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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. Mello, 420
Supreme Judicial Court of Massachusetts,
Argued
Decided
Wendy Sibbison,
Elspeth B. Cypher,
Asst. Dist. Atty., for the Com.
Before [420
NOLAN, Justice.
The
defendant appeals from his convictions of murder in the first degree, murder in
the
second degree, and arson
(FN1) and from the denial of his motion for a new trial based on the alleged
ineffective assistance of defense counsel.
On appeal, the defendant challenges:
(1) the prosecutor's closing argument;
(2) the admission of the defendant's confessions; (3) the jury instructions on mens rea; (4) the judge's allegedly undignified remarks
and jokes; (5) the effectiveness of
defense counsel in failing to investigate the use of an expert, failing to
object, and failing to exercise peremptory challenges in the jury selection
process; and (6) the convictions of
arson and second degree murder as being duplicative. The defendant also asks us to exercise our
power under G.L. c. 278, § 33E (1992 Ed.), and reduce
the first degree murder conviction to second degree murder.
The
jury could have found the following facts.
On
Starcher's apartment had been a "partying" place
for a group of young people for some time.
The defendant frequented[420
Several
days before the fire, the police raided the defendant's home. As a result of the raid, the defendant, his
mother, and her boy friend were arrested on drug charges. The defendant told his girl friend that
"whoever ratted on him, his home getting raided, they're going to pay for
what they did."
On
July 18, 1987, the day before the fire, the defendant arrived at Starcher's apartment at 10 A.M., and stayed until 1 A.M.
the next morning. During that period of
time, the defendant consumed a case of beer, and between 6:30 and 8 P.M., the
defendant inhaled three and a one‑half bags of heroin. At 11:45 P.M., the defendant spoke with his
girl friend. According to his girl
friend, the defendant appeared to understand her and had no trouble walking,
but appeared "high."
At
approximately 1 A.M., the defendant left Starcher's
apartment and returned home. At 3:30
A.M., the defendant left his home, and met up with Arruda
and Tavares. (FN3) Arruda told the
defendant that Starcher had "ratted him
out," and he urged the defendant to do something about it. Arruda suggested
that they burn Starcher's house down.
Although
he lived only a short distance (FN4) from Starcher's
apartment building, the defendant returned home to retrieve his mother's
vehicle. The defendant admitted at trial
that he wanted the vehicle so that he could make a "quick
getaway." The defendant then
picked up Arruda and Tavares, and the [420 Mass. 379] three men drove around before finally parking on the corner near Starcher's building.
As
the defendant and Tavares waited at the corner, Arruda
left on foot and returned with a can of gasoline. Arruda grabbed a
glass bottle, and poured the gasoline into the container. The defendant then stuffed a cloth rag in the
bottle and lit the wick, and Arruda threw the molotov cocktail into the cement area under the wooden
porch of Starcher's apartment building. At trial, the defendant explained how the molotov cocktail had been thrown specifically into the
cement
area under the porch so that the
glass would break and the device would explode.
Once
the molotov cocktail hit the porch area, it exploded
and the porch caught fire. The
defendant's vehicle also caught fire, which the defendant attempted to stamp
out with his feet. As the fire continued
to burn, the three men jumped into the vehicle and drove away. Realizing that his sneakers were blackened,
the defendant drove to a nearby dumpster and threw the sneakers away. He then returned home and instructed his
companions, "You guys don't know me and I don't know you." Although many of the residents escaped, Starcher and another tenant in the building, Edward Walsh,
died in the fire.
[1]
1. Prosecutor's closing argument. The defendant first contends that the
prosecutor's closing argument was improper and inflammatory such that a new
trial is required. (FN5) Because
[420 Mass. 380] there was no
objection, the standard of review is whether the prosecutor's argument created
a substantial likelihood of a miscarriage of justice. See
Commonwealth v. Marquetty, 416 Mass. 445, 450,
622 N.E.2d 632 (1993); Commonwealth v. Kozec,
399 Mass. 514, 518 n. 8, 505 N.E.2d 519 (1987).
"We analyze the remarks in 'light of the entire argument, as well
as in light of the judge's instruction to the jury and the evidence at trial.'
"
Commonwealth v. Marquetty, supra, quoting Commonwealth v. Yesilciman,
406 Mass. 736, 746, 550 N.E.2d 378 (1990).
[2]
Although we agree that the prosecutor's statements urging the jury to do their
duty and render a guilty verdict went beyond the bounds of permissible
advocacy, Commonwealth v. Sanchez,
405 Mass. 369, 375, 540 N.E.2d 1316 (1989), we cannot say that in light of the
entire argument, the evidence at trial, and the instructions to the jury that
the statements created a substantial likelihood of a miscarriage of
justice. "The fact that the
defendant did not object, '[a]lthough not dispositive of the issue ... is some indication that the
tone [and] manner ... of the now challenged aspects of the prosecutor's
argument were not unfairly prejudicial.' Commonwealth v. Toro, 395 Mass. 354, 360,
480 N.E.2d 19 (1985)." Id.
Further, several of the prosecutor's challenged remarks were in response
to the defense counsel's closing argument which invited the jurors to sympathize
with the defendant and suggested that society is equally to blame for the
defendant's actions. (FN6)
Commonwealth v. Kozec, supra at 519 n. 9,
505 N.E.2d 519 (a prosecutor may properly
[420 Mass. 381] comment to the
extent necessary to correct an erroneous impression created by opposing
counsel). In addition, the prosecutor
did not urge the jury to disregard the intoxication evidence, rather, the
prosecutor properly argued that, although intoxication is to be considered, the
evidence in this case demonstrated that the defendant was not so intoxicated as to be incapable of
forming the requisite intent. Moreover,
the jury were instructed on the effects of voluntary intoxication on the
defendant's ability to form the requisite intent, and that they should decide
the case solely on the evidence before them.
Finally, because there was significant evidence as to the defendant's
guilt, we conclude that the prosecutorial error did not create a substantial
likelihood of a miscarriage of justice.
[3]
2. Admissions of two confessions without
a finding of voluntariness. Prior to trial, an evidentiary hearing was
held to determine whether the written confessions made by the defendant should
be suppressed. The defendant contended
in his motion to suppress that the confessions were not voluntary because he
was intoxicated at the time he made them.
After the hearing, the judge made an express finding denying the
defendant's motion, but he failed to make specific findings of fact. (FN7)
The defendant now contends that a new trial should be ordered because
the judge admitted the confessions without making a finding that they were
voluntary beyond a reasonable doubt.
