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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. Hooks, 38 Mass.App.Ct.
301 (1995)
Appeals Court of Massachusetts,
No. 93‑P‑780.
Argued
Decided
Further Appellate Review Denied
Suzanne Rudalevige,
Lucy A. Manning, Asst. Dist. Atty., for Com.
Before ARMSTRONG, KASS and
GILLERMAN, JJ.
KASS, Justice.
Sometime
after
[1] 1.
Right to remain silent. Two
If the
detectives had, indeed, failed to notify the defendant that what he said in
response to questioning could be used against him in court, it would require
suppression of such damaging statements as the defendant might have made.
Commonwealth v. Coplin, 34 Mass.App.Ct. 478, 481, 612 N.E.2d 1188 (1993). Hooks's arguably
damaging statements consisted of denial that he had been in Boston the previous
night; denial of knowledge about where Charmaine DeBinion, a former
woman friend, lived; denial that he knew
Percy Webster, the victim and DeBinion's current man
friend; and denial of acquaintance with
any other of the characters who inhabited
[38 Mass.App.Ct. 303] 45 Hecla Street. DeBinion testified
that Hooks had earlier come to call on her at 45 Hecla
Street and that she had introduced him to Percy. Yvonne Dowdy was an eyewitness to the knifing of Percy and
identified Hooks, whom she had met previously, as the killer. The aunt of Hooks in Lynn, with whom he
claimed to have been staying at the time the crime occurred, did not back up
his alibi when questioned by police.
Under the weight of that evidence, Hooks's claim
that he was not at 45 Hecla Street and knew none of
the players (except DeBinion) appeared less and less
credible. His arguably false and evasive
statements to the police detectives who had questioned him took on the color of
consciousness of guilt. That color grew
stronger as Hooks, during his trial, found it expedient to urge that he had
acted to defend himself from lethal assault by Webster, a theory that meshed
awkwardly with saying he had not been there.
[2][3]
Although the tape recording of his interview by the Boston police lacked any
warning to Hooks that what he said might be used against him, the Boston
detectives testified that before they started the recording machine, they had
given him the Miranda warnings without omission and that Hooks manifested
understanding. There was similar
evidence from a Lynn police officer who said he had given Hooks the full set of
warnings when he, the Lynn officer, first brought Hooks to the police station
an hour and a half before the taped interview by the Boston police. That warning was sufficiently close in time
so that it could be thought to carry over. Commonwealth v. Alicea,
376 Mass. 506, 513‑514, 381 N.E.2d 144 (1978). On that evidence, the trial judge acting on
the suppression motion found that Hooks had received the Miranda warnings in
full, that Hooks was aware, alert, and experienced, that he had‑‑to
a point we shall discuss below‑‑waived voluntarily and
intelligently his right to remain silent.
Those findings we owe deference. Commonwealth v. Mandile,
397 Mass. 410, 412, 492 N.E.2d 74 (1986). Commonwealth v. Chandler, 29 Mass.App.Ct. 571, 576, 563 N.E.2d 235 (1990).
[4] The
focus of the motion to suppress and of the parallel position on appeal is that
the detectives, by failing to tell [38
Mass.App.Ct. 304]
Hooks at the outset that they were questioning him about a homicide in
Dorchester the night before, misled him into waiving his right to remain
silent; his waiver, therefore, was not
truly voluntary. In terms of typescript,
the interrogation had covered twelve pages before the detectives touched on the
killing that had occurred the night before at 45 Hecla
Street and told Hooks that he was the prime suspect. After two more pages of questioning, the
record reflects Hooks inquiring: "Didn't
you just tell me too that I have the right to have a lawyer present?" To that Detective Dwyer responded: "Absolutely, positively," whereupon
Hooks said, "Well let's get a lawyer, cause I don't understand
exactly. That's the wrong word. I understand exactly what you're
saying." Questioning then
continued for a period that produced twenty more pages of transcript. The trial judge ordered suppressed all
statements of the defendant after he requested a lawyer on the ground that
after a suspect makes such a request, questioning is to cease. See
Minnick v. Mississippi, 498 U.S. 146, 152, 111 S.Ct.
