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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. MacKenzie, 413
Supreme Judicial Court of Massachusetts, Middlesex.
Argued
Decided
Bruce R. Taub,
Rosemary D. Mellor, Asst. Dist. Atty., for the Com.
Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and
O'CONNOR, JJ..
LIACOS, Chief Justice.
The
defendant, James G. MacKenzie, and James Judge, were each charged with the
murder in the first degree of Lois Wentworth, a sixty‑two year old
resident of Wayland who, at the time of her death, was the defendant's
neighbor. The two men were tried
separately. On appeal from his
convictions, (FN1) the defendant argues that:
(1) testimony pertaining to the confession of James Judge, who had
implicated the defendant in the crimes and who did not testify at trial, was
admitted in evidence improperly in contravention of the defendant's right under
the Sixth Amendment to the United States Constitution to confront the witnesses
against him; (2) the judge erred in
denying his motion for a required finding of not guilty of murder; (3) evidence arising [413 Mass. 500] from a
custodial interrogation of the defendant was introduced in evidence in
violation of his rights under Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); (4) the judge erred in admitting evidence
that was seized without a warrant from the home of the defendant's mother; (5) the prosecutor asked several improper questions
during his cross‑examination of the defendant; (6) the judge erred by failing to instruct
the jury on the lesser included offense of burglary when instructing the jury
on the charge of armed burglary with assault, and (7) the defendant received
ineffective assistance of counsel at trial.
We affirm.
We summarize the evidence presented at
trial. The defendant lived at
In the
middle of May, 1986, the defendant met McCall at the cottage to remove
Wentworth's belongings. In the course of
this undertaking, McCall told the defendant that he could keep anything he
could "make a buck on." The
defendant kept some silverware and other items.
The defendant also kept some prescription pills. He told McCall he planned to check a
Physician's Desk Reference to determine whether the prescriptions could make
him "high." At trial, McCall
testified that the defendant's eyes "lit up" when he discovered the
prescription bottles and that, after the defendant had returned home, the
defendant wondered if there were any more prescriptions "back over
there." McCall further testified
that, in the course of cleaning the cottage, the two [413 Mass. 501] men
packed three boxes with pots, pans, books, and old pictures and that they
brought these boxes to Wentworth in her home.
On June 5,
1986, Wentworth's body was discovered on her livingroom floor by her daily
"Meals On Wheels" delivery person.
Wentworth had been stabbed, beaten, and suffocated. (FN3)
Her house had been ransacked. A
television was blaring loudly in the livingroom. Empty prescription bottles were strewn across
a table. Many of the victim's belongings
were scattered about the house and the telephone cord had been pulled from the
wall. However, the three boxes from the
"little house" were left undisturbed in the livingroom.
Detective
Sandra O'Brien of the Wayland police department was among the officers assigned
to investigate Wentworth's murder. In
the course of interviewing the victim's neighbors, she interviewed the
defendant on June 9, 1986. The defendant
told Detective O'Brien that he had been to the victim's house a month earlier
and had helped McCall clean out the cottage.
The defendant further stated that he had been home in bed with an eye
injury on June 4 and June 5. (FN4) The
defendant concluded the interview by stating that he was "sorry that [he
couldn't] be of more assistance."
[413 Mass. 502] On June 12, 1986, Detective O'Brien asked the defendant if he
would be willing to go with her to the State police offices in Cambridge for
questioning. The defendant agreed and
they arrived at approximately 6:30 P.M., where he met with Trooper Joseph
Flaherty. Flaherty read the defendant
his Miranda rights, and the defendant signed a card indicating that he
understood his rights, that he was voluntarily waiving them, and that he wished
to speak with the police.
Trooper
Flaherty commenced his interview with the defendant in a conference room
that was adjacent to an open office area.
In response to Flaherty's questioning, the defendant stated that he had
been to Wentworth's house a month earlier to help McCall clean out the cottage,
and he reiterated that he had been home in bed with an eye injury on the night
of the murder. At some point during the
interview, Trooper Flaherty left the room to take a telephone call. On the basis of information he received
during this call, Trooper Flaherty arranged to have James Judge brought to the
station for questioning. (FN5)
Judge
arrived at the barracks at approximately 9:15 P.M., at which time Trooper
Flaherty escorted the defendant out of the conference room and through the
office area where Judge was standing.
Judge and the defendant, who knew each other, passed within a couple of
feet but did not acknowledge each other's presence. At trial, Flaherty testified that he
orchestrated this encounter so that, while the two men were being interviewed
in separate rooms, each would draw the inference that the other was providing
the police with information.
After
situating Judge and the defendant in separate rooms, Flaherty interviewed Judge
for approximately fifteen minutes. He
returned to the defendant and indicated that the police had information that
the defendant was involved in [413
Mass. 503] Wentworth's murder. (FN6)
The defendant denied any involvement.
