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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. Medeiros, 395
Supreme Judicial Court of Massachusetts,
Argued
Decided
Raymond A. Letourneau,
Phillip L. Weiner, Asst. Dist. Atty. (Dana A. Curhan,
Asst. Dist. Atty., with him), for the Commonwealth.
Before [395
HENNESSEY, Chief Justice.
The
defendant, Gilbert A. Medeiros, is appealing his conviction by a jury in the
Superior Court for the murder in the second degree of William N. Lawrence. He contends that the trial judge erred
in: (1) failing to instruct the jury
properly on the lesser included offense of involuntary manslaughter; (2) denying the defendant's motion to suppress
statements made to the police; (3)
informing the jury, during his charge, that the Commonwealth does not have a
death penalty; and (4) admitting in
evidence a photograph of the victim taken at an autopsy conducted approximately
one month after his death. He also
claims that certain errors, although not objected to at trial, pose a
substantial risk of a miscarriage of justice and therefore warrant a new trial.
The facts
may be summarized as follows. William
Lawrence was found dead in his
The police
discovered that the beeper found in the victim's apartment had been stolen from
a
As a
result of the defendant's admissions, the victim's body was exhumed on January
23, 1980, and an autopsy was conducted by Dr. Keeley. The autopsy report stated that Lawrence
"died of blunt force injuries of the head and asphyxia secondary to
ligature strangulation." At trial,
Dr. Keeley admitted that none of the most common
alterations normally appearing in a person who died from ligature strangulation
was found. He [395 Mass. 340]
explained their absence as due to advanced decomposition. A pathologist who testified for the defense
stated that, after reviewing the autopsy report and facts presented, he could
not determine, with reasonable medical certainty, the date or cause of the
victim's death. The defendant did not
testify at trial. On December 15, 1980,
the jury returned verdicts against the defendant of larceny and murder in the
second degree. The defendant's motion
for a new trial was denied, and we transferred the case to this court on our
own motion.
1. Manslaughter Instructions.
The
defendant claims that the judge erred in failing to instruct the jury properly on involuntary manslaughter. In response to the defendant's request, such
an instruction was given. However, after
the charge, (FN2) the defendant's request for curative instructions was
denied. The Commonwealth argues that
involuntary manslaughter instructions were not warranted by the evidence and
therefore any deficiencies in the instruction could not prejudice the
defendant. We agree.
[1][2]
"Involuntary manslaughter is an unlawful homicide, unintentionally caused
(1) in the commission of an unlawful act, malum in
se, not amounting to a felony nor likely to endanger life, ... or (2) by an act
which constitutes such a disregard of probable[395 Mass. 341] harmful consequences to another as to
constitute wanton or reckless conduct." Commonwealth v. Campbell, 352 Mass. 387,
397, 226 N.E.2d 211 (1967), and cases cited.
It is well established that, "if any view of the evidence in a case
would permit a finding of manslaughter rather than murder, a manslaughter
charge should be given.... On the other
hand, a judge need not charge on a hypothesis not supported by evidence."
Commonwealth v. Walden, 380 Mass. 724, 726‑727, 405 N.E.2d 939
(1980).
The
Commonwealth argues that where death is caused by ligature strangulation,
"[o]n no view of the evidence could the jury rationally have found that
the death ... was caused unintentionally." Id. at 730, 405 N.E.2d
939. See Commonwealth v. Santo, 375 Mass. 299, 306, 376 N.E.2d 866
(1978). The defendant contends that the
jury could have disregarded Dr. Keeley's opinion as
to the cause of Lawrence's death and inferred from other medical testimony that
he died as the result of the defendant's blows, either alone or as the catalyst
of an epileptic seizure. According to
the defendant, "that scenario ... would be involuntary manslaughter at
worst." We disagree. Even assuming that the defendant's
"hypothesis ... is entirely true,"
Campbell, supra 352 Mass. at 398, 226 N.E.2d 211, the evidence would
warrant an instruction on voluntary, not involuntary, manslaughter. According to the statements the defendant
gave the police, he struck Lawrence to ward off his sexual advances. He alleged that the victim made verbal
overtures to him and tried to pull the defendant towards him. In response, the defendant struck the
victim. Then, as the defendant attempted
to leave the apartment, Lawrence allegedly struck him in the face. At this point, the defendant knocked Lawrence
onto the bed, climbed on top of him and hit him twice more about the head until
he was unconscious.