486, 490, 112 L.Ed.2d 489 (1990); Commonwealth v. Perez, 411 Mass. 249,
258, 581 N.E.2d 1010 (1991); Commonwealth v. Phinney,
416 Mass. 364, 371, 622 N.E.2d 617 (1993).
[5][6] In Colorado v. Spring, 479 U.S. 564, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987), the Court wrote it had
"never read the Constitution to require that the police supply a suspect
with a flow of information to help him calibrate his self‑interest in
deciding whether to speak or stand by his rights." Id. at 576‑577, 107 S.Ct. at 858‑859, quoting from Moran v. Burbine, 475 U.S. 412, 422, 106
S.Ct. 1135, 1141, 89 L.Ed.2d 410 (1986). Failure by law enforcement officials to state
the subject of the interrogation was expressly said not to be trickery.
Colorado v. Spring, 479 U.S. at 577, 107 S.Ct.
at 859. Although Hooks invites us to
adopt a more demanding standard under art. 12 of the Declaration of Rights, the
Massachusetts position, even before
Colorado v. Spring, has been the same.
Miranda standards, the court held in
Commonwealth v. Medeiros, 395 Mass. 336, 345, 479 N.E.2d 1371 (1985), do
not "require police to inform a suspect of the nature of the crime about
which he is to be interrogated."
See also Commonwealth v. Marquetty, 28 Mass.App.Ct.
690, 694‑695, 554 N.E.2d 1230 (1990).
Ignorance of the subject of the inquiry is, however, a [38 Mass.App.Ct.
305] factor in a court's calculus of
the total circumstances of an interrogation and whether, in the light of those
circumstances, the suspect's waiver was knowing, intelligent, and voluntary.
Commonwealth v. Medeiros, 395 Mass. at 345, 479 N.E.2d 1371. See also
Carter v. Garrison, 656 F.2d 68 (4th Cir.1981), cert. denied, 455 U.S. 952,
102 S.Ct. 1458, 71 L.Ed.2d 668 (1982). Cf.
Commonwealth v. Chandler, 29 Mass.App.Ct. at 577‑579,
563 N.E.2d 235.
There was
neither misleading silence nor misleading questioning in this case. After preliminaries about his rights, the
first question put by Detective Dwyer was:
"Frank, I want to talk to you about an incident that happened last
night in Dorchester on Hecla Street. Do you know where Hecla
Street is?" Although nothing had
been said at that point about murder, Hooks, whose connection with the knifing
at 45 Hecla Street the defense ultimately did not
contest seriously, must have supposed that the police had come to question him
about the stabbing of Webster. The judge
correctly decided that: (1) the
defendant spoke to the Boston detectives voluntarily and deliberately; and (2) questioning should have stopped when
the defendant asked for a lawyer.
2. Instructions on self‑defense. Two witnesses saw segments of the attack on
Webster. One of those witnesses, Eli
Young (he handled the evening shift selling cocaine from 45 Hecla
Street and had turned that labor over to Webster, who worked the night shift),
identified the assailant as a Marvin Hagler
type; the other, Yvonne Dowdy, as noted,
had met Hooks and identified him as the assailant. From their testimony the jury could have
found that Hooks stabbed Webster repeatedly on the stairway and that Webster,
screaming and bleeding from the chest, was running away to his apartment. Webster emerged from his apartment with a .38
caliber Smith and Wesson revolver which he attempted to fire at Hooks, but
Hooks managed two more thrusts with a six‑inch knife into Webster's
chest. There were nine puncture wounds
in Webster's chest, abdomen, left arm, and hand. The immediate cause of death was a stab wound
to the upper right chest, four‑and‑a‑half inches deep and
"V"‑shaped, indicating that the wound may have been inflicted
with a twisting [38 Mass.App.Ct. 306]
motion. As described, the episode
warranted an instruction to the jury on self‑defense, and the judge
delivered one. See Commonwealth v. Harrington, 379 Mass. 446, 450, 399 N.E.2d 475
(1980).