[4]
In Commonwealth v. Fernette,
398 Mass. 658, 663, 500 N.E.2d 1290 (1986), we repeated the well‑established
standards for review of a trial judge's determination of voluntariness
(FN8) and then stated the following:
"If the judge finds that the defendant's statement[420 Mass. 382] is voluntary beyond a
reasonable doubt, 'that conclusion "must appear from the record with
unmistakable clarity." ' Commonwealth v. Tavares, [385 Mass. 140,
152, 430 N.E.2d 1198, cert. denied, 457 U.S. 1137, 102 S.Ct.
2967, 73 L.Ed.2d 1356 (1982) ], quoting
Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639,
643, 17 L.Ed.2d 593 (1967)." The Sims decision, involved a situation in
which a defendant properly raised the issue of the voluntariness
of his confession, conflicting testimony was received on the issue, and the
judge failed to rule on the matter at all, leaving the question solely to the
jury for their deliberation. Sims v. Georgia, supra at 541, 87 S.Ct. at 641. The
United States Supreme Court concluded that error had occurred, indicating that,
before a contested confession of a defendant is submitted to a jury, the judge
must make a preliminary ruling on the record that the confession is voluntary. Id.
at 544, 87 S.Ct. at 643. The Court then noted: "Here there has been absolutely no
ruling on that issue and it is therefore impossible to know whether the judge
thought the confession voluntary or if the jury considered it as such in its
determination of guilt." Id.
[5]
This is not the situation in this case.
The judge concluded, and expressly ruled on the record, that he had
found the defendant's confession voluntary, thereby rejecting the defendant's
claims that the confessions were involuntary because of intoxication. We do not accept the defendant's assertion
that the judge may not have reached the determination "beyond a reasonable
doubt." The judge submitted the
issue of voluntariness to the jury, as he was
required to do, under comprehensive instructions of law that indicated his
awareness of the proper standard of proof.
(FN9) It makes no sense to think
that the judge knew the standard which governed the jury's determination[420 Mass. 383] of voluntariness,
but may not have apprehended that the same standard applied to his decision on
the motion to suppress. We conclude that
the record is satisfactory on the point of the necessary preliminary ruling.
As
has been noted, see note 6, supra,
the judge has retired. Since his
ultimate conclusion that the defendant's confessions were voluntary is clearly
evident from the record, his denial of the defendant's motion implies his
resolution of factual and credibility issues in favor of the Commonwealth. See
Commonwealth v. Lanoue, 392 Mass. 583, 586 &
n. 2, 467 N.E.2d 159 (1984).
[6][7]
In reviewing the defendant's contention, we are mindful of the two questions
before us: (1) whether there has been a
knowing and intelligent waiver of the Miranda requirements; and (2) whether, in the totality of the
circumstances, the confessions given were the product of a free will, and not
the result of coercion or intimidation. Commonwealth v. Parham, 390 Mass. 833,
838, 460 N.E.2d 589 (1984). The
Commonwealth must demonstrate voluntariness beyond a
reasonable doubt, and evidence of this must affirmatively appear from the
record.
Id. Although intoxication
alone is insufficient to negate an otherwise voluntary act, special care is
taken to review the issue of voluntariness where the
defendant claims to have been under the influence of drugs or alcohol. Id.
Commonwealth v. Doucette, 391 Mass. 443, 448, 462 N.E.2d 1084 (1984).
[8]
We first consider whether there was a knowing and intelligent waiver of the
defendant's Miranda rights. See Commonwealth v. Parham, supra; Commonwealth
v. Brady, 380 Mass. 44, 52, 410 N.E.2d 695 (1980). Officer Gene Rodrigues
of the Fall River police department testified that the defendant spoke
coherently with the police, appeared sober, and explained in detail the
preparation and actual setting of the fire, all of which is indicative of the
fact that the defendant's mind was not overtaken by drugs or alcohol. See
Commonwealth v. Bousquet, 407 Mass. 854, 861, 556
N.E.2d 37 (1990); Commonwealth v. Lanoue,[420 Mass. 384] supra at 589, 467
N.E.2d 159. Rodrigues
also testified that the defendant had not complained of being ill during his
time at the station, nor did the defendant appear to have any difficulty
understanding any questions posed to him.
Furthermore, there was evidence that the defendant was advised of his
Miranda rights, signed a Miranda waiver form, stated that he understood his rights,
and agreed to talk to the police.
Although there was conflicting testimony as to whether the defendant had
been properly advised of his rights, the motion judge was entitled to credit
the testimony of the police officer over the testimony of the defendant. (FN10) Commonwealth v. Parham, supra at 839‑840,
460 N.E.2d 589 (trial judge free to disbelieve defendant's statements at
suppression hearing regarding the recital of Miranda warnings). The question was clearly one of credibility
for the finder of fact, and we will not substitute our judgment for that of the
trial judge. Commonwealth v. Bousquet,
supra at 861‑862, 556 N.E.2d 37.
(FN11) The judge did not err when
he concluded that the defendant knowingly and intelligently waived his Miranda
rights.
[9]
We next consider whether the defendant's confession itself was a free and
voluntary act, or whether, under the totality of relevant circumstances, the
confession was the product of physical or psychological coercion.
Commonwealth v. Parham, supra at 840, 460 N.E.2d 589. There was no evidence of physical coercion, as in Commonwealth v. Harris, 371 Mass. 462,
466‑467, 358 N.E.2d 982 (1976), and the record does not reveal the use of [420 Mass. 385] any excessive police pressure or unfair tactics. See
Commonwealth v. Silva, 388 Mass. 495, 503, 447 N.E.2d 646 (1983), and cases
cited. Although there was evidence that
the defendant had ingested beer and inhaled heroin the night before his arrest,
this alone does not compel the conclusion that the defendant's confession was
involuntary. Commonwealth v. Parham, supra at 840, 460
N.E.2d 589. Faced with the testimony of
the police officer that the defendant appeared sober and coherent, the lack of
any threats or unfair police tactics, and the fact that the defendant was
advised of his rights and agreed to talk to the police, the judge was warranted
in concluding that the defendant confessed voluntarily.
[10]
3.
Miranda warnings. The
defendant next contends that the trial judge erred in admitting the defendant's
second confession which he gave approximately six hours after the Miranda
warnings were administered. Because the
defendant did not raise the issue at trial or at the suppression hearing, we
consider whether there is a substantial likelihood that a miscarriage of
justice has occurred. Commonwealth v. Wright, 411 Mass. 678,
681, 584 N.E.2d 621 (1992).
The
defendant was advised of his Miranda rights at 4:55 P.M. He gave his first confession to the police
at approximately 5:30 P.M., at which time he claimed sole responsibility for
the crime. The defendant was then booked
and taken to the police garage in order to answer questions regarding the
vehicle he drove the night of the fire.