Subsequently, Flaherty left the room and spoke with Judge again. He then returned to the defendant, and the
defendant again denied any involvement in the murder. Flaherty left the room a third time and spoke
to Judge for approximately one hour. During
this time, Judge confessed. Flaherty
again returned to the office where the defendant was seated and, after
reminding the defendant that he had been advised of his Miranda rights,
informed the defendant that Judge had "made a statement." Reading from his notes, Flaherty stated that
he knew that the defendant and Judge had broken into Wentworth's home to rob
her, that they had been wearing masks and gloves, that they had ransacked the
house looking for money the defendant believed to be located in the house, and
that the defendant had yelled and screamed at Wentworth. Flaherty further stated that he knew that the
two men had beaten Wentworth, that the defendant had attempted to suffocate her
with a pillow, and that the defendant had retrieved a large knife from the
kitchen, handed the knife to Judge, and that Judge stabbed Wentworth. As Flaherty confronted the defendant with
these details of Judge's confession, the defendant sat with a sullen look and
listened to what Flaherty was saying.
Eventually, Flaherty informed the defendant that Judge was "taking
the blame" for stabbing Wentworth.
At this point, the defendant looked up and said "Well, he should,
he's the one who did it." When
Flaherty asked the defendant if he wanted to explain what happened, the
defendant responded, "We never meant to hurt the woman." Trooper Flaherty then asked the defendant if
he had "done anything" to Wentworth, and the defendant responded,
"No." Finally, Flaherty asked
the defendant if he had done anything to stop Judge from hurting
Wentworth. The defendant responded that
he had not, that [413 Mass. 504] Judge was "acting crazy,"
and that Judge had threatened him with a knife.
At this point the defendant indicated that he wished to stop the
interview. Questioning ceased, and he
was placed under arrest.
Dr.
Vernard Adams, a medical examiner for the Commonwealth, testified as to the
nature of Wentworth's injuries. Dr.
Adams testified that he found numerous bruises on Wentworth's chest and
abdomen, on the sides and top of her head, and on the left side of her
back. Additionally, her ribs were fractured in
seventeen locations. According to Dr.
Adams, these injuries were consistent with Wentworth's having been beaten by
two men with great force. In addition,
Dr. Adams noted signs that Wentworth had been suffocated, and he observed a
knife wound on the left side of her back.
According to Dr. Adams, these wounds were consistent with Wentworth's
having been suffocated with a pillow while simultaneously being stabbed with a
"kitchen‑type" knife.
(FN7) Dr. Adams further testified
that the victim had sustained a laceration to her left forearm, a wound which
Dr. Adams characterized as a "defense wound." See note 3, supra. Finally, Dr. Adams
testified that, in his opinion, all Wentworth's injuries were inflicted while
she was alive and that she could have survived those injuries for several
minutes to "a couple of hours."
The
defendant testified as the sole defense witness. He testified that he was home in bed on June
4 as the result of an injury and that, at 2 or 3 A.M. on June 5, 1986, he was
awakened by James Judge, who was holding a knife. According to the defendant, Judge was crying
and kept repeating that "he never meant to hurt the woman." The defendant further testified that Judge
asked him for drugs and that, when the defendant[413 Mass. 505] responded that he did not have any drugs,
Judge threatened him with the knife and began "tearing up" the
defendant's room. According to the
defendant, this episode lasted approximately ten to fifteen minutes, after
which Judge left.
The defendant
further testified that he learned of Wentworth's murder the morning after his
encounter with Judge but that he did not inform the police of that encounter
because he "did not want to get involved." According to the defendant, he eventually
informed Trooper Flaherty of Judge's visit to his apartment after Flaherty
accused the defendant of participating in the murder. At this time, the defendant testified, he
told Trooper Flaherty that Judge had come to his apartment with a knife, had
threatened the defendant, and had said, "He [Judge] never meant to hurt
the woman." When asked to explain
Flaherty's testimony that the defendant had stated, "We never meant to
hurt the woman," the defendant testified that he had said "He,"
not "We," and that Flaherty must have misheard him.
1. Admissibility of Trooper Flaherty's
testimony. Trooper Flaherty
testified regarding his interview with the defendant. Trooper Flaherty's testimony included
references to the details of Judge's confession, including details implicating
the defendant. See Appendix. The judge allowed this testimony on the
theory that the defendant adopted Judge's confession by responding equivocally
when confronted with Judge's statements.
On appeal, the defendant raises several related challenges to Trooper
Flaherty's testimony. First, the
defendant argues that he did not adopt Judge's confession and that Flaherty's
testimony was therefore inadmissible hearsay.
The defendant further argues that the introduction of this hearsay
testimony violated his Sixth Amendment right to confront his accuser. Finally, the defendant argues that the error
requires that he be granted a new trial.
We address each of these issues in turn.
[1] To the
extent that the defendant argues that it was error in part to admit Trooper
Flaherty's testimony as to the entire statement of Judge on the ground that the
defendant's response[413 Mass. 506]
constituted an adoptive admission, we agree with the defendant that this
ruling was partially in error. "An
adoptive admission is 'a statement ... made in the hearing of another, in
regard to facts affecting his [or her] rights, and [that person's] reply,
wholly or partly admitting their truth.' " Commonwealth v. Reed, 397
Mass. 440, 442, 492 N.E.2d 80 (1986), quoting Commonwealth v. Kenney, 12 Met. 235, 237 (1847). Where a party is confronted with an
accusatory statement which, under the circumstances, a reasonable person would
challenge, and the party remains silent or responds equivocally, the accusation
and the reply may be admissible on the theory that the party's response amounts
to an admission of the truth of the accusation.