[3][4]
"Voluntary manslaughter is a killing from a sudden transport of passion or
heat of blood upon a reasonable provocation and without malice or upon sudden
combat." Commonwealth v. Peters, 372 Mass. 319,
324, 361 N.E.2d 1277 (1977), quoting
Commonwealth v. Soaris, 275 Mass. 291, 299, 175
N.E. 491 (1931). Voluntary manslaughter
also encompasses deaths caused by the use of excessive force in self‑defense, Commonwealth v. Walden, 380 Mass. 724, 729, 405 N.E.2d 939 (1980).
Commonwealth v. Kendrick, 351 Mass. 203, [395 Mass. 342] 211‑212,
218 N.E.2d 408 (1966). To resolve all
inferences in the defendant's favor,
Campbell, supra 352 Mass. at 398, 226 N.E.2d 211, we will assume that the
victim's advances constituted reasonable provocation and that there was some
continuing threat to the defendant's well being. The same inferences, however, are
insufficient to warrant an involuntary manslaughter instruction. By his own admissions, the defendant
deliberately and repeatedly struck the victim, even while the victim was
subdued and lying on his back. "The
unlawful battery was quite 'likely to endanger life,' and hence could not be classified
[as] ... involuntary manslaughter.
Plainly the result of the [blows], i.e., physical injury to the
deceased, was intended as much as the [blows themselves]. Hence, it cannot be termed merely a
'disregard of probable harmful consequences.' " Commonwealth v. Hicks, 356
Mass. 442, 445, 252 N.E.2d 880 (1969).
Having concluded that the defendant was not entitled to an involuntary
manslaughter instruction, any deficiencies in the judge's charge on this issue
cannot be considered prejudicial. Cf. Commonwealth v. Puleio,
394 Mass. 101, 105‑107, 474 N.E.2d 1078 (1985) (failure to define
"malice" coupled with an erroneous but more favorable instruction on
first degree murder not prejudicial).
[5]
Although the defendant now argues that the instruction given on voluntary
manslaughter was also inadequate, no objection was taken at trial. Therefore, our review is limited to
determining whether the instruction was so flawed as to pose "a
substantial risk of a miscarriage of justice." Commonwealth v. Freeman,
352 Mass. 556, 564, 227 N.E.2d 3 (1967).
The instruction contains no such error.
(FN3)
2. Voluntariness of
Statements and Waiver of Right to Counsel.
The
defendant claims that the judge erred in denying his pretrial motion to
suppress the admissions he made to police.
He argues the following grounds for suppression: (1) the police violated the defendant's Miranda rights by failing to give a
fresh set of warnings before shifting interrogation from the theft of the
beeper to the victim's homicide; (2)
despite subsequent[395 Mass. 343] Miranda warnings the defendant's
statements were tainted by this illegality and therefore inadmissible; (3) the police used the results of an
allegedly erroneous polygraph examination to coerce the defendant into making
admissions; and (4) in light of these
circumstances and the defendant's subnormal intelligence, his waiver of his Miranda rights was ineffective and his
subsequent statements involuntary.
[6] After
three days of pretrial evidentiary hearings, the judge denied the defendant's
motion to suppress without making explicit findings. We recognize that the issue of waiver of the
right to counsel (the Miranda issue)
is separate and distinct from the issue of the voluntariness
of the defendant's statements. See Commonwealth v. Parham, 390 Mass. 833,
838, 460 N.E.2d 589 (1984); Commonwealth v. Williams, 388 Mass. 846,
851, 448 N.E.2d 1114 (1983); Commonwealth v. Tavares, 385 Mass. 140,
145, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct.
2967, 73 L.Ed.2d 1356 (1982).