Unable to explain the erratic burn patterns that appeared on the
passenger side of the vehicle, the defendant admitted that he did not act
alone. At 10:45 P.M., the defendant
wrote a second confession implicating Tavares and Arruda
in the crime. (FN12)
"We
recognize that 'Miranda warnings,
once given, are not to be accorded unlimited efficacy or perpetuity,' " Commonwealth v. Cruz, 373 Mass. 676,
687, 369 N.E.2d 996 (1977), quoting [420
Mass. 386] United States v. Hopkins, 433 F.2d 1041, 1045 (5th Cir.1970),
cert. denied, 401 U.S. 1013, 91 S.Ct. 1252, 28
L.Ed.2d 550 (1971). However, "there
is no requirement that an accused be continually reminded of his rights once he
has intelligently waived them." Biddy v. Diamond, 516 F.2d 118, 122 (5th
Cir.1975), cert. denied, 425 U.S. 950, 96 S.Ct. 1724,
48 L.Ed.2d 194 (1976), quoting United
States v. Anthony, 474 F.2d 770, 773 (5th Cir.1973). "Generally, where there has been a
significant lapse of time between initial Miranda warnings and inculpatory statements, 'the ultimate question is: Did the defendant, with a full knowledge of
his legal rights, knowingly and intentionally relinquish them?' "
Commonwealth v. Cruz, supra at 687, 369 N.E.2d 996, quoting Miller v. United States, 396 F.2d 492,
496 (8th Cir.1968), cert. denied, 393 U.S. 1031, 89 S.Ct.
643, 21 L.Ed.2d 574 (1969).
We
conclude that, in light of all the circumstances, the lapse of time between the
initial warnings and the defendant's second confession was not so significant
that fresh Miranda warnings were required.
See Commonwealth v. Silva, supra
at 502, 447 N.E.2d 646 (time lapse of approximately three hours not
significant); Commonwealth v. Cruz, supra (time lapse
of approximately three and one‑half hours not significant). See also
Stumes v. Solem, 752
F.2d 317, 320 (8th Cir.), cert. denied, 471 U.S. 1067, 105 S.Ct.
2145, 85 L.Ed.2d 502 (1985) (six and one‑half hours between warnings and
waiver not too long); 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) (nine hours between warnings and waiver not too
long). Furthermore, at no point in the
proceedings did the defendant request an attorney or assert his right to
silence. See Commonwealth v. Harvey, 390 Mass. 203, 205‑206, 454 N.E.2d
105 (1983) (statement suppressed where defendant advised of rights, asserted
right to remain silent, and approximately eight hours later police elicited
statement without readvising him of his rights).
Finally, there is ample evidence in the record to warrant the inference
that the defendant fully understood his legal rights, and knowingly and
intentionally waived them. Commonwealth v. Cruz, supra at 688, 369
N.E.2d 996. Because we conclude that
there was no Miranda violation, we need not address the defendant's contention
that the [420 Mass. 387] judge was required sua sponte to address the issue
of fresh Miranda warnings.
4. Voluntary intoxication and deliberate
premeditation instruction. The
defendant next contends that the judge's charge on intoxication and deliberate
premeditation was erroneous because it impermissibly shifted the burden of
proof to the defendant. Because the
defendant failed to object at trial, we limit our review to whether any error
in the challenged instruction created a substantial likelihood of a miscarriage
of justice. Commonwealth v. Bousquet,
supra at 865 n. 6, 556 N.E.2d 37.
[11]
The defendant claims that the following portion of the charge was "a grave
misstatement of the law": "as
a general law, a person may be unconscious of what he is doing due to the
voluntary intoxication of either drugs or alcohol yet be held criminally
responsible for his conduct." We
disagree. In Commonwealth v. Delle Chiaie,
323 Mass. 615, 617‑618, 84 N.E.2d 7 (1949), we held that the instruction
"[o]ne may be perfectly unconscious of what he
is doing and yet be responsible for his conduct during drunkenness," was a
correct and accurate statement of the law.
We reaffirmed the use of such language in Commonwealth v. Lanoue, supra at 592 n.
6, 467 N.E.2d 159, where we recommended the voluntary intoxication instruction
from Delle Chiaie. See Commonwealth v. Freiberg, 405 Mass.
282, 303, 540 N.E.2d 1289, cert. denied, 493 U.S. 940, 110 S.Ct.
338, 107 L.Ed.2d 327 (1989) (exact language of Delle Chiaie
is not required for voluntary intoxication instruction).
[12][13]
The defendant next contends that the judge's instruction that the jury should
have to "find" that the defendant was intoxicated impermissibly
shifted the burden of proof to the defendant.
See Commonwealth v. Kelcourse, 404 Mass. 466, 469, 535 N.E.2d 1272
(1989). "Not every isolated use of
the words 'find' or 'found' creates a burden‑shifting presumption."
Commonwealth v. Gilchrist, 413 Mass. 216, 223, 597 N.E.2d 32
(1992). Although there was
"finding" language in the jury instruction, the charge as a whole
clearly established that the Commonwealth had the burden to prove that the
defendant had the specific intent to premeditate beyond a reasonable doubt. [420
Mass. 388] Commonwealth v. Kelcourse, supra.
The judge also properly instructed the jury that they could consider
evidence of the defendant's intoxication when deciding whether the Commonwealth
proved beyond a reasonable doubt that the defendant was capable of deliberately
premeditating. Moreover, other language
which the defendant contends shifted the burden of proof was equally mitigated
by the judge's repeated and proper instructions as to the Commonwealth's burden
of proof. Finally, we note the
similarity between the judge's charge in the present case and the voluntary intoxication
instruction approved of in Commonwealth
v. Bousquet, supra at 867 n. 7, 556 N.E.2d
37. (FN13)
[14]
The defendant next contends that the judge's instructions suggested to the jury
that the defendant's testimony was not worthy of belief. "[A]n isolated instruction that may
'imply denigration or disbelief of a defendant's testimony,' is best avoided
even though the implication may be counteracted when the charge is viewed as a
whole." United States v. Dwyer, 843 F.2d 60, 63
(1st Cir.1988), quoting Lannon v. Hogan, 719 F.2d 518, 524 (1st Cir.1983),
cert. denied, 465 U.S. 1105, 104 S.Ct. 1606, 80
L.Ed.2d 136 (1984). Although the
challenged instruction in isolation may have impermissibly warned the jury not to accept the defendant's
testimony, in the context of the entire charge, the instruction did not create
a substantial likelihood of a miscarriage of justice. The judge properly instructed the jury they
alone must decide the issue of credibility.
