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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. Judge, 420
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Murray A. Kohn,
Before [420
[420
The
defendant appeals from a conviction of murder in the first degree by reason of
deliberate premeditation, of extreme atrocity or cruelty, and of felony‑murder. He also was convicted of breaking and
entering while armed in the nighttime with intent to commit a felony, and of
armed robbery while masked. The
defendant claims that the trial judge improperly instructed the jury on the
third prong of the malice requirement for murder in the first degree and improperly
admitted his written confession in evidence.
The defendant also asks that we exercise our power under G.L. c. 278, §
33E (1992 ed.), and enter a lesser degree of guilt or order a new trial. We affirm the conviction for murder in the [420
I. Facts.
We set forth the facts in the light most favorable to the Commonwealth.
Commonwealth v. Nichypor, 419
The two
men entered the victim's unlocked house between 2 and 3 A.M., and found her
watching television. The defendant sat
with her, while MacKenzie ransacked the house in search of cash. The defendant meanwhile offered the victim a
drink. MacKenzie was only able to locate
$20. Frustrated, he reentered the living
room and knocked the victim to the floor where he kicked her repeatedly. MacKenzie then attempted to smother her with
a pillow. As the two men were leaving
the apartment, the victim moaned. The
defendant then stabbed the victim, who was still on the living room floor, two
times in the back with a kitchen knife.
The defendant next opened the victim's shirt and lifted her
undergarment, discussing with MacKenzie whether to rape her. The men decided against raping the victim for
fear of being identified by their sperm.
After
leaving the victim's home, the defendant removed his shirt, pants, gloves,
mask, and boots, and threw the clothing, along with the murder weapon, into a
nearby pond. The defendant then returned
to MacKenzie's house where he had left a change of clothing.
Later that
morning, the defendant spoke with Thomas McEwen, a longtime friend, and relayed
the series of events [420 Mass. 436] that had happened. The defendant explained to McEwen that,
although he knew he had injured the victim, he was not certain that he had
killed her.
The same
day, a "Meals on Wheels" volunteer arrived at the victim's house to
deliver lunch and found the victim on her living room floor. The woman then telephoned the police. A medical examiner pronounced the victim
dead. An autopsy revealed that the
victim had seventeen fractured ribs, two knife wounds (one of which punctured
her left lung), and broken vessels in her eyes (indicating suffocation).
The murder
was subsequently reported in the newspaper.
When McEwen read the report in the newspaper, he communicated with the
police. As a result, MacKenzie and the
defendant were arrested. At the station,
the defendant gave an oral confession without an attorney and then repeated the
confession in the presence of a stenographer and signed the written
statement. Both the oral and written
confessions, as well as the defendant's representations to McEwen, were
admitted at trial.
II. The instructions on the third prong of
malice. The defendant primarily
argues that the judge's instruction on the third prong of malice regarding
intoxication negated all other instructions on the effect of intoxication on
the defendant's ability to form the requisite intent. The defendant concludes that therefore he is
entitled to a new trial. We do not
agree.
Under Commonwealth v. Sama, 411 Mass. 293,
298, 582 N.E.2d 498 (1991) (reversing conviction of murder in the first degree
based on extreme atrocity or cruelty), decided after the defendant's 1987
trial, (FN2) the defendant asserts that the jury should have been
instructed that under the third prong of malice, "the Commonwealth had the
burden of demonstrating that the defendant knew that he was stabbing the victim
with a knife and that a reasonably prudent person, although not necessarily the
defendant, would recognize that such conduct[420 Mass. 437] carried with it the risk of death or serious
bodily injury."
Because
the third prong of malice can support only a conviction of murder in the first
degree that is based on the theory of extreme atrocity or cruelty, any error in
the instructions on the third prong of malice is irrelevant to conviction of
murder in the first degree on theories of felony‑murder and deliberate
premeditation.
[1][2]
III.
Instructions on malice aforethought. Under G.L. c. 265, § 1 (1992 ed.), murder in
the first degree is a murder committed (1) with deliberate premeditation, (2)
with extreme atrocity or cruelty, or (3) in the commission or attempted
commission of a crime punishable with imprisonment for life. It is well established that to convict a
defendant of murder in the first or second degree, a jury must find that the
defendant formed the mens rea of malice aforethought. Commonwealth v. Sires, 413
Mass. 292, 296, 596 N.E.2d 1018 (1992) ("The presence of malice is what
makes an unlawful killing murder").
Without malice, an unlawful killing can be no more than manslaughter. Id. ("There is no distinction between murder
in the first degree and murder in the second degree based on a difference in
the element of malice"). See Commonwealth v. Demboski, 283 Mass.
315, 322, 186 N.E. 589 (1933) ("manslaughter imports the taking of human
life by an act not justified in law, but without malice aforethought which is
necessary to constitute murder" [citations omitted] ). See also
Commonwealth v. Kane, 388 Mass. 128, 133‑134, 445 N.E.2d 598 (1983).