Nevertheless, it is clear from the record, despite the absence of
specific findings, that the judge here considered and ruled upon both of these
constitutional issues in denying the defendant's motion. In these circumstances, such a denial implies
findings "that the defendant understood the Miranda warnings, that he knowingly and intelligently waived his
rights thereunder and elected to make the statements
in question to the police, and that the statements were made by him freely and
voluntarily." Commonwealth v. Garcia, 379 Mass. 422,
431, 399 N.E.2d 460 (1980). See Parham, supra 390 Mass. at 838, 460 N.E.2d 589 ("[J]udge's decision to admit the defendant's statements renders
the judge's conclusions as to voluntariness 'clearly
evident from the record' "). It is
also clear that, although the judge was dealing with two distinct issues, all
the evidence before him at the pretrial hearing had relevance to both. See
Williams, supra 388 Mass. at 856, 448 N.E.2d 1114 ("totality of relevant
circumstances" indicated both validity of waiver and voluntariness
of the defendant's statements).
[7] We
first consider whether the police were required to readvise
the defendant of his Miranda rights
before asking him any questions concerning Lawrence's death. The defendant was initially told that the
police were investigating the theft of the beeper and agreed to accompany them
to headquarters for [395 Mass. 344] questioning. There he was warned of his Miranda rights and indicated that he
understood those rights and was willing to speak with police. After denying that he had stolen the beeper,
the defendant was asked whether he knew the victim and admitted that he
did. One of the detectives then informed
the defendant that the beeper had been found in the victim's apartment and
suggested that the defendant was responsible for Lawrence's death. The defendant then admitted taking the beeper
and meeting with Lawrence on December 22, 1979, but denied ever fighting with
him or going to his apartment. It was
only after voluntarily submitting to a polygraph examination and receiving two
additional sets of Miranda warnings, that the defendant gave police his version
of the events of December 23, 1979.
Relying on
the authority of Michigan v. Mosley,
423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and Commonwealth v. Taylor, 374 Mass. 426,
374 N.E.2d 81 (1978), the defendant argues that, once the accused has received Miranda warnings prior to an
interrogation concerning one crime, he cannot be questioned about an unrelated
crime unless he is first given fresh warnings.
We leave aside for the time being whether the theft and homicide in this
case were "unrelated" crimes.
While the crimes occurred at different times and places, their
investigations were interrelated as a result of the discovery of the beeper in
Lawrence's apartment. In any event, the
cases relied on by the defendant are inapposite. Mosley and Taylor concern a defendant's right to
remain silent and thereby cut off police questioning. The rule established in Mosley, supra 423 U.S. at 106, 96 S.Ct.
at 327, is that police may resume questioning "only after the passage of a
significant period of time and the provision of a fresh set of warnings,"
and only when the second interrogation is restricted "to a crime that had
not been a subject of the earlier interrogation." See
Taylor, supra 374 Mass. at 433, 374 N.E.2d 81. Here, however, there is no allegation that
the defendant ever exercised his right to remain silent. Therefore,
Mosley is not controlling. See United States ex rel.
Henne v. Fike, 563 F.2d
809, 814 (7th Cir.1977), cert. denied, 434 U.S. 1072, 98 S.Ct.
1257, 55 L.Ed.2d 776 (1978) (Mosley
inapposite where defendant, who has not exercised right to remain silent, is
questioned about second crime).
[395 Mass. 345] The prevailing view of relevant authority is that Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), does not require police
to inform a suspect of the nature of the crime about which he is to be interrogated
and therefore does not entitle the defendant to new warnings if the questioning
turns to a different crime. See Carter v. Garrison, 656 F.2d 68 (4th
Cir.1981); Fike, supra;
Collins v. Brierly, 492 F.2d 735 (3d Cir.), cert.
denied, 419 U.S. 877, 95 S.Ct. 140, 42 L.Ed.2d 116
(1974);
United States v. Poole, 495 F.2d 115, 119 n. 5 (D.C.Cir.1974), cert.
denied, 422 U.S. 1048, 95 S.Ct. 2667, 45 L.Ed.2d 701
(1975);
United States v. Ferguson, 538 F.Supp.