The judge also instructed the jury that they were to decide the issue of
intent by considering not only the defendant's expression of intent, but also
the circumstances surrounding the defendant's actions. Finally, the judge instructed the jury [420 Mass. 389] that he had not formed any opinions on the case, and that they
should not look to the court for guidance on how the case should be
decided. Because any implication that
the defendant's testimony was not worthy of belief was counteracted by the
charge as a whole, there was no substantial likelihood of a miscarriage of
justice.
[15]
5. Malice instruction. The defendant next contends that the judge's
malice instruction reduced the Commonwealth's burden of proof. Because there were no objections at trial, we
limit our review to whether there was a substantial likelihood of a miscarriage
of justice. Commonwealth v. Burke, 414 Mass. 252,
265, 607 N.E.2d 991 (1993).
We
begin by noting that the malice instruction challenged by the defendant closely
resembles the instruction we approved in
Commonwealth v. Ferreira, 417 Mass. 592, 597‑598 & n. 7, 632
N.E.2d 392 (1994). As in Ferreira, the judge did not suggest
that malice was to be presumed or implied, and stressed the Commonwealth's
burden of proof and the defendant's presumption of innocence. Id. In addition, the judge properly instructed
the jury on the first two prongs of malice.
As to
the third prong of malice, the jury were instructed:
"Malice may be
inferred on an occasion where a reasonable, prudent person in the circumstances
the defendant found himself would have known that, according to common
experience, there was a probability of causing grievous bodily harm and a plain
likelihood of death as a result of the act that the defendant performed."
The
defendant argues that the judge failed to properly instruct the jury on the
subjective and objective components of the third prong of malice, and failed to
instruct on the proper risk of harm needed for the third prong of malice. Although we agree that the malice instruction
was not error free, there was no substantial likelihood of a miscarriage of
justice.
[16]
When deliberating as to the third prong of malice, a jury must consider (1) the
nature and extent of the defendant's [420
Mass. 390] knowledge of the
circumstances at the time he acted (subjective component); and (2) whether, in the circumstances known
by the defendant, a reasonably prudent person would recognize that the
defendant's conduct would create a plain and strong likelihood of death
(objective component). Commonwealth v. Sama,
411 Mass. 293, 298, 582 N.E.2d 498 (1991).
In order to establish the third prong of malice the Commonwealth had the
burden of demonstrating that the defendant knew that he was setting fire to an
occupied apartment building, and that a reasonably prudent person, although not
necessarily the defendant, would recognize that such conduct carried with it
the risk of death. Id.
Despite
evidence of the defendant's intoxication, the evidence clearly showed that the
defendant knew that he set fire to an occupied six‑family apartment
building. (FN14) Further, in light of the circumstances known
to the defendant at the time the fire was set, a reasonable person would
conclude that the defendant's actions created a plain and strong likelihood of
death. The defendant and his companions
set fire to a six‑family apartment building. The explosive device had been thrown in the
front porch area of the building thereby blocking the primary means of
egress. Furthermore, the fire had been
set in the middle of the night while the occupants of the building were
sleeping. There was no evidence that would have
warranted, on the facts known to the defendant, a finding of a risk of harm
less than a strong likelihood of death.
See Commonwealth v. Sires, 413
Mass. 292, 303, 596 N.E.2d 1018 (1992).
[17]
The defendant next contends that the judge erred in foreclosing the jury from
considering evidence of intoxication on the third prong of malice. See
Commonwealth v. Sama, supra at 297, 582 N.E.2d
498. The judge properly [420 Mass. 391] instructed the jury on the first two prongs of malice. In addition, the judge properly instructed
the jury that they could consider evidence of intoxication in determining
whether the defendant acted with deliberate premeditation, and whether the
defendant possessed the requisite specific intent. "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."
Commonwealth v. Wallace, 417 Mass. 126, 134‑135, 627 N.E.2d
935 (1994). As the evidence of
intoxication was insufficient to negate a finding of deliberate premeditation,
any omission from the instruction on the third prong of malice did not create a
substantial likelihood of a miscarriage of justice. Commonwealth v. Costa, 414
Mass. 618, 628, 609 N.E.2d 465 (1993).
[18]
6. Conscious disregard instruction. The defendant was convicted of second degree
murder for the death of Edward Walsh.
The judge instructed the jury on felony‑murder with arson as the
underlying felony, and included an instruction on conscious disregard for the
risk to human life. The defendant argues
that the judge's instruction on conscious disregard impermissibly reduced the
Commonwealth's burden of proof.
"[I]n
order for [a] case to come within the felony‑murder rule, the underlying
felony ... must be inherently dangerous to human life or the crime actually
must have been committed with conscious disregard on the part of the defendant
for the risk to human life." Commonwealth v. Ortiz, 408 Mass. 463,
466, 560 N.E.2d 698 (1990), denial of habeas corpus aff'd,
19 F.3d 708 (1st Cir.1994), cert. denied, 513 U.S. 1085, 115 S.Ct. 739, 130 L.Ed.2d 641 (1995). The defendant was not entitled to an
instruction on conscious disregard because the underlying felony, arson, is
inherently dangerous to human life. Commonwealth v. Matchett,
386 Mass. 492, 505 n. 15, 436 N.E.2d 400 (1982). Because the judge's instruction was more
favorable to the defendant than the law required, there is no substantial
likelihood of a miscarriage[420
Mass. 392] of justice.
See Commonwealth v. Simmons,
417 Mass. 60, 69‑71, 627 N.E.2d 917 (1994).
[19]
7. Judge's remarks. The defendant next argues that he was denied
a fair trial because the judge's remarks created an atmosphere of levity that
diminished the seriousness of the trial.
(FN15) Because no objections were
lodged at trial, the appropriate standard of review is whether the judge's
comments created a substantial likelihood of a miscarriage of justice.
Although
many of the judge's comments were inappropriate for a first degree murder
trial, we do not think that the jury "became so intoxicated by the fun as
to fail in their duties." Commonwealth v. Stanton, 17 Mass.App.Ct. 1, 5, 455 N.E.2d 464 (1983). We further note that because the judge's
remarks were neither intemperate nor critical of the attorneys, there was no
danger that the judge exhibited to the jury a bias against the defendant. See
Commonwealth v. Sylvester, 388 Mass. 749, 750, 448 N.E.2d 1106 (1983)
(judge's critical and harassing comments to defense counsel in presence of the
jury deprived the defendant of a fair trial).
Furthermore, any prejudice that may have resulted from the judge's remarks
was cured by the judge's charge which stressed the importance and seriousness
of the trial. Although we discourage
gratuitous remarks by judges, we cannot conclude that in the present case [420 Mass. 393] the judge's behavior created a substantial likelihood of a
miscarriage of justice.