[3] The
definition of malice aforethought, as set forth in Commonwealth v. Grey, 399 Mass. 469, 470 n. 1, 505 N.E.2d 171
(1987), and its progeny, has three "prongs:" (1) specific intent to cause death; (2) specific intent to cause grievous bodily
harm; or (3) knowledge of a reasonably
prudent person that in the circumstances known to the defendant, the
defendant's act was very likely to cause death.
(FN3) See generally McMahon, [420 Mass. 438] Murder, Malice and Mental State:
A Review of Recent Precedent Recognizing Diminished Capacity, from Commonwealth v. Grey to Commonwealth v. Sama, 78 Mass.L.Rev. 40
(1993).
[4][5] A. Felony‑murder. "[T]he felony‑murder rule in the
Commonwealth imposes criminal liability for homicide on all participants in a
certain common criminal enterprise if a death occurred in the course of that
enterprise. Commonwealth v. Watkins, 375 Mass. 472,
486 [379 N.E.2d 1040] (1978)." Commonwealth v. Matchett, 386 Mass. 492,
502, 436 N.E.2d 400 (1982). The felony‑murder
rule substitutes the intent to commit a felony punishable by life imprisonment
and inherently dangerous to human life,
Commonwealth v. Moran, 387 Mass. 644, 651, 442 N.E.2d 399 (1982), for
malice aforethought. See Commonwealth v. Matchett, supra at 502,
436 N.E.2d 400 ("The effect of the felony‑murder rule is to
substitute the intent to commit the underlying felony for the malice
aforethought required for murder. Thus,
the rule is one of 'constructive malice' "). See also
Commonwealth v. Nichypor, supra at 213‑216, 643 N.E.2d 452, and
authorities cited.
The judge
instructed the jury that, "[i]n order to convict the defendant of murder
in the first degree under the felony murder rule, the Commonwealth must prove
each of
the following three elements
beyond a reasonable doubt: First, that
there was an unlawful killing. Second,
that the unlawful killing was committed in the course of a felony or attempted
felony punishable by life imprisonment.
And third, that [in] the circumstances of this case, the defendant
committed or attempted to commit the felony or felonies with conscious disregard
for human life." The defendant does
not challenge the instructions on the elements of felony‑murder. The felonies underlying the jury's verdict of
guilty of murder in the [420 Mass.
439] first degree by reason of
felony‑murder were (1) breaking and entering while armed in the nighttime
with intent to commit a felony and (2) armed robbery while masked.
[6] The
defendant seeks reversal of his conviction based on felony‑murder on the
ground that the trial judge's instruction regarding intoxication and the third
prong of malice negated all other instructions on intent, including the
instruction on mens rea under the felony‑murder rule. (FN4)
The trial judge instructed the jurors that "malice aforethought may
be inferred if, in the circumstances known to the defendant, a reasonably
prudent person would have known that there was a plain and strong likelihood
that death would follow the contemplated act"; and that "[i]n such a circumstance,
ingestion of drugs or alcohol would be irrelevant." The instruction that [420 Mass. 440]
"the ingestion of drugs or alcohol would be irrelevant" was
error. The defendant's assertion,
however, that the erroneous instruction on the third prong of malice tainted
the instruction on the requisite intent for felony‑murder is
untenable. The judge specifically instructed
the jury that the mens rea for the felonysubstitutes
for malice aforethought required for the other two theories of murder in the
first degree: "The intention to
commit some other requisite felony amounts to malice aforethought making the
crime murder. As I said before, in
felony murder, the intention to commit some other felony amounts to malice
aforethought making the crime murder."
Thus, logically, no flawed instruction on malice aforethought could have
tainted the jury's deliberations as to whether the defendant possessed the
requisite intent under the felony‑murder rule because the three prongs do
not relate to the intent requisite for a felony‑murder conviction. (FN5)
[7]
Finally, after reviewing the record as a whole, G.L. c. 278, § 33E, we note
that the evidence was more than ample to submit the case to the jury on the
charge of murder in the first degree by reason of felony‑murder. The defendant told McEwen and the police,
"We were going to break in and steal some money." He also said, "I think, I didn't go in
there to murder her though, I just went in there to get money." The defendant explained that he took a knife
from MacKenzie, which had been taken by MacKenzie from the kitchen, and that he
sat by as MacKenzie began suffocating the victim. The defendant said, "I think I must have
stabbed her." The defendant also
stated that after the stabbing, he found $20 in the victim's purse. The evidence thus was sufficient to submit
the case to the jury on a theory of felony‑murder, and we affirm the
conviction of murder in the first degree on that theory. Commonwealth v. Nichypor, supra
at [420 Mass. 441] 212, 643 N.E.2d 452, quoting Commonwealth v. Chipman, 418 Mass. 262,
270 n. 5, 635 N.E.2d 1204 (1994).