1216 (E.D.Wis.1982). See also W.R. LaFave and J.H. Israel, Criminal
Procedure § 6.8, at 522‑523 (1984).
While we have not had occasion to consider this precise issue, we have declined "to impose an
additional [Miranda] requirement that
police officers must advise a defendant that he is charged with a crime or that
he is a suspect before a valid waiver may be obtained."
Commonwealth v. Amazeen, 375 Mass. 73, 78,
375 N.E.2d 693 (1978). Nor have we
required new warnings when, as a result of a defendant's inculpatory
responses to noncustodial interrogation, suspicion
becomes centered on the defendant and custodial interrogation begins.
Commonwealth v. Alicea, 376 Mass. 506, 513‑514,
381 N.E.2d 144 (1978). Although it would
"have been cleaner practice to inform the defendant explicitly" of
police suspicions at the outset, and prior to questioning him about Lawrence's
death "to give him his Miranda
rights again then and there," id.
at 514, we conclude that the police were not constitutionally required to do
so. This, however, does not end our
inquiry into the validity of the defendant's waiver of rights.
[8] To
determine whether the defendant's waiver was knowing, intelligent, and
voluntary we must examine the totality of the circumstances. "The suspect's ignorance of the exact
subject of the interrogation accordingly becomes one part of the court's
evaluation of the total circumstances." Carter, supra at 70. Collins, supra at 739. "[A]ny
evidence that the accused was threatened, tricked, or cajoled into a waiver
will, of course, show that the defendant did not voluntarily waive his
[rights]." Miranda, supra 384 U.S. at 476, 86 S.Ct. at 1629.
[395 Mass. 346] [9] The evidence suggests that the defendant was interrogated in
a professional, noncoercive manner.
Miranda warnings "were first given before the situation became
custodial, and may be understood as a step out of abundant caution to
counteract any coercive element inhering in an interview at a police
station." Alicea, supra
376 Mass. at 513, 381 N.E.2d 144. After
the questioning shifted to Lawrence's murder, two additional sets of warnings
were given and the defendant signed two separate waiver forms.
There is
no evidence of deliberate trickery or deceit on the part of the police. At the time of the defendant's interrogation
Lawrence's death was considered a suicide.
There were no witnesses to place the defendant at the scene. The detectives apparently sought to discover
evidence linking the beeper theft to the victim's death through interrogating
the defendant and confronted him with their "theory of the beeper"
with this end in mind. To preclude
police from pursuing their investigations by means of interrogation would
unjustifiably impede law enforcement efforts.
Moreover,
under these circumstances, the defendant was unlikely to have been misled into
making the admissions he seeks to suppress.
He knew that he had left the beeper in Lawrence's apartment, which helps
to explain why he was so upset when the police came to question him about the
beeper. We are not confronted with a
case in which the police surprised the accused by providing warnings with
regard to one offense and then shifting the interrogation to the subject of a
totally unrelated crime. Cf. United States v. McCrary, 643 F.2d 323,
329 (5th Cir.1981) (waiver may be invalid where defendant "had no reason
to suspect" he would be questioned about an entirely unrelated
offense). The situation here is
analogous to Carter v. Garrison, 656
F.2d 68 (4th Cir.1981). In that case the
defendant challenged the validity of a waiver given prior to being interrogated
about a break‑in. He sought to
suppress incriminating statements he made after the questioning shifted to a
homicide committed at the site of the break‑in. As in this case, the evidence which
implicated the defendant in the break‑in also linked him to the
homicide. In upholding the waiver, the
court examined the totality of the circumstances including [395 Mass. 347] the
defendant's subjective knowledge of the relation between the crimes; his right to stop answering questions once
the focus of the interrogation shifted;
and the lack of any evidence of force or threats by police. Id.
at 70. The same circumstances are
present in this case. However, the
defendant contends that the additional factor of his "subnormal
intelligence" is reason to find his waiver ineffective. We disagree.
