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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. Harris, 364
Supreme Judicial Court of Massachusetts,
Argued
Decided
Robert V. Greco,
John M. Lynch, Asst. Dist. Atty., for the
Commonwealth.
Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.
BRAUCHER, Justice.
The
defendant was convicted of arson of a synagogue and of breaking and entering
the synagogue in the nighttime with intent to commit arson. Upon appeal under G.L.
c. 278, ss 33A‑‑33G, the
We
summarize the evidence bearing on the issue before us. Early in the morning of
On cross‑examination
the defendant was asked about a conversation with police. The judge interrupted the examination and
ordered a voir dire.
On voir dire, a police officer testified that
the defendant was arrested on Saturday, June 27, 1970, sent to the Youth
Service Board over the weekend, and taken to court for a probable cause hearing
on Monday morning. In the lockup
downstairs in the court house, the defendant told the officer that he was
wallpapering at a woman's house on the night of the fire, that he heard of the
fire, and that he watched it. Also on voir dire, the prosecuting attorney at the probable cause
hearing testified that he discussed with defence
counsel the defendant's oral statements as to the wallpapering alibi, told defence counsel that he would not use those statements as
part of the Commonwealth's case, and made a notation on the defendant's motion
to discover statements made by the defendant that the Commonwealth had 'none it
intends to rely upon, or use.' The
defendant offered no evidence at the voir dire.
At the
conclusion of the voir dire, the judge found that the
defendant's statements were made without the safeguards guaranteed by the Miranda rule, and that the
Commonwealth[364 Mass. 238]
so conceded, but he ruled the statements admissible under the principle
of Harris v. New York, supra. He found
that no deception had been practised by the
Commonwealth, and that the promise of the prosecuting attorney not to use the
statements applied only to the probable cause hearing and to the Commonwealth's
case in chief at trial.
The trial
resumed, and the defendant was cross‑examined about the wallpapering
alibi. He admitted telling the story
except for watching the fire, and said he had lied because he was scared. On redirect examination he testified that he
had been interrogated at length on several occasions and did not think anyone
would believe he was at time. He
formulated the wallpapering story at the Youth Service Center on Sunday with
the help of his mother and two women, one of whom was prepared to testify for
him at the probable cause hearing but was not called. In rebuttal two police officers gave
testimony substantially like that given on voir dire
and contradicted the defendant's testimony as to extensive interrogation.
[1] [2]
1. The defendant attacks as incredible
the judge's finding that the promise of the prosecuting attorney, made at the
probable cause hearing, did not extend to cross‑examination of the defendant
or to rebuttal of his testimony at trial.
We insist that the Commonwealth keep its promises in such matters. Commonwealth v. St. John, 173 Mass. 566, 569‑‑570,
54 N.E. 254 (1899). Commonwealth v.
Benton, 356 Mass. 447, 252 N.E.2d 891 (1969).
But the promise was oral, the testimony of the prosecuting attorney was uncontradicted, and the Appeals Court did not think it
incredible. The evidence sufficiently
supported the finding.
2. The defendant's main argument, the focus of
our limited grant of further appellate review, is addressed to the question
whether Harris v. New York, 401 U.S. 222, 91 S.Ct.
643, 28 L.Ed.2d 1 (1971), is the law of Massachusetts. We are asked to hold that art. 12 of the
Declaration of Rights of our Constitution provides greater protection to
defendants than is provided by the United States Constitution as interpreted in
that case. We are free to take this
course, and at least one State has done so. [364 Mass. 239] State v. Santiago, 53
Hawaii 254, 265‑‑267, 492 P.2d 657 (1971). Cf. Butler v. State, 493 S.W.2d 190, 197‑‑198
(Tex.Cr.App.1973) (statute); United States v. Jordan, 44 C.M.R.