B. Deliberate premeditation. The defendant's challenge to his conviction
of murder in the first degree based on a theory of deliberate premeditation on
the ground that the instruction on the third prong of malice was flawed also is
misguided. "We have said that
where, as here, the jurors conclude that a defendant is guilty of murder in the
first degree by reason of deliberate premeditation, and the jury instructions
are correct on the first two aspects of malice (i.e., specific intent) and on
deliberate premeditation, error, if any, in the omission of the effect of
intoxication on the third aspect of malice is nonprejudicial.... There is no basis on this record for a
different result." (Citation
omitted.)
Commonwealth v. Wallace, 417 Mass. 126, 134‑135, 627 N.E.2d
935 (1994). See Commonwealth v. Vazquez, 419 Mass. 350, 355, 644 N.E.2d 978
(1995).
[8]
Deliberate premeditation requires specific intent‑‑that the
defendant act with the intent that his actions will cause death and that he
acted with sufficient time (even if fleeting (FN6)) to reflect on that
consequence. Commonwealth v. Podlaski, 377 Mass. 339,
345, 385 N.E.2d 1379 (1979) (to convict on theory of deliberate premeditation
jury must find "a conscious and fixed purpose to kill continuing for a
length of time"), quoting
Commonwealth v. Satterfield, 362 Mass. 78, 82, 284 N.E.2d 216 (1972). The third prong of malice, which by
definition permits an inference of malice under an objective (a reasonably
prudent person) standard based on the jury's determination of the defendant's
subjective awareness of the circumstances, does not satisfy the requirement of
specific intent for a conviction of [420
Mass. 442] murder in the first
degree on a theory of deliberate premeditation.
Because the instruction on the third prong of malice could not have
negated the instruction on the requisite specific intent for a theory of
deliberate premeditation, and because the instructions as a whole on deliberate
premeditation and the effect of intoxication on the ability to form specific intent
were not flawed, the conviction for murder in the first degree on the theory of
deliberate premeditation also is affirmed.
C. Extreme atrocity or cruelty. Extreme atrocity or cruelty is the only
theory of murder in the first degree to which the third prong of malice is
relevant. Unlike the theories of felony‑murder
and deliberate premeditation‑‑which respectively require the jury
to consider whether the defendant formed an intent to commit a felony or
whether the defendant formed an intent to kill and reflected on the consequence‑‑the
theory of extreme atrocity or cruelty does not have a requirement of specific
intent. Rather, the determination
whether an unlawful killing was perpetrated with extreme atrocity or cruelty
"focuses both on the defendant's actions, in terms of the manner and means
of inflicting death, and on the resulting effect on the victim, in terms of the
extent of physical injury and the degree of suffering endured."
Commonwealth v. Lacy, 371 Mass. 363, 367, 358 N.E.2d 419 (1976).
[9]
Extreme atrocity or cruelty requires the jury to consider the defendant's
actions and their effect on the victim, but does not require that the defendant
be aware of how shocking his actions were or how much suffering his conduct
caused the victim. See Commonwealth v. Lawrence, 404 Mass.
378, 393‑394, 536 N.E.2d 571 (1989); Commonwealth v. Sinnott, 399 Mass. 863,
879, 507 N.E.2d 699 (1987); Commonwealth v. Golston, 373 Mass. 249,
260, 366 N.E.2d 744 (1977), cert. denied, 434 U.S. 1039, 98 S.Ct. 777, 54
L.Ed.2d 788 (1978); Commonwealth v. Appleby, 358 Mass. 407,
415, 265 N.E.2d 485 (1970); Commonwealth v. Gilbert, 165 Mass. 45, 42
N.E. 336 (1895). (FN7)
[420 Mass. 443] A defendant may be convicted of murder in the first degree on a
theory of extreme atrocity or cruelty without the specific intent required by
felony‑murder or deliberate premeditation. Under the third prong of malice, the jurors
could infer malice if, despite the defendant's ingestion of drugs or alcohol,
in the circumstances known to the defendant, a reasonably prudent person would
have known that, according to common experience, there was a strong and plain
likelihood that death would follow the contemplated act. In determining whether the Commonwealth
proved beyond a reasonable doubt that the defendant acted with malice under the
third prong, the jurors must be instructed to consider the defendant's
ingestion of alcohol and drugs on his knowledge of the circumstances of the
crime. "[E]vidence of a defendant's
voluntary intoxication is a factor for the jury to consider whenever the
Commonwealth bears the burden of establishing the knowledge of the defendant
beyond a reasonable doubt." Commonwealth v. Sama, supra at 299, 582
N.E.2d 498.
Of course,
in order to convict the defendant of murder in the first degree based on
extreme atrocity or cruelty, the jurors also must conclude that the manner and
means of inflicting death and the victim's pain and suffering rose to a level
of extreme atrocity or cruelty. If the
jurors conclude that the Commonwealth proved malice aforethought, but failed to
prove that the defendant's actions and the victim's suffering rose to the level
of extreme atrocity or cruelty, then the jurors could return a verdict of no
more than murder in the second degree.