At the
hearing the defense submitted a school record dating back to 1971, when the
defendant attended the Donaghy School for special
needs students, which indicated that while at the school the defendant read at
a primer level (i.e., below first grade) and tested at an IQ of 70. No expert psychiatric testimony was given,
either at the hearing or later at trial, to establish the defendant's mental
abilities as of 1980, when his interrogation took place. Although the evidence before the motion judge
on the issue of the defendant's intelligence was insubstantial, we assume it
entered into his evaluation of the totality of the circumstances.
Commonwealth v. Daniels, 366 Mass. 601, 606, 321 N.E.2d 822 (1975).
[10]
"A mentally deficient adult may make an effective waiver of his rights and
render a voluntary, knowing, and admissible confession."
Commonwealth v. Cameron, 385 Mass. 660, 665, 433 N.E.2d 878
(1982). After "scrutiniz[ing] the record with special care," id. at 664, 433 N.E.2d 878, we conclude
that the defendant's diminished mental capacity did not prevent him from
effectively waiving his rights. There
was no evidence that the defendant could not comprehend and understand his Miranda rights. He was not "suffering an active mental
disease or personality disturbance." Commonwealth v. White, 362 Mass. 193,
196, 285 N.E.2d 110 (1972). He lived
independently and had previous experience with the law. See
Commonwealth v. Davis, 380 Mass. 1, 4‑6, 401 N.E.2d 811 (1980)
(mentally deficient defendant with years of wordly
experience and prior contact with law effectively waived rights). Police officers advised the defendant of his
rights on three different occasions.
They slowly explained and paraphrased each right and asked the defendant
whether he understood its meaning. After
appearing to read two waiver forms, the defendant signed his name to them. When his statement was read to other
officers, the [395 Mass. 348] defendant interjected his corrections
and comments. Such evidence is
sufficient to show that police did not take advantage of his low intelligence
to either coerce or trick him into waiving his rights. See
Commonwealth v. Cameron, 385 Mass. 660, 665, 433 N.E.2d 878 (1982) (where
defendant with limited intelligence was read his rights in simplified language,
his confession was voluntarily given).
[11]
Finally, the defendant argues that the police used erroneous results of his
polygraph test to coerce his inculpatory
statements. He contends that the test
was inaccurate due to the inexperience of the examiner and the defendant's own
nervous condition. However, the only
proof of these accusations is the examiner's allegedly inconsistent
interpretations of two of the defendant's answers. Because neither of these answers was brought
to the defendant's attention, this information could not have been used to
induce his subsequent admissions.
The police
discussed four of the polygraph questions with the defendant which, according
to the examiner's conclusions, had been answered deceptively. All four questions concerned his association
with Lawrence prior to his death. (FN4) Based on the defendant's own admissions, his
answers to these questions were either untrue or deceptive.
[12] The
defendant is not appealing the use of polygraph evidence to prove his guilt at
trial.
Commonwealth v. Vitello, 376 Mass. 426,
450‑453, 381 N.E.2d 582 (1978).
Rather, he claims that police should be precluded from using allegedly deceptive polygraph results to coax a suspect
into making admissions. We do not view
this practice as coercive per se.
"Where the evidence shows that before he confessed the defendant
took a lie detector test, if it was taken willingly, neither the fact it was
given nor the fact that the defendant was told by the test giver it revealed in
his opinion that the defendant was not telling the truth, inherently
demonstrates coercion." People v. Brown, 119 Cal.App.3d 116,
127, 173 Cal.Rptr. 877 (1981), and cases cited. See Sotelo v. State, 264 Ind. 298, 303‑304, 342
N.E.2d 844 (1976) (where no flagrant misstatements to defendant of test
results, subsequent admissions, although
[395 Mass. 349] coaxed, were not
coerced). "To hold otherwise and to
hold that upon the completion of such a polygraph examination the police may
not inform the person who has taken the examination that it appears from the
polygraph that he has been deceptive would, as a practical matter, foreclose
the effective use of polygraph examinations by the police in the investigation
of crime." State v. Clifton, 271 Or. 177, 181, 531
P.2d 256 (1975). Decisions relied on by
the defendant, which hold that confessions obtained as a result of a polygraph
examination are inadmissible, are distinguishable by virtue of either the
existence of oppressive interrogation and testing conditions, People v. Leonard, 59 A.D.2d 1, 397
N.Y.S.2d 386 (N.Y.1977), United States ex
rel. Monks v. Warden, N.J. State Prison, 339 F.Supp. 30 (D.N.J.1972), or allegations of physical abuse,
bribes, or threats by police. Leonard, supra. People v. Sammons, 17 Ill.2d 316, 161
N.E.2d 322 (1959).
