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Commonwealth v. Johnson, 3 Mass.App.Ct.
226 (1975)
Appeals Court of Massachusetts,
Argued
Decided
Calvin J. Wier,
D. Lloyd Macdonald, Asst. Dist. Atty., for the
Commonwealth.
Before HALE, C.J., and
ROSE, KEVILLE, GRANT and ARMSTRONG, JJ.
ARMSTRONG, Justice.
The
defendant was convicted of murder in the second degree for the killing of one
Matt Mayes on [3 Mass.App.Ct.
227] the morning of
By Monday,
March 26, the date scheduled for arraignment, the defendant's behavior had
become hostile and marked by violent outbursts.
On recommendation of a court clinic psychiatrist, the defendant was
committed to the Bridgewater State Hospital for observation to determine his
competency to stand trial and his criminal responsibility. [3 Mass.App.Ct. 228] See G.L.
c. 123 s 15(b), as in effect prior to St.1973, c. 5698 ss
5 and
6. He was determined to be
competent to stand trial.
The
Commonwealth's case was brief. Two
police officers described what they had observed at the scene of the crime and
the arrest of the defendant. A
psychiatrist from the Bridgewater State Hospital was permitted to testify
concerning the mental condition of the defendant, apparently for the purpose of
establishing the voluntariness of the statement made
by the defendant at the police station.
The police officer who had interrogated the defendant then introduced
the statement. The Commonwealth then
rested. (FN2)
This
appeal (taken under G.L. c. 278 s 33B) raises three
issues: (1) the admissibility of the psychiatrist's opinion before the jury,
(2) the admissibility of the defendant's statement at the police station, and
(3) the denial of the defendant's motion, at the close of the Commonwealth's
case, for a directed verdict as to so much of the indictment as charged murder
in the second degree.
[1]
1. The psychiatrist examined the
defendant on April 10, 1973, and on the basis of that examination and results
of various tests performed by others, testified that on April 10 the defendant,
although of borderline intelligence (I.Q. 73), did not exhibit mental illness
or disturbance and appeared to understand the nature of his acts and of the
criminal proceedings in which he was involved.
The psychiatrist specifically declined, however to draw any inference or
express any opinion concerning the mental condition of the defendant on March
24 (when the homicide occurred [3 Mass.App.Ct. 229]
and the defendant made his statement at the police station) or March 26 (when
the arraignment was postponed).
Nevertheless, the opinion was relevant and properly admitted, for evidenc of the defendant's competency on April 10, if
accepted, makes his competency on March 24 'more probable than it would be
without the evidence.' McCormick,
Evidence, s 185, p. 437 (2d ed. 1972).
2. The defendant argues that, although the
Miranda warnings, as set out in the margin, (FN3) were given before he made his statement
at the police station, the record does not demonstrate knowing and intelligent
waiver by him of his rights. He argues
from the following passage in Miranda v. Arizona, 384 U.S. 436, 470, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694 (1966): 'An individual
need not make a pre‑interrogation request for a lawyer. While such request affirmatively secures his
right to have one, his failure to ask for a lawyer does not constitute a
waiver. No effective waiver of the right
to counsel during interrogation can be recognized unless specifically made
after the warnings we here delineate have been given.' And again, at 475, 86 S.Ct.
at 1628: 'An express statement that the individual is willing to make a
statement and does not want an attorney followed closely by a statement could
constitute a waiver.'
[3 Mass.App.Ct.
230] [2] [3] The defendant points
out that he was never asked, in so many words, 'Do you wish to have a lawyer
present?' or 'Do you wish to answer
questions without having a laywer present?' The defendant concedes, as he must, that the
Miranda case does not require that those questions be asked. The warnings the defendant was given have
been held sufficient on many occasions.
See n. 3. Rather, the defendant
argues that by such questions the Commonwealth might have demonstrated a waiver
of rights, and that by failing to ask such questions the most that the
Commonwealth can be said to have demonstrated is an understanding (but not a
waiver) of rights.