44, 47 (U.S.C.M.A.1971) (Manual for Courts‑Martial); see State v. Spunaugle, Or.App., (FNb) (decision of higher court). Like most courts which have considered the
point, however, we decline the invitation to adopt the reasoning of the
dissenting justices in the Supreme Court of the United States. See Harris v. New York, 401 U.S. 222, 226, 91
S.Ct. 643, 28 L.Ed.2d 1 (1971) (dissenting opinion of
Brennan, J.); Riddell v. Rhay, 404 U.S. 974, 92 S.Ct. 336, 30 L.Ed.2d 291 (1971) (dissenting opinion of
Douglas, J.).
[3] In
Harris v. New York, supra, the
Supreme Court held that statements to the police elicited in violation of Maranda safeguards, if not 'coerced or involuntary,' and if
'the trustworthiness of the evidence satisfied legal standards' (401 U.S. at
224, 91 S.Ct. at 645 (1971)), may nevertheless be
used to impeach the credibility of a criminal defendant whose testimony in his
own behalf is inconsistent with those statements. So far as the exclusionary rule serves the
purpose of deterring proscribed police conduct, 'sufficient deterrence flows
when the evidence in question is made unavailable to the prosecution in its
case in chief.' Id. at 225, 91 S.Ct. at 645. The
privilege of the criminal defendant to testify or to refuse to do so 'cannot be
construed to include the right to commit perjury.' Ibid. at 225, 91 S.Ct.
at 645. 'The shield provided by Miranda
cannot be perverted into a license to use perjury by way of a defense, free from the risk of
confrontation with prior inconsistent utterances.' Id. at 226, 91 S.Ct.
at 646.
The
principal objections to the decision in Harris v. New York, supra, raised by
dissenting justices, are three. First,
the decision repudiates the declaration in the Miranda case that 'statements
merely intended to be exculpatory by the defendant' and 'used to impeach his
testimony at trial' are 'incriminating in any meaningful sense of the word and
may not be used without the full warnings and effective waiver required for any
other statement.' 384 U.S. at 477, 86 S.Ct. at 1629 (1966).
Second, so far as the impeaching evidence bears directly on the elements
of the crime charged, its use 'fetters' the right [364 Mass. 240] of the
defendant to testify in his own defence, cutting down
the right by making its assertion costly.
See Walder v. United States, 347 U.S. 62, 65,
74 S.Ct. 354, 98 L.Ed. 503
(1954); Griffin v. California, 380 U.S. 609, 614, 85 S.Ct.
1229, 14 L.Ed.2d 106 (1965). It is
fiction, in this view, that the prejudicial effect can be overcome by
instructing the jury to use the evidence only for impeachment. See Bruton v.
United States, 391 U.S. 123, 129‑‑133, 88 S.Ct.
1620, 20 L.Ed.2d 476 (1968). Third, 'the
possible use of tainted statements . . . opens the door to a calculated risk by
police interrogators.' Riddell v. Rhay, 404 U.S. 974, 976, 92 S.Ct.
336, 30 L.Ed.2d 291 (1971) (dissenting opinion of Douglas, J.).
[4] The
present case does not require us to enter into this dispute. The defendant contends that he 'was warranted
in taking the stand on the assumption that' his statements to the police 'could
not be used,' and thus claims the very license to testify without impeachment which
was denounced in Harris v. New York, supra.
It is not our province to resuscitate a Supreme Court dictum which has
been repudiated by that court. The
impeaching evidence in the present case does not tend to prove any element of
the crime charged; the judge gave the jury a general limiting instruction with
respect to inconsistent statements made by witnesses out of court, but there
was no real danger that the statements in issue would be used to prove the
truth of the matter stated by the defendant.
Finally, the record is entirely barren of any indication that police or
prosecutor took any 'calculated risk'; there seems rather to have been an
inadvertent defect in the Miranda warnings given.