See, e.g., Commonwealth v. Jones,
400 Mass. 544, 547, 511 N.E.2d 17 (1987); Commonwealth v. Brown, 394 Mass. 510, 515‑516,
476 N.E.2d 580 (1985). See also P.J.
Liacos, Massachusetts Evidence 287‑289 (5th ed. 1981 &
Supp.1985). Evidence of this nature is
to be received with caution, especially in criminal cases, due to the fact that
the meaning of a defendant's response, or lack thereof, to an accusatory
statement is often ambiguous. See Commonwealth v. Brown, supra, at 515,
476 N.E.2d 580; Commonwealth v. Rembiszewski, 363 Mass.
311, 316, 293 N.E.2d 919 (1973); S.C., 391 Mass. 123 (1984);
Commonwealth v. Boris, 317 Mass. 309, 317, 58 N.E.2d 8 (1944). Indeed, we have previously expressed our
"general wariness of adoptive admissions." Commonwealth v. Rembiszewski,
supra at 316, 293 N.E.2d 919.
In the
present case, we are faced with the question whether the defendant responded to
Trooper Flaherty's accusatory statements in such a manner as to adopt all the
details of the confession of James Judge.
Having reviewed the relevant testimony, we think it clear that the
defendant did not adopt all those details.
The defendant's statement, "We never meant to hurt the woman,"
may be viewed as a response adopting the essence of Judge's accusations namely,
that the defendant was present and participated in the commission of this
homicide. It is true, however, that this
statement must be viewed in context with the defendant's further statements
that he himself had not done anything to Wentworth and that he had not stopped
Judge, because [413 Mass. 507] Judge was "acting crazy"
and had threatened him with a knife. See Commonwealth v. Cunningham, 405 Mass.
646, 652, 543 N.E.2d 12 (1989). Viewing
the defendant's response in this context, we think it clear that the defendant
did not adopt Judge's entire account of what transpired at Wentworth's home. (FN8)
[2][3]
Although we agree with the defendant that Trooper Flaherty's testimony as to
Judge's statement was not admissible as an adoptive admission of all that
statement, this does not require the further conclusion that Trooper Flaherty's
testimony was wholly inadmissible.
During his interview with Flaherty, the defendant made several
statements that were directly admissible against him as admissions, rather than
as adoptive admissions. Commonwealth v. Walden, 380 Mass. 724,
731‑732, 405 N.E.2d 939 (1980); Commonwealth v. Bonomi, 335 Mass. 327,
347, 140 N.E.2d 140 (1957). Thus, the
testimony that the defendant had stated, "We never meant to hurt the
woman," that he had stated that Judge properly had taken the blame for stabbing
Wentworth because "he's the one who did it," and the testimony regarding
the defendant's other affirmative statements [413 Mass. 508] was
admissible on the ground that those statements constituted admissions by the
defendant which, when coupled with other evidence, tended to establish guilt.
Commonwealth v. Walden, supra.
Further, the Commonwealth was entitled to place the defendant's
admissions in context by introducing testimony as to what prompted the
defendant's statements. See United States v. Rollins, 862 F.2d
1282, 1296 (7th Cir.1988), cert. denied sub nom. Slaughter v. United States,
490 U.S. 1074, 109 S.Ct. 2084, 104 L.Ed.2d 648 (1989). Thus, only those aspects of Trooper
Flaherty's testimony that were attributable to James Judge, that implicated the
defendant in the crime, and that the defendant did not affirmatively adopt were
inadmissible. These statements were
hearsay which contravened the defendant's Sixth Amendment right to confront the
witnesses against him. Douglas v. Alabama, 380 U.S. 415, 85
S.Ct. 1074, 13 L.Ed.2d 934 (1964). Cf. Commonwealth v. Jones, 400 Mass. 544,
547, 511 N.E.2d 17 (1987) (no confrontation clause violation where accomplice's
statements admitted as adoptive admission); Commonwealth v. Brown, 394 Mass. 510,
515, 476 N.E.2d 580 (1985) (same).
Accordingly, in the face of a proper objection, the testimony relating
the details of Judge's confession should have been excluded.
We note,
however, that the defendant did not raise a proper objection toTrooper
Flaherty's testimony. The defendant's
sole objection to Flaherty'stestimony came during a voir dire conference which
was held before Flahertytook the stand.
(FN9) During the voir dire, the
Commonwealth made an offer ofproof as to how Flaherty would testify. The judge then asked defense counselfor his
views on the evidence, and defense counsel placed his objection "on the
record." Defense counsel went on
to concede, however, that, "in reading [theCommonwealth's] memorandum,
there seems to be some responsibility on the partof the defendant to answer in
an unequivocal manner." Having
virtuallyconceded the admissibility of the testimony, defense counsel further
stated, "I think a lot of my fire will have to go to the weight of this
evidenpons
We believe
that the improper aspects of Trooper Flaherty's testimony created no substantial
likelihood that justice was not carried out.
The properly admitted evidence against the defendant was overwhelming
that he was present at the scene of the murder.