See Commonwealth v. Talbert,
357 Mass. 146, 148, 256 N.E.2d 748 (1970).
[10] In
sum, on the third prong of malice, in a case in which there is evidence of the
consumption of alcohol or some other drug sufficient, if believed, to create a
reasonable doubt concerning[420
Mass. 444] the defendant's ability to be aware of the
circumstances at the time he acted, the judge must instruct the jury to
consider the effect, if any, of the defendant's consumption of alcohol or some
other drug on his knowledge. See Commonwealth v. Delaney, 418 Mass. 658,
665, 639 N.E.2d 710 (1994).
[11] The
defendant's conviction for murder in the first degree based on felony‑murder
and deliberate premeditation is affirmed.
The error in the instruction on the third prong of malice that the
ingestion of alcohol and drugs was irrelevant does not affect the conviction on
those grounds. " 'Where a crime can
be committed in any one of several ways ... [t]hen the defendant should be convicted
if it is proved that he committed the crime in any of those ways.'
Commonwealth v. Chipman, 418 Mass. 262, 270 n. 5 [635 N.E.2d 1204]
(1994), quoting Commonwealth v. Dowe,
315 Mass. 217, 219‑220 [52 N.E.2d 406] (1943)." Commonwealth v. Nichypor, supra
at 212, 643 N.E.2d 452.
IV. Scope of cross‑examination at the
suppression hearing. At a pretrial
hearing on his motion to suppress his confessions, the defendant took the
stand. He argues that the right under
the Fifth Amendment to the United States Constitution not to incriminate himself
was violated when the trial judge, who was also the motion judge, permitted the
prosecutor to cross‑examine him as to whether incriminating statements
against him were in fact true. According
to the defendant, the judge should have limited cross‑examination to
questions directly related to the voluntariness of his confession. The defendant further asserts that he did not
waive his right against self‑incrimination by taking the stand at the
suppression hearing, suggesting that the Fifth Amendment right can only be
waived by taking the stand at trial.
Finally, the defendant argues that the judge's failure further to
restrict cross‑examination of him at the suppression hearing chilled his
right to testify at trial because it permitted the prosecutor to elicit
incriminating statements. There was no
error.
[12][13]
"[T]he scope of ... cross‑examination, including the extent of
impeachment of a witness for credibility and competency, are well within the
judge's sound discretion." Commonwealth[420 Mass. 445] v. Carrion, 407 Mass. 263, 273, 552
N.E.2d 558 (1990). See Commonwealth v. Daye, 411 Mass. 719,
735, 587 N.E.2d 194 (1992). This rule
applies to cross‑examination of criminal defendants who choose to testify
on their own behalf. A criminal
defendant has no right "to give evidence only which shall operate in his
own favor.... Like all other witnesses,
he is to tell the truth and the whole truth concerning any matter proper to be
inquired about." Commonwealth v. Mullen, 97 Mass. 545, 546
(1867). See Jones v. Commonwealth, 327 Mass. 491, 493, 99 N.E.2d 456 (1951)
("When a defendant in a criminal case voluntarily takes the stand he
waives his privilege against self incrimination to the extent that he renders
himself liable to cross‑examination on all facts relevant and material to
the crime with which he is charged"); Commonwealth v. Smith, 163 Mass. 411,
433, 40 N.E. 189 (1895) (if a criminal defendant "seeks the benefit of
testifying, he cannot stop short with matters which are favorable to himself,
but must submit to be questioned also as to relevant matters which are
adverse"). By taking the stand at
the suppression hearing the defendant waived his right against self‑incrimination. (FN8) Commonwealth v. Mullen, supra (when a
defendant "offers himself as a witness, he waives his constitutional
privilege of refusing to furnish evidence against himself, and may be
interrogated as a general witness in the cause").
[14] The
prosecutor's inquiries as to whether the defendant had confessed to the police that
he had been drinking, that he had been at the victim's home, that he had gone
to [420 Mass. 446] McEwen's home after the crime, and
that he had confessed to McEwen that he knew he had harmed the victim but that
he was unsure if the wounds were fatal, were all proper matters to test the
credibility of the testimony given by the defendant on direct examination at
the suppression hearing. (FN9) In addition, the defendant had adequate time
to consult with counsel before answering the objected‑to questions on
cross‑examination, because, after overruling defense counsel's objection,
the judge allowed a brief recess at defense counsel's request. Rather than refusing to answer certain
questions after consulting with counsel, after being so advised by the judge
and conferring with counsel, the defendant nevertheless proceeded. Finally, we note that the defendant has a
right to
testify but not a right to perjure himself before a jury.
Commonwealth v. Harris, 364 Mass. 236, 239, 303 N.E.2d 115
(1973). Thus the allowance of the
challenged questions could not have burdened the defendant's right to testify
at trial. (FN10)
V. Admissibility of written confession. The defendant did not object to the
admission of the written confession.
Nevertheless, on appeal he maintains that the judge improperly admitted
his confession as voluntary because he asserts he was under the influence of
alcohol and drugs at the time it was given.