[4] The
contention is forcefully and skillfully presented, and, if this were a case of
first impression, we would have difficulty in reconciling the facts of this
case with the language quoted from the Miranda case. But a long line of cases in various Federal
Courts of Appeal appears to have established a working rule that, if the record
demonstrates that a defendant has been clearly and accurately told of the
Miranda rights and that he has affirmatively acknowledged his understanding of
those rights, a knowing and intelligent waiver of those rights may be inferred,
in circumstances not otherwise casting doubt on voluntary waiver, (FN4) from
his proceeding to answer questions without asking for a lawyer. The leading case appears to be United States
v. Montos, 421 F.2d 215, 223‑‑224 (5th
Cir. 1970), cert. den. 397 U.S. 1022, 90 S.Ct. 1262,
25 L.Ed.2d 532 (1970). Other cases
applying the rule are United States v. Lamia, 429 F.2d 373, 375‑‑377
(2d Cir. 1970), cert. den. 400 U.S. 907, 91 S.Ct.
150, 27 L.Ed.2d 146 (1970); United States v. Guzman‑Guzman, 488 F.2d 965,
966‑‑967 (5th Cir. 1974); United States v. Ganter,
436 F.2d 364, 369‑‑371 (7th Cir. 1970); [3 Mass.App.Ct. 231] Hughes v. Swenson, 452 F.2d 866, 867‑‑868 (8th Cir.
1971); United States v. Hilliker, 436 F.2d 101, 102‑‑103
(9th Cir. 1970), cert. den. 401 U.S. 958, 91 S.Ct.
987, 28 L.Ed.2d 242 (1971); United States v. Moreno‑Lopez, 466 F.2d 1205
(9th Cir. 1972); United States v. Johnson, 474 F.2d 6 (9th Cir. 1973); and Bond
v. United States, 397 F.2d 162, 164‑‑165 (10th Cir. 1968), cert.
den. 393 U.S. 1035, 89 S.Ct. 652, 21 L.Ed.2d 579
(1969). See also Pettyjohn
v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651,
654‑‑655 (1969), cert. den. 397 U.S. 1058, 90 S.Ct.
1383, 25 L.Ed.2d 676 (1970), and United States v. Stuckey, 441 F.2d 1104, 1105
(3d Cir. 1971), cert. den. 404 U.S. 841, 92 S.Ct.
136, 30 L.Ed.2d 76 (1971). The rule has
been applied in this Commonwealth, most recently in Commonwealth v. Roy,
‑‑‑ Mass.App. ‑‑‑,
‑‑‑ ‑ ‑‑‑, (FNa)
307 N.E.2d 851 (1974), which controls on the facts of the present case.
[5] The
knowing and willing quality of the defendant's waiver and the voluntariness of his statement are not cast in substantial
doubt by his borderline intelligence (which appears to have been greater than
that of the defendants in COMMONWEALTH V. WHITE, ‑‑‑ MASS. ‑‑‑, 285 N.E.2D 110 (1972)(FNB),
and Commonwealth v. Daniels, ‑‑‑ Mass. ‑‑‑,
‑‑‑ ‑ ‑‑‑, (FNc)
321 N.E.2d 822 (1975)), or by his suggestion that he felt dizzy, as if he had
been drugged; there was substantial evidence, in the testimony of the
psychiatrist, in the testimony of the police officer who conducted the
interrogation, and in the transcript of that interrogation, that the defendant
had the capacity to understand and did in fact understand what was transpiring
and what was being said to him.
3. The defendant's next contention is that the
trial judge erred in denying his motion, at the close of the Commonwealth's
case, for a directed verdict as to so much of the indictment as charged murder
in the second degree. His argument is
that the Commonwealth's entire case rested on the defendant's police station
statement and that statement makes out at best a case of manslaughter. In the highly unusual circumstances of this
case, a majority of the panel agree with the defendant's contention, for the
following reasons. (FN5)
[3 Mass.App.Ct.
232] [6] [7] [8] The characteristic
distinction between murder and manslaughter is malice. Commonwealth v. Webster, 5 Cush. 295, 304 (1850).