The defendant's own statements to Trooper Flaherty that "[w]e never
meant to hurt the woman," and [413
Mass. 510] that he had not stopped
Judge from harming her because Judge was "acting crazy" were
themselves sufficient to place the defendant at the murder scene. Moreover, this evidence was buttressed by the
evidence that, although Wentworth's house was completely ransacked on the night
of the murder, the three boxes which the defendant had delivered to Wentworth's
house a month earlier were left undisturbed on the night of the murder. Similarly, the evidence that Wentworth's pill
containers, in which the defendant had previously expressed an interest, were
found strewn about in Wentworth's home, although not conclusive was additional
evidence that also pointed to the defendant's presence at the scene. In these circumstances, any hearsay aspect of
Flaherty's testimony which placed the defendant at the scene of the crime was
cumulative.
Similarly,
as to those aspects of Flaherty's testimony detailing the manner in which
Wentworth was killed, we note that much of this testimony was cumulative of the
testimony of the medical examiner, Dr. Adams.
Specifically, Dr. Adams's testimony that the victim had been beaten,
stabbed, and suffocated provided a basis on which the Commonwealth could prove
its case in a way independent of Trooper Flaherty's testimony. Accordingly, Trooper Flaherty's testimony in
this regard did not create a substantial likelihood of a miscarriage of
justice.
Finally,
as to those aspects of Trooper Flaherty's testimony implicating the defendant
as a participant in the murder‑‑such as the testimony that the
defendant had retrieved the knife, had beaten the victim, and had held a pillow
to her face‑‑we conclude that this testimony, although damaging,
does not require reversal. See Commonwealth v. Libran, 405 Mass. 634,
642‑644, 543 N.E.2d 5 (1989). Cf. Commonwealth v. Johnson, 412 Mass. 318,
324, 588 N.E.2d 684 (1992); Commonwealth v. Dias, supra. The defendant contends that this testimony
was the only evidence establishing his complicity in the murder and that, without
these inadmissible details of Judge's confession, the evidence would have been
sufficient only to establish that the defendant was present at the scene of the
crime and that he [413 Mass. 511] was agreeable to a burglary. This argument overlooks, however, that the
medical evidence introduced by the Commonwealth established that Wentworth's
fatal injuries were consistent with having been stabbed by one person while
being suffocated by another and that her numerous bruises and broken ribs were
consistent with having been beaten by two men.
When that evidence is considered in conjunction with the defendant's own
statement that "[w]e never meant
to hurt the woman" (emphasis supplied), Trooper Flaherty's testimony as to
which of the victim's injuries were directly attributable to the defendant
becomes unimportant. This is not a case
where the Commonwealth's "best evidence tended to prove 'that at least one
... but not necessarily both of them, robbed and killed [the victim].' "
Commonwealth v. Sinnott, 399 Mass. 863, 874‑875, 507 N.E.2d
699 (1987), quoting Commonwealth v.
Moran, 387 Mass. 644, 659, 442 N.E.2d 399 (1982). Rather, the admissible evidence tended to
prove that both men played a role in inflicting the fatal injuries. See
Commonwealth v. Sinnott, supra 399 Mass. at 873, 507 N.E.2d 699. Further, based on this evidence that both
men were involved, the jury could properly infer that the defendant possessed
the requisite intent necessary to convict him of participating in a joint
venture to commit murder with extreme atrocity or cruelty. See id. In these circumstances, the inadmissible
testimony as to which of the victim's injuries were inflicted by
the defendant was not crucial to the Commonwealth's case. See
Commonwealth v. Libran, supra 405 Mass. at 643‑644, 543 N.E.2d
5. Accordingly, we conclude that the
erroneous admission of this testimony did not create a substantial likelihood
of a miscarriage of justice. (FN12)
[413 Mass. 512] 2. The defendant's Miranda
claims. For the first time on
appeal, the defendant challenges as violative of his rights under Miranda v. Arizona, 384 U.S. 436, 86
S.Ct. 1602, 16 L.Ed.2d 694 (1966), Trooper Flaherty's testimony that: (1) the defendant failed to acknowledge James
Judge at the State police offices; (2)
the defendant remained silent as Flaherty confronted him with the details of
Judge's confession and (3) the defendant ultimately responded, "We never
meant to hurt the woman."
(FN13) The defendant's challenge
to this testimony is twofold. First,
relying on Rhode Island v. Innis, 446
U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and Commonwealth v. Brant, 380 Mass. 876, 406 N.E.2d 1021 (1980), the
defendant claims that Flaherty's actions in walking the defendant past James
Judge and then later confronting the defendant with Judge's confession were
improper because they reflected an "explicit strategy, undertaken for the
express purpose of evoking a confession."
Second, the defendant argues that admission of testimony that he had
remained silent during each of these encounters was improper.
[4] To the
extent that the defendant argues that his Miranda rights were violated because
Trooper Flaherty employed tactics intended to elicit a response, his reliance
on Innis and Brant is misplaced. Innis and Brant each involved a situation where a defendant had invoked his
right to remain silent and where the officers involved thereafter proceeded to
take actions which they reasonably should have known were likely to elicit a
response from the defendant. In each
case, the evidence thus obtained was held inadmissible because the defendant's
invocation of his Miranda rights was not "scrupulously honored" by
the officers. In the present case,
however, the evidence indicates that the defendant waived his Miranda rights
and indicated his willingness to talk with the police. [413 Mass. 513] He did not invoke his right to remain
silent until after the events of which he now complains. Therefore, it was not improper for the
officers to attempt, within proper bounds, (FN14) to elicit a confession from
the defendant. Thus, the defendant's
claim in this regard must fail.