8. Ineffective assistance of counsel. The defendant alleges several errors on the
part of defense counsel which the defendant claims amounted to ineffective
assistance of counsel. Specifically, the
defendant argues that defense counsel erred in (1) failing to investigate the
use of an expert on the issue of intoxication and failing to investigate the
mental history of the defendant; (2)
failing to exercise peremptory challenges;
(3) failing to object to the prosecutor's closing argument, the
defective jury instructions, and the allegedly improper remarks by the
judge; and (4) failing to raise the
issue of the need for fresh Miranda warnings.
[20]
In reviewing 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).
(FN16) 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.
Commonwealth v. Plant, 417 Mass. 704, 715, 634 N.E.2d 896
(1994). Under that standard of review,
we need not focus on the adequacy of trial counsel's performance, but rather we
focus on "whether there was an error ... (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). See Commonwealth v. Marquetty,
416 Mass. 445, 452, 622 N.E.2d 632 (1993).
Because we have previously disposed of the claims of prejudice arising
from the prosecutor's closing argument, the judge's remarks, the jury
instructions, [420 Mass. 394] and the admission of the defendant's
confession, we need not repeat that analysis here. See
Commonwealth v. MacKenzie, 413 Mass. 498, 517‑518,
597 N.E.2d 1037 (1992).
[21]
a.
Failure to investigate the use of an expert. At the hearing on the motion for new trial,
Dr. Milton Burglass, a physician specializing in
addiction medicine and neuropsychiatry, testified on behalf of the
defendant. After reviewing the
defendant's trial testimony and postarrest
statements, as well as the defendant's medical, psychiatric, and psychological
records, Dr. Burglass concluded that the defendant
was incapable of acting with deliberate premeditation, malice, or conscious
disregard for the risk to human life.
Dr. Burglass based his conclusions on his
findings that the defendant's cognitive abilities were seriously impaired due
to chronic alcohol and drug abuse, alcohol and drug intoxication, organically
based brain dysfunction (attention deficit disorder), and multiple head
injuries.
Defense
counsel also testified at the motion hearing.
He testified that although he considered the use of an expert, he
decided against it for fear that an expert would not enhance the defense. The trial judge denied the defendant's motion
for a new trial.
The
defendant claims that defense counsel's failure to develop the intoxication issue
through expert testimony constituted ineffective assistance of
counsel. We are unpersuaded,
however, that counsel's decision not to introduce expert testimony on this
issue was likely to have influenced the jury's verdict. Commonwealth v. Plant, supra
at 716, 634 N.E.2d 896. First, defense
counsel's failure to call an expert witness did not deprive the defendant of a
substantial defense. Evidence of
voluntary intoxication is admissible to negate the elements of deliberate
premeditation and malice aforethought. Commonwealth v. Henson, 394 Mass. 584,
593‑594, 476 N.E.2d 947 (1985).
Defense counsel protected this line of argument by eliciting testimony
from the defendant regarding his state of intoxication, and by requesting a
jury instruction based on Henson.
[22]
Second, despite his ingestion of alcohol and heroin the night of the killing,
there was substantial evidence that the
[420 Mass. 395] defendant was
capable of possessing, and did, in fact, possess the requisite intent. The defendant was able to recall with
specific detail the events of the crime.
He appeared to have no trouble walking, and spoke coherently several
hours before the fire. The defendant's
testimony revealed that on the night of the fire he had the composure to
quietly slip out of his house, drive a car, and construct a molotov
cocktail. Moreover, the defendant had
the presence of mind to appreciate the need for a "quick get‑away,"
and to tell his friends after fleeing the scene, "You guys don't know me
and I don't know you." Finally,
the defendant admitted that he had set the fire, and that he had been aware
that people were in the apartment building while it was being torched. In short, the evidence clearly demonstrated
that the defendant was not so overcome by intoxicants as to be incapable of
murder in the first degree. See Commonwealth v. Bousquet,
407 Mass. 854, 863‑864, 556 N.E.2d 37 (1990) (decision not to call expert
did not amount to ineffective assistance of counsel where evidence
overwhelmingly demonstrated that defendant was capable of possessing requisite
intent);
Commonwealth v. Griffith, 404 Mass. 256, 262, 534 N.E.2d 1153 (1989)
(defense counsel's failure to develop intoxication defense through expert
testimony did not constitute ineffective assistance where expert testimony
would not have accomplished something material for defense);
Commonwealth v. Doucette, 391 Mass. 443, 458, 462 N.E.2d 1084 (1984)
(no ineffective assistance of counsel where evidence did not support finding
that defendant was so overcome by intoxicants as to be incapable of first
degree murder). See also Williams v. Dixon, 961 F.2d 448, 451
(4th Cir.), cert. denied, 506 U.S. 991, 113 S.Ct.
510, 121 L.Ed.2d 445 (1992); Keys v. Duckworth, 761 F.2d 390, 394 (7th
Cir.1985). Counsel's decision not to
introduce expert testimony on this issue, did not, therefore, create a
substantial likelihood of a miscarriage of justice. (FN17)
[420 Mass. 396] [23] b. Failure to exercise
peremptory challenges. The jurors
were initially screened by the trial judge.
The judge asked the prospective jurors whether they knew or were related
to anyone involved in the case, and whether they had formed any opinions, bias
or prejudice about the case. The judge
also conducted individual voir dire with any juror
who appeared to have a potential bias or connection with the case. Several jurors who had relatives working in
firefighting or law enforcement, and who expressed a concern about their
ability to be impartial, were dismissed.
Two of the jurors, however, who admittedly had relatives involved in law
enforcement or firefighting, were allowed to sit on the jury.
The
defendant contends that failure of defense counsel to challenge these two
jurors amounted to ineffective assistance of counsel. We disagree.
In response to the judge's questions regarding their ability to be
impartial, each juror expressed a belief that they would be able to be fair and impartial
throughout the trial. Since defense
counsel was satisfied that the jurors could be impartial, there was no reason
to challenge the jurors.
[24][25]
The defendant further urges this court to adopt a rule that counsel's failure
to exercise peremptory challenges without placing his client's consent on the
record is the equivalent of the absence of counsel at a critical stage of the
proceedings, and is reversible error without a showing of prejudice. We decline to adopt such a rule. See
Commonwealth v. Owens, 414 Mass. 595, 606, 609 N.E.2d 1208 (1993)
(declining to adopt per se rule of prejudice when defendant was excluded from
examination of prospective jurors).
Although the Sixth Amendment to the United States Constitution and art.
