
it may have left with jurors.
Commonwealth v. Rodriguez, 370 Mass. 684, 690‑691, 352 N.E.2d 203
(1976), and cases cited.
FNy. Mass.Adv.Sh. (1978) 627, 631.
FNz. Mass.Adv.Sh. (1978) 610, 620.
FNaa. Mass.Adv.Sh. (1979) 647, 657.
FNbb. Mass.Adv.Sh. (1977) at 1608.
FN13.
This court has never held, as a matter of constitutional law, that the
defendant has a right to have the jury reconsider the voluntariness of his
confession. Commonwealth v. Alicea,
supra, ‑‑‑ Mass. at ‑‑‑ (Mass.Adv.Sh. (1978) at 2725), 381 N.E.2d 144. Commonwealth v. Johnston, 373 Mass. 21, 364
N.E.2d 1211 (1977) (Mass.Adv.Sh. (1977)
1473). Commonwealth v. Pratt, 360 Mass.
708, 714‑715, 277 N.E.2d 517 (1972).
Cf. Commonwealth v. Harris, 371 Mass. 462, 358 N.E.2d 982 (1976). In Harris, we held that as a matter of
Massachusetts practice, where a judge admits a confession in evidence after
determining that it was made voluntarily, and there is evidence of coercion, it
is reversible error not to submit the issue of voluntariness to the jury. Id. at 474, 358 N.E.2d 982. The United States Supreme Court recognized
that some States follow the "Massachusetts procedure," but it held
that there is no Federal constitutional right to have the jury reconsider
voluntariness. Lego v. Twomey, 404 U.S.
477, 481 n.3, 489‑490, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972).
The
Federal Constitution of course requires that at some point in the proceedings
before a confession is admitted in evidence, the defendant must "have a
fair hearing and a reliable determination (by a judge) on the issue of
voluntariness, a determination uninfluenced by the truth or falsity of the
confession." Jackson v. Denno, 378
U.S. 368, 376‑377, 84 S.Ct. 1774, 1781, 12 L.Ed.2d 908 (1964). In the present case, the judge rendered this
ruling in denying the motion to suppress the statements.
FN14.
The defendant argued before this court that the judge erred in not instructing
the jury to consider the "totality of the circumstances." Although the judge did not use this phrase,
he instructed the jury in effect to consider all the circumstances that the
evidence raised, and that we considered in part 1 of this opinion.
FNcc. Mass.Adv.Sh. (1979) at 1731‑1733.
FN15.
This case was decided before our decision in Chung, supra, in which we noted
that we had not yet decided whether the question of compliance with the Miranda
requirements of a warning must be submitted to the jury for their
decision. Nevertheless, we recognized
that the question whether such a warning was given might properly be considered
on the issue of voluntariness of a confession.
FN1.
The prosecution bears the burden of proof on appeal that the error was harmless
beyond a reasonable doubt. Chapman v.
California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Commonwealth v. Hanger, ‑‑‑
Mass. ‑‑‑, ‑‑‑ (Mass.Adv.Sh. (1979) 647, 656), 386 N.E.2d 1262
(1979). The Commonwealth does not raise
the harmless error doctrine in its brief.
FN2.
See text supra at 473 (Mass.Adv.Sh.
(1980) at ‑‑‑‑).
FNa. Mass.Adv.Sh. (1979) 678, 681.