The defendant further asserts that the written confession[420 Mass. 447] should not have been
admitted because it was given outside the presence of his attorney.
[15] In
determining whether the written statement should have been suppressed, "We
begin ... with the well‑settled proposition that the judge's findings of
fact are 'binding in the absence of clear error ... and [we] view with
particular respect the conclusions of law which are based on them.'
Commonwealth v. Correia, 381 Mass. 65, 76 [407 N.E.2d 1216]
(1980). While the judge's ultimate
findings of fact and rulings of law, as they bear on issues of constitutional
dimension, are open for reexamination by this court, such ultimate findings are
'entitled to substantial deference by this court.' Commonwealth v. Bookman,
386 Mass. 657, 661 n. 6 [436 N.E.2d 1228] (1982)." Commonwealth v. Bottari,
395 Mass. 777, 780, 482 N.E.2d 321 (1985).
[16] A. Intoxication and voluntariness of the
confession. The Commonwealth had
the burden of demonstrating beyond a reasonable doubt, Commonwealth v. Day, 387 Mass. 915, 921, 444 N.E.2d 384 (1983)
("as a matter of Massachusetts practice, the Commonwealth must prove a
knowing and intelligent waiver beyond a reasonable doubt"), that the
defendant's waiver was knowing, intelligent and voluntary. Miranda v. Arizona, 384
U.S. 436, 475, 86 S.Ct. 1602, 1628, 16 L.Ed.2d 694 (1966); Commonwealth v. Tavares,
385 Mass. 140, 143, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct.
2967, 73 L.Ed.2d 1356 (1982); Commonwealth v. Cobb, 374 Mass. 514, 518,
373 N.E.2d 1145 (1978). The defendant's
apparent strategy in taking the stand at the hearing on his motion to suppress
was to provide evidence that he was so intoxicated at the time of the
confession that he could not have knowingly, intelligently, and voluntarily
waived his rights.
[17] The
judge found that "[t]here was no indication that [the] defendant was under
the influence of alcohol or any other substance. He did not display any unsteadiness on his
feet and his speech was not slurred. The
defendant appeared alert and responsive to all questions." As to the defendant's claim that he was
overcome by alcohol and drug dependence, the judge found that "[w]hatever
[the] defendant's addiction might have been, the Court does not believe that he
was affected in any significant way by drugs, alcohol, or any other [420 Mass. 448] substance on June 12, 1986[, the day of his challenged
confession]." Furthermore, the
judge found that no physical coercion was used.
"At no time while [the] defendant was at the office was he yelled
at, threatened, or coerced by the police.
No officer struck him or touched him in an aggressive or assaultive
manner. There was nothing at any time
unusual about [the] defendant's behavior.
[The d]efendant was allowed to smoke, use the bathroom, and drink water
and coffee while he was at the office.
[The d]efendant at no time appeared to be incoherent or detached from
reality." The judge's findings
that the defendant was not intoxicated or coerced were supported not only by
the testimony of the police, but also by the defendant's testimony that he
signed the two Miranda waiver cards which were admitted in evidence and that he
was
able at the time of the statement to recall the murder in detail.
Commonwealth v. Bousquet, 407 Mass. 854, 861, 556 N.E.2d 37 (1990);
Commonwealth v. Parker, 402 Mass. 333, 522 N.E.2d 924 (1988).
[18][19][20]
B.
Right to an attorney. We
next consider whether the defendant actually invoked his right to counsel but
police failed scrupulously to honor the defendant's request. It is well‑established that, if an
individual in custody "states that he wants an attorney, the interrogation
must cease until an attorney is present.
At that time, the individual must have an opportunity to confer with the
attorney and to have him present during any subsequent questioning."
Miranda v. Arizona, supra at 474, 86 S.Ct. at 1628. Once the right to counsel is invoked, the
accused is not to be "subject to further interrogation by the authorities
until counsel has been made available to him, unless the accused himself
initiates further communication, exchanges, or conversations with the
police." Edwards v. Arizona, 451 U.S. 477, 484‑485,
101 S.Ct. 1880, 1885, 68 L.Ed.2d 378 (1981).
See Minnick v. Mississippi,
498 U.S. 146, 149, 111 S.Ct. 486, 488, 112 L.Ed.2d 489 (1990) (affirming
"bright‑line" Edwards
rule). "If the police do
subsequently initiate an encounter in the absence of counsel (assuming there
has been no break in custody), the suspect's statements are presumed
involuntary and therefore inadmissible as substantive evidence at trial, even
where the suspect executes a waiver [420
Mass. 449] and his statements would
be voluntary under traditional standards." McNeil v. Wisconsin, 501
U.S. 171, 177, 111 S.Ct. 2204, 2208, 115 L.Ed.2d 158 (1991).
