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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.
Supreme Judicial Court of Massachusetts,
No. SJC‑07208.
Argued
Decided
Joseph F. Krowski,
Elin H. Graydon,
Assistant District Attorney, for the Commonwealth.
Before WILKINS, C.J., and
ABRAMS, LYNCH, FRIED and MARSHALL, JJ.
WILKINS, Chief Justice.
The
defendant appeals from his conviction of murder in the first degree on the
theories of felony‑murder and extreme atrocity or cruelty. We conclude that the conviction [425
The victim
was a thirteen year old boy whom the defendant encountered fishing at Plug's
Pond in
[1] This
brief summary is sufficient to demonstrate that, tested on the appropriate
standard (Commonwealth v. Latimore, 378 Mass. 671, 676‑677, 393 N.E.2d 370
[1979] ), there was sufficient evidence to warrant a jury to find the essential
elements of murder by extreme atrocity or cruelty beyond a reasonable
doubt. Because the jury made an
independent finding of guilt based on extreme atrocity or cruelty, we need not
consider the defendant's challenges to the jury's other finding of guilt based
on felony‑murder (except to note that there is no substantial likelihood
of a miscarriage of justice because of any asserted error in the conviction
based on felony murder).
[2][3][4][5]
1. We briefly dispose of three claims of abuse of discretion by the trial
judge. (1) The judge acted within his
discretion in denying the defendant's motions for a change of venue. The judge properly considered the publicity
attendant to the trial and conducted an individual voir
dire of each prospective juror. There is
no showing that the trial was unfair or that any juror was not impartial. See
Commonwealth v. James, 424 Mass. 770, 776‑777, 678 N.E.2d 1170
(1997);
Commonwealth v. Jackson, 388 Mass. 98, 108‑109, 445 N.E.2d
1033 (1983). (2) The judge did not abuse his discretion in
admitting [425 Mass. 380] photographs showing the location and
position of the victim's body where it was found and the injuries to the
body. See Commonwealth v. Simmons, 419 Mass. 426, 430, 646 N.E.2d 97
(1995). In a case involving a charge of
extreme atrocity or cruelty, photographs of the deceased victim may have
particular relevance. See Commonwealth v. Keniston,
423 Mass. 304, 309, 667 N.E.2d 1127 (1996); Commonwealth v. Ramos, 406 Mass. 397, 406‑407,
548 N.E.2d 856 (1990). The photographs
are not especially gruesome or inflammatory and, although a cautionary
instruction to the jury might have been given (see Commonwealth v. Keniston, supra ), it
was not required. (3) The judge did not
err, or abuse his discretion, in declining to give a consciousness of innocence
instruction when he gave a consciousness of guilt instruction. See
Commonwealth v. Rosa, 422 Mass. 18, 32 n. 14, 661 N.E.2d 56 (1996);
Commonwealth v. Oeun Lam, 420 Mass. 615,
619‑620, 650 N.E.2d 796 (1995), and cases cited.
[6] 2. The
defendant argues that the judge erred in failing to suppress statements that he
gave to the police. He asserts that these statements were not made voluntarily,
were the product of police coercion, and were not made after a knowing and
voluntary waiver of Miranda
rights. The defendant is confronted with
findings of fact that support the judge's rejection of the defendant's
contentions.
The judge,
after hearing experts offered by the Commonwealth and the defendant, found that
the defendant was "not mentally ill nor is he retarded. He has limited cognitive ability but
evidences no specific learning disability.
He does not suffer from anxiety, depression or specific emotional
conflicts.... The defendant is not inexperienced
in dealing with the police and in receiving the Miranda rights.... I find
beyond a reasonable doubt the defendant has the intellectual capacity to
understand the words and the concept of the
Miranda warnings." The judge
further found "beyond a reasonable doubt that all of the statements given
by the defendant to the police were made voluntarily after a knowing, willing
and intelligent waiver of Miranda
rights." The judge's conclusions
are supported by the evidence, and we accept them. See Commonwealth
v. Magee, 423 Mass. 381, 386‑387, 668 N.E.2d 339 (1996);
Commonwealth v. Tavares, 385 Mass. 140, 145, 430 N.E.2d 1198, cert.
denied, 457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d
1356 (1982).
The
defendant makes a special argument that evidence that he had an I.Q. of 73, in
the low normal range, and other disabilities shows that he was incapable of
making a knowing waiver of his [425
Mass. 381] Miranda rights. This court
has said that people with low intelligence may waive their rights. See
Commonwealth v. Medeiros, 395 Mass. 336, 347, 479 N.E.2d 1371 (1985)
(defendant with I.Q. of 70); Commonwealth v. Cameron, 385 Mass. 660,
664, 433 N.E.2d 878 (1982) (defendant with I.Q. of 83); Commonwealth v. Davis, 380
Mass. 1, 4, 401 N.E.2d 811 (1980) (defendant with I.Q. of 79 and illiterate);
Commonwealth v. Daniels, 366 Mass. 601, 607, 321 N.E.2d 822 (1975)
(defendant with I.Q. of 53).
[7][8][9]
The police, and ultimately judges, must give special attention to whether a
person of low intelligence waived Miranda
rights and voluntarily and knowingly made a statement to the police. See
Commonwealth v. Cameron, supra at 665, 433 N.E.2d 878; Commonwealth v. Daniels, supra
at 606, 321 N.E.2d 822. Circumstances
and techniques of custodial interrogation which pass constitutional muster when
applied to an adult of normal intelligence may not be constitutionally
tolerable when applied to one who is mentally deficient. Id. There must, of course,
be evidence establishing such a defendant's ability to understand his waiver of
rights.
Id. at 608‑609, 321 N.E.2d 822. Here, the defendant had prior experience
with law enforcement personnel. He had
been living on his own, had a driver's license, and had held various part‑time
jobs. The Commonwealth's experts testified
that the defendant was not unduly vulnerable to coercion. The judge was warranted in accepting that
testimony and implicitly rejecting the contrary opinion of the defendant's
expert. We decline to adopt the
defendant's argument that a person with his limited reasoning ability should be
afforded the same protections concerning the waiver of rights as are extended
to a juvenile. See Commonwealth v. A Juvenile, 389 Mass. 128, 133‑134, 449
N.E.2d 654 (1983).
[10][11]
3. The defendant argues finally that the prosecutor's closing argument was
unfairly prejudicial because it sought to appeal to the juror's
sympathies. The prosecutor's closing was
based on reasonable and permissible inferences that the defendant forced the
victim into the woods and there engaged in sexual activities. The prosecutor was thus warranted in arguing
that the defendant forced the victim "into the woods to act out his sexual
fantasies and perversions." The
prosecutor's statement that the defendant was "every person's worst nightmare"
was tolerable hyperbole, as a reasonable jury would recognize. See
Commonwealth v. Andrade, 422 Mass. 236, 244 n. 9, 661 N.E.2d 1308 (1996);
Commonwealth v. Benson, 419 Mass. 114, 120, 642 N.E.2d 1035 (1994);
Commonwealth v. Lawrence, 404 Mass. 378, 392, 536 N.E.2d 571 (1989).
Judgment affirmed.
(FN1.) Most issues that the defendant raises
require us to apply established principles of law to the specific facts of his
case. In general, the jurisprudence of
the Commonwealth is not significantly advanced by an extensive presentation of
the facts and law on such issues. We
shall deal with such issues only to the extent necessary to show that we are
aware of the defendant's contentions and to apply the established law.