12 of the Declaration of Rights of the Massachusetts Constitution guarantee the
right to be tried by an impartial jury, there is no Federal or State
constitutional right to exercise peremptory challenges. Commonwealth v. Wood, 389
Mass. 552, 559, 451 N.E.2d 714 (1983).
[420 Mass. 397] [26] We also decline to adopt the defendant's suggestion that
where defense counsel fails to exercise any peremptory challenges, a trial
judge is required to conduct an independent colloquy with the defendant to
ensure that he (1) understands his right to an impartial jury; (2) is satisfied with the jury as approved by
his attorney; and (3) waives his right
to exercise any peremptory challenges.
Such a rule would unnecessarily and impermissibly interfere with the
jury selection process, and would place the judge in the awkward position of
acting as the defendant's advocate. The
judge conducted an initial screening of the jurors and declared them
indifferent. He was under no further
obligation to ensure that the defendant waived his right to peremptorily
challenge potential jurors.
9. G.L. c. 278, §
33E. The defendant also asks this
court to exercise its power under G.L. c. 278, § 33E,
to reduce the defendant's first degree murder verdict to second degree
murder. We have reviewed the entire
record and conclude that reduction of the verdict is not warranted.
[27]
We further note that the fact that the trials of the codefendants may have
resulted in different outcomes does not warrant a reduction of the verdict in
this case. "[T]he mere
inconsistency of the verdicts ... is not ordinarily enough to impel us to
exercise our powers under § 33E." Commonwealth v. Pisa, 372 Mass. 590, 597,
363 N.E.2d 245, cert. denied, 434 U.S. 869, 98 S.Ct.
210, 54 L.Ed.2d 147 (1977); Commonwealth v. Simpson, 370 Mass. 119,
126‑127, 345 N.E.2d 899 (1976).
[28]
Finally, we reject the defendant's contention that he received a
"minimalist trial." The
defendant was assigned adequate counsel, received a hearing on his motion to
suppress, and had a four‑day jury trial.
Although appellate counsel might have pursued alternative trial
strategies, defense counsel's performance was not so inadequate as to deprive
the defendant of his right to counsel.
Furthermore, the trial itself was not so "riddled with error"
that it lacked the appearance of fairness and impartiality necessary to satisfy
due process. See Commonwealth v. Howard, 367 Mass. 569, 572, 327 N.E.2d 736 (1975).
[420 Mass. 398] 10. Duplicative sentences. The defendant's final contention is that,
since arson is a lesser‑included offense of second degree murder on a
felony‑murder theory, the court's imposition of concurrent sentences for
arson and second degree murder is duplicative.
We agree.
[29][30]
The jury were instructed on a felony‑murder theory of second degree
murder, with arson as the underlying felony.
The jury convicted the defendant both of second degree murder for the
death of Walsh, and of arson. "[W]henever the possibility exists that a jury might have
reached a verdict of murder ... on the basis of a felony‑murder theory, a
consecutive sentence may not be imposed for the underlying felony."
Commonwealth v. Wilson, 381 Mass. 90, 124, 407 N.E.2d 1229
(1980). Even where the sentence imposed
runs concurrently, the conviction on the underlying felony is duplicative and
must be set aside. Commonwealth v. Jones, 382 Mass. 387, 395‑396,
416 N.E.2d 502 (1981). The appropriate
remedy
for the imposition of
duplicative convictions is to vacate both the conviction and sentence on the
lesser included offense, and to affirm the conviction on the more serious
offense.
Commonwealth v. Crocker, 384 Mass. 353, 358 n. 6, 424 N.E.2d 524
(1981). Because the jury may have
convicted the defendant of second degree murder on a theory of felony‑murder,
the conviction on the underlying felony, arson, is duplicative.
Accordingly,
the case is remanded to the Superior Court.
The judgment on the arson conviction is to be vacated and the remaining
convictions are affirmed. The order
denying the defendant's motion for new trial is affirmed.
So ordered.
O'CONNOR,
Justice, dissenting.
The
court holds that the record adequately shows that, before admitting the
defendant's confessions in evidence, the judge found beyond a reasonable doubt
that the confessions were voluntary. I
disagree.
[420
Mass. 399] "It frequently
happens that a ruling on evidence requires the determination of a preliminary
question of fact.... With respect to
certain preliminary facts, especially in criminal cases, it is the practice for
the judge, after finding the facts, to instruct the jurors to disregard the
evidence if they do not believe that the preliminary facts exist. Where the voluntariness
of a confession is in issue, for example, the accused is entitled according to
the so‑called 'humane practice' to a voir dire
examination in the absence of the jury, and the confession may not be admitted
unless the judge makes an affirmative finding of voluntariness.... Other situations in which the determination
of a preliminary question is similarly shared between judge and jury include
the following: the question of whether
the requirements for a dying declaration have been established [see Commonwealth v. Key, 381 Mass. 19, 22
[407 N.E.2d 327] (1980); Commonwealth v. Polian,
288 Mass. 494, 497‑498 [193 N.E. 68] (1934); and Proposed Mass.R.Evid.
104(f) ]; the question of whether in a
criminal case the foundational requirements for admission of a document as a
business record have been met (see G.L. c. 233, §
78); and the question of whether a
document is in the handwriting of a particular person [see Commonwealth v. Tucker, 189 Mass. 457, 471 [76 N.E. 127] (1905)
]. Unlike the 'reasonable doubt'
standard of proof regarding confessions ..., a 'preponderance of the evidence'
is apparently sufficient to warrant admission and consideration of the evidence
in these situations. Commonwealth v. Polian,
supra, 288 Mass. at 498‑499 ... [193 N.E. 68] (explicitly rejecting
the 'reasonable doubt' standard); Commonwealth v. Key, supra, 381 Mass. at
25 [407 N.E.2d 327]. The jury, of
course, has no role to play unless the judge has made an affirmative finding
that the evidence is admissible.... In
the absence of an express finding of preliminary facts, the appellate court
will make the following inference[ ]:
... If the evidence is admitted, it will be inferred from the admission
that the necessary preliminary findings were made.... A preliminary [420 Mass. 400] finding
by the judge that a confession of a criminal defendant was voluntary beyond a
reasonable doubt must, however, appear from the record with 'unmistakable
clarity.' See § 9.1."
P.J. Liacos, Massachusetts Evidence, § 3.9.1, at 97‑100
(6th ed. 1994).
Section 9.1 of P.J.
Liacos, Massachusetts Evidence, at 534‑536,
contains the following relevant statements.