There is
no quarrel by the defense about the soundness of the judge's charge on the
elements of self‑defense. Included
in that instruction was a passage that:
"the right of self
defense ordinarily cannot be claimed by a person who provokes or initiates an
assault, unless that person withdraws in good faith from the conflict and
announces his intention to retire. In other
words, where the Commonwealth proves beyond a reasonable doubt that a defendant
initiated the confrontation or was the original aggressor, then the right of
self defense is not available to him unless and until he withdraws from the
confrontation in good faith and announces his retirement from the
conflict. (FN4) This is so, because, as I have said, a
defendant generally may not resort to a claim of self defense unless he first
took advantage of every opportunity to avoid the conflict."
Defense
counsel asked the judge to add "that it may also be that a person is not
able to leave if that occurs in a split second." The judge thought that whether, in the
circumstances, Hooks had been able to disengage was up to the jury, i.e., he
rejected the amplification requested.
[7]
On appeal, the defense has transformed that objection to mean that it was
mistaken for the judge to speak in terms of an "announcement" to
withdraw. The defect in that
instruction, so the argument runs, is that the jury were left to understand
that the defendant had to proclaim by speech his intention to withdraw from the
conflict. That is far too literal a
reading of what the judge said. In
context, the word "announces" reasonably would be understood to mean
some sort of manifestation by the defendant to avoid further fight, for example
by
the simple expedient of
leaving. Cf. Commonwealth v. Naylor, 407 Mass. 333, 335, 553 N.E.2d 542
(1990). Hooks had [38 Mass.App.Ct. 307] every opportunity so to do when Webster fled from him. That Hooks was still waiting on the stairs
when Webster reappeared could reasonably have been understood by the jury to
mean that Hooks stayed for a second round.
We think the instruction did not contain the germ of confusion which the
defendant by microscopic examination seeks to identify, particularly in a
context of no evidence that the defendant did anything at all to remove himself
from his fight with the victim. After
the last two knife thrusts, Hooks found his way out of 45 Hecla
Street fast enough.
[8]
3.
Ineffective assistance of counsel.
The defendant argues that his trial counsel's conduct fell below the
standard of an ordinarily competent and also fallible lawyer (Commonwealth v. Saferian,
366 Mass. 89, 96, 315 N.E.2d 878 [1974] ), by failing to confront the most damaging
witness that the prosecution produced, Yvonne Dowdy, with her drug treatment
records. Had trial counsel done so,
Hooks argues, he would have discredited her ability to observe and remember
accurately. There is nothing to
this. The evidence brought out that
Dowdy had been to three or four drug treatment programs on an inpatient basis,
that Dowdy allowed Webster and Young to use her apartment to sell cocaine in
exchange for daily payments in cash or cocaine, that she used cocaine
regularly, and that on the fatal night, she had also consumed three or four
beers and perhaps some rum as well. Dowdy's propensity to intoxication and the likelihood of
her intoxication on the night of the killing were paraded luxuriantly before
the jury. Drug treatment records would
have added very little to her profile as a substance abuser. We have considered the defendant's remaining
arguments regarding trial counsel's performance, and we think they are
insubstantial.
Judgment affirmed.
(FN1.) The court was informed at oral argument
that the defendant requested counsel not to make the flawed instruction
argument, but we have considered it since self‑defense was a major line
of defense at trial.
(FN2.) The first two categories of argument
appear in a brief filed by appellate counsel for Hooks, who is different from
trial counsel. The third category, i.e.,
ineffective assistance of trial counsel, appears in appellate counsel's brief
with a Moffett disclaimer (see Commonwealth v. Moffett, 383 Mass. 201,
418 N.E.2d 585 [1981] ), and is elaborated in a brief filed by the defendant
pro se.
(FN3.) At the suppression hearing, defense
counsel disavowed the contention that the Miranda warnings had been
inadequate. That would ordinarily
exclude the question from consideration on appeal, but a portion of the Miranda
question is properly before us, and an important constitutional right is
implicated. We, have, therefore,
considered the question of the completeness of the Miranda warnings.
(FN4.) See
Commonwealth v. Maguire, 375 Mass. 768, 772‑773, 378 N.E.2d 445
(1978).