Malice may ordinarily be inferred from the intentional use of a deadly
weapon. Commonwealth v. Jones, ‑‑‑
Mass. ‑‑‑, ‑‑‑, (FNd)
323 N.E.2d 726 (1975); Commonwealth v. Boyd, ‑‑‑ Mass. ‑‑‑,
‑‑‑, (FNe) 326 N.E.2d 320 (1975);
Commonwealth v. York, 9 Metc. 93 (1845), established
that when the Commonwealth has proved intentional homicide beyond a reasonable
doubt, the burden is upon the defendant to show by a preponderance of the
evidence that the circumstances in which the killing occurred preclude malice,
unless the circumstances of palliation or mitigation appear from the
Commonwealth's evidence. See
Commonwealth v. Webster, supra, 5 Cush. at 305. Where testimony is adduced which shows such
circumstances, they jury may believe the testimony, and return a verdict of
manslaughter, or disbelieve the testimony, and return a verdict of murder based
on the inference of malice drawn from the intentional homicide. Commonwealth v. Leate,
352 Mass. 452, 457‑‑458, 225 N.E.2d 921 (1967); Commonwealth v.
Rollins, 354 Mass. 630, 635, 241 N.E.2d 809 (1968); Commonwealth v. Talbert,
357 Mass. 146, 148, 256 N.E.2d 748 (1970).
An
exception to this general principle has been recognized where the only evidence
which proves the intentional homicide itself shows it to have been without
malice. Perkins, Criminal Law, 50 (2d
ed. 1969). Warren, Homicide, s 187, pp.
191, 196‑‑197 (1938). See
People v. Mercer, 210 Cal.App.2d 153, 26 Cal.Rptr.
502 (1962); Jones v. State, 212 Ga. 195, 196, 198, 91 S.E.2d 514 (1956); Thomas
v. State, 86 Ga.App. 15, 70 S.E.2d 539 (1952); and
State v. Copenbarger, 52 Idaho 441, 451, 16 P.2d 383
(1932). See also People v. Jordan, 4
Ill.2d 155, 122 N.E.2d 209 (1954); State v. Whited,
360 Mo. 956, 960‑‑961, 231 S.W.2d 618 (1950); and State v. Rivers,
133 Mont. 129, 132‑‑133, 320 P.2d 1004 (1958). There has come to our attention no
prior Massachusetts case with has presented the question whether this limited
exception is part of our law. A majority
of the panel feel that the exception should be recognized, and that the present
case falls within it.
The
Commonwealth introduced no evidence from which [3 Mass.App.Ct. 233] the jury might have found that the defendant killed Mayes other
than the statement the defendant made at the police station. The circumstances of mitigation or palliation
were an integral part of the defendant's admission. There was, in the opinion of such majority,
no basis (such as inconsistency or implausibility) upon which the jury might
justifiably have accepted the portion of the transcribed statement which
admitted the stabbing but rejected the portion which described the factual
context in which it occurred. The
Commonwealth was not bound by the evidence of palliating circumstances it
introduced; but as it introduced nothing to contradict that evidence, and
nothing other than that evidence to show that the defendant intentionally
killed Mayes, it has not proven the existence of malice, but has only proven
the absence of malice.
[9] The
transcribed statement did not show self defense, in the legal sense. It did not show that the defendant had no
avenue of escape, or that he availed himself of all proper means to avoid
physical combat, or that he used no more force than was necessary to defend
himself. Commonwealth v. Kendrick, 351
Mass. 203, 211‑‑212, 218 N.E.2d 408 (1966). Rather, it showed a sudden combat in which
Mayes was initially the aggressor and in which the defendant's intention to
stab Mayes was formed in the heat of the sudden combat. Commonwealth v. Baker, 346 Mass. 107, 119,
190 N.E.2d 555 (1963). The Commonwealth,
in other words, proved a case of voluntary manslaughter. Commonwealth v. Webster, supra, 5 Cush. at 305; Commonwealth v. Young, 326 Mass. 597, 601, 96
N.E.2d 133 (1950); Commonwealth Baker, supra; Commonwealth v. Spear, ‑‑‑
Mass.App. ‑‑‑, ‑‑‑,
(FNf) 319 N.E.2d 455 (1974). It proved nothing more.
The jury's
verdict of guilty of murder in the second degree cannot be sustained as such,
but may stand as a verdict of guilty of manslaughter. Commonwealth v. Novicki,
324 Mass. 461, 467, 87 N.E.2d 1 (1949); Commonwealth v. Eaton, ‑‑‑
Mass.App. ‑‑‑, ‑‑‑
‑ ‑‑‑, (FNg) 309 N.E.2d 504
(1974).
The
judgment is vacated, and the defendant is to be resentenced
in the Superior Court, as upon a verdict of guilty of manslaughter.
So
ordered.