The judge
made the following findings of fact regarding the discussion as to whether the
defendant wanted counsel: "At
Flaherty's request, [the] defendant agreed to make a statement on the record. Pamela Hamilton, a voice recorder, who had
been called and had been waiting in the office for about three hours, set up
her equipment in the conference room, at about 12:30 A.M., June 13, 1986. When Flaherty introduced the defendant to
Hamilton, the defendant asked permission to call Attorney DeCourcy, his
uncle. [Trooper] Moynihan then looked up
DeCourcy's residential telephone listing in the phone book. He called the listed phone number but
received no answer. Moynihan told [the]
defendant that he was unable to reach DeCourcy.
The call was placed from a telephone outside of the conference
room. There was no clear evidence that
[the] defendant actually observed Moynihan make the telephone call. [The d]efendant then reflected, 'I told
everything any way, right?' He then
decided that he wanted to continue to talk.
"Flaherty
then read [the] defendant his Miranda rights on the record. [The d]efendant said that he understood his
rights. When Flaherty next asked if he
wanted to talk, [the] defendant responded, 'Yeah. My lawyer should be here, right?' Flaherty said, 'Pardon me?' [The d]efendant then replied, 'My lawyer
should be here, though, shouldn't he?'
Flaherty then went off the record for approximately forty‑five
seconds.
"Flaherty
then told [the] defendant that if he wanted a lawyer he should call one, that
it was his prerogative. [The d]efendant
was told that if he couldn't afford a lawyer, one would be provided for
him. Again, [the] defendant decided that
since he had told everything, anyway, he would proceed with the recorded
interrogation. Back on the record, in
response to Flaherty's questions, [the] defendant reiterated his knowledge of
his rights to counsel and his willingness to proceed without counsel
present."
[420 Mass. 450] [21][22][23] The first issue is whether the defendant invoked his
right to counsel before making the recorded statement. "Invocation of the Miranda right to counsel 'requires, at a minimum, some statement
that can reasonably be construed to be an expression of a desire for the
assistance of an attorney.'... But if a
suspect makes a reference to an attorney that is ambiguous or equivocal in that
a reasonable officer in light of the circumstances would have understood only
that the suspect might be invoking
the right to counsel, our precedents do not require the cessation of
questioning." Davis v. United States, 512 U.S. 452, ‑‑‑‑,
114 S.Ct. 2350, 2355, 129 L.Ed.2d 362 (1994). (FN11)
Assuming that the defendant's initial request that his uncle be called
was sufficient to invoke his right to counsel, the issue is whether, after the
police went off the record, the defendant independently decided to confess on
the record or the police initiated the conversation with him which led him to
change his mind about exercising his right to counsel. Edwards v. Arizona, supra. Commonwealth v. Perez, 411 Mass. 249,
258, 581 N.E.2d 1010 (1991) ("once a defendant has asserted his right to
counsel, the police cannot question him further, unless the defendant initiates
the conversation, even if the defendant has been given an opportunity to
consult an attorney between invoking the right and the next
interrogation").
[24] The
Commonwealth had the burden of proving beyond a reasonable doubt that, if the
defendant did invoke his right to counsel, that he subsequently decided
independently to [420 Mass. 451] confess on the record without an
attorney.
Commonwealth v. Day, 387 Mass. 915, 920‑921, 444 N.E.2d 384
(1983). The conversation between the
officer and the defendant was off the record.
Further, the judge did not consider whether the police or the defendant
independently initiated the final decision to confess on the record without an
attorney present. See Edwards, supra at 484‑485, 101
S.Ct. at 1884‑85. "[W]e are
prepared to assume without deciding that the statements made by the defendant
during his interrogation by the police ... should not have been admitted in
evidence because they were obtained in violation of the rule in Edwards [and its progeny]. We are satisfied nonetheless that any error
in the admission of the statements has been shown to be harmless beyond a
reasonable doubt." Commonwealth v. Perez, supra at 259 &
n. 7, 581 N.E.2d 1010.
The
defendant confessed orally to the police after being fully informed of the
Miranda warnings and waiving those warnings.
Further, the defendant gave a full account of the murder to his friend,
McEwen, the morning after the murder.
Both of these oral statements were presented to the jury (in addition to
the written one) through the testimony of the police and McEwen,
respectively. Because the written
confession did not provide the jury with any incriminating evidence not
contained in the two oral confessions, the admission of the written confession
at trial was harmless beyond a reasonable doubt. Commonwealth v. Perez, supra
at 260, 581 N.E.2d 1010 (harmless error to admit questioned statements where
"two statements in question contain nothing of importance that was not
also contained in the defendant's first, properly admitted, statements from his
initial interrogation").
[25] VI. Prosecutorial summation. In describing the defendant's actions inside
the victim's home leading up to her death, the prosecutor asked the jury to
consider the victim's terror while MacKenzie ransacked her house and the
defendant sat at her side. The defendant
argues that this single sentence in the prosecutor's closing argument
constituted an improper appeal to the jury's emotions. The statement did not create prejudice
sufficient to impair the defendant's right to a fair trial.