"Under the so‑called humane
practice followed in the commonwealth for many years ... a confession may be
admitted in evidence only after a preliminary hearing in the absence of the
jury and a determination of its voluntariness.... If the judge determines that the confession
was voluntary and admits it, the jury is instructed that they are not to
consider the confession unless satisfied that it was the voluntary act of the
defendant.... If the judge concludes
that the defendant's statement was voluntary beyond a reasonable doubt, that
conclusion must appear with unmistakable clarity from the record."
In
Commonwealth v. Tavares, 385 Mass. 140, 152, 430 N.E.2d 1198, cert. denied,
457 U.S. 1137, 102 S.Ct. 2967, 73 L.Ed.2d 1356 (1982), reasoning that "[u]nder our 'humane practice' the initial screening by the
judge is the 'basic determination safeguarding the accused,' " this court
"conclude[d]
that before any statement by a defendant to law enforcement officers or their
agents may be placed before the jury, the Commonwealth must prove voluntariness beyond a reasonable doubt. If the judge concludes that the defendant's
statements are voluntary beyond a reasonable doubt, that conclusion 'must
appear from the record with unmistakable clarity.' Sims v. Georgia, 385 U.S.
538, 544 [87 S.Ct. 639, 643, 17 L.Ed.2d 593] (1967).
Commonwealth v. Harris, 371 Mass. 462, 472 n. 4 [358 N.E.2d 982]
(1976).
Eisen v. Picard,
452 F.2d 860, 863 (1st Cir.1971) [cert. denied, 406 U.S. 950 [92 S.Ct. 2042, 32 L.Ed.2d 338] (1972) ]." [Footnote omitted.]
[420
Mass. 401] "Before our decision
in Tavares, the Commonwealth was
required to prove voluntariness only by a
preponderance of the evidence. Commonwealth v. Fournier, 372 Mass. 346,
349 [361 N.E.2d 1294] (1977). Commonwealth v. Mahnke,
368 Mass. 662, 680 [335 N.E.2d 660] (1975), cert. denied, 425 U.S. 959 [96 S.Ct. 1740, 48 L.Ed.2d 204] (1976). While the Federal constitutional concern for
due process requires only that a defendant's confession be proved voluntary by
a preponderance of the evidence, Lego v. Twomey, 404 U.S. 477 [92 S.Ct.
619, 30 L.Ed.2d 618] (1972), Tavares
established that Massachusetts' longstanding humane practice requires that both
admissions and confessions be proved voluntary beyond a reasonable doubt.
Tavares, supra at 152 [430 N.E.2d 1198]."
Commonwealth
v. Dyke, 394 Mass. 32, 36, 474 N.E.2d 172 (1985).
Thus, in 1982, in Tavares, the court created an exception, limited to defendants'
statements in criminal cases, to the general rule that in all cases, civil and
criminal, the judge's findings of preliminary facts on which the admissibility
of evidence depends need only be by a fair preponderance of the evidence. That general rule, except as to the voluntariness of defendants' statements in criminal cases,
is the law in Massachusetts to the present.
That general rule, without such an exception, is still the Federal rule. Bourjaily v. United States, 483 U.S. 171, 175, 107 S.Ct. 2775, 2778, 97 L.Ed.2d 144 (1987).
The majority states, ante at 1112: "The
judge concluded, and expressly ruled on the record, that he had found the
defendant's confession voluntary, thereby rejecting the defendant's claims that
the confessions were involuntary because of intoxication." My review of the record has not uncovered
the expressed finding, ruling or disclosure to which the court refers. In any event, no one, including this court,
suggests that the judge expressly stated that he had found the confessions
voluntary beyond a reasonable doubt. Instead, the court simply rejects "the
defendant's assertion that the judge may not have reached the determination
'beyond a reasonable doubt.' " Supra at 1112. The court says, "The judge submitted
the issue of voluntariness to the jury, as he was
required to [420 Mass. 402] do, under comprehensive instructions
of law that indicated his awareness of the proper standard of proof. It makes no sense to think that the judge
knew the standard which governed the jury's determination of voluntariness, but may not have apprehended that the same
standard applied to his decision on the motion to suppress."
Supra at 1112‑13. The
court "conclude[s] that the record is satisfactory on the point of the
necessary preliminary ruling." Supra at 1113.
In denying the defendant's motion to
suppress his confessions as not having been voluntary and in admitting the
confessions, did the judge assume that the burden of proof on the preliminary
question of voluntariness, the question being
directed to him, was only by a fair preponderance of the evidence as it is in
the Federal courts even though ultimately the burden of proving voluntariness to the jury calls for proof beyond a
reasonable doubt? Was the judge aware
that in the courts of the Commonwealth the general rule has been, and continues
to be, that the burden of proof as to preliminary questions of fact on which
the admissibility of evidence depends in both civil and criminal cases is by a
fair preponderance of the evidence? Was
the judge in any event not aware that this court in Tavares had created an exception to the general rule that was
critical to this case? How can this
court know what the judge's understanding was in this regard?
In
Tavares, the court sought to avoid such crucial uncertainties in future
criminal appeals by requiring that a judge's finding of voluntariness
beyond a reasonable doubt be clearly demonstrated by the record. Id.
at 152, 430 N.E.2d 1198. See Commonwealth v. Fernette,
398 Mass. 658, 663, 500 N.E.2d 1290 (1986) ("If the judge finds that the
defendant's statement is voluntary beyond a reasonable doubt, 'that conclusion
"must appear from the record with unmistakable clarity." '
Commonwealth v. Tavares, supra at 153, 430 N.E.2d 1198, quoting Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 [1967]"). It cannot reasonably and fairly be said in
this case that the record shows with unmistakable clarity that the judge found
the defendant's confessions to have been voluntary beyond a reasonable
doubt. On the contrary, the record [420 Mass. 403] is entirely silent with respect to what standard of proof the
judge applied in finding, as a preliminary matter, that the proffered
statements were voluntary. My view,
contrary to that of the court, is that it
does make sense to recognize that, although the judge knew the standard
that governed the jury's determination of voluntariness
and properly instructed them as to that, he may not have known the standard by
which his preliminary determination was governed in the limited situation
presented by this case. The judge may
well have mistakenly thought that the general rule applied.
In my view, the court's conclusion that
"the record is satisfactory on the point of the necessary preliminary
ruling," supra at 1113, is an
unwarranted, inappropriate departure from the "humane practice"
wisely promoted in Tavares and
followed in numerous cases since Tavares.
(FN1.) A fourth conviction (for throwing an
explosive device) was ordered placed on file with the defendant's consent.
(FN2.) According to a State arson investigator
who testified at trial, a "molotov
cocktail" is a glass container filled with gasoline and a cloth wick. Once the cloth wick is ignited, the bottle is
thrown so that the glass shatters and the vapors from the gasoline ignite.