FN1. The record reveals nothing more of what these
persons told the police, and none of them, and none of the persons whom the
defendant claimed witnessed the stabbing, appeared at the trial in March,
1974. A police officer produced evidence
of the death of one of the eyewitnesses and stated that the police had searched
for others but had been unable to find them.
FN2.
The defendant took the stand in his own behalf, denied remembering
making the statement at the police station, and gave a story in conflict with
it. Its gist was that the defendant had
gotten the cut breaking up a knife fight between Mayes and two men whom Mayes
suspected of improper involvement with Mayes' wife, that Mayes was uninjured
when the defendant left to go home, that the defendant knew nothing more until
the police arrived at his door an hour or so later, and that his inability to
remember what took place at the police station was due to his shock at hearing
of Mayes' death or possibly to his having consumed (unbeknownst to him) a drug
dissolved in a friend's beer (which he drank in front of Mayes' house) or in
coffee given him at the police station.
FN3.
'Q I informed you you're under arrest and charged with murder, and
before we ask you any questions, you must understand your rights. A Yes.
Q I'm going to read from the Miranda warning card, and I want you to
answer after each right whether or not you understand it. Do you understand that? A Yes.
Q You have a right to remain silent.
Do you understand that? A
Yes. Q Anything you say can be used
against you in court. Do you understand
that? A Yes. Q You have the right to talk to a lawyer for
advice before we ask you any questions and to have him here with you during
questioning. Do you understand
that? A Yes. Q If you cannot afford a lawyer, one will be
appointed for you before any questioning is started, if you wish. Do you understand that? A Yes.
Q If you decide to answer questions now without a lawyer present, you
still have the right to stop answering questions at any time until you talk to
a lawyer. Do you understand that? A Yes.
Q Do you understand everything I have read to you from this card? A Yes.
Q Are you willing to talk to me about the case and the incident you're
now under arrest for? A Yes.' The warnings appear to have been taken from
the 'Miranda card' the text of which has been treated as adequate in numerous
cases, including Commonwealth v. Scott, 355 Mass. 471, 478‑‑479,
245 N.E.2d 415 (1969); Commonwealth v. D'Ambra, 357
Mass. 260, 264‑‑265, 258 N.E.2d 74 (1970); Commonwealth v. Preston,
359 Mass. 368, 372, and n. 2, 268 N.E.2d 922 (1971); and Commonwealth v. Roy, ‑‑‑
Mass.App. ‑‑‑, ‑‑‑
‑ ‑‑‑ (Mass.App.Ct.Adv.Sh.
(1974) 199, 201‑‑203), 307 N.E.2d 851 (1974).
FN4. Such circumstances are found in Commonwealth
v. Murray, 359 Mass. 541, 543‑‑546, 269 N.E.2d 641 (1971) and in
the several cases cited and described in Commonwealth v. Roy, ‑‑‑
Mass.App. ‑‑‑, ‑‑‑,
and n. 2 (Mass.App.Ct.Adv.Sh. (1974) 199, 203, and n.
2), 307 N.E.2d 851 (1974). They include
the defendant's youth, seriously limited mental ability, or mental illness;
undue duration of examination; coercive questioning; delay in permitting access
to parents, guardians, or others who might assist the defendant; continuation
of questioning after defendant has indicated he wishes to stop answering or to
contact a lawyer; or the defendant's being under the influence of drugs or
alcohol to such a degree as to impair his free will.
FNa. Mass.App.Ct.Adv.Sh. (1974) 199, 202‑‑204.
FNb. Mass.Adv.Sh. (1972) 1271.
FNc. Mass.Adv.Sh. (1975) 25, 34‑‑35.
FN5. Both parties consider the correctness of the
judge's ruling on the basis of the evidence as it stood at the close of the
Commonwealth's case, and all the judges on the panel consider it on that basis
also. Cf. Commonwealth v. Ferguson, ‑‑‑
Mass. ‑‑‑, ‑‑‑, n. 6 (Mass.Adv.Sh.
(1974) 389, 397, n. 6), 309 N.E.2d 182 (1974).
FNd. Mass.Adv.Sh. (1975), 365, 371.
FNe. Mass.Adv.Sh. (1975) 687, 707.
FNf. Mass.App.Ct.Adv.Sh. (1974) 2101, 2107.
FNg. Mass.App.Ct.Adv.Sh. (1974) 329, 333‑‑334.