[5][6] As
to the defendant's claim regarding the testimony that the defendant remained
silent during portions of his interview with Trooper Flaherty, we perceive no
Miranda violation. There is nothing in
the record to suggest that the defendant had invoked his right to remain silent
and thus the testimony cannot be construed as an impermissible comment on the
defendant's having invoked that right.
As to the evidence that the defendant lowered his head as he was
escorted past James Judge at the police barracks, we fail to see how this
testimony violated the defendant's rights.
Although we agree with the defendant that he had no duty to acknowledge
James
Judge, any conflicting inferences to be drawn from the defendant's
conduct were for the jury to resolve.
See Commonwealth v. Scanlon,
412 Mass. 664, 677, 592 N.E.2d 1279 (1992), and cases cited.
[7] 3. Evidence obtained without a warrant. Following the defendant's arrest, the
defendant's sister, Kim MacKenzie Todd, and her husband, Detective Charles Todd
of the Holliston police, retrieved five paper bags belonging to the defendant
from a room which the defendant had been using at his mother's Holliston
home. Kim and Charles Todd also
retrieved a pair of workboots belonging to the defendant from a shed that was
adjacent to his mother's house.
Subsequently, Charles Todd turned these items over to the Wayland
police. The Commonwealth introduced in
evidence the workboots and some cosmetics boxes, coins, and jewelry belonging
to Wentworth that were among the items contained in the paper bags. The defendant now claims that these items
were seized in violation of his rights under the Fourth [413 Mass. 514]
Amendment to the United States Constitution and thus were admitted improperly
at trial.
The
defendant did not move to suppress the contested evidence before trial. He did not argue at trial that the evidence
was obtained unlawfully. (FN15) Thus, the question of the legality of the
search, assuming a search occurred, (FN16) is not before this court on appeal
except as we review the issue under G.L. c. 278, § 33E. Commonwealth v. Shine, 398 Mass. 641, 652‑653,
500 N.E.2d 1299 (1986). Even if we were
to assume that an improper seizure occurred, there would be no reason to afford
the defendant relief under G.L. 278, § 33E.
There was no testimony at trial linking the defendant's boots to the
crime, nor was there any evidence to cast into doubt the defendant's own
testimony that he had taken the other items in question from Wentworth's
cottage a month prior to the murder.
Indeed, elsewhere in his brief, the defendant characterizes this very
evidence as "barely incriminating."
We agree with that characterization.
[8] 4. The prosecutor's remarks. The defendant contends that the prosecutor
asked him several improper questions during cross‑examination. The defendant did not object to any of the
questions, and thus our review is limited to whether the allegedly improper
questions created a substantial likelihood of a miscarriage of justice.
The first
question challenged by the defendant, in which he claims the prosecutor asked
the defendant to comment on [413
Mass. 515] the credibility of Trooper
Flaherty, (FN17) was clearly improper.
It is a fundamental principle that a witness cannot be asked to assess
the credibility of another witness. Commonwealth v. Elam, 412 Mass. 583, 586,
591 N.E.2d 186 (1992). We do not
believe, however, that the error created a substantial likelihood of a
miscarriage of justice. The nature of
the question was not such that the defendant's only option was to
characterize Trooper Flaherty's testimony as either truthful or false and, more
importantly, the defendant was able to respond without making such a
characterization. See id.;
Commonwealth v. Ward, 15 Mass.App.Ct. 400, 402, 446 N.E.2d 89
(1983). In view of the defendant's
response, we do not think it likely that the jury were led to believe that the
variation in the witnesses' testimony "could only be the result of lying
and not because of misrecollection, failure of recollection or other innocent
reason." Commonwealth v. Ward, supra, quoting United States v. Narciso, 446 F.Supp.
252, 321 (E.D.Mich.1977).
[9] The
defendant next challenges a series of questions posed by theprosecutor
pertaining to the defendant's failure to call alibi witnesses. Thesubstance of most of these questions was
whether the defendant's housemateswere available to testify and whether they
could corroborate the defendant'stestimony that he was home in bed on the night
of the murder. There was noerror. "Generally, a defendant's failure to
call witnesses to support his explanation of events is a 'fair matter for
comment ...' if there is somefoundation that witnesses other than the defendant
were available for thatpurpo19291
[10]
Finally, the defendant argues that the prosecutor improperly asked him to
explain what reason James Judge would have for implicating the defendant in the
murder. We doubt the question was
improper. Additionally, we fail to see
how the question was any more damaging to the defendant than the testimony of
Trooper Flaherty to which the question related.
We already have concluded that the inadmissible portions of Trooper
Flaherty's testimony did not create a substantial likelihood of a miscarriage
of justice, and we reach the same conclusion with regard to the question
challenged here.
[11] 5. The
absence of a jury instruction on the lesser included offense of burglary. The defendant argues that the trial judge
erred in failing to instruct the jury that they could convict the defendant of
the lesser included offense of burglary on the indictment charging him with
armed burglary with assault. The
defendant argues that the absence of such a charge, which was not requested at
trial, created a substantial likelihood of a miscarriage of justice because it
prevented the jury from considering returning a verdict of guilty of murder in
the second degree rather than felony‑murder in the first degree. See
Commonwealth v. White, 353 Mass. 409, 424‑425, 232 N.E.2d 335
(1967). The short answer to this
argument is that the defendant also was convicted of murder committed with
extreme cruelty or atrocity. Thus, the
error, if any, in [413 Mass. 517] the judge's charge on burglary or
felony‑murder was harmless. (FN18)
[12] 6.