Upon
review of the totality of the circumstances surrounding the defendant's
admissions, we conclude that the evidence at the hearing fully supported the
judge's implied findings that the defendant's waiver of rights was effective
and his subsequent statements voluntarily given. Consequently, there was no error in the
judge's denial of the motion to suppress.
3. Judge's Charge on Death Penalty.
[13][14]
The defendant contends that it was reversible error for the judge to instruct
the jury that Massachusetts does not have a death penalty. (FN5)
"We have long held that the sentencing consequences[395 Mass. 350] of a verdict may not be
submitted to the jury because the jury's function is to reach a verdict based
solely on the evidence presented to them considered in the light of the judge's
charge to them concerning the applicable legal standards."
Commonwealth v. Smallwood, 379 Mass. 878, 882, 401 N.E.2d 802
(1980).
Commonwealth v. Ferreira, 373 Mass. 116, 124, 364 N.E.2d 1264
(1977). Not every violation of this
rule, however, warrants reversal of the jury's verdict. First of all, we consider it highly
significant that the jury returned a verdict of murder in the second
degree. This serves to invalidate any
argument that the judge's erroneous charge was a subtle encouragement, albeit
unintentional, for a jury verdict of murder in the first degree. There are other relevant considerations, also.
In Smallwood, supra 379 Mass.
at 883, 401 N.E.2d 802, we held that reversal was not required by the judge's
statement that, regardless of the verdict, the death penalty could not lawfully
be imposed in Massachusetts for the crime with which the defendant was
charged. We stressed that although his
instruction was "ill‑advised," the judge was seeking to
"clarify for the jury the status of the death penalty, particularly
because of extensive news reporting of recent legislative proposals. Thus the judge's instruction was an effort to
remove extraneous considerations by clarifying what the sentence would not
be."
Id. We can assume the judge
in this case was motivated by similar concerns.
Just six weeks prior to his charge, this court struck down the death
penalty as unconstitutionally cruel punishment, District Attorney for the Suffolk Dist. v. Watson, 381 Mass. 648,
411 N.E.2d 1274 (1980), a decision which received considerable attention.
Moreover,
as in Smallwood, supra 379 Mass. at
883, 401 N.E.2d 802, the "judge minimized any untoward influence that this
portion of the charge might have had on the jury" by delimiting the scope
of their deliberations. He explained to
the jury that "the disposition of a case on a guilty finding is of no
concern to you.... [T]raditionally under our system it is the judge who disposes [395 Mass. 351] of cases where there is a guilty finding and not the
jury." He also instructed the jury
that they are "the sole judges of the facts of the case, and while you
must take the law as I give it to you, I have no right to suggest the value or
the lack of value, the strengths or the weakness of any facts, or to call to
your attention any of the facts except to illustrate a point of law." In light of these mitigating factors, we
conclude that the judge's unfortunate reference to the death penalty does not
amount to error of reversible magnitude.
4. Photograph of the Deceased.
[15][16] A
photograph of the deceased, depicting the position and depth of the injuries to
his neck, was admitted during the testimony of Dr. Keeley. The defendant contends that the judge erred
in admitting this picture because it had no probative value and was highly
inflammatory. "The fact that
photographs may be inflammatory does not render them inadmissible if they
possess evidential value on a material matter.... The determination whether a photograph
possesses such value is within the discretion of the trial judge."