Indeed,
this case would be a peculiarly unattractive vehicle for a ruling contrary to
Harris v. New York, supra. The defendant
admitted in open court that he and others conspired on a Sunday to concoct a
false alibi, that he told the false alibi to the police before the probable
cause hearing on Monday without disclosing that it was false, and that one of
the others was prepared to swear to the false alibi at the hearing. The prosecuting attorney and the defendant's
counsel discussed the false alibi, still with no disclosure that it was
false. A decision in favor of the
defendant by reason of these events would provide a positive incentive to a
'calculated [364 Mass. 241] risk' by defendants in fabricating
false alibis.
[5] [6]
3. The defendant claims that his
statements were involuntary and hence inadmissible even under Harris v. New
York, supra. The Appeals Court ruled
that no evidence taken at the voir dire would have
supported a finding of involuntariness, that the trial judge was under no
obligation to make a finding of voluntariness, since
no one raised the issue before him, and that the issue could not be raised for
the first time on appeal We agree with those rulings.
[7] The
Appeals Court also ruled that after the voir dire
'any theory of coercion or involuntariness was effectively negated by the defendant
in his later testimony before the jury.
It appears from his own testimony that his first alibi was worked out
deliberately and privately with a friend who was to corroborate it when
approached. See Commonwealth v. Pratt, Mass, (FNc)
Commonwealth v. Harris, Mass. App., (FNd) 295 N.E.2d at 277 N.E.2d 517.' We agree.
[8] [9]
[10] We stand by our considered statement in Commonwealth v. Kleciak, 350 Mass. 679, 690, 216 N.E.2d 417, 424 (1966):
'We believe that an involuntary confession does not become any more
trustworthy, nor do the methods used to procure it obtain greater standing,
because the confession is used to impeach the credibility of the defendant
rather than as substantive evidence.' We
assume without deciding that in the circumstances of this case we would not for
this purpose distinguish involuntary admissions or involuntary exculpatory
statements from involuntary confessions.
See Commonwealth v. Wallace, 346 Mass. 9, 17, 190 N.E.2d 224 (1963). We also recognize that accusation of crime,
arrest and custodial interrogation are inherently coercive, and that Miranda
warnings and even the presence of counsel may not make the defendant's
statements 'voluntary' in the sense used in the law of wills or contracts. See Miranda v. Arizona, 384 U.S. 436, 457‑‑458,
n. 26, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); id. at
516, 86 S.Ct. 1602 (dissenting opinion of Harlan,
J.), id. at 534‑‑535, 86 S.Ct. 1602
(dissenting opinion of White, J.). The 'voluntariness' we must consider reflects 'an accommodation[364 Mass. 242] of the complex of values
implicated in police questioning of a suspect.'
See Schneckloth v. Bustamonte,
412 U.S. 218, 224‑‑226, 93 S.Ct. 2041,
2046, 36 L.Ed.2d 854 (1973). We must
determine the factual circumstances, assess the psychological impact on the
accused, evaluate the legal significance of his reaction, and determine whether
his will has been unfairly overborne and his capacity for self‑determination
critically impaired. See Culombe v. Connecticut, 367 U.S. 568, 602‑‑603,
81 S.Ct. 1860, 6 L.Ed.2d 1037 (1961).
The
defendant points out that he was sixteen years old, that he had been in custody
nearly forty‑eight hours, and that he was alone with two police officers
in the lockup of a court house. He cites
COMMONWEALTH V. CAIN, MASS., 279 N.E.2D
706,(FNE) where somewhat similar facts, coupled with
a denial of opportunity to consult an available parent, were held to negate
knowing and intelligent waiver of Miranda rights sufficient to make inculpatory statements admissible in the Commonwealth's
case in chief. We think, however, that
in the present case the totality of circumstances shown by the defendant's own
testimony establishes that the false alibi was voluntary within the principle of
Harris v. New York, supra.
Judgments
of Superior Court affirmed.
FNa. Mass.App.Ct.Adv.Sh.
(1973), 307.
FNb. 504 P.2d 756, 759 (1972).
FNc. Mass.Adv.Sh. (1972) 9, 15.
FNd. Mass.App.Ct.Adv.Sh. (1973) at 314.
FNe. Mass.Adv.Sh. (1972) 373, 376‑‑377.