Ineffective assistance of counsel.
The defendant argues that his trial counsel's failure to move to
suppress the evidence seized from the defendant's mother's home, to object to Trooper
Flaherty's testimony regarding the statement of James Judge, and to object to
testimony that the defendant remained silent at various times during his
interview with Trooper Flaherty deprived him of the effective assistance of
counsel. In reviewing such claims of
ineffective assistance of counsel, we have stated that our inquiry is
"whether there has been serious incompetency, inefficiency, or inattention
of counsel‑‑behavior of counsel falling measurably below that which
might be expected from an ordinary fallible lawyer‑‑and, if that is
found, then, typically, whether it has likely deprived the defendant of an
otherwise available, substantial ground of defence." Commonwealth v. Saferian,
366 Mass. 89, 96, 315 N.E.2d 878 (1974).
In a capital case, however, we review such claims pursuant to G.L. c.
278, § 33E, a standard of review that is even more favorable to the
defendant. Under that standard of
review, we do not focus on the adequacy of trial counsel's performance. Rather, we consider "whether there was
an error in the course of the trial (by defense counsel, the prosecutor, or the
judge) and, if there was, whether that error was likely to have influenced the
jury's conclusion." Commonwealth v. Wright, 411 Mass. 678,
682, 584 N.E.2d 621 (1992). In short,
under this broader standard of review, we review a defendant's claim even if
the alleged error on the part of trial counsel does not constitute conduct
falling "measurably below" that of "an ordinary fallible
lawyer."
Applying
this standard, we need not dwell long on the defendant's claims that his
counsel was ineffective. As we have [413 Mass. 518] already noted, the error, if any, resulting from trial counsel's
failure to move to suppress the evidence seized from the defendant's mother's
home, did not deprive the defendant of an otherwise available defense, as the
evidence in question was never linked to the crime. Similarly, although trial counsel's failure
to object to Trooper Flaherty's testimony resulted in otherwise inadmissible
evidence having been admitted in evidence, we conclude that, in light of the
fact that most of Trooper Flaherty's testimony was otherwise admissible, and in
light of the other admissible evidence linking the defendant to the murder, the
defendant's claims of ineffective assistance of counsel add nothing new to the
analysis we have already undertaken under G.L. c. 278, § 33E. See
Commonwealth v. Elam, 412 Mass. 583, 588, 591 N.E.2d 186 (1992).
7. Review under G.L. c. 278, § 33E. We have reviewed the case on the law and the
facts pursuant to our duty under G.L. c. 278, § 33E, and see no reason to
exercise our power to order a new trial or, as to the murder conviction, to
reduce the verdict.
Judgments affirmed.
APPENDIX.
Trooper
Flaherty testified in relevant part as follows:
THE
WITNESS: "I told him‑I said
that 'I know that you and James Judge broke into [the victim's] home, we know
you went in there to rob her, we know that you had masks and gloves on, we also
know that you ransacked the house looking for the money, that you were yelling
and screaming at her.' "
THE
PROSECUTOR: "Did you tell him any
particulars about what their motive was for going in there?"
THE
WITNESS: "Yes."
THE
PROSECUTOR: "What was that?"
THE
WITNESS: "That they believed that‑"
THE
PROSECUTOR: "Who is they?"
THE
WITNESS: "That [the defendant]
actually believed that there was two or three thousand dollars in cash in [the
victim's] home."
THE
PROSECUTOR: "Did you say that specifically
to [the defendant], that he was the one who had thought that she had that money
there?"
[413 Mass. 519] THE WITNESS:
"Yes."
THE
PROSECUTOR: "As you made these
statements to him, that he had broken in there and was wearing the mask and the
motive was the money, what was his demeanor at that time?"
APPENDIX.‑‑Continued
THE
WITNESS: "Very sullen. He just kind of sat back and looked, didn't
say anything. He just really kind of
listened to what I was saying."
THE
PROSECUTOR: "Were you going detail
by detail?"
THE
WITNESS: "Yes, sir."
THE
PROSECUTOR: "After telling him the
detail of the motivation for going in there, what was the next thing that you
told him Judge had said?"
THE
WITNESS: "I told him that Judge was
taking the blame for stabbing [the victim].
At that time [the defendant] looked up and said, 'Well, he should, he's
the one who did it.' "
THE
PROSECUTOR: "Prior to that did you
give [the defendant] any more details about what he had done in the
house?"
THE
WITNESS: "Yes."
THE
PROSECUTOR: "What was that?"
THE
WITNESS: "That [the defendant] had
taken a pillow and started suffocating [the victim], that he had come out of
the kitchen with a large knife, had given it to Mr. Judge, and that as [the
defendant] was suffocating the woman with the pillow, Mr. Judge had taken the
knife and plunged it into [the victim]."
THE
PROSECUTOR: "Did the statement
indicate whether [the victim] had been beaten prior to this?"
THE
WITNESS: "Yes."
THE
PROSECUTOR: "What was that?"