Commonwealth v. Stewart, 375 Mass. 380, 385, 377 N.E.2d 693 (1978). The defendant has conceded that the burden of
demonstrating an abuse of discretion is a heavy one. On appellate review "[t]he question is
not whether we ... should have made an opposite decision from that made by the
trial judge. To sustain ... [the claim]
it is necessary to decide that no conscientious judge, acting intelligently,
could honestly have taken the view expressed by him." Commonwealth v. Bys, 370
Mass. 350, 361, 348 N.E.2d 431 (1976), quoting Davis v. Boston Elevated Ry., 235 Mass.
482, 502, 126 N.E. 841 (1920).
[17] The
judge agreed to admit the photograph after viewing and rejecting several others
which he considered too inflammatory. He
also conducted a voir dire of the pathologist,
outside the presence of the jury, to determine whether the photograph would be
of assistance to the jury in understanding and evaluating his medical
testimony. See Commonwealth v. Chalifoux, 362 Mass.
811, 817, 291 N.E.2d 635 (1973) (photograph of victim admissible to corroborate
testimony); Commonwealth v. Woods, 339 Mass. 7, 10,
157 N.E.2d 646 (1959) (photograph of deceased child admissible to aid testimony
of pathologist).
[395 Mass. 352] The defendant argues that the photograph was not an accurate
depiction of the victim's injuries because it also revealed aspects of post‑mortem
decomposition. Relying on the authority
of Commonwealth v. Richmond, 371
Mass. 563, 358 N.E.2d 999 (1976), he claims that reversal is in order. In
Richmond, however, the challenged photograph illustrated gruesome injuries to
the victim's face, most of which were inflicted post‑mortem rather than
as a result of the alleged assault and rape by the defendant. In this case, the judge sought to minimize
any possible prejudicial effect by excluding photographs that unnecessarily
showed the results of post‑mortem decomposition and admitting that
photograph which best depicted the victim's fatal injuries. In addition, the judge minimized the effect
of the photograph in his limiting instruction to the jury. See
Commonwealth v. Boudreau, 362 Mass. 378, 379, 285 N.E.2d 915 (1972). Finally, and most importantly, the judge was
entitled to consider that the primary issue in the trial was the cause of the
victim's injuries and death. This factor
could properly be considered as weighing significantly toward admissibility of
the photographs. See Chalifoux, supra 362 Mass. at 817, 291
N.E.2d 635 (photographs of victim admissible to disprove defendant's
explanation of injuries); Commonwealth v. Boudreau, supra 362 Mass.
at 379, 285 N.E.2d 915 (photographs aided jury in understanding nature of fatal
injuries). For these reasons, we
conclude that no abuse of discretion has been shown in this case.
5. Other Alleged Errors.
[18] The
defendant has called our attention to a number of other purported errors, which
although not preserved by objections at trial, allegedly pose a substantial
likelihood of a miscarriage of justice.
(FN6) We are not persuaded by the
defendant's argument [395 Mass. 353] that factual inconsistencies in the testimony,
particularly regarding the victim's cause of death, warrant reversal of the
defendant's conviction. As we have
stated on numerous occasions, "[i]nconsistencies in testimony ... do not render it
insufficient. The issue of credibility
raised by such inconsistencies 'is a question for the jury to decide.' "
Commonwealth v. Clary, 388 Mass. 583, 589, 447 N.E.2d 1217 (1983),
quoting Commonwealth v. Fitzgerald,
376 Mass. 402, 411, 381 N.E.2d 123 (1978).
[19] The
only other issue deserving further comment is the defendant's contention that
the judge erroneously instructed the jury with regard to the Commonwealth's
burden of proving the voluntariness of the
defendant's admissions. In his charge
the judge stated in part "that anything that a defendant says has to be
voluntary, he has to know what he's doing and speak voluntarily.... [T]he police can't con a man into saying
something he doesn't want to say....
[T]he statement of anybody being questioned by the police must be an
intelligent and voluntary act."