[420 Mass. 452] Although prosecutors should not urge a guilty verdict on the
basis of sympathy for the victim,
Commonwealth v. Sanchez, 405 Mass. 369, 375, 540 N.E.2d 1316 (1989), the
prosecutor's closing argument was "based on what the jury saw and
heard," id. at 376, 540 N.E.2d
1316, quoting Commonwealth v. Kozec, 399 Mass. 514, 521, 505 N.E.2d 519
(1987), of the victim's violent death.
The single reference by the prosecutor to "terrorizing" the
victim was not so inflammatory or prejudicial as to require a new trial.
"[O]n
the facts of given cases, close questions arise whether the prosecutor has gone
over the line between fair and improper argument. In such cases, we must and do recognize that
closing argument is identified as argument, the jury understands that, instructions
from the judge inform the jury that closing argument is not evidence, and
instructions may mitigate any prejudice in the final argument."
Kozec, supra at 517, 505 N.E.2d 519. The jurors were so instructed as to
arguments. The prosecutor's argument in
this case cannot be said to have crossed the line dividing fair and
impermissibly prejudicial argument.
(FN12)
VII. Relief under G.L. c. 278, § 33E. The defendant seeks a new trial or entry of
a lesser degree of guilt pursuant to G.L. c. 278, § 33E. After reviewing the record as a whole, we
conclude that the interests of justice do not require a new trial or entry of a
lesser degree of guilt.
Judgments affirmed.
(FN1.) James MacKenzie was tried separately
and was convicted of murder on theories of felony‑murder and murder with
extreme atrocity or cruelty and armed burglary with assault. See
Commonwealth v. MacKenzie, 413 Mass. 498, 499 n. 1, 597 N.E.2d 1037 (1992).
(FN2.)
On our analysis, we need not reach the issue whether Commonwealth v. Sama, 411 Mass. 293, 582 N.E.2d 498 (1991), is to
be applied prospectively to cases tried after the date of that decision or
whether it applies to cases pending on appeal.
(FN3.)
See Commonwealth v. Grey, 399 Mass.
469, 470 n. 1, 505 N.E.2d 171 (1987) ("Malice aforethought may be shown by
proof that the defendant, without justification or excuse, intended to kill the
victim or to do the victim grievous bodily harm. See
Commonwealth v. Puleio, 394 Mass. 101, 108 [474 N.E.2d 1078] [1985]. However, proof of such an intent is not
required because malice aforethought may be inferred if, in the circumstances
known to the defendant, a reasonably prudent person would have known that
according to common experience there was a plain and strong likelihood that
death would follow the contemplated act. Commonwealth v. Chance, 174 Mass. 245,
252 [54 N.E. 551] [1899]. See Commonwealth v. Starling, 382 Mass.
423, 428 [416 N.E.2d 929] [1981]; Commonwealth v. Swift, 382 Mass. 78, 83
[413 N.E.2d 717] [1980]").
(FN4.)
The defendant's trial strategy largely rested on a defense of
intoxication. The judge did not instruct
the jury as the defendant requested on the effect of intoxication on felony‑murder. Rather, he provided the following
instruction:
"You
may consider evidence of the defendant's intoxication at the time of the crime
in determining whether the defendant had the requisite specific intent to
commit the underlying felony or felonies.
If the Commonwealth has proved beyond a reasonable doubt that the
defendant possessed the requisite specific intent for the underlying felony or
felonies, then the defendant's intoxication, if any, is not an excuse or
justification for his actions....
"Each
of the underlying felonies, that is, armed robbery and armed burglary, are
specific intent crimes. Therefore, you
may consider whether or not the defendant's state of intoxication at the time
of the commission of the crime was so severe as to render him incapable of
[having] the specific intent required for the commission of each crime.
"If
you find that he was so intoxicated, then you must find the defendant not
guilty of murder in the first degree under this principle or rule. If, however, you find that he was not so
intoxicated, then you must return a verdict of guilty of murder in the first
degree."
The
defendant does not dispute that this charge standing alone was correct. Rather, he argues that the instruction on the
effect of intoxication on the ability of the defendant to form malice
aforethought as defined by the third prong of Commonwealth v. Grey, supra, negated the otherwise correct
instructions as to the effect of intoxication on the defendant's ability to
form specific intent. For the reasons
discussed in the text, we do not agree.
(FN5.) The jury convicted the defendant of
both felonies with which he was charged.
The defendant makes no claim of error as to the felony convictions. Specifically, the defendant does not
challenge the instructions as to the mens rea of those felonies and, after
reviewing the instructions, we conclude there was no error in those
instructions. Those convictions are
affirmed.
(FN6.)
See Commonwealth v. McLaughlin, 352
Mass. 218, 230, 224 N.E.2d 444, cert. denied, 389 U.S. 916, 88 S.Ct. 250, 19
L.Ed.2d 268 (1967), quoting Commonwealth
v. Tucker, 189 Mass. 457, 494‑495, 76 N.E. 127 (1905) ("The word
'deliberately' in the expression 'deliberately premeditated malice
aforethought' has reference to the prior formation of a purpose to kill rather
than to any definite length of time.