THE
WITNESS: "That in fact she was
beaten during this ordeal and that‑"
THE
PROSECUTOR: "In what manner?"
THE
WITNESS: "She had suffered nine
broken ribs."
THE
PROSECUTOR: "And by what was she
beaten? By a fist or with an instrument
or what?"
THE
WITNESS: "I believe it was
fists."
THE
PROSECUTOR: "After you told this to
[the defendant] and the part that Judge was taking the blame for the stabbing
part of it, what, if anything did he say?"
THE
WITNESS: "Again, he said that‑when
I told him that Mr. Judge was taking the blame for stabbing the woman, he said,
'Well, he should, he's the one who did it.'
And I said, 'Well do you want to tell me what happened?' And he said, 'We never meant to hurt the
woman.' "
THE
PROSECUTOR: "Did he do some
physical gesture after he said, 'He should take the blame, he did it,' and
before he told you 'We never meant to hurt the'‑"
THE
WITNESS: "Yes."
[413 Mass. 520] THE PROSECUTOR: "What
did he do?"
THE
WITNESS: "Put his head in his hands."
THE
PROSECUTOR: "Can you show us how
[the defendant] looked when he said that?
Or, when he did that, rather."
THE
WITNESS: "He was sitting in a
chair, and I was telling him what was going on, and he was going similar to
this (DEMONSTRATING), just listening to what I was saying. And when I said to him about Mr. Judge taking
the blame for stabbing her, he said, 'Well, he should, he's the one who did
it,' and then just kind of put his head in his hands again and said he never
meant to hurt the woman."
THE
PROSECUTOR: "What was the next
thing you said to him?"
THE
WITNESS: "I asked him if he had
done anything to [the victim], and he said, 'No.' I then asked him if he had done anything to
stop Mr. Judge from doing anything to [the victim], and he said, 'No, that Mr.
Judge was acting crazy and that he threatened me with a knife.' "
THE
PROSECUTOR: "Threatened whom with a
knife?"
THE
WITNESS: "Threatened [the
defendant] with a knife."
(FN1.) The defendant was convicted of murder
on theories of felony‑murder and murder with extreme cruelty or
atrocity. He was also convicted of armed
burglary with assault. The defendant was
acquitted on a charge of masked armed robbery.
The jury returned no findings as to whether the defendant was guilty of
murder in the first degree committed with deliberate premeditation.
The
Commonwealth's brief reports that Judge was convicted of murder in the first
degree.
(FN2.) The cottage was located approximately
fifty feet from Wentworth's home and was referred to at trial as the
"little house." Wentworth's
house was referred to as the "big house."
(FN3.) It appears from the record that
Wentworth's death was initially treated as a "sudden death" and that
her injuries were not evident. An
autopsy revealed that she had been stabbed once in the back, that she had
several broken ribs, and that she had been suffocated. Her left forearm was lacerated, a wound which
the medical examiner characterized as a "defense wound." The autopsy also revealed that Wentworth's
blood alcohol content was 0.34 per cent, a level which the examiner noted was
"extremely high." The
examiner testified that the cause of death was the combined effect of the
beating, stabbing, and suffocation. He
also testified that Wentworth may have lived from between a few minutes to
"a couple of hours" following the attack.
(FN4.)
The defendant indicated that he had sustained a cut near his left eye in a
fight a week earlier. According to the
defendant, he had been admitted to Leonard Morse Hospital on June 5, after the
cut became infected, and he remained hospitalized for three days. Detective O'Brien testified that she did not
verify whether the defendant was actually hospitalized because she "believed
him."
(FN5.) The caller was a Trooper Moynihan who
informed Flaherty that he had spoken with one Thomas McEwen and that McEwen had
implicated James Judge and the defendant in Wentworth's murder.
(FN6.) At this juncture, Flaherty was acting
on the basis of the information he had received during the telephone call from
Trooper Moynihan, see note 5, supra. Flaherty did not disclose this to the
defendant because he wanted the defendant to believe that the information had
been received from Judge.
(FN7.) Dr. Adams based his conclusion that Wentworth
had been suffocated on the presence of petechiae, or pinpoint hemorrhages of
the capillaries, in the membrane lining of the victim's eyelids and facial
skin. According to Dr. Adams, petechiae
are caused by high pressure in the capillaries which accompanies mechanical
asphyxia, or airway obstruction. The
absence of any signs of trauma on the victim's neck led Dr. Adams to conclude
that the mechanical asphyxia was due to suffocation rather than strangulation.
(FN8.) Similarly, we do not view the defendant's
silence during the course of Flaherty's accusation as amounting to an admission
by silence. Cf. Commonwealth v. Simpson, 370 Mass. 119, 123, 345 N.E.2d 899
(1976). Several factors counsel against
construing the defendant's silence as an admission. First, in the course of confronting the
defendant with the details of Judge's confession, Trooper Flaherty did not
pause after each substantive accusation and then await the defendant's
response. Rather, Flaherty read the
defendant a continuous series of accusations, and the defendant simply failed
to interrupt Flaherty as he spoke.
Second, the defendant previously had denied Flaherty's accusations,
including one detailed accusation, on at least two occasions. Thus, the defendant's silence simply may have
reflected his belief that he had already denied sufficiently Flaherty's
accusations. See Refrigeration Discount Corp. v.