(FN3.) The defendant testified that, although
he usually used the back door to leave his apartment, on this particular night,
he left through the front door so as to not wake his mother.
(FN4.) The defendant's apartment was
approximately eighty feet from Starcher's apartment
building.
(FN5.) The prosecutor argued in his
closing: "[T]he defendant says that
it is society that is to blame. And
[it's] his drug addiction and his liquor abuse that are to blame. Yes, he may have killed two people. The fault is not his, apparently, as his
argument goes, but it's society's. It's
drugs. It's liquor. Well, I can't answer for all of society, but
I suggest to you that this trial does raise a question which maybe none of us
would satisfactorily be able to answer.
And that is what have we become?
... Where three young men, 16,
17, and 18 years old, can go out in the middle of the night and firebomb a
house filled with people in which two people die. What have we become where they can even
consider such an act, even consider it?
Two people died. Fourteen,
fifteen, sixteen people rendered homeless.
What have we become? But that's
not the question before you today.
Because I suggest to you that whatever it is we've become, we can do
something about it by rejecting the very conduct with which this defendant is
charged, by saying to this defendant and all others that may even consider
similar conduct: 'We will not tolerate
it. We've had enough, and we're going to
do something about it when given the opportunity.' And this trial gives you the
opportunity."
(FN6.) In his closing argument, the defense
counsel argued: "Or will you think
of another victim? Because he's a
victim now and he'll be a victim for the rest of his life ... And people, strong people, they're strong
characters that move out of there and become lawyers, doctors, priests,
ministers, and there are others that go to Cedar Junction. Cedar Junction. Because they're not strong. Or they don't have the family to help
them."
Defense counsel further argued
that "[the defendant] was no more responsible for that than the people who
permitted it to exist, the sellers of drugs, the law enforcement people who
don't go after them, and the ... situation which existed."
(FN7.)
The judge should have made subsidiary and ultimate findings of fact and stated
his conclusions of law. The judge has
now retired from the bench so a remand for findings and conclusions cannot be
made.
(FN8.) Namely, an appellate court accepts the
judge's subsidiary findings of fact absent clear error, gives substantial
deference to the judge's ultimate findings and conclusions of law, but
independently reviews the correctness of the judge's application of
constitutional principles to the facts found. Commonwealth v. Fernette, 398 Mass. 658, 662‑663, 500 N.E.2d 1290
(1986).
(FN9.) The judge instructed the jury
thoroughly on the issue of voluntariness, and on
three separate occasions instructed the jury on the appropriate standard of
proof. The judge concluded his
instruction on voluntariness with the following:
"You,
the jury, and I so instruct you, are not to consider the defendant's statement
unless, upon the whole evidence in this case, you are satisfied beyond a
reasonable doubt that such statements were the free and voluntary act of the
defendant."
The
judge also went on to explain to the jury the significance of Miranda
warnings. He instructed the jury that
they had to decide that the warnings had been given, understood, and waived
before they could find the defendant's confession to be voluntary.
(FN10.) The defendant testified at the
suppression hearing that he received and signed a Miranda rights form, but that
he did not recall the police explaining to him the contents of the form. He further testified that he was not told that
he had a right to obtain a lawyer. Officer
Rodriguez testified that in addition to giving the defendant the Miranda rights
form, the police orally advised the defendant of his rights. Rodriguez testified that after signing the
form, the defendant stated that he understood his rights, and agreed to speak
with the police.
(FN11.) The defendant also contends that he
was deprived of his right to use the telephone in violation of G.L. c. 276, § 33A (1992 Ed.). The record shows, however, that the defendant
was advised of his right to make a telephone call at the time he signed the
Miranda waiver form. Furthermore, there
was testimony both at trial and at the suppression hearing that the defendant
made a telephone call sometime after his first confession.
(FN12.) According to the Commonwealth's
witnesses, the defendant gave his second confession orally at approximately 6:30 P.M.
It was not until 10:45 P.M., however, that the defendant reduced this
second confession to writing. Thus,
according to the Commonwealth's witnesses, the second confession was given less
than two hours after the initial warnings were given.
(FN13.) The defendant also challenges the
judge's instruction that intoxication can be the "basis for reducing what
the jury would otherwise find to be first degree murder or second degree murder
to either second degree murder or manslaughter." We agree that the instruction was
erroneous. Intoxication does not operate
to reduce a crime that the jury "would otherwise find to be first degree
murder," nor does it operate to reduce a first degree murder charge to
manslaughter. Because the charge favors
the defendant, however, there is no substantial likelihood of a miscarriage of
justice.
(FN14.) At trial, the defendant testified that
he had assisted in the construction of the molotov
cocktail, and that the cocktail had been thrown directly into the cement area
of the porch so that the glass would break and the device would explode. The defendant also admitted that he had been
aware that the building was "filled with people" at the time the fire
was set.
(FN15.) We include several of the judge's
remarks that the defendant challenges on appeal. Following the jury selection process, the
judge congratulated those individuals who were not chosen to sit on the
defendant's jury as having "escaped" and as "you lucky
people." The judge also stated
that it was his practice to break twice a day because "it gets kind of
tiresome just sitting here, for all of us." Later in the trial, referring to a sketch
drawn by the prosecutor, the judge stated that "[i]t
won't win any art prizes." During
the direct examination of the defendant's former girl friend, the prosecutor
asked the witness to identify her former boy friend. After the witness pointed to the defendant
and said "the one in the middle," the judge added, referring to the
defendant's trial counsel, "Harrington, you wish." The defendant also claims prejudicial error
in the judge's comments that "[w]e've just done
away with the clerk," and to a witness "[h]ey,
we'll eliminate you, too, if he keeps that up." Finally, following closing arguments, the
judge announced "I've always thought oratory was the best cure for
insomnia."
(FN16.)
The defendant bases his claim of ineffective assistance of counsel on Federal
and State constitutional grounds. We
have said that in our view, "if the Saferian test is met, the Federal test is necessarily
met as well." Commonwealth v. Fuller, 394 Mass. 251,
256 n. 3, 475 N.E.2d 381 (1985).
(FN17.) The defendant also argues that defense
counsel's failure to investigate the defendant's psychiatric history was
ineffective assistance of counsel as it deprived the defendant of a substantial
defense of mental impairment. See Commonwealth v. Grey, 399 Mass. 469,
470, 505 N.E.2d 171 (1987). Defense
counsel did in fact investigate the defendant's psychological history through a
series of interviews with the defendant.
Although further investigation into the defendant's mental history may
have been warranted, given the substantial evidence of the defendant's ability
to formulate the requisite intent, there was no substantial likelihood of a
miscarriage of justice.