Because Commonwealth v. Tavares,
385 Mass. 140, 152, 430 N.E.2d 1198 (1982), requires the Commonwealth to prove
beyond a reasonable doubt the voluntariness of a
defendant's admissions, the defendant argues that the instruction was fatally
flawed. However, in Commonwealth v. Paszko, 391 Mass. 164,
182, 461 N.E.2d 222 (1984), we held "that admissions introduced at trials
conducted prior to our decision in
Tavares are not subject to [this] 'humane practice.' " The trial in the instant case preceded Tavares. Consequently, there was no error in the
judge's charge. Furthermore, by
instructing the jury that they had to find the defendant's pretrial statements
were voluntary and not "conned," the judge avoided any
"substantial risk of a miscarriage of justice." Commonwealth v. Freeman, supra
352 Mass. at 564, 227 N.E.2d 3.
Judgment affirmed.
(FN1.) Specifically, the following questions,
which were answered in the negative, were brought to the defendant's
attention: (1) whether he had gone to Lawrence's
apartment? (2) whether he got into a
fight with Lawrence? (3) whether he lost
the beeper in Lawrence's car? (4)
whether he killed Lawrence?
(FN2.)
The judge instructed the jury in relevant part:
"An unlawful killing which falls short of murder because malice is
not proved is manslaughter. The two
types of manslaughter open for your consideration upon the evidence are
involuntary manslaughter and voluntary manslaughter.
"To
constitute reckless conduct as distinguished from negligence, grave danger to
another person must have been apparent, and the defendant must have chosen to
run the risk rather than alter his conduct as to avoid the acts which caused
harm. The basics must be wanton and
reckless misconduct, which is different in kind and in the material degree from
negligence or gross negligence.
"Manslaughter
may also be present if one kills another in the heat of blood, in sudden combat
or upon reasonable provocation. This is
called voluntary manslaughter. Reasonable
provocation is the kind of provocation that would inflame a reasonable and law
abiding man to the point where he would be capable of killing another. Words alone, no matter how abusive or
humiliating, cannot provide a reasonable provocation.
"Well,
we speak of the heat of blood and sudden combat or upon reasonable
provocation. You may consider all the
evidence that occurred and is presented to you as to what happened in the room
of Lawrence on this night."
(FN3.) See note 2, supra.
(FN4.) See note 1, supra.
(FN5.) The relevant section of the judge's
charge reads as follows: "So, we
have in Massachusetts two types of murder‑‑murder in the first
degree, murder in the second degree, and the other, unlawful homicide, is
called manslaughter. Now I'm going to
discuss now with you what makes those crimes different‑‑the one
from the other‑‑Murder 1, Murder 2 and manslaughter. In my discussion of them have this in
mind. We do not have in this
Commonwealth, as you may or may not know, any death penalty. Although at certain times you read that
Murder 1 cases‑‑first degree murder cases are called capital
offenses, they are not capital offenses because the capital offense is an
offense where the death penalty is exact.
We do not have that, but moreover than that, in cases of this kind such
as you have been hearing for the past several days, the disposition of a case
on a guilty finding is of no concern to you.
"That
may seem harsh to say‑‑it's of no concern to you‑‑but I
hasten to add that when I say that, I do not indicate in any way whether you
should or should not return a guilty or not guilty verdict; but traditionally under our system it is the judge who disposes
of cases where there is a guilty finding and not the jury. The only time the jury is even told about
penalties are in a type of case which is far removed from this particular
case."
(FN6.)
Although he seeks relief under G.L. c. 278, § 33E,
that law, as amended by St.1979, c. 346, § 2, limits our special review powers
to cases resulting in first degree murder convictions. In construing St.1979, c. 346, § 2, we have
held that review under § 33E remains available where the offense resulting in a
second degree murder conviction, upon an indictment in the first degree, was committed
before July 1, 1979. Commonwealth v. Davis, 380 Mass. 1, 16,
401 N.E.2d 811 (1980). However, in the
instant case the offense was committed on or about December 23, 1979. Therefore, as to those claims not properly
preserved below, we must determine whether "there is a substantial risk of
a miscarriage of justice" under the doctrine of Commonwealth v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967).