Catino, 330 Mass. 230, 238, 112 N.E.2d 790 (1953); P.J. Liacos, supra at 288. Third, the
defendant's silence came during a custodial interrogation during which he had
been advised of his right to remain silent.
In such circumstances, a defendant's silence is "insolubly
ambiguous," Doyle v. Ohio, 426 U.S. 610, 617, 96
S.Ct. 2240, 2244, 49 L.Ed.2d 91 (1976), because it may reflect the defendant's
reluctance to make an affirmative statement that would later be used to his or
her detriment. See id.; United States v. Hale, 422 U.S. 171, 176‑177,
95 S.Ct. 2133, 2136, 45 L.Ed.2d 99 (1975); Commonwealth v. Rembiszewski, 363 Mass.
311, 316, 293 N.E.2d 919 (1973).
Finally, the adverse use of a defendant's silence following the issuance
of Miranda warnings raises serious constitutional questions, see Doyle v. Ohio, supra.
(FN9.) The voir dire was held on the second
day of trial; Trooper Flaherty testified
on the fourth day of trial.
FN10. Although we do not rely on it, we note
that, in the context of his claim that he was denied effective assistance of
counsel at trial, the defendant concedes that his trial counsel did not object
to Trooper Flaherty's testimony.
FN11. The United States Supreme Court has held
that a confrontation clause violation does not require reversal of a conviction
where the error is harmless beyond a reasonable doubt. See, e.g., Brown v. United States, 411 U.S. 223, 93
S.Ct. 1565, 36 L.Ed.2d 208 (1973); Schneble v. Florida, 405 U.S. 427, 432,
92 S.Ct. 1056, 1060, 31 L.Ed.2d 340 (1972).
In applying this standard, the Court has considered a number of factors,
including the importance of the evidence in the prosecution's case, whether the
improper testimony was cumulative of other evidence, the extent of cross‑examination
permitted, and whether the other evidence against the defendant was
overwhelming. See Delaware v. Van Arsdall,
475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). See also Commonwealth v. Sinnott, 399 Mass. 863,
872 n. 8, 507 N.E.2d 699 (1987). We are
guided by similar considerations. See
Commonwealth v. Dias, 405 Mass. 131, 137‑138, 539 N.E.2d 59
(1989).
(FN12.)
For essentially the same reasons, we conclude that the judge properly denied
the defendant's motion for a required finding of not guilty. As we have already determined, the evidence,
viewed in the light most favorable to the Commonwealth, see Commonwealth v. Walker, 401 Mass. 338, 339‑341, 516 N.E.2d
1143 (1987), was sufficient to implicate the defendant as a participant in the
beating of the victim and thus to warrant his conviction either on the theory
that he acted as a principal in the murder or that he acted as a joint
venturer. Additionally, the evidence
that the victim, a sixty‑two year old woman, was beaten repeatedly about
the head and chest, was stabbed in the back and in the forearm, was suffocated,
and was then left to die from her injuries, certainly warranted a finding that
the murder was committed with extreme atrocity or cruelty. Commonwealth v. Lacy, 371
Mass. 363, 368, 358 N.E.2d 419 (1976).
In light of this conclusion, we need not consider whether the evidence
was also sufficient to warrant the conviction of felony‑murder.
(FN13.) The defendant filed no motion to
suppress prior to trial, nor did he object to Flaherty's testimony at trial on
Miranda grounds.
(FN14.) The defendant did not argue below, nor
does he now contend, that his statements were coerced or otherwise made
involuntarily.
(FN15.) The defendant's sole objection was to
the relevancy of the boots. This
objection was sustained and the boots were initially excluded. Subsequently, after the defendant identified
the boots as his own, the Commonwealth was permitted to introduce the boots in
evidence.
(FN16.) It is not clear that Charles Todd was
acting in his capacity as a police officer at the time he retrieved the items
from his mother‑in‑law's house.
Todd testified that he removed the items after his wife directed him to
"[g]et them out of here."
Moreover, even if we were to assume that Todd was acting in his capacity
as a police officer, the record suggests that he had consent to enter the
premises. It is well established that
"a search conducted pursuant to a valid consent is constitutionally
permissible." Schneckloth v. Bustamonte, 412 U.S. 218,
222, 93 S.Ct. 2041, 2045, 36 L.Ed.2d 854 (1973).
(FN17.) The prosecutor cross‑examined
the defendant as follows:
THE
PROSECUTOR: "Isn't it a fact ...
that you were brought out of that conference room and walked through that State
Police Office at the same time Jimmy Judge was walked right past you, an arm's
length away, as you were moved to that new office and he was put where you had
been?"
THE
DEFENDANT: "No sir, that's not
true. I did not see Mr. Judge until we
were charged."
THE
PROSECUTOR: "Trooper Flaherty
fabricated that?"
THE
DEFENDANT: "I certainly did not see
Mr. Judge."
THE
PROSECUTOR: "Didn't you walk by him
with your head down?"
THE
DEFENDANT: "After the interview was
concluded and charges were brought against me."
(FN18.) Further, we note that, in the course
of instructing the jury on the elements or armed burglary with assault, the
judge did in fact instruct the jury regarding the lesser included offense of
burglary. The jury returned a guilty
verdict on the armed burglary indictment, thus suggesting that an instruction
on murder in the second degree would have been of little help to the defendant.