'[I]n view of the quickness with which the mind may act, the law cannot
set any limit to the time. It may be a
matter of days, hours, or even seconds.
It is not so much a matter of time as of logical sequence. First the deliberation and premeditation,
then the resolution to kill, and lastly the killing in pursuance of the
resolution; and all this may occur in a
few seconds' ").
(FN7.) This fact‑dependent inquiry is
primarily a question for the jury. Commonwealth v. Connolly, 356 Mass. 617,
628, 255 N.E.2d 191, cert. denied, 400 U.S. 843, 91 S.Ct. 87, 93, 27 L.Ed.2d 79
(1970) ("in the final analysis, the issue must be left largely to the
deliberation of the jury ... [to] determine when the mode of inflicting death
is so shocking as to amount to extreme atrocity or cruelty"). See
Commonwealth v. Podlaski, 377 Mass. 339, 348‑349, 385 N.E.2d 1379
(1979);
Commonwealth v. Knowlton, 265 Mass. 382, 388‑389, 163 N.E. 251
(1928). Because "any destruction of
human life invariably includes some atrocity or cruelty, one cannot easily
separate degrees of cruelty or atrocity by precise legal rules."
Commonwealth v. Connolly, supra.
(FN8.) The defendant suggests that by taking
the stand at the suppression hearing, he did not waive his privilege against
self‑incrimination as he would have had he testified at trial. This is incorrect. The hearing on the motion to suppress was
part of the proceeding against him, based on the same facts as those considered
by the jury at trial. The timing of his
testimony did not affect his waiver. Luna v. Superior Court, 407 Mass. 747,
751, 555 N.E.2d 881 cert. denied, 498 U.S. 939, 111 S.Ct. 345, 112 L.Ed.2d 309
(1990) (waiver applies where testimony was given in continuation of same
proceeding, involving "the same charges and the same defendant");
Commonwealth v. Penta, 32 Mass.App.Ct. 36, 44‑46, 586
N.E.2d996 (1992) (testimony in pretrial hearings constituted waiver of right to
assert privilege against self‑incrimination at trial with regard to
questions seeking related facts).
(FN9.) We reject the defendant's contention
that by failing to limit the scope of cross‑examination, the judge
chilled the defendant's right to testify at trial. Assuming the defendant did not commit perjury
at the suppression hearing, the only way his testimony could discourage his
testifying at trial would be if he intended to change his account of events
before the jury. The defendant has no
right so to mislead the factfinder. See Commonwealth v. Mullen, 97 Mass. 545
(1867).
(FN10.) Under Massachusetts law a criminal
defendant who takes the stand "waives his privilege against self‑incrimination
as to all facts relevant to the crime charged and thus renders himself open to
cross‑examination on such facts ... [i]n federal courts, the privilege is
waived only as to matters reasonably related to the subject matter of direct
examination." P.J. Liacos,
Massachusetts Evidence 799 (1994).
However, because, as we noted, the prosecutor's questions did relate to
the defendant's testimony on direct examination, the constitutional
significance, if any, of the difference between Massachusetts and Federal
evidence practice need not be considered.
(FN11.) We note that the facts of this case
differ from those in Commonwealth v.
Todd, 408 Mass. 724, 726, 563 N.E.2d 211 (1990), for example, where we held
that the defendant had not invoked his right to counsel by "wonder[ing]
aloud about the advisability of having a lawyer" but failed to make an
affirmative request. The defendant in
this case did request that his uncle, a lawyer, be called. However, he then went on the record again,
suggesting he had decided to waive his right to counsel after all, see, e.g. Commonwealth v. Hussey (No. 1), 410
Mass. 664, 672, 574 N.E.2d 995 cert. denied, 502 U.S. 988, 112 S.Ct. 601, 116
L.Ed.2d 624 (1991) ("defendant did not invoke his previously waived
Miranda rights by making an affirmative request for an attorney ... after the
defendant attempted unsuccessfully in the presence of the police to reach his
attorney, the defendant pushed aside a telephone book that had been proffered
to him and, without police pressure, subtle or otherwise, said, 'I'm not going
to wait. All right. I'll tell you what happened' ").
(FN12.)
The defendant also seeks reversal on the ground that the trial judge's
instruction on leading questions impaired his right to cross‑examine
witnesses. Essentially, the judge
instructed the jurors that the facts suggested in leading questions which are
answered in the negative are not evidence.
See Commonwealth v. Repoza,
382 Mass. 119, 131, 414 N.E.2d 591 (1980),
S.C., 400 Mass. 516, 510 N.E.2d 755, cert. denied, 484 U.S. 935, 108 S.Ct.
311, 98 L.Ed.2d 270 (1987). The
instruction was correct. We therefore
reject the defendant's claim that the instruction created a substantial
likelihood of a miscarriage of justice.